The Routledge handbook of forensic linguistics 2020020527, 9780367137847, 9780429030581

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The Routledge Handbook of Forensic Linguistics

The Routledge Handbook of Forensic Linguistics offers a comprehensive survey of the subdiscipline of Forensic Linguistics, with this new edition providing both updated overviews from leading figures in the field and exciting new contributions from the next generation of forensic linguists. The Handbook is a unique work of reference to the leading ideas, debates, topics, approaches and methodologies in forensic linguistics and language and the law. It comprises 43 chapters, including entirely new contributions from many international experts, in the areas of Aboriginal claimants, appraisal and stance, author identities online, biased language in capital trials, corpus approaches, false confessions, forensic phonetics, forensic transcription, the historical courtroom, legal interpretation, multilingual law, police crisis negotiation, speaker profiling, and trolling. The chapters include a wealth of examples and case studies so the reader can see forensic linguistics applied and in action. Edited and authored by the world’s leading academics and practitioners, The Routledge Handbook of Forensic Linguistics is a vital resource for advanced students, researchers and scholars, and will also be of interest to legal, law enforcement and security professionals. Malcolm Coulthard is Emeritus Professor of Forensic Linguistics at Aston University, UK. He was Foundation President of the International Association of Forensic Linguists and founding co-​editor of the International Journal of Speech, Language and the Law (IJSLL) and is co-​editor of the international journal Language and Law/​Linguagem e Direito. Alison May (formerly Johnson) is Lecturer in English Language at the University of Leeds, UK. She is co-​author of An Introduction to Forensic Linguistics: Language in Evidence, 2nd edn. (with Malcolm Coulthard and David Wright, Routledge, 2017) and co-​editor of the International Journal of Speech, Language and the Law. Rui Sousa-​Silva is Assistant Professor and researcher of the Faculty of Arts and Humanities of the University of Porto, Portugal. He is Publicity Officer of the International Association of Forensic Linguists and co-​editor of the international journal Language and Law/​Linguagem e Direito.

Routledge Handbooks in Applied Linguistics Routledge Handbooks in Applied Linguistics provide comprehensive overviews of the key topics in applied linguistics. All entries for the handbooks are specially commissioned and written by leading scholars in the field. Clear, accessible and carefully edited Routledge Handbooks in Applied Linguistics are the ideal resource for both advanced undergraduates and postgraduate students. The Routledge Handbook of Second Language Research in Classroom Learning Edited by Ronald P. Leow The Routledge Handbook of Language in Conflict Edited by Matthew Evans, Lesley Jeffries and Jim O’Driscoll The Routledge Handbook of English Language Teacher Education Edited by Steve Walsh and Steve Mann The Routledge Handbook of Linguistic Ethnography Edited by Karin Tusting The Routledge Handbook of Research Methods in Applied Linguistics Edited by Jim McKinley and Heath Rose The Routledge Handbook of Language Education Curriculum Design Edited by Peter Mickan and Ilona Wallace The Routledge Handbook of Language and Intercultural Communication Second Edition Edited by Jane Jackson The Routledge Handbook of Forensic Linguistics Second Edition Edited by Malcolm Coulthard, Alison May and Rui Sousa-Silva The Routledge Handbook of Corpus Approaches to Discourse Analysis Edited by Eric Friginal and Jack A. Hardy The Routledge Handbook of World Englishes Second Edition Edited by Andy Kirkpatrick For a full list of titles in this series, please visit www.routledge.com/series/RHAL

The Routledge Handbook of Forensic Linguistics Second edition

Edited by Malcolm Coulthard, Alison May and Rui Sousa-​Silva

Second edition published 2021 by Routledge 2 Park Square, Milton Park, Abingdon, Oxon OX14 4RN and by Routledge 52 Vanderbilt Avenue, New York, NY 10017 Routledge is an imprint of the Taylor & Francis Group, an informa business © 2021 selection and editorial matter, Malcolm Coulthard, Alison May and Rui Sousa-​Silva; individual chapters, the contributors The right of Malcolm Coulthard, Alison May and Rui Sousa-​Silva to be identified as the authors of the editorial material, and of the authors for their individual chapters, has been asserted in accordance with sections 77 and 78 of the Copyright, Designs and Patents Act 1988. All rights reserved. No part of this book may be reprinted or reproduced or utilised in any form or by any electronic, mechanical, or other means, now known or hereafter invented, including photocopying and recording, or in any information storage or retrieval system, without permission in writing from the publishers. Trademark notice: Product or corporate names may be trademarks or registered trademarks, and are used only for identification and explanation without intent to infringe. First edition published by Routledge 2010 British Library Cataloguing-​in-​Publication Data A catalogue record for this book is available from the British Library Library of Congress Cataloging-​in-​Publication Data Names: Coulthard, Malcolm, editor. | May, Alison, 1959– editor. | Sousa-Silva, Rui, editor. Title: The Routledge handbook of forensic linguistics / edited by Malcolm Coulthard, Alison May, Rui Sousa-Silva. Description: Second edition. | London ; New York : Routledge, 2020. | Series: Routledge handbooks in applied linguistics | Includes bibliographical references and index. Identifiers: LCCN 2020020527 | ISBN 9780367137847 (hardback) | ISBN 9780429030581 (ebook) Subjects: LCSH: Forensic linguistics. Classification: LCC HV8073. 5 .R68 2020 | DDC 363 .25–dc23 LC record available at https://lccn.loc.gov/2020020527 ISBN: 978-​0-​367-​13784-​7  (hbk) ISBN: 978-​0-​429-​03058-​1  (ebk) Typeset in Times New Roman by Newgen Publishing UK

This book is dedicated to all the students who studied with us at the Universities of Aston, Birmingham, Huddersfield, Leeds, Porto and the Federal University of Santa Catarina.

Contents

List of illustrations List of conventions used List of contributors and affiliations Notes on editors and contributors Acknowledgements 1 Introduction Alison May, Rui Sousa-​Silva and Malcolm Coulthard

xii xv xvii xxi xxxi 1

SECTION I

The language of the law and the legal process

9

1.1  Legal language and legal meaning

11

2 Legal talk Socio-​pragmatic aspects of legal questioning: police interviews, prosecutorial discourse and trial discourse Alison May, Elizabeth Holt, Neveen Al Saeed and Nurshafawati Ahmad Sani

13

3 Legal writing: complexity Complex documents /​average and not-​so-​average readers Gail Stygall

32

4 Legal writing: attitude and emphasis Corpus linguistic approaches to ‘legal language’: adverbial expression of attitude and emphasis in supreme court opinions Edward Finegan and Benjamin T. Lee

48

5 Creating multilingual law Language and translation at the Court of Justice of the European Union 64 Karen McAuliffe vii

Contents

6 Legal interpretation The category of ordinary meaning and its role in legal interpretation Christopher Hutton 1.2  Witnesses and suspects in interviews and investigations 7 Miranda rights Curtailing coercion in police interrogation: the failed promise of Miranda v. Arizona Janet Ainsworth

79

93

95

8 Witnesses and suspects in interviews Collecting oral evidence: the police, the public and the written word Frances Rock

112

9 False confessors The language of false confession in police interrogation Philip Gaines and Belén Lowrey-​Kinberg

127

10 Police interviews in the judicial process Police interviews as evidence Kate Haworth

144

11 Assuming identities online Authorship synthesis in undercover investigations Nicci MacLeod

159

1.3  Language in the courtroom

175

12 Order in Court Talk-​in-​interaction in judicial settings Paul Drew and Fabio Ferraz de Almeida

177

13 Narrative in the trial Constructing crime stories in court Chris Heffer

192

14 Advances in studies of the historical courtroom (Con)Textual, ideational and interpersonal dimensions Krisda Chaemsaithong

211

15 Capitally speaking Language and bias in capital trials Mel Greenlee

228

viii

Contents

16 Multimodality in legal interaction Beyond written and verbal modalities Gregory M. Matoesian and Kristin Enola Gilbert

245

1.4  Lay participants in the judicial process

265

17 Instructions to jurors Redrafting California’s jury instructions Peter M. Tiersma

267

18 Vulnerable witnesses Vulnerable witnesses in police investigative interviews in England and Wales Michelle Aldridge-​Waddon

281

19 Rape victims The discourse of rape trials Susan Ehrlich

297

20 Defendants’ allocutions at sentencing Courtroom apologies M. Catherine Gruber

313

21 Aboriginal claimants Adjusting legal procedures to accommodate linguistic and cultural issues in hearings in Aboriginal land rights claims in the Northern Territory of Australia Peter R.A. Gray

329

SECTION II

The linguist as expert in the legal process

345

2.1  Expert and process

347

22 The forensic linguist The expert linguist meets the adversarial system Lawrence M. Solan

349

23 Trademark linguistics Trademarks: language that one owns Ronald R. Butters

364

24 Speaker profiling and forensic voice comparison The auditory-​acoustic approach Michael Jessen

382 ix

Contents

25 Forensic phonetics and automatic speaker recognition The complementarity of human-​and machine-​based forensic speaker comparison Dominic Watt and Georgina Brown

400

26 Forensic transcription The case for transcription as a dedicated branch of linguistic science Helen Fraser

416

27 Consumer product warnings Composition, identification and assessment of adequacy Bethany K. Dumas

432

28 Terrorism and forensic linguistics Linguistics in terrorism cases Roger W. Shuy

445

2.2  Multilingualism in legal contexts

463

29 Non-​native speakers in detention Assessing the English language proficiency of non-​native speakers in detention: an expert witness account Fiona English 30 Court interpreting The need to raise the bar: court interpreters as specialized experts Sandra Hale 31 Interpreting outside the courtroom ‘A shattered mirror?’ Interpreting in law enforcement contexts outside the courtroom Krzysztof Kredens, Eloísa Monteoliva-​García and Ruth Morris

465

485

502

2.3  Authorship and opinion

521

32 Experts and opinions In my opinion Malcolm Coulthard

523

33 Forensic stylistics The theory and practice of forensic stylistics Gerald R. McMenamin

539

x

Contents

34 Text messaging forensics Txt 4n6: idiolect-free authorship analysis? Tim Grant

558

35 Plagiarism Evidence-​based detection and analysis in forensic contexts Rui Sousa-​Silva

576

36 Computational forensic linguistics Computer-​assisted document comparison David Woolls

593

SECTION III

New directions

609

37 Corpus approaches to forensic linguistics Applying corpus data and techniques in forensic contexts David Wright

611

38 Corpora and legal interpretation Corpus approaches to ordinary meaning in legal interpretation Stefan Th. Gries

628

39 Police crisis negotiation An assessment of existing models Dawn Archer and Matt Todd

644

40 Investigative linguistics Jack Grieve and Helena Woodfield 41 ‘Prison has been a proper punishment’ Investigating stance in forensic and legal contexts Tammy Gales 42 Pranksters, provocateurs, propagandists Using forensic corpus linguistics to identify and understand trolling Claire Hardaker

660

675

694

43 Concluding remarks Future directions Malcolm Coulthard, Alison May and Rui Sousa-​Silva

709

Index

718 xi

Illustrations

Tables 2.1 3.1 3.2 4.1 4.2 11.1 32.1 32.2 34.1 34.2 34.3 34.4 34.5 35.1 35.2 35.3 35.4 35.5 35.6 36.1 36.2 36.3 37.1 37.2 37.3 37.4 37.5

xii

Concordance lines of SAY questions in cross-​examination in Malaysian courtroom interaction Literacy levels percentages and reading types 1992 Literacy levels percentages and reading types 2003 Attitudinal adverbials per million words in four corpora Emphatic adverbials per million words in four corpora Domains of computer-​mediated discourse analysis (from Herring 2004: 18) Word sequence length and frequency Suggested semantic labels for likelihood ratios Known messages of Jenny Nicholl Known messages of David Hodgson Two messages elicited during a police interview Questioned messages Example coding of text message Criteria to be considered plagiarism Textual overlap between Bill, Bob and Barry Similarity and uniqueness of voice in six student essays as percentages (reproduced from Coulthard et al. 2010) Comparisons between four translations Comparison of textual similarity in translingual plagiarism Comparison of the syntax that is copied into which lexical substitutions are made Word ending lists for all four main lexical classes Similarity (italics), difference (plain text) and identity (bold) in two reviews Measuring similarity Details of three case study corpora used in this analysis Top 50 ranked keywords in the Seduction Forum Corpus (using log-​likelihood) Most frequent L1 verb and R1 noun collocates of her in SFC Types of harassment expressed by verbs in the AHR corpus Verbs attributed to themselves in young people’s reports of harassment in AHR corpus

26 39 40 57 58 162 527 533 566 566 566 567 568 578 582 582 584 586 587 597 599 600 613 616 617 620 621

Illustrations

37.6

37.7 41.1 41.2 41.3 41.4 41.5 41.6 41.7 41.8 41.9 41.10 41.11 41.12 41.13 41.14 42.1

L5 to R5 collocational profile for deal in Farmer’s data, Enron Email Corpus (produced using the ‘patterns’ feature in Wordsmith Tools Concord tool) L5 to R5 collocational profile for deal in Symes’ data, Enron Email Corpus Parole denied-​status convicted person information Appraisal framework (adapted from Martin and White 2005) Key to attitude coding Attitude tokens of AmI turn 9 Key to engagement coding Engagement tokens of AmI turn 9 Key to graduation coding Graduation tokens of AmI turn 9 Engagement : contracting pronouncements Engagement : mitigating statements in AmI’s narrative Attitude: positive judgment of personal planning abilities Attitude: AnA’s negative affect and judgment of past Attitude: AnA’s positive judgment and appreciation of future Attitude: positive appreciation of experiences and plans UK legislation that can be applied to abusive, offensive and harassing language

623 623 678 679 681 682 684 685 686 686 688 688 689 689 690 690 701

Figures 2.1 11.1 13.1 15.1 16.1 16.2 16.3 16.4 16.5 16.6 16.7 16.8 16.9 16.10 16.11 16.12 16.13 16.14 18.1 18.2 20.1 20.2 20.3

Percentage of question type by activity in the trial data Apostrophe omission/​inclusion A model of jury trial as a complex genre (adapted from Heffer 2005: 71) L1 of Californians who speak English less than ‘very well’ (some stranger) (micro-​expression of disbelief But you weren’t really there?) who interdigital upstroke is interdigital downstroke a hundred and ninety-​five pounds intradigital x4 as Miss Lasch parenthetical or PP (bodies collide) (when a body collides) mental deictic gesture see upstroke see downstroke mind (pre-​body torque) (body torque and thinking face) Positioning of wooden puppets Sequencing Post-​it notes Prevalence of major content codes across allocutions How defendants responded to the offense Allocutions with offense-​topical statements, n=50

18 170 194 234 247 249 253 253 253 253 254 254 257 257 257 257 260 261 293 293 316 318 321

xiii

Illustrations

20.4 Sentencing patterns of the judges 24.1 Histogram of mean f0 in spontaneous speech among 100 male adult speakers of German 24.2 Left: Reference data for mean LTF values [Hz] in spontaneous speech and read speech for 71 male adult speakers of German. Right: LTF values in a forensic case, with one value for the questioned speaker and one separate value for each of the five readings of the transcribed text by the suspect 25.1 Wide-​band FFT spectrogram of 1-​second sample of the speech of a Swedish-​speaking male, with a sampling rate of 8kHz (upper panel); corresponding 12-​coefficient MFCC spectrogram of same utterance (lower panel) 25.2 Extract from Form 5474 Actions to be Taken on Receipt of a Bomb Threat circulated by the UK Counter Terrorism and Security Office (Tompkinson 2018). Contains public sector information licensed under the Open Government Licence v3.0 28.1 Inverted pyramid approach 29.1 Hong Kong street scene 33.1 Spelling: separation of graphemic units in digraph –​gh-​ 33.2 Punctuation: unmotivated parentheses 33.3 Punctuation: end-​quote marks 33.4 Spelling: already 33.5 Word formation: to who it may concern vs. to whom it may concern 33.6 Syntax: impersonal relative which for personal who or whom 33.7 Syntax: sequence of tenses: main clause (past) followed by subordinate clause (present) 33.8 Syntax: order of indirect and direct objects within the sentence 35.1 Comparison of paragraphs from an academic article and the British government document  39.1 Behavioural Change Stairway Model (BCSM) 39.2 S.A.F.E. 39.3 Cylindrical model (Taylor 2002: 17)

xiv

324 388

389

403

412 446 472 546 547 548 549 549 550 550 551 580 646 649 655

Conventions used

Figures and tables are numbered first according to the chapter number and then sequentially in the chapter, for example: 34.1. Data extracts and examples are numbered in each chapter and referred to by number, as (1), (2), etc., beginning at (1) for each chapter. We have used the following abbreviations for participants in data extracts in the majority of the chapters: Adult speaker (or Answer(er) where data is from official court transcripts) (A) Appropriate Adult (AA) Call Taker (CT) Caller (Ca) Convicted Person (CP) Defence barrister/​attorney (D) Interviewee (IE) Police Interviewer (IR) Judge (J) Prosecuting barrister/​attorney (Pr) Question(er) (for barrister in official court transcripts) (Q) Solicitor/​Attorney  (S) Witness in court (W) The following transcription conventions have been used (based on Jefferson 2004): Symbol (.) (2.6) () ((cough)) [ ] [((gesture)) = >


Meaning short untimed pause timed pause empty brackets for transcriber uncertainty double brackets for other sounds or descriptions of events ((telephone rings)) left bracket for overlap onset right bracket where overlapped utterances end left bracket and double parentheses for embodied action latched utterance with no pause speech within is speeded up relative to surrounding talk speech within is slowed down relative to surrounding talk rush through into the next sound

xv

Conventions used

↑ ↓ .hhh hhh °word° word word WORD lo:::ng abil-​ (B)

xvi

rise in intonation fall in intonation inbreath outbreath softer sounding than surrounding talk italicising for stress underlining for emphasis upper case for louder than surrounding talk colon for vowel lengthening cut-​off utterance (B) in parentheses for beat underneath its accompanying word or phrase

Contributors and affiliations

Dr Nurshafawati Ahmad Sani, Faculty of Languages and Communication, Universiti

Sultan Zainal Abidin, Malaysia Professor Janet Ainsworth, School of Law, Seattle University, Washington, USA Dr Neveen Al Saeed, Department of English Language and Literature, Faculty of Arts,

Ain Shams University, Egypt Dr Michelle Aldridge-​ Waddon, School of English, Communication and Philosophy,

Cardiff University, UK Professor Dawn Archer, Department of Languages, Information and Communications,

Manchester Metropolitan University, UK Dr Georgina Brown, Department of Linguistics and English Language, Lancaster

University, UK Professor Ronald R. Butters, Emeritus Professor of English and Cultural Anthropology,

Duke University, North Carolina, USA Professor Krisda Chaemsaithong, Hanyang University, Seoul, South Korea Professor Malcolm Coulthard, School of Languages and Social Sciences, Aston

University, UK Professor Paul Drew, Department of Language and Linguistic Science, University of

York, UK Professor Bethany K. Dumas, Department of English, University of Tennessee, USA Professor Susan Ehrlich, Department of Languages, Literatures and Linguistics, York

University, Canada

xvii

Contributors and affiliations

Dr Fiona English, Department of Culture, Communication and Media, UCL Institute of

Education, UK Dr Fabio Ferraz de Almeida, Centro de Ensino e Pesquisa em Inovação, FGV Direito São

Paulo, Brazil Professor Edward Finegan, Gould School of Law, University of Southern California, USA Dr Helen Fraser, Adjunct Associate Professor, University of New England, Australia Professor Philip Gaines, Emeritus Professor of English, Montana State University, USA Dr Tammy Gales, Department of Comparative Literature, Languages and Linguistics,

Hofstra University, USA Dr Kristin Enola Gilbert, Department of Criminology, Law and Justice, University of

Illinois at Chicago, USA Professor Tim Grant, School of Languages and Social Sciences, Aston University, UK The Honourable Peter R.A. Gray AM, Adjunct Professor, School of Business and Law,

Swinburne University, Australia Dr Mel Greenlee, Retired Appellate Attorney, California Appellate Project, USA. Independent

researcher and contributes to post-​conviction capital defence on a pro-​bono basis. Professor Stefan Th. Gries, University of California, Santa Barbara, USA and Justus

Liebig University, Giessen, Germany Professor Jack Grieve, Department of English Language and Linguistics, University of

Birmingham, UK Dr M. Catherine Gruber, Independent Researcher in Chicago, Illinois, USA Professor Sandra Hale, School of Humanities and Languages, University of New South

Wales, Australia Dr Claire Hardaker, Department of Linguistics and English Language, Lancaster

University, UK Dr Kate Haworth, School of Languages and Social Sciences, Aston University, UK Dr Chris Heffer, School of English, Communication and Philosophy, Cardiff University,

UK Dr Elizabeth Holt, School of Music, Humanities and Media, University of Huddersfield,  UK

xviii

Contributors and affiliations

Professor Christopher Hutton, School of English, Hong Kong University, HK Dr Michael Jessen, Bundeskriminalamt Sprache und Audio, Wiesbaden, Germany Dr Krzysztof Kredens, School of Languages and Social Sciences, Aston University, UK Benjamin T. Lee, Harvard Law School, Cambridge, Massachusetts, USA Dr Belén Lowrey-​Kinberg, Department of Sociology and Criminal Justice, Saint Francis

College, New York, USA Dr Nicci MacLeod, Department of Humanities, Northumbria University, UK Professor Gregory M. Matoesian, Department of Criminology, Law and Justice, University

of Illinois at Chicago, USA Dr Alison May, School of English, University of Leeds, UK Professor Karen McAuliffe, School of Law, University of Birmingham, UK Professor Gerald R.  McMenamin, Department of World Languages and Literatures,

University of Nevada-​Reno, USA Dr Eloísa Monteoliva-​García, Languages and Intercultural Studies Department, Heriot-​

Watt University, UK Dr Ruth Morris, Freelance Interpreter and Translator, Israel Dr Frances Rock, School of English, Communication and Philosophy, Cardiff

University, UK Professor Roger W.  Shuy, Emeritus Professor of Linguistics, Georgetown University,

Washington, DC, USA Professor Lawrence M. Solan, Brooklyn Law School, New York, USA Dr Rui Sousa-​Silva, Faculty of Arts and Humanities, University of Porto, Portugal Professor Gail Stygall, Department of English, University of Washington, Seattle, USA Professor Peter M. Tiersma (1952–​2014), Loyola Law School, Los Angeles, USA Detective Sergeant Matt Todd, Hostage Crisis Negotiation Unit, Greater Manchester

Police, UK Dr Dominic Watt, Department of Language and Linguistic Science, University of

York, UK

xix

Contributors and affiliations

Helena Woodfield, Department of English Language and Linguistics, University of

Birmingham, UK David Woolls, Elute Intelligence Limited, UK Dr David Wright, School of Arts and Humanities, Nottingham Trent University, UK

xx

Notes on editors and contributors

Nurshafawati Ahmad Sani is currently a senior lecturer in English Language in the Faculty

of Languages and Communication at the Universiti Sultan Zainal Abidin, Malaysia, where she teaches courses in English for Law and Linguistic Studies. She completed a PhD in English at the University of Leeds entitled ‘Questioning and Answering Strategies in Malaysian Criminal Proceedings: A corpus-​based forensic discourse analysis’ (May 2019). Her research interests include forensic linguistics, corpus linguistics, discourse analysis and pragmatics. Janet Ainsworth is the John D. Eshelman Professor of Law at Seattle University. Before

joining the law faculty, she practiced law as a public defender. Her scholarship explores the application of linguistic research to legal issues and the analysis of language ideology in law. She is the author of numerous book chapters and articles in social science journals and law reviews. Neveen Al Saeed is a lecturer in Linguistics at the Department of English Language and

Literature, Ain Shams University, Egypt. Her doctoral thesis, awarded by the University of Leeds, focused on power and resistance in interrogations of suspects in the Egyptian judicial system. Her research interests in language and the law/​forensic linguistics are focused on the language of interrogations and prosecutors’ discourse in particular. Her research is informed by pragmatics, discourse analysis and corpus linguistics. Michelle Aldridge-​Waddon is a senior lecturer in the School of English, Communication

and Philosophy at Cardiff University. Her main interests are in child language acquisition, communication disorders, forensic linguistics, professional communication and psycholinguistics. Her research focus is on the linguistic experiences of vulnerable people (children, rape victims and people with a disability) and their interactions with professionals especially within the legal system. She is involved in police investigative interview training and has organized conferences in her research related fields. Dawn Archer is Professor of Pragmatics and Corpus Linguistics at Manchester

Metropolitan University. Her forensic/​legal interests cover four main areas: the (historical) courtroom, police negotiation, airport safety/​security and (with respect to deception and its detection specifically) public appeal and police interview contexts. She has worked with, consulted for and/​or trained professionals engaged in (European) airport safety (with the EIA Group) and (UK) police negotiation. She has also consulted for an Investigation Discovery TV series on the language of deception, and its detection. xxi

Notes on editors and contributors

Georgina Brown is Lecturer in Forensic Linguistics at Lancaster University, UK. Her

research combines a number of subareas of speech science, with a focus on forensic speech technology (accent recognition and speaker recognition systems) and how phonetic and sociophonetic research can be applied to maximize the potential of these technologies. She developed the Y-​ACCDIST automatic accent classifier system, and she is continuing to look into how we can use other types of speech technology for forensic purposes. Ronald R. Butters (http://​trademarklinguistics.com/​) is Emeritus Professor of English and

Cultural Anthropology and former chair of the Linguistics Program at Duke University, where he began teaching in 1967. He was president of the International Association of Forensic Linguists (2009–​11) and one of the co-​editors of The International Journal of Speech, Language and the Law. He maintains an active presence in American forensic linguistic consulting; his practical and scholarly interests include (1) ethical issues in forensic linguistic consulting, (2) statutes and contracts, (3) death penalty appeals, (4) copyrights, (5) discourse analysis of linguistic evidence and (6) semiotic and linguistic issues in trademark litigation. Krisda Chaemsaithong is Professor of English Linguistics at Hanyang University (Seoul,

South Korea), where he teaches and supervises research on (Historical) Discourse Analysis and Pragmatics. He has published widely about courtroom discursive practices, investigating such issues as identity construction, relational management, intertextuality and authorial evaluation. His current project explores the use of reference terms in capital trials. Malcolm Coulthard is Professor of Forensic Linguistics and Foundation Director of the

Centre for Forensic Linguistics at Aston University, which, since 2006, has hosted the annual International Summer School in Forensic Linguistic Analysis. He was the Chair of the Founding Committee of the International Association of Forensic Linguists and its first President and the founding co-​editor of the International Journal of Speech, Language and the Law. Over the past 20 years, he has written reports in some 200 cases. His most recent completed authorship case was the $50 billion Yukos Arbitration case settled in the Hague in February 2020. He is co-author with Alison Johnson and David Wright of An Introduction to Forensic Linguistics: Language in Evidence (Routledge, 2017). Paul Drew conducts research on conversation and interaction, including repair, topic

and how social actions (such as offering, requesting and complaining) are managed in interaction. He also works extensively on institutional and workplace interactions, notably questioning in courtroom examination, and medical (especially doctor–​ patient) interactions. He is author and editor (with John Heritage) of Talk at Work: Interaction in Institutional Settings (Cambridge University Press, 1992). Bethany K. Dumas, JD, PhD (Professor of English, University of Tennessee) publishes on

language variation, discourse analysis, and language and law, especially jury instructions and product warnings. Courses include Language and Law, Rhetoric of Legal Discourse, Lawyers in Literature, American English Dialects, Discourse Analysis and Talkin’ Trash. She has testified in court cases since 1984. Susan Ehrlich is Professor of Linguistics at York University in Toronto. She does research

in the areas of discourse analysis, language and gender, and language and the law. xxii

Notes on editors and contributors

Books include Representing Rape (Routledge, 2001), ‘Why Do You Ask?’: The Function of Questions in Institutional Discourse (Oxford University Press, 2010, co-​edited with Alice Freed), The Handbook of Language, Gender and Sexuality (second edition, Wiley-​ Blackwell, 2014, co-​edited with Miriam Meyerhoff and Janet Holmes) and Discursive Constructions of Consent in the Legal Process (Oxford University Press, 2016, co-​edited with Diana Eades and Janet Ainsworth). She is currently co-​ editor of the journal, Language in Society (Cambridge University Press), with Tommaso Milani. Fiona English is Honorary Senior Research Associate in the Department of Culture,

Communication and Media at the UCL Institute of Education, where she received her PhD. She is the author of Student Writing and Genre (2011) and, with Tim Marr, Why Do Linguistics? (2015) and Rethinking TESOL in Diverse Global Settings (2019) all with Bloomsbury Academic. She also acts as a language expert in legal cases involving non-​ native English-​speaking detainees, undertaking oracy and literacy assessments and providing court reports on her findings. Fabio Ferraz de Almeida has a PhD from Loughborough University. He is a sociolegal

researcher currently working at the Center for Education and Research in Innovation (FGV São Paulo Law School) and has conducted research on police and judicial institutions in Brazil and the United Kingdom. His research interests include communicative practices in legal settings and social interactions between lay people and legal professionals. Edward Finegan is Professor of Linguistics and Law, Emeritus, at the University of

Southern California. He taught discourse analysis in the Linguistics Department and legal writing in the law school and has served for over 40  years as a consultant and expert in forensic linguistics. He is author of numerous books and articles, including Language: Its Structure and Use (Cengage, 2015); Language in the USA: Themes for the Twenty-​first Century (Cambridge University Press, 2004, edited with John R. Rickford); The Longman Grammar of Spoken and Written English (Longman, 1999, with others); and Sociolinguistic Perspectives on Register (Oxford University Press, 1994, edited with Douglas Biber). He currently serves as editor of Dictionaries: Journal of the Dictionary Society of North America. Helen Fraser is Adjunct Associate Professor at the University of New England in Australia,

where she taught phonetics and related subjects from 1990 to 2008. Occasional expert witness case work, from the 1990s, gradually led her to a research interest in forensic transcription, and she has published widely on factors that affect comprehension of indistinct forensic audio. Since 2011, she has worked actively to bring effective reform to legal procedures for admission and use of indistinct covert recordings used as evidence in Australian criminal trials. Philip Gaines is Emeritus Professor of English at Montana State University. His research

focuses on the discourse of the US legal and law enforcement systems –​in particular the language of trial attorneys and police investigators. His book From Truth to Technique at Trial: A Discursive History of Metavalues in Trial Advocacy Texts (Studies in Language and Law, Oxford University Press, 2016) examines the role of notions of truth and justice in advocacy advice texts from the 17th century to the modern day. His current book project xxiii

Notes on editors and contributors

explores the ways in which police investigators discursively construct incrimination during the interrogation of innocent suspects. He has authored journal articles in Discourse and Society, the International Journal of Speech, Language and the Law, the American Journal of Legal History and the Journal of Pragmatics, as well as book chapters with Ashgate, Oxford University Press and the University of Chicago Press. He is also a contributor to the Encyclopedia of Applied Linguistics. Tammy Gales is Associate Professor of Linguistics and the Director of Research at the

Institute for Forensic Linguistics, Threat Assessment and Strategic Analysis at Hofstra University in New  York. Her primary research areas utilize corpus and discourse analytic methods to examine authorial stance in threatening communications, courtroom discourse and other forensic contexts. She has trained law enforcement agents from agencies across Canada and the US and applied her research to criminal and civil cases for both prosecution and defence. Kristin Enola Gilbert received her PhD in the Department of Criminology, Law and

Justice at the University of Illinois at Chicago. Her work studies language and gesture in legal settings. She has peer-​reviewed articles in Gesture, Discourse and Communication, Narrative Inquiry, Multimodal Communication, International Journal of Speech, Language and the Law and is co-​author (with Gregory M. Matoesian) of Multimodal Conduct in the Law (Cambridge University Press, 2018). She is currently (with Gregory M. Matoesian) completing a study on focus group evaluations of community policing training using a multimodal approach. Tim Grant is Director of the Centre for Forensic Linguistics at Aston University. His

consultancy primarily involves authorship analysis and he has worked in many different contexts including investigations into sexual assault, murder and terrorist offences. His research into text messaging analysis was awarded the 2008 Joseph Lister Prize by the British Science Association. Peter R.A. Gray was a judge of the Federal Court of Australia for 29 years. During part

of that time, he was also Aboriginal Land Commissioner. He became interested in issues of cross-​cultural communication in the legal system. That interest led him to a biennial conference of the International Association of Forensic Linguists in 2003 and to membership of that association since then. Since his retirement in 2013, Peter has been trying to teach law students about language issues and to obtain a qualification in linguistics. He currently teaches (with John Gibbons) a subject called Language, Communication and the Legal Process at Monash University Law School. He also co-​teaches in the Legal Writing course in the law school at Swinburne University, where he is an Adjunct Professor. He is nearing completion of a Master of Applied Linguistics at the University of New England. Mel Greenlee received her PhD in Linguistics and JD from the University of California,

Berkeley. She conducted research on language acquisition, bilingualism and other sociolinguistic topics before embarking on a quarter-​century career in criminal defence, specializing in capital appeals and habeas corpus matters in California. During that time, she has also conducted linguistic analysis of courtroom language, addressing such issues

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Notes on editors and contributors

as implications of prosecutors’ arguments, defence objections and the role of language in determining a defendant’s competence to stand trial or for self-​representation. Stefan Th. Gries is Professor of Linguistics in the Department of Linguistics at the

University of California, Santa Barbara and a Chair of English Linguistics (Corpus Linguistics with a focus on quantitative methods, 25%) at the Justus-​Liebig-​Universität Giessen. He was a Visiting Chair (2013–​2017) of the Centre for Corpus Approaches to Social Science at Lancaster University, the Honorary Leibniz Professor of Leipzig University (2017), and a Visiting Professor at five recent LSA Linguistic Institutes. Jack Grieve is Professor of Corpus Linguistics in the Department of English Language

and Linguistics at the University of Birmingham. He was previously employed as a Lecturer and Senior Lecturer in Forensic Linguistics at Aston University. He has consulted on over a dozen cases of disputed authorship and was awarded a Director’s Commendation from the National Crime Agency (UK) in 2019 for his work on authorship profiling. M. Catherine (Katie) Gruber received her PhD in linguistics from the University of Chicago

in 2007. She published ‘I’m Sorry for What I’ve Done’:  The Language of Courtroom Apologies (Oxford University Press) in 2014. Her research interests centre on context effects on the way speech is understood and the communication of affect. She lives in Chicago, Illinois. Sandra Hale is Professor of Interpreting and Translation and program convenor at the

University of New South Wales, Australia. She is an experienced Spanish interpreter, educator and researcher. She was the key driver in the development of the Recommended National Standards for Working with Interpreters in Courts and Tribunals and leader of the multi-​institutional team that led the NAATI review in 2012. Her research focus is in legal interpreting, using discourse analytical and experimental methods. She regularly delivers workshops to the judiciary in Australia on how to effectively work with interpreters. Claire Hardaker is a senior lecturer in forensic corpus linguistics at Lancaster University, in

the Department of Linguistics and English Language. She specializes in online deception, manipulation and aggression, and has worked in the past with Twitter, the BBC, HMG and others. She produces a podcast called en clair dedicated to forensic linguistics, literary detection, language mysteries and more. Her Twitter handle is @DrClaireH. Kate Haworth is a lecturer at the Centre for Forensic Linguistics at Aston University. She

is also a barrister (non-​practicing). Her research interests include all aspects of language and the law, especially language as evidence. Chris Heffer is Reader in Forensic Linguistics at the Centre for Language and

Communication Research at Cardiff University. He is the author of The Language of Jury Trial (Palgrave, 2005) and All Bullshit and Lies? (Oxford University Press, 2020), the editor of Legal-​Lay Communication (Oxford University Press, 2013) and has published

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Notes on editors and contributors

articles in linguistic and legal journals on various aspects of the trial process. He is on the editorial board of the OUP Language and Law series. Elizabeth Holt is Head of Linguistics and Modern Languages at the University of

Huddersfield. She is editor and author (with Rebecca Clift) of Voicing: Reported Speech and Footing in Conversation (Cambridge University Press, 2007). She has had papers published in the journals Language and Society, Research on Language and Social Interaction, Social Problems and Text. Christopher Hutton is Chair Professor in the School of English at the University of Hong

Kong. His research concerns the history of linguistics, in particular the relationship between linguistics and race theory, and questions of linguistic meaning and legal interpretation. His publications include Linguistics and the Third Reich (Routledge, 1999), Race and the Third Reich (Polity Press, 2005), Word Meaning and Legal Interpretation (Palgrave Macmillan, 2014), Integrationism and the Self (Routledge, 2019), and The Tyranny of Ordinary Meaning (Palgrave, 2019). Michael Jessen (PhD Linguistics, Cornell University) is a forensic expert and researcher

at the language and audio unit of Bundeskriminalamt, Germany. He is interested in how methods from phonetics and linguistics can be combined forensically with those from speech technology. Since 2009 he has been co-​editor of the International Journal of Speech, Language and the Law. He has co-​authored Methodological Guidelines for Best Practice in Forensic Semiautomatic and Automatic Speaker Recognition (2015), developed within ENFSI (European Network of Forensic Science Institutes). Krzysztof Kredens received his MA in English Studies and PhD in English Linguistics

from the University of Lodz, Poland. He is Lecturer in Applied Linguistics in the School of Languages and Social Sciences at Aston University, UK. His academic interests include corpus linguistics, translation studies and social applications of linguistics. His main research interest lies with language and the law, and particularly the linguistics of the individual speaker and its implications for forensic authorship analysis. He is a practicing public service interpreter. Benjamin T. Lee is a JD candidate at Harvard Law School. His research interests include

constitutional jurisprudence, language variation and change, and lexical ambiguity. Prior to law school, he was a Law and Corpus Linguistics Research Fellow at Brigham Young University Law School, during which time he published on constitutional law, assisted in Supreme Court amicus briefs and consulted on the development of several large legal corpora. Belén Lowrey-​Kinberg is an assistant professor in the Department of Sociology and

Criminal Justice at St. Francis College. She has been a consulting researcher on several large projects including President’s Task Force on 21st Century Policing and the Prosecutorial Charging Practices Project by the Deason Criminal Justice Reform Center. Her research has been published in criminal justice and linguistics peer-​reviewed journals and focuses on the application of linguistics to the criminal justice system, including police–​citizen interactions and wrongful convictions.

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Nicci MacLeod is a senior lecturer in English Language and Linguistics at Northumbria

University in Newcastle upon Tyne. She has published widely on the topics of investigative interviewing and online identities, and maintains an interest in discourse analysis across a range of forensic genres. She is a forensic linguistic consultant, and has carried out work on behalf of the Serious Organised Crime Agency, the Independent Police Complaints Commission and a number of other police forces, defence solicitors and corporate clients. Gregory M. Matoesian is a sociolinguist who examines the integration of language and

gesture in the construction and co-​construction of legal context. His work demonstrates how macro-​structures of space-​time inhere in the microcosmic features of what Erving Goffman called ‘the interaction order’. He is the author of numerous publications on language and law including Reproducing Rape: Domination through Talk in the Courtroom (University of Chicago Press, 1993), Law and the Language of Identity (Oxford University Press, 2001), Translating the Social World for Law (edited with Elizabeth Mertz and William Ford, Oxford University Press, 2016), and Multimodal Conduct in the Law (with Kristin Gilbert, Cambridge University Press, 2018). He is currently (with Kristin Gilbert) completing a book-​length study on the sociocultural and multimodal analysis of focus group evaluations of community policing training. He is a professor in the Department of Criminology, Law and Justice at the University of Illinois at Chicago. Alison May (formerly Johnson) is a lecturer in English language and linguistics at the

University of Leeds. Her doctoral research was on the pragmatics of questions in police interviews and her research interests are in the pragmatics of legal talk, particularly in questioning, narrative and evaluation, the historical courtroom, authorship and plagiarism. She is author (with Malcolm Coulthard and David Wright) of Language in Evidence: An Introduction to Forensic Linguistics (second edition, Routledge, 2017). Karen McAuliffe is Professor of Law and Language, and Birmingham Fellow at the School

of Law, University of Birmingham. Her research interests lie mainly in the production of multilingual law, and the impact that multilingualism may have on the development of supranational law. She has recently completed a large ERC-​funded project on ‘Law and Language at the European Court of Justice’ (The LLECJ Project), and has published extensively in the field. Gerald R.  McMenamin is Lecturer in Spanish Linguistics at the University of Nevada,

Reno. He is Professor Emeritus of Linguistics at California State University, Fresno, where he has taught since 1980, after teaching assignments at the Universidad Autónoma de Guadalajara, University of Delaware and UCLA. His research specialties include Spanish linguistics, second language acquisition, stylistics, linguistic variation and forensic linguistics. He received his MA in General Linguistics from California State University, Fresno and Doctorado en Lingüística Hispánica from El Colegio de México, México, DF. He is the author of several books, including Forensic Linguistics:  Advances in Forensic Stylistics (CRC Press, 2002) and Introducción a la lingüística forense: un libro de curso (The Press at California State University, 2017), and various articles on language acquisition, linguistic variation and forensic linguistics. He presently works as a consultant and expert witness in forensic linguistics.

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Notes on editors and contributors

Eloísa Monteoliva-​García is Assistant Professor in Spanish (Translation & Interpreting)

and Programme Director of post-​graduate programmes in Translation & Interpreting at the Languages & Intercultural Studies Department at Heriot-​Watt University, where she obtained her PhD on police interpreting in 2017. Eloísa worked as an assistant professor of Spanish at John Jay College of Criminal Justice, New York City, between 2017 and 2019 and her research explores interpreter-​mediated communication in police and legal settings, interpreter-​mediated discourse and translator and interpreter education. She has collaborated in several research projects on interpreting in legal settings, including the CO-​ Minor-​IN/​QUEST project and the UK adaptation of the UNHCR Training Handbook on Asylum Interpreting, and is the author of a scholarly review of publications on legal and judiciary interpreting sponsored by SSTI, the Society for the Study of Translation and Interpretation of NAJIT. Ruth Morris is a former Brussels-​based European Union staff interpreter. In the early

1980s, she became a freelance interpreter and translator in Israel, where she also gives a research seminar on interpreting in the legal system at Bar-​Ilan University’s master’s programme in translation studies. Her first casework sparked an enduring and passionate research interest in the area of interpreting in the legal system, including observations at the multilingual Demjanjuk trial, as well as historical and contemporary views of the interpreter in various English-​speaking legal systems. Frances Rock is Reader in the Centre for Language and Communication Research, which

is part of the School of English, Communication and Philosophy. Her work draws on discourse analysis, interactional sociolinguistics and linguistic ethnography to investigate, teach and learn about language and communication in the social world. She is a founding member of Cardiff Language and Law (CaLL) and the Linguistic Ethnography Discussion and Study Group (LEDS) and a Fellow of the Crime and Security Research Institute. She is author of Communicating Rights (Palgrave, 2007). Roger W. Shuy is Emeritus Professor of Linguistics at Georgetown University following

30 years’ service that continues through his company, Roger W. Shuy, Inc., incorporated in 1982. Over the past 40  years he has consulted on some 500 cases and has testified as an expert witness 54 times in criminal and civil trials (in 26 states), as well as before the US Senate and US House of Representatives. He is author of numerous books and articles, including:  Fighting over Words (Oxford University Press, 2007), Linguistics in the Courtroom:  A Practical Guide (Oxford University Press, 2006), Creating Language Crimes: How Law Enforcement Uses (and Misuses) Language (Oxford University Press, 2005) and Linguistic Battles in Trademark Disputes (Palgrave, 2002). Lawrence M. Solan is the Don Forchelli Professor of Law and Director of the Center

for the Study of Law, Language and Cognition at Brooklyn Law School. He holds a PhD in Linguistics from the University of Massachusetts and a JD from Harvard Law School. His writings address such issues as legal interpretation, the attribution of responsibility and blame, and the role of the expert in the courts. His books include The Language of Judges (1993), Speaking of Crime (2005, with Peter Tiersma) and Under the Law:  Statutes and their Interpretation (2010), all published by the University of Chicago Press.

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Rui Sousa-​Silva is Assistant Professor at the Faculty of Arts and Humanities of the

University of Porto. He holds a PhD in Forensic Linguistics from Aston University, Birmingham, UK. His primary research areas are forensic authorship analysis, plagiarism detection and analysis of cybercriminal communications. He is co-​editor (with Malcolm Coulthard) of the international bilingual journal Language and Law /​Linguagem e Direito. Gail Stygall is Professor of English at the University of Washington, Seattle, WA,

US, where she teaches English language courses and writes about legal discourse and forensic issues. She has consulted on a variety of cases and is especially interested in cases involving lay understanding of complex documents. She is author of Trial Language: Differential Discourse Processing and Discursive Formation (Benjamins,  1994). Peter M.  Tiersma, prior to his untimely death in 2014, taught at Loyola Law School in

Los Angeles, where he held the Judge William Matthew Byrne chair. He had a PhD in Linguistics from the University of California, San Diego, and a juris doctor degree from the University of California, Berkeley. His books include Legal Language (University of Chicago Press, 1999), and Speaking of Crime:  The Language of Criminal Justice (University of Chicago Press, 2005)  and the Oxford Handbook of Language and Law (Oxford University Press, 2012), both with Lawrence Solan. Matt Todd is a serving UK Police Officer with 28  years’ experience, 15 of those as a

Hostage and Crisis Negotiator. He is a director for Police National Hostage Negotiation Training in the UK. In 2015 he completed the FBI Hostage Negotiation Course. He has delivered Hostage and Crisis Negotiation Training to law enforcement agencies around the world and deployed to hundreds of crisis incidents from suicide intervention to barricade siege scenarios. Matt is currently studying for a PhD with Manchester Metropolitan University, researching new and existing negotiation tactics and how they might be used to influence marauding terrorist attacks by understanding the communicative behaviours between negotiators and attackers. Dominic Watt is Senior Lecturer in Forensic Speech Science at the University of York,

UK. He has research interests in forensic linguistics and phonetics, speech perception, sociophonetics, and language and identity studies. His publications include The Handbook of Dialectology (Wiley, 2017), Language, Borders and Identity (Edinburgh UP, 2014), Language and Identities (Edinburgh UP, 2010)  and English Accents and Dialects (Hodder, 2012). He undertakes occasional forensic speech analysis casework on behalf of JP French Associates, York. Helena Woodfield is a PhD student in Applied Linguistics in the Department of English

Language and Linguistics at the University of Birmingham. She has a BA in Linguistics from SOAS University of London and MA in Forensic Linguistics from Aston University. Her PhD research focuses on the linguistic analysis of disinformation. David Woolls is the founder of Elute Intelligence Limited, UK (Formerly CFL Software

Limited). Since the late 1980s he has been developing software programs, all of which apply forensic linguistic approaches and specialize in the comparison of electronically stored documents. He has contributed chapters on plagiarism to the Elsevier Encyclopedia

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of Language and Linguistics (second edition, 2006) and the Oxford Handbook of Language and Law (2012). David Wright is Senior Lecturer in Linguistics at Nottingham Trent University, UK. His

research applies corpus linguistics and discourse analysis to forensic contexts across areas of language in the law and evidence and discourses of abuse, harassment and discrimination. He is author (with Malcolm Coulthard and Alison May) of An Introduction to Forensic Linguistics: Language in Evidence (second edition, Routledge, 2017) and reviews editor for Language and Law –​Linguagem e Direito edited by Malcolm Coulthard and Rui Sousa-​Silva.

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Acknowledgements

Parts of this Handbook have been written in Brazil, England, Holland, Portugal, Sicily and several parts of the USA  –​and that’s just the editors’ contributions  –​and those locations have provided us with inspiration and wonderful places for writing and editing. We would like to acknowledge the support and hard work of all our contributors and also our grateful thanks for invaluable editorial assistance with proofing and the production of the Index from David Woolls and Joe Cupit.

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1 Introduction Alison May, Rui Sousa-​Silva and Malcolm Coulthard

Introduction When Halliday wrote ‘language is as it is because of what it has to do’ (Halliday 1973: 34), a functional theory of language was born, giving us a perspective of meaning-​making that is grounded in social practice and in the many varied and complex contexts in which we find ourselves. The legal world is context-​rich. It is peopled by a hierarchical mini-​nation of judges, lawyers, police and law enforcement officers, along with the ordinary men and women who encounter this strange world. Its texts are richly layered with meaning; its peculiar grammar and lexis have evolved over many centuries as a result of a history of specialised use. What legal people do with lay people through legal language, legal texts and legal interaction is the focus of this Handbook. Leading scholars from a range of disciplines, including language and law, examine the ways in which language has been and continues to be used, who is using it, how they are writing and speaking, why they are interacting in that way and what is being accomplished through that interaction. The aim of this Handbook is to provide a unique work of reference to the main ideas, debates, topics, approaches and methodologies within Forensic Linguistics, with chapters written by the world’s leading academics and practitioners, both established and up-​and-​ coming. Our intended audience is advanced undergraduates, graduates and research students, as well as established researchers in other disciplines who are new to forensic linguistics. This Handbook is designed as a comprehensive advanced introduction to core issues and topics in contemporary forensic linguistics. The contributions display a richness of both examples and case studies to enable the reader to see forensic linguistics applied and in action. Contributors come from a wide range of countries and numerous professions  –​academics, lawyers, freelance consultants, interpreters and translators, a computer program developer, a police officer, a judge and a police investigative agent. They also come from a wide range of fields:  anthropology, communication, computer science, criminology, English, humanities, law, linguistics, modern languages, phonetics, sociology, translation studies, and, in addition, some of the contributors have previous professional experience as lawyers and police officers. As a group, we are truly multi-​and cross-​disciplinary in composition and often in approach. 1

May, Sousa-Silva and Coulthard

What is forensic linguistics? The textbook, An Introduction to Forensic Linguistics: Language in Evidence (Routledge, 2017), organises material into two sections: the language of the legal process and language as evidence. In other words, it makes a distinction between the description of the language of the law (both written and spoken) and the work of the expert linguist, which, of course, involves both the production of written reports and the presentation of oral evidence in court. This binary distinction blurs the boundary between written and spoken language but there are good reasons for sub-​dividing the field instead into three areas: i) the study of the written language of the law; ii) the study of interaction in the legal process, which in criminal cases includes everything from an initial call to the emergency services to the sentencing of someone who has been found guilty; and iii) the description of the work of the forensic linguist, when acting as an expert witness. This tri-​partite division must, however, not allow us to forget that a) some fixed-​form written texts, like the police caution, the Miranda Warnings and Pattern Jury Instructions, are ‘performed’ or perhaps better ‘verbalised’ as part of what are otherwise real-​time, now-​encoding spoken interactions; b) in some jurisdictions, police investigative interviews are standardly audio-​or video-​ recorded and these recordings are subsequently transcribed into written form using ordinary orthography; c) these written interview transcripts are frequently reconverted into speech in the courtroom with a lawyer, usually the prosecutor, performing the part of the accused and the police witness playing him/​herself; and d) expert forensic linguists typically provide their evidence first in written and then, if called to give evidence in court, in spoken modes. The question of what forensic linguistics is becomes more apparent in the chapter titles and specifically in their content; they cover a wide range of sub-​fields of forensic linguistics, as you can see below, where we explain the contents and organisation of the Handbook.

Contents and organisation After this introductory chapter, the almost encyclopaedic array of topics covered in the remaining 42 chapters is organised into three major sections: Section I: The language of the law and the legal process Section II: The linguist as expert in legal processes Section III: New directions. Within each of these sections the reader will find themed collections of three to six chapters grouped for convenience, but this must not be taken to imply isolation, as there are, in fact, as many connections across groups as there are between the chapters within any given group. For example, the common denominator across the five chapters in the section titled ‘Lay participants in the judicial process’ is a focus on who is talking or being spoken about 2

Introduction

(jurors, vulnerable witnesses, rape victims, defendants, Aboriginal claimants), but in a sense that link is arbitrary, because the authors themselves didn’t necessarily identify that theme. It was we, the editors, who made the connection, and we who now invite you to see the many other possible inter-​chapter links. Such is the nature of reading and research; the intellectual activity that enables us to perceive connections between ideas creates new areas of scholarship and, as each of you reads chapters in the multiple combinations that are possible with such an extensive collection, we anticipate a blossoming research landscape in our next and successive springs. We do, however, make many explicit connections between ­chapters –​by saying, for example, Archer and Todd (Chapter 39, this volume) –​ to help readers locate relevant material elsewhere in the volume. We hope you will go on a journey of discovery and that soon your own work will join the already extensive library of books, chapters, papers, corpora and software in this growing field.

Section I –​The language of the law and the legal process The Handbook begins with five chapters on legal language and legal meaning in Subsection 1.1. Subsection 1.1  Legal language and legal meaning Though much of the research on legal language focuses on written texts, the first chapter in the subsection, by May, Holt, Al Saeed and Ahmad Sani, takes speech as its subject and puts talk ahead of writing as the primary mode of communication. This chapter is one of several that examine questions, the most characteristic of legal interactional forms, and it focuses on and-​ and so-​prefaced questions, formulations and repeating questions. The following chapters deal with written legal texts: Stygall with complexity, Finegan and Lee with attitude and emphasis, McAuliffe with translation and Hutton with interpretation. Stygall deals with the real-​world problems that readers encounter when they try but often fail to understand pension documents. Finegan and Lee examine written opinions, using data from the California and US Supreme Courts and focus, in particular, on adverbial expressions of judicial attitude and emphasis. Though legal drafters are expected to be dispassionate, attitudinal and emphatic adverbs are abundant in Finegan and Lee’s corpus and they demonstrate how an empirical corpus analysis of judges’ opinions can reveal ‘justice with attitude’. McAuliffe’s and Hutton’s chapters are entirely new to this edition. McAuliffe focuses on the law of the Court of Justice of the European Union (CJEU) to study the relationship between law, language and translation in the EU legal order, to illustrate the limitations of a multilingual legal system. Hutton examines the tensions holding between ordinary language and legal interpretation, focusing primarily on issues arising when judges interpret common English words embedded in legal texts. Subsection 1.2 Witnesses and suspects in interviews and investigations The five chapters of Subsection 1.2 are concerned with participants and issues in police investigations. Ainsworth, Rock, Gaines and Lowrey-​Kinberg, and Haworth all deal with police interviews and interrogations. ‘Interview’ seems the preferred term in the UK with ‘interrogation’ more usual in the US. The different nomenclature partially reflects the differences both in the investigative styles of the police in the two countries and in their attitudes to interviewees, which are revealed in Ainsworth’s disturbing chapter. Ainsworth deals with the problems of suspects’ access to, and the effective denial of, their rights in 3

May, Sousa-Silva and Coulthard

the US, while Rock, looking at British data, focuses not only on the suspect, but also on witnesses, recognising the central role of reading and writing practices in the interview and showing how these activities affect the outcomes. Gaines and Lowrey-​Kinberg’s chapter is entirely new and deals with the important issue of false confessions, by discussing how the complex constellation of factors in play during the interrogation of the innocent make it difficult to establish if a false confession was triggered by a specific question or a series of questions. Haworth also sees the interview as an evidential object in the judicial process, as she explores the different and sometimes competing investigative and evidential functions of the interview and looks at how evidence constructed discursively can be ‘contaminated’ in the process, and this clearly has implications for the suspect. MacLeod’s chapter takes us from the interview room to an earlier stage before suspects are interviewed. Her chapter deals with evidence gathering in chatrooms where young people are at risk of grooming by sexual offenders. This is the only chapter in the Handbook that deals with criminal investigations prior to arrest. Subsection 1.3 Language in the courtroom Subsection 1.3 moves from the interview room to the courtroom. It begins with Drew and Ferraz de Almeida, who build on Drew’s early work that focused primarily on lawyers’ questions and witnesses’ answers in courtroom examination and cross-​examination, and bring it up to date. The other four chapters include Heffer’s focus on narrative throughout the many phases of the trial; Chaemsaithong’s examination of studies of the historical courtroom; Greenlee’s discussion of language and bias in Californian capital cases; and Matoesian and Gilbert’s attention to multimodality in legal interaction. Heffer introduces some of the complex issues involved in the construction of stories in court, focusing on narrative construction and demonstrating how it is manifested in emplotment, story negotiation, character navigation and narration. Chaemsaithong then addresses the textual and contextual challenges in the study of the discursive practices of the historical courtroom; he discusses two aspects of trial talk: the strategies employed by lawyers to construct narratives and shape different versions of reality, and how courtroom participants show awareness of the interlocutor and negotiate their relationships. Greenlee examines court transcripts, pleadings and written opinions to discuss the subtle shading that language adds to capital trials and to question how the credibility of witnesses’ evidence is often artificially eroded by erroneous notions of language use in minority communities. Finally, Matoesian and Gilbert focus on legal discourse as multimodal performance and on how verbal and embodied conduct function as co-​equal, multimodal partners in the constitution of meaning, rather than separate entities, to demonstrate how participants synchronize multimodal resources such as speech, gesture, gaze, artefacts and aspects of the physical environment in a criminal trial. Subsection 1.4 Lay participants in the judicial process In our list of the conventions used in this Handbook (xv–xvi) we list all the participants referred to in the course of this book (e.g. convicted person, defence barrister/attorney, prosecuting barrister/attorney, interviewee, police interviewer, witness in court) and it therefore seemed appropriate to have a section specifically devoted to participants. This section focuses on the challenges faced by a range of lay participants: jurors (Tiersma), vulnerable witnesses such as children and the physically and intellectually impaired (Aldridge-Waddon), rape victims (Ehrlich), defendants at sentencing hearings (Gruber) and Aboriginal claimants in land rights cases (Gray). Gruber’s and Gray’s chapters are 4

Introduction

entirely new to this edition; Gray’s chapter gives a fascinating insight into some of the complexities of hearing Aboriginal land rights cases outside the courtroom in remote and makeshift locations. All of these chapters examine the power of language to complicate meaning-​making and make outcomes for lay participants at best difficult and at worst result in ‘distorted perceptions’ that place severe restrictions on civil liberties.

Section II –​The linguist as expert in the legal process As we move from looking at what legal language does to what the linguistic expert does, we see how linguists can make an important contribution to the presentation of evidence. An expert’s opinion is called on in cases where linguistic knowledge –​semantic, syntactic, pragmatic, discoursal, phonetic, lexicographic and corpus linguistic –​can assist the judge and jury in a particular case. Subsection 2.1 Expert and process Butters, Dumas, Jessen, Watt and Brown, Fraser, Solan and Shuy each offer a different perspective. Butters analyses trademarks –​the particular language that companies try to own; Dumas consumer product warnings –​focusing on the way that the language of warnings on tobacco products succeeds or fails to warn consumers of the dangers of smoking. Jessen, Watt and Brown, and Fraser examine different aspects of the forensic application of phonetic analysis –​the ways that speakers are identified by their voices through automated, technical and descriptive methods, with Fraser making a case for transcription as a dedicated branch of linguistic science. All these encapsulate a struggle between the expert, a client and the legal system. Solan also takes up this theme in his chapter, which deals with the linguist’s encounter with the adversarial system. He presents a stark picture, on the one hand, of a legal system that exploits uncertainty in experts and, on the other, of experts who are susceptible to cognitive bias in the pursuit of confirming results. Shuy outlines his system for analysing the entire linguistic context of verbal evidence and illustrates its application with an analysis of a series of clandestinely recorded conversations. Subsection 2.2 Multilingualism in legal contexts The multilingual legal context is no less fraught for the expert, and English, Hale, and Kredens, Monteoliva-​García and Morris have some hard-​won lessons to impart. The message they all share is what Eades (2010) calls ‘awareness raising’. Linguistic experts have a responsibility to draw attention to potential for serious injustice in the judicial process. Injustice may arise from miscommunication of various kinds:  for English it is because assessments of non-​native speakers’ proficiency may be more complex than legal professionals assume, and for Hale and Kredens, Monteoliva-​García and Morris, because of a prejudicial inadequate provision of interpreting resources –​i.e. qualified interpreters and necessary technical support –​both in and outside the courts. Subsection 2.3 Authorship and opinion Experts on authorship have a difficult task –​the ownership of text is easy to dispute, but difficult to settle, because individual style is difficult to pin down and, as we have said, the legal profession relies on certainties or, at the very least, being sure. In criminal trials, juries have to base decisions on being sure beyond ‘reasonable doubt’, in civil, on the ‘balance of probabilities’, and, to help them reach their decision, it is the expert’s job to

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give an opinion that is neither inflated nor wavering or indecisive. Coulthard shows how difficult it can be to express an opinion in the first place and then to convert it into jury-​ friendly language. Grant problematises the notion of idiolect in authorship identification in relation to text messaging data by suggesting that authorship can instead be determined on the basis of ‘observation and description of consistency and distinctiveness’. He then uses pair-​wise contrasts between the text messages of two authors, to take a step towards presenting opinions statistically. McMenamin’s theory of idiolect is one that encompasses ‘style markers’, that is markers that are the result of the habitual and usually unconscious choices made by authors and Grant, too, argues for stylometry. Both Grant and McMenamin call for further research to strengthen the science. In his chapter on plagiarism, Sousa-​Silva discusses some of the challenges involved in detecting plagiarism in forensic contexts, and goes on to illustrate how different plagiarism strategies, including ‘contract cheating’, can be detected linguistically. Woolls closes this section with an examination of the relevance and potential of computational forensic linguistics, especially for authorship analysis and plagiarism detection.

Section III –​New directions As this is a forward-​looking section, it is the shortest; we cannot predict the future, but we do offer seven exciting chapters that present new directions for research. Wright focuses on the advantages of exploring large datasets using a corpus linguistic approach to the analysis of discourse for forensic or legal purposes. Gries discusses corpus linguistic approaches to legal meaning, analysing in particular lexical items in statutory texts. Archer and Todd examine the use of language in police (crisis) negotiation to argue for the integration of linguistic and psychological approaches. Grieve and Woodfield introduce the field of investigative linguistics, focusing on the distinction between the work of forensic linguists as investigators and as expert witnesses. Gales, in her chapter, analyses parole board hearings, where certain populations are being disproportionately denied parole, and discusses linguistic manifestations of stance. Hardaker then demonstrates how corpus and forensic linguistics can be combined to identify and understand trolling, and subsequently their meaning in court. Each chapter ends with up to five further recommended readings and we have limited authors to around 30 essential references, which are also found at the end of each chapter. Finally, in our ‘Concluding remarks’, we close this second edition of the Handbook by speculating about some of the advances that the next ten years may bring.

Concluding observations In the decade since the first edition, the IAFL has held five biennial conferences in England, Mexico, China, Portugal and Australia. We would like to conclude by quoting from the two that bookend the decade. In 2011, at Aston University in Birmingham, Retiring President Ronald R. Butters (2012) talked about ‘ethics, best practices, and standards’. He reminded us of the IAFL’s aims, listed in our founding Constitution (2005). These address the ‘study of language’, ‘the alleviation of language-​based inequality’, ‘the interchange of ideas between the legal and linguistic communities’, ‘research into the practice … of expert testimony’ and ‘better public understanding of … language and the law’. He told us that we had done quite well with these over the 18 years of our then existence, but in the area of ‘research into the practice, improvement, and ethics of expert testimony and 6

Introduction

the presentation of linguistic evidence, as well as legal interpreting and translation’, we had not done so well. He proposed a Code of Ethics for Linguists in Forensic Linguistics Consulting, which was duly published by the Linguistic Society of America that same year (2011). It contains four overarching principles of ethical conduct:  integrity, objectivity and professional competency, confidentiality (including recognising conflicts of interest) and recommended practices. Each principle contains specific guidance, such as ‘linguists who are engaged in forensic linguistic consulting will not enter into any arrangements in which compensation is dependent on the outcome of the case’ (under ‘integrity’). Moving forward to the end of the decade, in 2019, the then President of the IAFL, Janet Ainsworth (2019), defined the future of forensic linguistics in terms of three (of many) challenges and three opportunities and, as you will see below, some of the same issues remain. However, she started with the good news: what scholars and practitioners have done that we can be proud of. We have, amongst other things, ‘contributed to better practices in civil and criminal justice systems, including exonerating innocent defendants, preventing sexual predators from harming children, improving the efficacy of product safety warnings, identifying the authors of questioned texts, distinguishing between commercial marks that infringe on trademark rights from those that do not, improving the comprehensibility of legal language used in contracts and jury instructions, and encouraging better methods of police questioning of witnesses and suspects’. On to the challenges and opportunities, then! Each challenge brings with it an opportunity. The first, she said, will be to meet the more stringent ‘standards for admission of expert scientific evidence in court systems’, because ‘current evidentiary standards have permitted unreliable forensic evidence to be admitted into court’ and our field needs to be ‘sufficiently prepared to meet’ these. The opportunity here is ‘not only to improve the accuracy and usefulness of our own forensic practices, but to serve as a model for other forensic fields as well’. This leads to the next challenge:  ‘not all forms of forensic linguistic expertise can be tested by the kind of validity tests that generate error rates’ and, she says, ‘forensic linguistics is not the only field that is faced with this dilemma—​how to demonstrate the value of qualitative social science to lawyers and judges who are increasingly sceptical about forensic evidence’. So that is our challenge: to communicate effectively with lawyers and judges and not ‘cloak our language in jargon, or telegraph our ideas obliquely’. If we do, then we will help to make our justice systems ‘fairer and more accountable’. And forensic linguists are at an advantage, because we are experts in communication. The final challenge is that ‘we need to continue and deepen our interdisciplinary collaboration with other researchers grounded in other disciplines, who are working on the same issues that we are working on, but using a different disciplinary set of tools’. To do this there needs to be ‘more professional collaboration between linguists and lawyers’ in order to ‘improve their understanding of language issues in the law’ and also to learn from them what we linguists don’t know about the law. Janet is a living example of this opportunity; her paper with Patrick Juola (2018) puts a collaboration between a lawyer and a computational linguist into a law review, because, as she told us in Melbourne, ‘lawyers and judges just don’t read scholarship in fields other than law’. We are delighted to have been able to assemble such an exciting collection of contributions which cover all the significant areas of forensic linguistics. Whatever your interests, we are sure that you will find things to inform and inspire you in this Handbook. We ourselves have learned a great deal in putting both this and the first edition together. Each chapter ends first with suggestions for further reading, in case you want to pursue a particular topic in greater depth, and then references, where there is a wealth of scholarship 7

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to explore. While the first edition of the Handbook marked a coming-​of-​age that launched a new generation of researchers into an exciting new world, we believe this edition sees their work orbiting the globe.

References Ainsworth, J. (2019) ‘President’s closing address. The future of forensic linguistics: Three challenges and three opportunities’, address presented at 14th Biennial IAFL conference, RMIT University, Melbourne, Australia, July 2019. Ainsworth, J. and Juola, P. (2018) ‘Who wrote this: Modern forensic authorship analysis as a model for valid forensic science’, Washington University Law Review, 96(5): 1159–​1189. Butters, R.R. (2011) Code of Ethics for Linguists in Forensic Linguistics Consulting, www. linguisticsociety.org/​resource/​ethics (accessed 5 April 2020). —​ —​ —​(2012) ‘Retiring President’s closing address:  Ethics, best practices, and standards’, in S.  Tomblin, N. MacLeod, R. Sousa-​ Silva and M. Coulthard (eds), Proceedings of the International Association of Forensic Linguists’ Tenth Biennial Conference, Birmingham:  CFL, Aston University, 351–​361. Coulthard, M., Johnson, A. and Wright D. (2017) An Introduction to Forensic Linguistics: Language in Evidence, 2nd edn, London: Routledge. Eades, D. (2010) ‘Nationality claims: Language analysis and asylum cases’, in M. Coulthard and A. Johnson (eds), Routledge Handbook of Forensic Linguistics, London: Routledge, 411–​422. Halliday, M.A.K. (1973) Language in a Social Perspective: Explorations in the Functions of Language, London: Edward Arnold.

8

Section I

The language of the law and the legal process

1.1

Legal language and legal meaning

2 Legal talk Socio-​pragmatic aspects of legal questioning: police interviews, prosecutorial discourse and trial discourse Alison May, Elizabeth Holt, Neveen Al Saeed and Nurshafawati Ahmad Sani

Introduction ‘Talking like a lawyer’, according to Tiersma (1999: 51), involves using legalese as a professional code, but, as he also observes, ‘when lawyers are sufficiently motivated, they quickly abandon legalese’ in courtrooms (1999:  145). Nevertheless, such institutional activities as cross-​examination, or police and prosecutor interviews, employ complex interactional strategies, with the courtroom giving us ‘legal language in its most dramatic setting’ (Tiersma 1999: 145). The language of written statutes, contracts, judgments and legislation is notoriously complex in terms of its meanings, syntax and structure (e.g. Stygall; Finegan and Lee; Hutton; Gries; Chapters 3, 4, 6, 38, all this volume). However, legal talk, particularly in police interviews and courtrooms, is also considered ‘inaccessible’; Maley (2000: 247) puts her finger on a central difference between legal writing and legal talk when she says that it is the ‘discourse rules’ that make courtroom talk difficult for ‘most newcomers’. Questions are a defining feature of institutional interaction, and what they look like (their form) and what they do (their function) are the focus of this chapter. While the syntax of questions is important for description, it is their pragmatic effects that are key, a fact that motivates our discussion of the following:  and-​ and so-​prefaced questions, formulations, SAY questions, repeats of prior testimony and the use of reported speech. Actions of challenging, evaluating, contrasting, formulating, summarising and reporting are explored. Whether the institution is education, medicine and health, politics, or law and law enforcement, seeking responses to questions is an activity that is at the heart of daily talk across a range of settings (e.g. Clayman and Heritage 2002; Drew and Heritage 1992; Harris 2001). Legal talk  –​for example, courtroom interaction, or police or prosecutor interviews  –​is not simply determined by the context in which it occurs but, more specifically, by how participants adapt and manage their activities to conform to the norms 13

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and patterns that underpin this form of institutional interaction. According to Drew and Heritage (1992:  22) the distinctive characteristics of institutional talk manifest in three dimensions, as participants orient to:  core goals or ‘goal orientations’; constraints on ‘allowable contributions’; and specific ‘inferential frameworks’. Constraints on the allowable contributions and orientation to the role or identities of participants in institutional interaction are visible in the ways turns-​at-​talk are designed and managed, particularly through the question and answer pair. Questions are most often pre-​allocated to institutional participants and answers to lay participants (Drew and Heritage 1992: 39). For forensic linguists, therefore, questioning has been a major site for research endeavour, as reflected in many of the later chapters of this book. Lay interactants are largely controlled by questions from professionals in dyadic legal encounters:  callers to 999 or 911; interviewees in police interviews; witnesses in trials, with children subject to particular pressures in courtroom questioning. A single sentence example from a courtroom cross-​examination introduces many of the complexities that are involved (Extract 1). This syntactically complex question contains many embedded clauses, shown by the use of square brackets (our addition), producing a coercive question that is very difficult to answer. (1) A cross-​examination question to a 15-​year-​old Q: Would it be incorrect [to suggest [that it was not so much a tripping] [but [because of the state of inebriation of yourself], that you fell over]]? (Brennan 1994: 216) Brennan (1994:  212–​216) outlines a wide range of semantic and syntactic features of cross-​examination questions, many of which are seen here. Extract (1) employs: negative polarity in the question: ‘would it be incorrect’ making it more difficult to deny; the so-​called dummy ‘it’ (without a referent); the subjunctive ‘would’ mood; a non-​finite verb, ‘to suggest’, instead of the direct subject pronoun and finite verb, ‘I suggest’; nominalisation (‘a tripping’) which is also negated: ‘not so much a tripping’; denial-​correction clause relations (Winter 1994): ‘[it was not X] but [X’]; reason clause: ‘because of … inebriation’; transformation of ‘a tripping’ into a personalised active verb, ‘you fell over’. The result is a set of powerful inferential meanings for the jury to construct: that the witness was drunk, rather than tripped up, and was therefore an out-​of-​control reckless youth, rather than a victim as the prosecution claims. The defence ‘suggestion’ that the witness is a reckless drinker places him in a particular social category; this ‘activity’ of cross-​examination works on ‘inferential schemata’ that ‘build up to form a “natural” argument for the jury’ (Levinson 1992: 84). In (1) the jury is led to construct an argument that is derived from the schema of the anti-​social problem-​drinker youth, making him a less credible witness. Linguistically tactical questions draw their power from the fact that talk is designed to ‘make a witness acquiescent’ and make material significant for the hearer (a jury) in terms of ‘displaying evidence’ (Brennan 1994: 209–​210). Rather than simply seeing language as an abstract grammatical system, then, a socio-​pragmatic view of language is concerned

14

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with considering together the users of language and the uses to which they put it and the resulting inferences that are made. Socio-​pragmatic aspects of legal interaction form a rich area of study and much is yet to be empirically explored. So, while syntactic and formal features of questioning are important aspects of any linguistic analysis, our focus in this chapter is not merely on form, but on what is accomplished interactionally through the use of questions and on the pragmatic effects of legal talk in four important interactional contexts: police and prosecutorial interviews and examination and cross-​examination in criminal trials. First, we give a brief introduction to question form and function and the embedding of questions within institutional turn-​taking.

Question form and function When speaking of grammatical form, we distinguish between the order and syntax of clauses in sentences, whereas, speaking of function, we consider the functions of those clauses in discourse:  their semantic and pragmatic properties. It is never sufficient to describe questions in formal terms; we always need to consider their functions: what they mean, infer, imply and do when they are used in talk. We also need to consider their position in the turn-​taking system.

Questions and turn-​taking Central to the nature of legal talk is the system of turn-​taking that participants adopt. Fundamental to the character of court trials is that, at certain points during the proceedings, the judge and lawyers have long turns where no one else contributes (e.g. during opening and closing speeches and in summing up), whereas the examination of witnesses proceeds through a series of dyadic question and answer exchanges. Although there will be many more than two people present, there are rules concerning who can talk and when (Drew and Ferraz de Almeida, Chapter 12, this volume). The same may be said of police interviews where there are rules that dictate that a police officer should begin and end the proceedings, the suspect is invited to give his version of events and is then asked a series of questions, which the interviewee may or may not answer (Heydon 2005; Haworth, Chapter  10, this volume). There are also particular rules for any lawyer present (see Stokoe and Edwards 2010). The almost insurmountable challenge for lay interactants –​suspects, witnesses (even experts, see Coulthard, Chapter 32, this volume) and defendants –​is therefore to transcend the powerful institutional discourse rules and to recognise that courtroom or interview room talk is essentially fairly ordinary language being put to special use. Institutional participants are expert users, whereas lay participants are not; institutional users are equipped to exploit the special pragmatic uses that language can be put to, making legal talk a potent source of institutional control. In institutional, particularly legal, settings (unlike ordinary conversation), turns are ‘preallocated’ (See Drew and Ferraz de Almeida, Chapter 12, this volume). Not only is the pattern of who can contribute fixed in advance, but the kind of activity they can do is predetermined. Extract (2)  is from a police interview from our data and we can see that the police interviewer’s (IR) role is to question and manage the interaction and the interviewee’s (IE) to respond, with little opportunity to alter the topic or ask questions.

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(2) 1 2 3 4 5 6 7 8 9 10 11 12

IR: And then you mention this bloke. Do you just want to describe his actions to me? What-​what happened? IE: Well, he-​he were stood at the bar for ages and he were like staring over and he kept like look-​doing like dirty looks so, I thought oh I didn’t think a lot of it-​oh no that’s w-​and then he went-​he sat down and I were looking and he were saying … IR: So this is the same bloke who’s been assaulted? IE: Yeah IR:  Right so first of all you said that you saw him-​you noticed stood at the bar? IE:  Yeah. IR:  And he were looking over towards your group?

Question and answer pairs, though central to talk in many institutional settings, have specific roles in police interviews and a number of distinctive features. For example in (2) we note that several of the questions begin with and or so (lines 1, 7, 9 and 12). (We consider the function of such questions later.) Extract (2) demonstrates some of the different forms and purposes of questions. They may take the form of interrogatives, for example, what, where and why questions (e.g. ‘what happened?’ line 2); they may involve a statement plus a tag question (e.g. ‘This was February the fourteenth wasn’t it’); or a declarative question, sometimes with questioning intonation (i.e. a rise at the end) (e.g. line 7, 9–​10 and 12). And so we turn to interrogative syntax.

Interrogative syntax Questions have a regular syntactic design that has been widely described in both grammars and forensic linguistic research and, while generally found to be interrogative in form, they are not always so. For example, Biber et al. (2002: 249) describe five question types, four of which have interrogative form (1–​4) and one of which has declarative (5); examples are from the Harold Shipman murder trial data and from the cross-​examination of Shipman, the defendant: 1. Wh-​questions, which ‘elicit missing information’ e.g. What does that W stand for? 2. Yes/​no questions, ‘to ask which of two or more alternatives is the case’ e.g. Did you prescribe medication for irritable bowel syndrome? 3. Alternative questions, to ask ‘which of two or more alternatives is the case’ e.g. Is it only the peppermint oil or any of the others for irritable bowel syndrome? 4. Tag questions, which consist of a declarative clause plus a tag that contains an ‘operator [part of the verb] plus pronoun subject’, and which are ‘used to seek confirmation of the statement the speaker has just uttered’ e.g. But, Dr Shipman, if upon toxicological examination there had been no lethal drug found in Kathleen Grundy’s body, you would not be required to attend at a police station, would you? 5. Declarative questions, which nominally express statements, but pragmatically serve an eliciting speech-​act function e.g. And you say you actually wrote a prescription out for that lady for 30 milligrams of diamorphine and handed it to her? The tag question above consists of a negative declarative clause and a positive tag, but the negative/​positive combination in this example is only one of six types of tag question described by Hale (2004: 45). She notes there are, however, four main types in English (1–​4 16

Legal talk

below) with two more relevant types (5–​6), all distinguished by a combination of form and intonation. Unfortunately, we cannot know the intonation here, as the examples are from an official written transcript with no audio, but assumed falling or rising (\ /​) intonation has been indicated. Examples are from the Shipman trial (examination-​in-​chief:  E and cross-​examination: CE) apart from (5), which is invented: 1. A positive statement with a falling tone followed by a negative tag with rising tone e.g. Well then, you had been in possession of diamorphine\, had you not?/​ (CE) 2. A negative statement with a falling tone followed by a positive tag with a rising tone e.g. But you went beyond saying you did your best [never to carry any controlled drugs]\, didn’t you?/​ (CE) 3. A positive statement with a falling tone followed by a negative tag with a falling tone e.g. That in fact is a locum\ is it not\? (E) If that were the truth that would represent what most GP’s would say, would it not? (CE) 4. A negative statement with a falling tone followed by a positive tag with a falling tone e.g. But that diamorphine had not been registered on any register\ had it?\ (CE) 5. Constant polarity tag e.g. You know that\ do you?/​ 6. Invariant tag questions, where the tag remains constant regardless of the statement e.g. Although there is an entry to confirm the prescription, she has not been administered with morphine, is that correct?(E) All are common in cross-​examination (apart from 5) and all are highly conducive, but the main differences between the types are the assumptions contained in the declarative versus the expectation in the tag. Examples 1 and 2 invite verification, whereas 3 and 4 expect confirmation, as does 6, whereas 5 is highly pragmatically loaded, indicating sarcasm. Syntactic form can therefore be an important question classifier, enabling us to examine frequencies across the different ‘activities’ (Levinson 1992) of examination. For example, in an examination of a total of 15,000 questions in the Shipman trial, with the same number taken from both examination and cross-​examination and from two barristers, Mr Henriques (prosecution) and Miss Davies (defence), we found that examination-​in-​chief is characterised by yes/​no, declarative and wh-​questions, while cross-​examination sees a marked difference in the number of tag questions and a reliance on declarative questions (Figure 2.1). These characterisations remained when the two barristers were looked at individually. We can, therefore, syntactically distinguish between the activities of examination and cross-​examination, noting that tag questions are a defining feature of cross-​examination, that barristers avoid alternative questions and that both activities restrict the number of open questions (wh-​questions). There is a strong body of literature that supports this and which shows that, in legal questioning more generally, the questioner’s choice of form is designed to constrain the response (e.g. Maley 1994, 2000; Conley and O’Barr 1998; Gibbons 2003). For example yes/​no interrogatives constrain the respondent to confirm or deny the proposition in the question, while wh-​interrogatives, which are considered open, still constrain the respondent to simply fill in the missing information required by the wh-​word, though Archer (2005) distinguishes between broad and narrow wh-​questions, the former of which allow more narrative responses (e.g. What happened next?). And Newbury and Johnson (2006) show how each of these question types produces a variety of resistant responses in police interviews: contest, correction, avoidance and refusal. 17

May, Holt, Al Saeed and Ahmad Sani

Figure 2.1  Percentage of question type by activity in the trial data

The question forms outlined here can be considered core descriptive categories, but there are other question types that are worthy of consideration, though current space does not allow it. See, for example, Oxburgh et  al. (2010) on TED questions in police interviewing (those containing ‘tell’, ‘explain’ and ‘describe’), Archer (2005) on broad versus narrow wh-​questions in trial discourse, and Johnson (2018) on negative questions in historical trials.

Pragmatics of questions –​language at work No description of questions can be complete if based on syntax alone; what questions do is as, if not more, important. Pragmatics involves language at work. Gibbons (2003: 95) outlines ‘two objectives of legal questioning’:  information-​seeking and confirmation-​ seeking. Many of the devices considered in this chapter are mainly concerned with the latter. Pragmatics, though, takes us beyond macro-​categories such as these, and also the syntactic properties above, and involves focusing on lexical signals, sequence organisation, contrast, and attention to context (questioner roles and goals  –​Drew and Heritage 1992) and activity types (Levinson 1992). For example, Levinson (1992:  84) demonstrates how, in a rape trial, the ‘careful juxtaposition’ of sequences of questions that first ask a 17-​year-​old girl about her clothing and appearance on a cold night out, and then about her previous sexual experiences, work to imply that ‘the girl was seeking sexual adventures’, rather than being a victim of sexual assault. He argues that our understanding ‘rests on our knowledge of the kind of activity that the talk occurs within’ (Levinson 1992: 85). Pragmatic work is done across questions and answers in many ways, as our section below from our own work shows. Here we draw attention to three phenomena that have been reported in previous studies:  making contrasts, using reported speech and lexical signalling. Making contrasts In a study of cross-​examination in a different rape trial, Drew (1992) explored contrasts made in both witnesses’ answers and lawyers’ questions. He notes that, when disputing 18

Legal talk

a version of events proposed in the attorney’s questions, witnesses can use contrast to avoid overt correction preceded by ‘No’. By offering an alternative version, they mitigate the risks associated with disagreement. Extracts (3)  and (4)  are from Drew (1992) (A: Attorney, W: Witness). (3) A: W: (4) A: W:

An’ you went to a: uh (0.9) ah you went to a ba:r? in ((city)) (0.6) is that correct? (1.0) It’s a clu:b. (Drew 1992: 489, Extract 11) An during that eve:ning (0.6) uh: didn’t Mistuh ((name)) Come over tuh sit with you (0.8) Sat at our table.

(Drew 1992: 489, Extract 13)

In (3) and (4) the attorney’s questions are designed to elicit ‘yes’/​‘no’ confirmatory answers, but the witness declines to answer in this way and instead offers descriptions that implicitly disconfirm his version by offering a contrasting version (i.e. describing it as a ‘club’ instead of a ‘bar’; and saying he ‘sat at our table’ rather than sitting with her on her own). They do not intrinsically exclude his version but are ‘qualified, guarded versions of what the attorney suggests’ (Drew 1992: 490) and they reject the implied meanings in the questions concerning the start of a disputed encounter between victim and alleged rapist. Extract (5) is also from Drew’s collection and in this we can see a contrast device that the attorney uses in response. (5) A: W: W: A: W:

Well you kne:w at that ti:me that the defendant was. in:terested (.) in you (.) didn’n you? (1.3) He: asked me how I’(d) bin: en (1.1) J-​just stuff like that Just asked yuh how (0.5) yud bi:n (0.3) but he kissed yuh goodnight. (0.5) izzat righ:t = = Yeah = he asked me if he could? (Drew 1992: 479, Extract 3 (fragment))

In answer to the attorney’s question that she knew he was ‘interested in her’, the witness offers a contrasting version, which suggests that the most that happened between them was that he asked her how she’d been, thus suggesting a much less intimate relationship than the version implied in his question. In response, the attorney brings together two pieces of evidence to which the witness has already attested, forming a contrast:  the claimed non-​intimacy of their greeting, and the intimacy of their parting, thus creating a puzzle. According to Drew (1992: 509) the contrast works ‘to challenge not her characterization

19

May, Holt, Al Saeed and Ahmad Sani

of the greeting itself, but the credibility of that as an adequate representation of everything else that happened’. In addition, the pre-​allocation of speaker roles and the types of turns they can take mean that it is only the attorney who is able to put together ‘facts’ from the prior testimony, and this creates a contrast that can be seen as damaging to the cross-​examination witness’s testimony. He points out that contrasts are summary devices and it is only the attorney who uses ‘the power of summary’. Such summaries can end a line of questioning, thus leaving the jury to draw out the damaging implications alluded to in the question. Reporting speech Speech reporting is used not simply ‘to replay an interaction, but also to enable the speaker to simultaneously convey his or her attitude towards the reported utterance’ (Clift and Holt 2007: 7). There are two main ways of reporting speech: directly and indirectly, as we see in the lines below from a police interview with a rape suspect (which we will look at later in Extract 9 below). As Toolan (2001: 124) points out, neither is a verbatim report, but ‘direct speech pretends to be a faithful verbatim report of a person’s actual words’. In line 27 the IE upgrades to direct reported speech (DRS) the indirect reported speech (IRS) in the question in lines 25–​26. 25 26 27

IR: IE:

So is it fair to say then that before you had sex with her she was certainly saying to you she didn’t want to have sex with you? She says she don’t know I think.

Witnesses have a legal need to report faithfully, but, as we see, police interviewers use a range of direct, indirect and even more remote ways of reporting what might have been said with different effects. The turn in lines 25–​26 above uses the summarising power of IRS to persuade the suspect to accept a version of events. In a later exchange in the same interview, IE uses DRS, ‘She said, “I don’t know” ’, in a second instance of upgrading or countering the IR’s IRS (IR: She says that she definitely said no.). When the speaker claims to offer a verbatim rendition (as in: ‘She said, “I don’t know” ’), they are making their speech more evidentially powerful and responding to the IR’s strategic question with an equally powerful response. The shift from IRS to DRS between question and answer, in line 27, also does pragmatic work in terms of increasing the authenticity of the evidence, and, as Clift and Holt (2007: 8) point out, shifts of footing from IRS and non-​reported speech into DRS are worthy of greater study (see also Holt 2009). Lawyers, too, make use of reported speech and Philips (1986, 1992), in her analysis of American courtroom trials, found that lawyers exploited the fact that DRS is seen as more reliable than IRS. Galatolo (2007: 219) also points out that implicit moral work can be accomplished through the use of reported speech, particularly the apportioning of blame (see further reading) and Johnson (2015) found that prosecution and defence cases (in 19th century trials with an insanity defence) made very different uses of the defendant’s speech, showing liability versus incapacity and, therefore, the selective power of quotation in creating weighted evidence. In our brief look at reported speech, we have pointed out three central areas of focus that Clift and Holt (2007:  3) observe:  form (whether it is IRS or DRS), authenticity (plausible, probable and improbable quotations) and what is done (blame allocation, moral evaluation, etc.). 20

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Lexical signalling Heffer (2005: 135–​137), demonstrates that cross-​examination is an activity that does institutionally powerful pragmatic work through strategic lexical choices in questions. For example, when counsel uses suggest while cross-​examining a witness, this ‘metapragmatic marker’ puts ‘the advocate’s subjectivity on stage … for strategic reasons’. An example from the Shipman trial demonstrates how suggest, used with its assertive rather than advisory meaning, presents the jury with an alternative version of events, one that favours the prosecution’s case (Extract 6). (6) Q: A:

I am going to suggest to you that you did keep controlled drugs. What is your answer to that? No.

In asserting something for response, they also indirectly address the jury and this version of events is, therefore, registered, whether the witness agrees or disagrees with the ‘suggestion’. This is the power of language at work, in use and in its social context. Contrasts, speech reports and strategic lexical choices, then, can be signals or cues for meaning-​making in context. In the next section, we deal with a number of socio-​ pragmatic uses of words, including and-​ and so-​prefacing, formulations and the role of SAY questions from some of our own work.

Evaluating, summarising, repeating, formulating and challenging through questions Researchers exploring legal talk (and other institutional environments such as news interviews) have noticed patterns in the design of questions that are associated with particular actions in these environments: evaluating and labelling through and-​ and so-​ prefaced questions (Johnson 2002), formulating (e.g. Van der Houwen 2009; Johnson 2020) and quoting and reported speech (e.g. Galatolo 2007; Komter 2012; Matoesian 2000). These devices, recurrently employed in questions, are often central to one of the main aims of legal discourse: to establish the culpability of one or more parties involved. They are also central to the asymmetry that exists between the participants in these environments (Heydon 2005; Drew 1992).

And-​and so-​prefaced questions ‘And’ and ‘so’ have both semantic and pragmatic meanings, with ‘and’ signalling addition, but also marking narrative development in a sequence of questions, and ‘so’ having both a causal meaning and a narrative evaluatory function (Johnson 2002). In her analysis of the pragmatic uses of and-​ and so-​prefaced questions in police interviews, Johnson (2002: 103) found that and-​prefaced questions establish and develop the facts in a topic and sequence the narrative being constructed, while so-​prefaced questions ‘mark the event and develop its (con) sequence’, providing summative evaluation. Trial interaction, too, commonly employs and-​ prefaced questions to do storytelling. Coulthard, Johnson and Wright (2017: 84) found that, of the first 19 questions put to Shipman by his friendly counsel, 15 required only confirmation with and-​prefaced questions accounting for six of these (including the ones in Extract 7). 21

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(7) Examination-​in-​chief of Shipman by defence barrister, Shipman trial, Day 27 Q: By September 1997 you took up your position at the Donneybrook House practice. You were there with a number of other doctors? A: I was. Q: How many? A: 6. Q: And after one year in practise (sic) did you become a partner at that practice? A: I did. […] Q: And in respect of your work at the Donneybrook House practice … in respect of age are we talking about a cross-​section? The use of and-​prefaced, yes/​no and declarative questions, here, allows the lawyer to animate the witness’s story and develop an extended narrative on his behalf with only minimal responses and interruptions from him. This enables co-​production of authoritative evidence with minimum effort. We now examine and-​ and so-​prefaced questions in more detail, looking first at and-​ prefaced questions. Al Saeed’s (2017) analysis of 18 Egyptian prosecutors’ interrogations in Arabic found that prosecutors also use and-​prefaced questions to build narrative. She found that prosecutors use two types of and-​prefaced question:  those that build and clarify narrative and those that challenge details in a suspect’s statement. ‘Wa’, usually translated as ‘and’, is ‘the most commonly used Arabic conjunction’, which plays ‘a significant role in the organisation of Arabic discourse’ (Hamza 2006:  235; see also Taha et al. 2014), as it does in other languages including English. Prosecutors were found to start their questioning by asking suspects to provide them with a detailed description of what happened prior to the point of their arrest, which happens in the form of successive questions such as in Extract 8. In this extract the transliterated Arabic is shown on one line, with idiomatic English shown below. Responses are deleted so that only the (IR) turns are shown. The four uses of ‘wa’/​‘and’ to preface prosecutor questions are highlighted. (8) Interrogation of a suspect in a case of beating that led to death IR: wa mā al-​ḥewār ʾallaḏī dār baynak wa bayn sālifī al-​ḏikr And what conversation occurred between you and the others? IR: wa ʾayna kān yaḥmil al-​madˤū Mark ḏālik al-​silāḥ? And where did Mark carry this weapon? IR: wa fī ʾay yad kān yaḥmil sālif al-​ḏikr tilk al-​sikkīna wa mā huwwa waṣf tilk al-​ʾadā taḥdīdan And which hand did he hold the knife in? And how would you describe it? In the four successive wa-​prefaced questions the prosecutor records and marks the sequence of events that led to the death of the victim in the developing narrative, though these are disputed details of the crime that he will later challenge. In response to the first wa-​prefaced question, the suspect mentions that the victim ‘took out a knife’ and ‘stabbed’ him in the ‘left leg and left shoulder’. The two questions that follow develop the suspect’s admission of the existence of a knife at the crime scene and direct the suspect to give a description of it and how the victim used it against him. In the suspect’s response to the third and fourth questions, he reports that ‘he was carrying it in his right hand’ and that it was owned by the victim (‘it is the same knife that you showed me at 22

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the beginning’). Through wa-​prefaced questions, the prosecutor develops the narrative in relation to the missing information in the suspect’s narrative and pursues his agenda of getting an evidentially detailed narrative of events, while the suspect resists this development, by attempting to pursue his own agenda: shifting blame onto the victim. Al Saeed (2018) found that blame-​shifting was a common resistance strategy when suspects are asked questions with implied accusation. While these questions build and clarify narrative, they are also used to challenge any conflicting or incriminating details given by the suspect or which serve the interrogation agenda. In a murder case, the prosecutor confronts the suspect’s claim that he was not responsible for any of his actions because he was high on drugs through challenging wa-​ prefaced questions that contain evaluative markers:  ‘And what is the reason …?’, ‘And what is your intention …?’. These questions, then, serve a dual purpose:  to record the narrative and to get the suspect to supply his own reasoning, focusing the record on the suspect’s cognitive state at the time of the alleged offence. A final type of challenge was found in what Al Saeed (2017, 2018) calls Put on Record (POR) questions. These are questions that often use detailed quotations from another witness’s statement, to challenge suspects’ stories, as, for example, in a drugs case: ‘And what do you say about what general Matthew stated in his report that he found in the jacket you were wearing, when he was searching you, and specifically inside the right pocket, the evidence which included a clear plastic bag that had 25 cellophane rolls with a dark substance that looked like weed?’ Putting on the interrogation record that there are witnesses who saw drugs coming out of the victim’s pocket incriminates the suspect and weakens his denial of wrongdoing. Moving to so-​prefaced questions, Johnson (2002) found that they are also used to construct evidential discourse and to evaluate and label previous utterances produced by the interviewee. Adults who are suspected of being involved in serious criminal offences are largely able, but unwilling, to produce an extensive account of something that may incriminate; for this reason so-​prefaced questions perform a key role for interviewers. They allow them to repeat previous interviewee discourse, and, in the process, evaluate and label it, signalling its significance in the developing narrative and producing weighted evidence (lines 17 and 18 in Extract 9). In addition, these questions are used to challenge the IE to say more (lines 3–​4) and to ask him to re-​evaluate an earlier position (lines 17–​18). (9) Interview with rape suspect 1 IR: What did he say? 2 IE: Nothing. 3 IR: So what other conversation was there about T [the rape complainant] 4 then? 5 IE: That was about it. 6 IR: What he-​him suggesting that you and K had sex with her in her r-​ 7 IE: Mm. 8 IR: A-​and with or without her consent? 9 IE: No. With her consent. 10 IR: Did T tell you to go in there and uhh speak to her? 11 IE: Yeah 12 IR: And did K tell you to go in there and shag her? You’re nodding your 13 head. 23

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14 15 16 17 18 19

IE: IR: IE: IR: IE:

Yes. And did D tell you to go in there and shag her as well? Yeah. So you were a bit under pressure really to go in there and –​have sex with her weren’t you? Mm.

So-​prefaced questions therefore have an important function to evaluate and summarise and are effective in challenging and transforming the IE’s account, coercing them to reformulate it in a way that is evidentially more significant (see also Johnson 2008a, 2008b; Kozin 2008; on transformation of ongoing discourse in legal processes). Johnson (2002) argues that these questions also have a vital function in interviews with child complainants. Whereas in interviews with adult suspects, they can function as controlling ‘disjunctive topic shift’ markers (Heydon 2005: 141), here the interviewer’s goal is to elicit the best evidence, using as many of the child’s own words as possible. Since children may be unwilling and/​or unable to produce large stretches of spontaneous narrative, so-​ and and-​prefaced questions have an important role in topic opening, developing and sequencing. In Extract 10 taken from the first 60 interviewer turns in an interview with a child, we see how so-​prefacing marks topic development at four points (lines 21, 36, 52 and 53 –​note the intervening lines are omitted). (10) 21 36 52 53

So-​prefacing at the start of an interview with a child complainant IR: Right so are D and G your brothers? IR: Three. Right. So can you tell me who sleeps in what bedroom then? IR: Ah. Right. So does he work away from home a lot? IR: Oh. Right. So was he at your birthday?

In this setting power is used supportively, since the questions construct, ‘scaffold’, support, arrange and rearrange the discourse into a narrative that empowers the child, though this depends on the skill of the interviewers. Aldridge-Waddon (Chapter 18, this volume) gives some examples of the difficulties and challenges faced by interviewers of young children, which can lead to miscommunication and unproductive interviews. In questions with suspects ‘so’ not only signals topic development, but also signals the status of the talk and often marks challenges to the suspect in relation to the evidential value of the talk, as in Extract 11 from an interview with an adult suspect. (11) 1 2 3 4

Challenging so IR: And how many drinks did you have in the Indian restaurant? IE: One. IR: So are you saying that all evening you had four pints? IE: Mm.

In line 3, so challenges him to agree with a yes/​no question that together with ‘you say’ and the evaluative ‘all evening’ seeks to get him to accept that their own account is not believed. Together with and-​prefaced questions (see e.g. Heritage and Sorjonen 1994), they help to construct narrative sequence through interviewer turns. In this way, it is often the interviewer who tells the story (note the minimal responses in Extract 11).

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Formulations While so-​prefaced questions can have a summarising function, formulations are also important resources for summary. Garfinkel and Sacks (1970:  350) observed that participants in interactions may sometimes formulate what it is they are saying when they choose to ‘explain, characterize, explicate, translate, summarize, or furnish the gist of it’. Heritage and Watson (1977) noticed that formulations are a recurrent feature of questions in adversarial settings (in their research, in news interviews) and focused on formulations that ‘characterize states of affairs already described or negotiated … in the preceding talk’. They describe formulations as manifesting three central properties: ‘the preservation … the transformation … [and] the deletion’ of aspects of the talk (Heritage and Watson 1977: 2–​3). Drew (2003) focuses on those formulations ‘in which a speaker offers his or her interpretation of what the other meant [in] the form (So) what you mean/​are saying is…’ (Drew 2003: 296). Note the option of ‘so’ and the SAY verb; we have seen this format in the so-​prefaced questions and we discuss SAY questions below. Heydon’s (2005) consideration of formulations in police interviews shows how transformation is a systematic choice. Extract (12) is from her collection and concerns alleged criminal damage to the door of a shop. (12)

→

IR: IE:

IR:

uh you saw the glass shatter to the ground (0.4) I just kept walking↓ (0.2) I just got in the car = And Rob (0.6) me friend said what the hell’s going on (0.4) whaddcha do (1.2) so you didn’t bother saying anything to them↓ that the glass was broken or↓ (Heydon 2005: 123, Extract 4–​26 INT1)

In the (arrowed) formulation the interviewer deletes all IE’s information in the prior turn and transforms it into a suggestion that he ‘didn’t bother saying anything to them↓’ (Heydon 2005: 137). According to Heydon, formulations are a powerful tool in constructing the police version of events, because they appear to be a summary, for the sake of achieving understanding, of prior talk. However, changes made to the suspect’s version ‘systematically introduce terms of violence and intentionality that were not present in the original’ (Heydon 2005: 141). Johnson (2020) found that formulations (arrowed in Extract 13) in police interviews can contain gestural violence too. (13) → → →

IR:

IE:

IR:

[Can I-​can I just stop you there (0.5) Danny (1.0) You say you made a grab for the knife (1.0) Are you saying you were (2.0) ss-​stabbed with the knife (1.0) or are you saying you (0.5) grabbed the ↓knife? No no I think what actually ha::ppened was that (1.0) that I made to grab (0.5) he::r with my left ha::nd (1.0) and the next thing I knew was [the] knife had gone into (0.5) my hand [yep] 25

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The five pauses in the extended arrowed formulation are not as they seem. While my transcript shows silence that might be explained by the cognitive effort that plans for speech, the video-​record showed that each was filled with a meaningful gesture that dramatizes the formulation: 1. the IR holds an extended palm and finger gesture produced in the interrupting line of the move; 2. and 3. he begins a right-​handed stabbing action, then completes it by slapping his right fist down into his flat left palm; 4. he fully extends his left arm and fist in a grab towards the suspect. This iconic, stabbing and grabbing, sequence focuses IE on a problematic detail of his story (he claims his girlfriend was threatening him with a knife and he grabbed it in self-​defence, whereas the police view is that he grabbed it for offensive purposes; the girlfriend has multiple stab wounds and a punctured lung). The dramatized formulation marks trouble, contests the suspect’s narrative and adds violence to it, while the suspect gesturally rejects the implication that his hand injury was self-​inflicted; he produces a grab and then a two-​finger stab action that indicates the knife entering ‘into (0.5) my hand’. Formulations are, therefore, more than a resource for stating ‘the record-​thus-​far’ (Komter 2006:  201); they are powerful interpretations of meaning that transform the suspect’s story into an institutionally favourable/​biased one. In (13) (and in Extract 11 above), we have noted where questions contain SAY verbs and these are discussed next.

SAY questions SAY questions in police interviews contain ‘metadiscursive you say/​are you saying (occasionally tell/​telling), within a yes/​no or declarative question that summarises a narrative segment from the suspect’s prior talk’ (Johnson 2020: 357). They are, therefore, a powerful interrogation tool used to suggest that suspects’ answers are problematic and unbelievable. In courtroom cross-​examination, as Ahmad Sani (2019) found in her corpus-​based study of 16 Malaysian criminal trials (ten were conducted in Malaysian English, despite a policy shift in the 1980s to move the language of the courtroom from English to Malay, four were in mixed code and only one in Malay), SAY questions are commonly used by lawyers to ‘highlight inconsistencies’ in witness’s answers and challenge and ‘discredit witness evidence’ (Ehrlich 2001; Zydervelt et  al. 2017). She notes that ‘cross-​ examination is dominated by three verbal processes: “confirm”, “tell” and “say” ’ (Ahmad Sani 2019: 113) and that SAY questions are used here, too, in a combative way, to indicate that witnesses’ answers are problematic (Table 2.1). Table 2.1  Concordance lines of SAY questions in cross-​examination in Malaysian courtroom interaction Line no.

Concordance line

1 2 3 4 5 6 7 8 9 10 11

Are you saying that the head of the department is not responsible …? Are you saying it belong [sic] to the accused? Are you saying there is a mistake you did not take the photograph? Are you saying that all these photographs showing various exhibits …? Are you saying that these are the bigger exhibits …? Are you saying that you did not open any of the doors? Are you saying that at the time of the seizure …? Are you saying that the testing regarding the colour were [sic] done by you solely? So are you saying that these are the exhibits found by Detective D/​Kpl. Song? You are now saying that he did not take the photograph properly? … you did not take photograph of the content of the box, are you saying that?

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These predominantly yes/​no questions (1–​9, 11 in Table 2.1; there is only one declarative question, line 10)  not only control and coerce witnesses and defendants, but also perform face threatening acts through person and place deixis (‘you’, ‘now’) that put them under pressure to abandon their own version and accept the lawyers’ versions of facts. Some of these questions employ sarcasm (lines 1, 3, 10) where the proposition is considered impossible. Extract (14) shows an expanded example (of line 1, Table 2.1) from cross-​examination of a narcotics officer in a drug trafficking trial (DC is defence counsel; W is witness). (14) 1 2 3 4 5 6 7 8 9

DC: W: DC W DC W

Who is responsible for the maintenance of the weighing scale? The person who is responsible for the maintenance is the person who is inside the laboratory which is narcotics section staff. Who is he? All the chemists and other staffs in the narcotics section. Are you saying that the head of the department is not responsible for the maintenance of the weighing scale? No, but we always inform the head of the department if (sic) anything regarding the maintenance.

The question in lines 6–​7, and the witness’s responses in lines 2–​3 and 5, are contested through the metadiscursive ‘are you saying’ and sarcasm is created because the proposition in the lawyer’s question is indisputably logical. The question’s pragmatic power is demonstrated in the work that the witness has to do to resist the implications. In line 8, ‘no’ is expanded with adversative ‘but’ in an attempt to dismiss this line of questioning through a denial-​correction pattern. Ultimately, SAY questions are used in courtroom interaction to show the trier-​of-​fact that evidence is disputed and in police interviews to indicate the disputed evidence to both IE and to the future trier-​of-​fact. In both settings these questions function to demonstrate questioners’ affective stances of disbelief and to try to get respondents to abandon or reconsider their position. We have seen that and-​ and so-​prefaced questions, formulations and SAY questions have strategic pragmatic functions that summarise, organise, transform and control. Holt and Johnson (2006) analysed a further device in police interview data:  ‘repeating questions’, which were found to have a formulating function and we turn to these next.

Repeating questions In these questions, police interviewers specifically attempt to preserve, rather than delete or transform, the interviewee’s words or phrases, sometimes through the use of reported speech. Direct repetition of IE’s previous words does the work of drawing attention to a prosecution point for the record, but these repetitions are arguably even more powerful ways of recording prosecution arguments for future audiences than formulations that change the words of the suspect. Holt and Johnson (2006) note four recurrent features of the design of these questions: 1. they are often so-​prefaced; 2. grammatically they are not built as questions; 3. they repeat elements of the interviewee’s testimony, often bringing several elements together; 4. they invite confirmation. Extract (15) illustrates all these features. 27

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(15) 1 2 3 4 5 6 7 8 … 23 24 → 25

IE:

IR: IR: IE:

Now then, what did he say? I’ve g-​he said I’ve come to talk to you I said you want to go talk to the police not bloody me. ((cough)) And he swung at me. I pushed him back with my foot he had hold of me foot and my slipper came off with him and I got the kettle which I had on a shelf at the side with acid in and I tossed it on him but unfortunately as he was coming towards me I brought the kettle back and got the bloody acid on myself. Right Right. Just bringing it back to tonight though [First Name] erm so he came to your house and you say he took a swing at you? He took a swing at me

The repeating question in line 24 begins with so; it is not built as an interrogative; it repeats elements of the interviewee’s testimony –​that the person in question came to his house (referred to earlier in the interview) and that he ‘swung’ at him; and it invites confirmation by the interviewee which it gets in the form of a repeat of the last part. These questions often, but not always, have a ‘you say’ or another reporting clause, emphasising the repetition of IE’s own prior talk. Holt and Johnson (2006) also found that these repeating questions play an important role in the overall organisation of the interview. They can be used as summaries by linking back across prior turns to bring together several matters mentioned previously. In so doing they can initiate a series of questions or bring a section of the interview to a close. At the same time they are part of a freeze-​frame effect, where in a moment of productive paralysis, the narrative is examined by IR, restated, and then restarted. These are moments where evidence is ‘fixed’ for the record (Kozin 2008). Kozin (2008) discusses the dangers associated with such fixing, as it settles facts that may not be settled and this has consequences as the facts travel across the legal process, taking on further significance.

Conclusion Reporting, contrasting, suggesting, formulating, summarising, repeating, challenging and evaluating are at the heart of the process of recording the facts of the legal story in trials and police and prosecutorial interviews. Their use produces important fact-​ making moments that distil and encode a version of reality and plays an important part in making a legally authorised-​authoritative account. Repeating questions, SAY questions and other formulating devices are part of the ‘local accomplishment’ of police authority in the interview; it is in these moments that interviewers exert their institutional authority to ‘say what is being said’ for confirmation by interviewees, thereby ‘fixing’ the talk and transferring it from the private to the public, institutional plane. Reported speech produces moral evaluation, while contrast is used by cross-​examiners to put together contradictory versions that produce damaging accounts and produce powerful evidence. All of these devices in some way use repetition or imply summary and the power of summary is one of the most important pragmatic devices used by institutional participants in legal talk. It settles on certain facts and makes the ongoing talk evidentially relevant. 28

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The observations we have drawn together give insight into the distinctive nature of legal talk. Analysis of regularities in the form and pragmatic use of questions in the contexts considered here demonstrate how participants orient to the institutional goals and identities, to the constraints to contributions, and to the specific inferential frameworks associated with these contexts. There remains much to be said about the use, distribution and significance of the actions discussed here, not least in terms of their potential universal significance, since they are seen to operate across languages and cultures. Saying what has been and is being said in prior texts, in present texts and across texts and contexts is key work done by institutional speakers across the judicial process the world over and is a central part of evidence construction. Questions that focus on talk about talk –​metatalk –​are at the heart of processes of legitimating and rejecting evidence in the many contexts where police officers, prosecutors, lawyers and judges formulate the facts of legal stories.

Further reading Galatolo, R. (2007) ‘Active voicing in court’, in E. Holt and R. Clift (eds), Reporting Talk: Reported Speech in Interaction. Studies in Sociolinguistics 24, Cambridge:  Cambridge University Press, 195–​220. Holt, E. (2009) ‘Reported speech’, in S. D’Hondt, J.O. Östman and J. Verschueren (eds), The Pragmatics of Interaction: Handbook of Pragmatics Highlights 4, Amsterdam: John Benjamins, 190–​205. Johnson, A.J. (2020) ‘“Are you saying you were stabbed…?” Multimodality, embodied action, and dramatised formulations in “fixing” the facts in police interviews with suspects’, in M. Mason and F. Rock (eds), The Discourse of Police Investigation, Chicago: Chicago University Press, 355–​393. Levinson, S.C. (1992) ‘Activity types and language’, in P. Drew and J. Heritage (eds), Talk at Work. Interaction in Institutional Settings, Cambridge: Cambridge University Press, 66–​100.

References Ahmad Sani, N.B. (2019) Questioning and Answering Strategies in Malaysian Criminal Proceedings, PhD thesis, University of Leeds. Al Saeed, N. (2017) Power and Resistance in Interrogations of Suspects in the Egyptian Judicial Process, PhD thesis, University of Leeds. —​ —​ —​(2018) ‘The language of Egyptian interrogations:  a study of suspects’ resistance of implicatures and presuppositions in prosecution questions’, in D. Kurzon and B. Kryk-​Kastovsky (eds), Legal Pragmatics, Amsterdam: John Benjamins Publishing, 157–​179. Archer, D. (2005) Questions and Answers in the English Courtroom 1640–​1760:  A Sociopragmatic Analysis, Amsterdam: John Benjamins. Biber, D, Conrad, S. and Leech, G. (2002) A Student Grammar of Spoken and Written English, London: Longman. Brennan, M. (1994) ‘Cross-​examining children in criminal courts: Child welfare under attack’, in J. Gibbons (ed.), Language and the Law, London: Longman, 199–​216. Clayman, S. and Heritage, J. (2002) The News Interview: Journalists and Public Figures on the Air, Cambridge: Cambridge University Press. Clift, R. and Holt, E. (2007) ‘Introduction’, in E. Holt and R. Clift (eds), Reporting Talk: Reported Speech in Interaction, Cambridge: Cambridge University Press, 1–​15. Conley, J.M. and O’Barr, W.M. (1998/​2005) Just Words: Law, Language and Power, Chicago: University of Chicago Press. Coulthard, M., Johnson, A.J. and Wright, D. (2017) An Introduction to Forensic Linguistics. Language in Evidence, Abingdon and New York: Routledge. Drew, P. (1992) ‘Contested evidence in courtroom cross-​ examination:  the case of a trial for rape’, in P. Drew and J.C. Heritage (eds), Talk at Work:  Interaction in Institutional Settings, Cambridge: Cambridge University Press, 470–​520.

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—​—​—​(2003) ‘Comparative analysis of talk-​in-​interaction in different institutional settings:  A sketch’, in P.J. Glenn, C.D. leBaron, J. Mandelbaum and R. Hopper (eds), Studies on Language in Social Interaction, Mahwah, NJ: Lawrence Erlbaum Associates, 293–​308. Drew, P. and Heritage, J.C. (1992) ‘Analyzing talk at work:  an introduction’, in P. Drew and J.  Heritage (eds), Talk at Work:  Interaction in Institutional Settings, Cambridge:  Cambridge University Press, 3–​65. Ehrlich, S. (2001) Representing Rape: Language and Sexual Consent, London: Routledge. Galatolo, R. (2007) ‘Active voicing in court’, in E. Holt and R. Clift (eds), Reporting Talk: Reported Speech in Interaction. Studies in Sociolinguistics 24, Cambridge:  Cambridge University Press, 195–​220. Garfinkel, H. and Sacks, H. (1970) ‘On formal structures of practical actions’, in J.C. McKinney and E.A. Tiryakian (eds), Theoretical Sociology, New York: Appleton Century Crofts, 338–​366. Gibbons, J. (2003) Forensic Linguistics:  An Introduction to Language in the Justice System, Oxford: Blackwell. Hale, S.B. (2004) The Discourse of Court Interpreting. Discourse Practices of the Law, the Witness and the Interpreter, Amsterdam: John Benjamins. Hamza, M. (2006) ‘Discourse markers in written Arabic’, Teachers’ College Researchers Journal, 1(1): 232–​243. Harris, S. (2001) ‘Fragmented narratives and multiple tellers: Witness and defendant accounts in trials’, Discourse Studies, 3(1): 53–​74. Heffer, C. (2005) The Language of Jury Trial:  A Corpus-​Aided Analysis of Legal-​Lay Discourse, Basingstoke/​New York: Palgrave Macmillan. Heritage, J. and Sorjonen, M. (1994) ‘Constituting and maintaining activities across sequences: And-​ prefacing as a feature of question design’, Language in Society, 23(1): 1–​29. Heritage, J. and Watson, D. (1977) ‘Recent developments in the sociology of language in Britain’, Sociolinguistic Newsletter, 8: 2–​6. Heydon, G. (2005) The Language of Police Interviewing: A Critical Analysis, Basingstoke: Palgrave Macmillan. Holt, E. (2009) ‘Reported speech’, in S. D’Hondt, J.O. Östman and J. Verschueren (eds), The Pragmatics of Interaction: Handbook of Pragmatics Highlights 4, Amsterdam: John Benjamins, 190–​205. Holt, E.J. and Johnson, A.J. (2006) ‘Formulating the facts: Questions and repeats in police/​suspect interviews’, Paper at International Conference on Conversation Analysis, Helsinki, May 2006. Johnson, A.J. (2002) ‘So...? Pragmatic implications of  So-​ prefaced questions in formal police interviews’, in J. Cotterill (ed.), Language in the Legal Process, London: Palgrave, 91–​110. —​—​—​(2008) ‘“From where we’re sat … ”:  Negotiating narrative transformation through interaction in police interviews with suspects’, Text & Talk, special issue, 28(3): 327–​349. —​—​—​(2015) ‘Quoting the prisoner in 19th century Old Bailey trial discourse:  The defences of Cooper (1842) and McNaughten (1843)’, in J. Arendholz, W. Bublitz and M. Kirner-​Ludwig (eds), The Pragmatics of Quoting Now and Then, Berlin: de Gruyter, 369–​400. —​—​—​(2018) ‘ “How came you not to cry out?” Pragmatic effects of negative questioning in child rape trials in the Old Bailey Proceedings 1730–​1798’, in D. Kurzon and B. Kryk-​Kastovsky (eds), Legal Pragmatics, Amsterdam: John Benjamins, 41–​64. —​ —​ —​(2020) ‘“Are you saying you were stabbed…?” Multimodality, embodied action, and dramatised formulations in “fixing” the facts in police interviews with suspects’, in M. Mason and F. Rock (eds), The Discourse of Police Investigation, Chicago:  Chicago University Press, 355–​393. Komter, M. (2012) ‘The career of a suspect’s statement:  Text, talk, context’, Discourse Studies, 14(6): 731–​752. —​—​—​(2006) ‘From talk to text: The interactional construction of a police record’, Research on Language and Social Interaction, 39(3): 201–​228. Kozin, A.V. (2008)  ‘Unsettled facts:  On the transformational dynamism of evidence in legal discourse’, Text & Talk, 28(2): 219–​238. Levinson, S.C. (1992) ‘Activity types and language’, in P. Drew and J. Heritage (eds), Talk at Work. Interaction in Institutional Settings, Cambridge: Cambridge University Press, 66–​100. Maley, Y. (1994) ‘The language of the law’, in J. Gibbons (ed.), Language and the Law, London: Longman,  11–​50. 30

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—​ —​ —​(2000) ‘The case of the long-​ nosed potoroo:  The framing and construction of expert witness testimony’, in M. Coulthard and S. Sarangi (eds),  Discourse and Social Life, London: Longman, 246–​270. Matoesian, G. (2000) ‘Intertextual authority in reported speech: Production media in the Kennedy Smith rape trial’, Journal of Pragmatics, 32(7): 879–​914. Newbury, P. and Johnson, A. (2006) ‘Suspects’ resistance to constraining and coercive questioning strategies in the police interview’, International Journal of Speech, Language and the Law, 13(2): 213–​240. Oxburgh, G.E., Myklebust, T. and Grant, T. (2010) ‘The question of question types in police interviews: A review of the literature from a psychological and linguistic perspective’, International Journal of Speech, Language and the Law, 17(1): 45–​66. Philips, S.U. (1986) ‘Reported speech as evidence in an American trial’, in D. Tannen and J. Alatis (eds), Language and Linguistics: The Interdependence of Theory, Data, and Application, Georgetown University Round Table on Languages and Linguistics (GURT) 1985, Washington, DC: Georgetown University,154–​179. —​—​—​(1992) ‘Evidentiary standards for American trials: Just the facts’, in J.H. Hill and J.T. Irvine (eds),  Responsibility and Evidence in Oral Discourse,  Cambridge:  Cambridge University Press, 248–​259. Stokoe, E. and Edwards, D. (2010) ‘“I advise you not to answer that question”: conversation analysis, legal interaction and the analysis of lawyers’ turns in police interrogations of suspects’, in M. Coulthard and A. Johnson, The Routledge Handbook of Forensic Linguistics, 1st edn, Abingdon and New York: Routledge. Taha, K., Jarrah, M.A. and Al-​Jarrah, R.S. (2014) ‘The discoursal Arabic coordinating conjunction Wa (And)’, International Journal of Linguistics, 6(4): 172–​183. Tiersma, P. (1999) Legal Language, Chicago: University of Chicago Press. Toolan, M. (2001) Narrative: A Critical Linguistic Introduction, 2nd edn, London: Routledge. Van der Houwen, F. (2009) ‘Formulating disputes’, Journal of Pragmatics, 41(10): 2072–​2085. Winter, E. (1994) ‘Clause relations as information structure:  Two basic structures in English’, in M. Coulthard (ed.), Advances in Written Text Analysis, London: Routledge, 46–​68. Zydervelt, S., Zajac, R., Kaladelfos, A. and Westera, N. (2017) ‘Lawyers’ strategies for cross-​ examining rape complainants: Have we moved beyond the 1950s?’, British Journal of Criminology, 57(3): 551–​569.

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3 Legal writing: complexity Complex documents /​average and not-​so-​average readers Gail Stygall

Introduction In this chapter, I examine three types of complex documents: notices required by U.S. retirement law when there are decreases in future benefits for pension plan participants; the disclosures required in credit card solicitations, contracts and other financial accounts; and the documents associated with securing a financial document for the purchase of a home, a mortgage. By complex documents, I mean those dense, intricate, often confusing hybrid documents, typically composed of a combination of legal and financial languages and discourse. These difficult, complex documents often contain critical information that lay readers need to understand in order to make important financial decisions. The first type of document I  discuss here is a notice/​warning to participants in a pension plan that their retirement benefits are going to decrease because the pension plan administrators made a change in the way the plan operates. This notice is required by U.S. law. The reason that pension plan participants need the information is to make necessary changes in their retirement plans because one source of their retirement income is going to decrease. With the recent financial crisis, many pension plan administrators have changed their plan, sometimes eliminating it altogether, other times changing the company’s contribution to the retirement plan. Sometimes the person with the pension plan might receive a letter or flyer extolling the ‘new’ plan, without any focus on, or perhaps no mention at all, of the negative piece of information. The person might also receive a brief letter, filled with financial and legal terms, such as ‘freeze,’ ‘benefit accrual’ and ‘plan amendment,’ and little other text. The second type of documents I discuss here are those associated with credit cards: the letters that we receive asking us to apply for a credit card, the terms of the credit card and the credit card notices often enclosed with bills from the credit card company. These documents have some terms highlighted, as required by U.S. law, but often contain much fine print that presents excellent examples of legal language unintelligible to most people. These documents are filled with lengthy, complex and embedded sentences, organization that is difficult to discern and terms that have legal and financial meanings. These documents include sentences such as 32

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The 0% introductory Annual Percentage Rate (APR) on Balance Transfers and Convenience Checks is applicable for the first 9 billing cycles after the account is opened and requires that timely payments are received. (Travelocity 2009) The long interruptive elements in the first noun phrase (NP) are followed, after the verb (‘is’), by two more clauses. This information is presented in a tiny type (6 point, 200+ characters per line). How long the introductory rate applies is important information for a consumer and it is likely to be missed because of the way that it is presented both syntactically and graphologically. Recently, linguists and language scholars have been consulted about the likelihood that average pension plan participants would understand the notices sent to them by their pension plans. Credit card disclosure is an area of possible future consultation with linguists because the Federal Reserve Board and the U.S. Congress have made changes in what information is required for consumers. Although the new regulations are not yet in effect, it seems likely that there will be litigation to test whether these disclosure requirements have been met. My purpose in this chapter is to outline the issues, the standards and the information for a linguist to conduct an analysis of these complex documents. I begin by describing the two types, I follow that with a discussion of literacy issues in the U.S. and I close with a section on additional research that may play a role in understanding how people read these documents. For additional examples of documents, I invite readers to consult similar documents they have received themselves. Any credit card application will include the kinds of features I am discussing here.

Types of documents Pension plan documents Over the past two decades in the United States, a number of companies that offered their employees a pension plan have faced litigation from their employees or former employees for violations of the Employee Retirement Income Security Act of 1974 (ERISA). ERISA does not require that employers provide pensions, but when they do, they are required to follow the ERISA statutes and regulations, some of which require plan administrators to communicate with their employees and former employees about specific aspects of their retirement benefits. There are two types of document commonly involved with litigation over ERISA-​required communication with ‘plan participants’ (current or former employees): a ‘204(h) notice’ and a summary plan description. A ‘204(h) notice’ is required to inform pension plan participants who will or are likely to experience a ‘significant reduction in the rate of future benefit accruals’ through an amendment to the pension plan (Consolidated Omnibus Budget Reconciliation Act of 1985, Pub. L. No. 99–​272 § 11006, 100 Stat 82, 243 (1986)). This section of the ERISA statute has been amended several times, each time requiring more specific guidelines for the notices. The pension plan administrators are also required to provide a summary plan description (SPD) to each employee and then resend it at least once every five years, though many companies provide the SPD annually. The SPD must include all important benefits and limitations, as well as any amendments and changes. These documents are required to ‘be written in a manner calculated to be understood by the average plan participant’ (for 204(h) notices see 60 Fed. Reg. 64,320 to 64,324, 1995 and 63 Fed. Reg. 33

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68,678, 68,678, 1998). Since 2001, the notices must ‘provide sufficient information … to allow applicable individuals to understand the effect of the plan amendment’ (Economic Growth and Tax Relief Reconciliation Act of 2001, Pub. L. No. 107–​16, § 659, 115 Stat. 38, 140 [2001]). These then are the basic parameters with which the linguist conducts an analysis of the documents. Much of the litigation arose as corporations changed their pension plans from those that offered employees a retirement benefit based on the average salary of the final five years of employment to what is called a ‘cash-​balance’ plan. This plan presents an employee with a hypothetical or notional account that is made up of two parts: an annual percentage based on the employee’s years of service and an additional interest payment usually based on a financial market indicator, such as the rate for U.S. Treasury bills. The cash-​balance plan ‘increases’ each year, at least according to a statement given to employees annually. For some employees, usually older ones, the change from a traditional pension to a cash-​ balance plan means that their notional account increases, but their actual account does not. Actual account means the money that is paid to an employee at retirement. Although there isn’t a separately kept account for each employee, the amount due at retirement for each employee is supposed to increase over time. The cash-​balance plan appears to work better for younger employees, while older employees, who have less time to accumulate benefits, do worse (Oppel 1999). Moreover, the way the accrued benefits are calculated at the moment of change from one plan to another means that some plan participants may spend some years without earning any additional pension. This process is called wear away. These ‘hybrid’ cash-​balance plans continue to make news, as in Barclays’ decision to fund only its cash-​balance plan and stop contributing to the final average salary plan (Slater and Valente 2009). Litigation over the duty to inform has had mixed results. In many cases, the most prominent cause of action was age discrimination, with the duty to inform of significant reductions in the rate of benefit accruals sometimes an afterthought, though still a cause of action under ERISA. The age discrimination cause has been resisted by some courts. One of the most important cases involving the issue of 204(h) notices is Amara v. CIGNA (Case No. 3:01CV2361(MRK)), tried in the Federal District of Connecticut, then on appeal in the Court of Appeals, Second Circuit. I  am under a confidentiality order in these cases, so I will be drawing on Judge Kravitz’s decision in Amara for some of my examples. Congress amended ERISA in 2006 in ways that changed how cash-​balance plans are understood. The recent economic climate has meant that most current notices are 204(h) notices of complete freezes of both final average salary plans and cash-​balance plans, where no further benefits will be available to any plan participants. Ultimately, this duty to inform is a curious one: it only involves informing plan participants of a negative piece of information –​a significant reduction in the rate of future benefit accruals. The negative character of the information transforms the speech act of informing to that of warning. Pension plan 204(h) notices can take several forms. One prominent means of purportedly notifying pension plan participants of reductions in the rate of future benefit accruals for retirement was to embed ‘notice’ or ‘news’ of a different plan in a ‘new’ benefits promotion document. Judge Kravitz in Amara v.  CIGNA describes one such document as follows: In an inset box on the 1997 Newsletter’s cover, a ‘Message from CEO Bill Taylor’ states: ‘I am pleased to announce that, on January 1, 1998, CIGNA will significantly 34

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enhance its retirement program … These enhancements will make our retirement program highly competitive’ [citation omitted]. The 1997 Newsletter tells employees that ‘the new plan is designed to work well for both longer-​and shorter-​service employees,’ it provides ‘steadier benefit growth throughout [the employee’s] career’ and it ‘build[s]‌benefits faster’ than the old plan [citation omitted]. (Kravitz 22 (bolding added)) The newsletter did not tell employees that some of them were about to undergo a significant reduction in their retirement benefits. Instead, the newsletter extols the new plan. The CEO is ‘pleased’; the corporation will ‘significantly enhance’ the plan; the new plan is ‘highly competitive,’ ‘-​works well’ with both short-​and long-​term employees and the plan ‘builds benefits faster.’ Judge Kravitz noted, ‘The 1997 Newsletter did not discuss or even mention wear away’ (Kravitz 22). It would be difficult for a reader to know that they were being told about something negative happening to their pension plan. Thus, plan participants in Amara v. CIGNA were neither informed nor warned of the consequences of the plan amendment making the changes. Another strategy for ‘informing’ plan participants of the coming negative consequence is to use a short letter telling plan participants that their pension plan is to be ‘frozen.’ I offer a hypothetical ‘notice’ in example (1). (1) NOTICE To: Participants in the First Global Megacorporation Retirement Plan From: Plan Administration Committee of the First Global Megacorporation Retirement Plan Re: Freeze of Plan The First Global Megacorporation Retirement Plan has been amended to cease accruals as of December 31, 1998. This amendment freezes the First Global Megacorporation Retirement Plan as of December 31, 1998. Beginning January 1, 1999, employees who have at least one year of service will be eligible to participate in the First Global Megacorporation Cash-​ Balance Retirement Plan. There is considerable knowledge needed by readers to make sense of this brief hypothetical example of the 204(h) notice. Although it calls itself a notice, this version does not call itself a 204(h) notice; it’s simply a notice of something, not required by anyone or anybody. But it certainly has the language of a legal document. Notice that the plan names, First Global Megacorporation Retirement Plan and First Global Megacorporation Cash-​Balance Retirement Plan, are the formal, legal names of these pension plans. Additionally, there is language –​freeze, amend/​amendment, cease, accruals –​that is likely to be unfamiliar to plan participants. Those plan participants who didn’t understand the terms here would also be faced with a notice that tells them that one plan stops on one day and another plan starts the next day. It would be fair for readers to conclude that there really is no change for them as employees. Unfortunately, the freezing of the first plan will mean for some part of the participant population that their final retirement benefits will be reduced. The ‘freeze’ notice doesn’t actually say anything about reductions. There are a variety of other strategies including presentations of pension plan amendments in very technical language or providing question and answer sheets about the ‘changes’ in 35

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the pension plan among others. So, as the linguist will find, the analysis of these notices and other pension plan documents will allow him or her to identify many places where understanding begins to dissolve.

Credit card disclosures If informing/​warning is the speech act in pension plan litigation, disclosing is the speech act in making credit card solicitations, card agreements, notifications of changes in card agreements and information included on periodic statements. Governed by the Truth in Lending Act (TILA), 15 U.S.C. § 1601 et seq, Regulations AA (Unfair Acts or Practices) and Z (TILA) of the Federal Reserve, and the corresponding regulations, 12 C.F.R. § 226.5 through 226.16, issuers of credit cards (or, as they call it here, open end credit) must disclose a number of elements of credit card costs. The original idea for the TILA, in 1969, was to allow more consumers to make better, more informed choices from the options that various creditors made available to them. TILA was amended in 1988 through the Fair Credit and Charge Card Disclosure Act, providing more specific disclosure and requiring that the disclosure begin with the moment of solicitation. Even these additional disclosure requirements eventually proved to be inadequate in getting important information to consumers. Recent actions by creditors  –​changing interest rates at will after offering a promotional low rate, adding little understood fees, reducing grace periods, separating credit card purchases from rules and interest rates on convenience checks –​seem to indicate that consumers are surprised and angry when they become aware of these actions. Concerned consumers and their advocates complained vigorously to Congress and to the Federal Reserve Board. The Federal Reserve Board responded first and conducted extensive consumer testing on current disclosure requirements and made recommendations for change. Macro International conducted the design and testing of various documents that a consumer might receive: a solicitation letter, a periodic statement, and convenience checks (Macro, 16 May 2007; Macro, 15 December 2008). The studies did not take up the comprehension issues of card agreements, which often appear as tiny (3.25 x 7) inserts mailed to consumers. As far as I could ascertain, the research also did not involve making organizational or syntactic changes. For the solicitation letters and enclosures, it may have been difficult to change the organization as the graphic boxes (named Schumer boxes after the Senator who sponsored the 1988 Fair Credit Act) have certain, quite specific current requirements, such as the 18 point size on the Annual Percentage Rate (APR). These studies were conducted in various cities in the United States and used focus groups, interviews and ‘cognitive interviews’ to develop their recommendations. Their work was tested on a variety of documents and the interviewers asked participants about their understanding in careful ways. This is, in essence, usability testing, by asking actual consumers to examine and use the documents and to identify where and how there were problems in understanding. Although better labeling, movement of key phrases, changes of vocabulary and the creation of tables could improve participants’ understanding somewhat, there were at least three areas with deeper problems: the calculation of interest charges, fees versus interest rates, and balances on different types of transactions. They conclude that fundamental gaps, such as [the three] listed above are difficult to address through disclosures. Effectively explaining the difference between a 5% fee on balance transfer

36

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and a 5% APR on balance transfers, for example, would require a great deal of text—​ so much, in fact, that the consumer for whom it was intended would be unlikely to read it. (Macro, 16 May 2007: 53) They conclude this report by referring to a Federal Reserve Board proposal to use its website for consumer education. But they acknowledge that web-​based consumer education would not solve the problem. Consequently, they follow this first conclusion with a second: ‘expand coverage of these topics in K-​12 school curricula … the need for such a solution was very apparent in the course of this work’ (53–​54). With the two reports taken together, Macro International highlights the profound lack of understanding that consumers have of these credit card disclosure documents. The Federal Reserve Board, the Office of Thrift Supervision and the National Credit Union Administration voted to prohibit a number of credit card company practices considered anti-​consumer on 18 December 2008, but these rules were not to take effect until 1 July 2010. Congress passed and the President signed its own version of needed changes, the Credit Card Act of 2009, to take effect in February of 2010. Appellate decisions on credit card disclosures disputed in multiple U.S. Circuit Courts of Appeal have held that TILA requires ‘clear and conspicuous’ disclosure of all important elements of credit card agreements. The linguist in this type of case would be examining documents for their being ‘reasonably understandable’ to consumers and in a form ‘readily noticeable to consumers’ (Supplement I to 12 CFR Part 226, Regulation Z). In the future, there will be new requirements and additional disclosures to be made. Credit card documents are well known to be difficult to understand, despite attempts to make rules that require disclosure. Below, I compare a credit card solicitation (SB-​12) modeled by the Macro International study for the Federal Reserve Board with a recent solicitation sent to me for a Barnes and Noble credit card (2009). Both documents have the ‘Schumer box,’ a table-​like form with two columns, one narrow column on the left announcing the topic of the box and the other wider column on the right providing more detailed information. Both documents have other information that appears outside the Schumer box, but most of this information is different. The model form from the study provides four other sections of information: how the interest will be calculated, state law disclosures (in both forms), a billing rights summary and how the periodic finance charge is calculated. The Barnes and Noble form has many more sections: a fixed APR section; an introductory rate notice; a default APR section; a credit performance section; and, on the back side, an additional statement with six sections of its own. The model form has information in the Schumer boxes at 11 or 12 point typeface, while the entire Barnes and Noble form is in 8 point typeface, except for the interest rate required to be in 18 point typeface. There are enhancements to understanding in the model form, such as a section called ‘Penalty APR and When it Applies.’ The information on the right for this section puts ‘31.99%’ at the top in bold. What follows is a list of conditions when the penalty APR could be applied to the whole balance owed. This is followed by a boldface question, ‘How long will the Penalty APR Apply?’ and then gives the conditions. The Barnes and Noble solicitation insert shows a typographical dagger in the section ‘Other APRs’ next to ‘Default APR: Up to 29.99% variable.’ The dagger refers readers to the bottom of the page and a section labeled ‘Default APR.’ Below is the first sentence in that section:

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1) 2) 3) 4) 5)

If your payment is received late, you fail to pay at least the minimum due, your payment is not honored by your bank, or your balance exceeds your credit card line, the APR on all balances (including any introductory balances) may be increased to the then applicable Default APR.

This 49-​word sentence is presented in the same 8 point typeface, and it contains a total of five clauses –​six counting the to-​infinitive clause at 2. Although the ‘you’ pronoun is often offered to make this prose reader-​friendly, the type size, the number of clauses and its position at the bottom of the page, away from the Schumer box, makes it challenging for most readers. A number of sentences in the sections outside the Schumer box are similar in difficulty. Clauses one and five are passives, with the credit card company as the invisible actor. Another issue is that the APR here is called ‘default.’ ‘Default’ has a range of meanings, from failure to act to failure to act on legal or financial obligations or even a computer program that assumes a value when no other value is entered. But at least in part because there is a strong legal sense to default and the necessity of going to court to get a judgment of default, default seems to be an inappropriate word to substitute for paying an account late rather than not paying an account at all or to substitute default for incurring more debt than the available credit limit. The model form calls these situations ‘penalty’ APRs, which better characterize the process. Exophoric references appear throughout the Barnes and Noble form: references to the Wall Street Journal for money rates, credit reports and to specific statutes in the state of Wisconsin. There is only one exophoric reference in the model form and that is to the website of the Federal Reserve Board. What appears above, however, should not be taken to mean that the model form is flawless. As I indicated earlier, the studies completed by Macro International did not take up discourse and syntactic issues with the disclosures. Below is a particularly difficult sentence that appears outside of the Schumer box in the model form, in the ‘Periodic Finance Charge Calculation.’ 1) We compute the daily balance for each transaction category on each day by the [sic] first adding the following to the previous day’s daily balance: 2) transactions made that day, 3) fees charged that day 4) and Periodic Finance Charges accrued on the previous day’s daily balance, 5) and then by subtracting any credits and payments 6) that are applied against the balance of the transaction category on that day. I marked both the finite and non-​finite verbs here to show how many different calculations are required for the consumer to total even a single day’s daily balance finance charge. Because this material was placed outside the Schumer box, Macro International did not test improvements.

Literacy issues in the U.S. In discussing literacy with attorneys who are involved in cases where understanding pension plan information or credit card disclosure is involved, I  often find that the attorneys 38

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operate with some unfounded assumptions about literacy. They proceed as if they think that almost everyone is fully literate. Although common reference works such as almanacs estimate U.S. literacy as 99%, the functional literacy rates are much more nuanced and critical in understanding complex documents. For a linguist assessing the comprehensibility of documents, some understanding of literacy levels is important. Two national assessments of U.S.  literacy, one in 1992 and one in 2003, offer some insights into what functional literacy levels are, before assessing the comprehensibility of the particular documents considered here. Both studies measure primarily functional literacy and both studies find a relatively small percentage of the population able to accomplish the more complex tasks. The 1992 study, Adult Literacy in America, interviewed more than 13,000 people, plus an additional 1,000 in each state to produce state-​level results (xiv). Reading and subsequent tasks were divided into three categories: prose, document and quantitative. These were tasks where the participants were required to read various passages and documents and then perform an additional task related to the passages or documents. This type of test is in contrast to the more school-​centered multiple choice tests, such as the SAT. Results were presented in five levels, based on a 0–​500 point scale, with Level 5 representing the most difficult reading and tasks to complete, each level corresponding to a score for each category. Average scores across the entire test population were 276 for the prose tasks, 271 for the document tasks and 275 for the quantitative literacy tasks. Table 3.1 gives the percentages of proficiencies in each level. Level 1 was minimal literacy and the category includes some people who could not perform the tasks at all and participants whose first language was not English. The population in Level 1 represents those readers who can perform the most basic of tasks, such as ‘locating a single piece of information which is identical or synonymous with the information given in the question or directive’ (11). Level 2 was still very basic, but participants in Level 3 were able to complete a range of tasks. Level 4 was more complex, asking participants to ‘make high level text-​based inferences or draw on their background knowledge’ (19). Level 5 was most complex and participants could search through information to find specific parts that would allow them to complete very difficult tasks. Level 5 prose tasks ‘require the reader to search for information in dense text which contains a number of plausible distracters’ (11). Document tasks on Level 5  ‘require the reader to search through complex displays that contain multiple distracters, to make high-​level text-​based inferences and to use specialized knowledge’ (11). An example of a Level 5 task is ‘[u]‌sing a table comparing credit cards, identify the two categories used and write two differences between them’ (10). The study indicates that only ‘[b]etween 6 and 8 million adults nationwide demonstrated success on these types of tasks’ (19). Educational levels roughly corresponded to the levels, with Level 1 typically with less than a high school education, high school graduates at the high end of Level 2, college graduates at the high end of Level 3, and those who had some education beyond college were primarily in Level 4 (27). Table 3.1  Literacy levels percentages and reading types 1992 Task Type

Level 1

Level 2

Level 3

Level 4

Level 5

Prose Document Quantitative

21% 23% 22%

27% 28% 25%

32% 31% 31%

17% 15% 17%

3% 3% 4%

Source: Adult Literacy in America 1992.

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Stygall Table 3.2  Literacy levels percentages and reading types 2003 Task Type

Level 1

Level 2

Level 3

Level 4

Prose Document Quantitative

14% 12% 22%

29% 22% 33%

44% 53% 33%

13% 13% 13%

Source: Literacy in Everyday Life 2003.

The 2003 study, Literacy in Everyday Life: Results from the 2003 National Assessment of Adult Literacy, presented overall results that were not substantially different from those in 1992, although the survey was given to a larger national sample, 19,000, including 1,200 prisoners (1). The report apparently does not mention a 2003 state-​ by-​state collection of data, so the actual total of the 1992 study was larger. Only in quantitative literacy was there a statistically significant change in overall results, a slight increase. Average results were 275 for prose, 271 for documents and 283 for quantitative tasks. Seventy of the questions from the 1992 assessment were used in 2003, with new questions added in 2003 but not released. What was different about the 2003 study was their decision to reduce the number of levels from five to four. Level 1 is called Below Basic, Level 2 is Basic, Level 3 is Intermediate and Level 4 is Proficient. In short, they eliminated Level 5, collapsing the upper Level 4 with Level 5, including the tasks most related to the documents I discuss here. Level 1 in the 1992 study was divided into Levels 1 and 2 in the 2003, presumably also adjusting Levels 2 and 3. Additionally, they added a category called ‘nonliterate in English,’ if participants were unable to complete ‘a minimum number of simple literacy questions’ (3). These results were not included in the overall presentation of the data. Table 3.2 gives the percentages of results for all other types of reading and task. For Level 4, the minimum score required on the reading and the performance was 340. The credit card document comparison, used in both surveys, was rated 387 in 1992 but only 372 in 2003. No detailed information was given in the 2003 report about changes in questions between years. Even with changes, it is important to note that only 13% of the surveyed population was able to achieve Level 4 performance, the level most likely to require interaction with complex texts and documents. Although it is unclear how the study collapsed Levels 4 and 5, it is clear that the overall literacy levels decreased. The Proficient category, used in both reports, dropped 35% in prose literacy, 28% in document literacy, and 38% in quantitative literacy. The Proficient category is the only one in which study participants could carry out the tasks required by reading and acting upon complex documents. The report comments, ‘Between 1992 and 2003, there was a decline in the average prose literacy of adults between the ages of 25 and 39 and between the ages of 40 and 49’ (v), but this comment does not account for the overall decline in the upper literacy levels. Additional comments clarified the relationship between literacy and income: A higher percentage of adults with Below Basic prose, document, and quantitative literacy lived in households with income below $10,000 than adults with higher levels of literacy. A higher percentage of adults with Proficient prose, document, and quantitative literacy than adults with lower levels of literacy lived in household with incomes above $100,000. (Literacy in Everyday Life 2003: v) 40

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So in addition to the decrease in the Proficient category, there is also a clear association between Proficiency and a household income of more than $100,000 per year. There are, of course, more pension plan participants and credit card holders than just those in households with $100,000 annual income. These results have implications for a forensic linguistic analysis of the comprehensibility of complex documents. The audience for whom these documents are understandable enough to act upon is very small relative to the general population. That is to say, most people cannot understand or act upon these literacy tasks.

Other relevant research In this section, I examine and review some of the research available to a linguist in determining the likely comprehensibility of a complex document. Because both types of cases I analyze here are civil cases, I recommend a thorough reading of Roger Shuy’s (2008) Fighting Over Words:  Language and Civil Law Cases as an initial step in conducting a similar analysis. Shuy details an array of linguistic issues he found in these civil cases and many of them are applicable to cases of these types, especially from the sections on business contracts, deceptive trade practices and product liability. In these sections, Shuy outlines findings from his analysis of various documents and his strategies include analyzing topics, conducting semantic analysis, assessing grammatical scope, judging prominence and legibility, and presenting narrative analysis. I also want to suggest in this section that there are some additional aspects for a linguist to consider. First, there are the similarities between the language in the documents that I  describe and legal language and discourse. Some of these materials are an especially difficult hybrid of legal and financial languages. Second, the early work on how difficult syntax contributes to slower processing time has been extended and enriched and I briefly review this research. Newer studies find that there are continuing constraints on working memory. Third, the connection between the text world of the attorneys and financial specialists makes it very difficult for them to write for lay understanding. Finally, I suggest that linguists consider the literature of document designers and technical communicators for confirmation of their linguistic analysis. As the field of legal language and discourse began to emerge in the 1970s and 1980s, there was sustained interest in improving lay understanding of jury instructions (Charrow and Charrow 1979; Elwork et al. 1977, 1982). More recently, researchers Bethany Dumas and Peter Tiersma worked with state bar associations and judiciaries to revise state pattern jury instructions, although considerable resistance remains. Although the comprehensibility of product warnings has received attention in the law and language community (Tiersma 2002; Heaps and Henley 1999; Dumas 1990; Shuy 1990, 2008), the comprehensibility of other complex documents has received less attention. Rock (2007) has addressed the complexity of the police caution given in England and Wales, a document that functions as both written and spoken text in the legal setting. She examines the multiple communicative purposes of both detainees and police in Communicating Rights: The Language of Arrest and Detention. Recently, financial documents, especially those directed at consumers, have proliferated. Although many of these documents are regulated either by federal or state statute or code of regulations, enforcement of consumer-​oriented comprehension requirements has remained limited. As many observers suggest, these consumer documents are likely to be contracts of adhesion, that is, a standardized contract in which the consumer is not able to negotiate terms with the other party. Because there is no negotiation, the terms of the contract may be disadvantageous or even harmful to the consumer, yet 41

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courts have typically not challenged contracts of adhesion unless they are quite outrageous. Legal scholars Alan White and Cathy Lesser Mansfield suggest that courts are not taking into account the actual literacy levels of most consumers (White and Mansfield 2002). Peter Tiersma devotes a chapter in Legal Language to ‘What Makes Legal Language Difficult to Understand?’ He compiles a list of features that ‘impede communication’ (Tiersma 1999:  203). He includes the following:  technical vocabulary; archaic, formal and unusual words; impersonal constructions; overuse of nominalizations and passives; modal verbs; multiple negation; long and complex sentences; and poor organization (Tiersma 1999: 203–​210). Some or all of these may appear in legal documents; all detract in various ways from comprehension. To these, I would add several other characteristics including references to inaccessible texts; critical background texts not apparent to lay readers; repetitive use of formal legal names of entities; and common words used with a specialized legal meaning. As Tiersma suggests, the problem isn’t that attorneys have a professional vocabulary, language and discourse, but that they must communicate important information to people who are not attorneys. One study comparing the case law reading strategies of legal professionals (law professors) with novices found significant differences (Lundeberg 1987). When handed an appellate decision to read, legal professionals immediately put the case in context by noticing the headings, the parties, the court, the date, the name of the judge, the decision, the facts of the case, legal terms used, evaluation, and synthesizing the information. Novices were confused about legal terms, ordinary words used with a legal meaning, attempting to define words contextually although unfamiliar with the domain, adding incorrect information and assigning names to the parties rather than their roles (e.g. plaintiff, defendant). In overall strategy, the professionals spent initial time creating an overview of the case, including looking immediately for the decision. Novices did neither. The result was that the novices did not understand the import of what they were reading. As Lundeberg suggests, the novice would benefit from direct instruction on how to read in this particular domain. When presented with these types of texts, lay readers are true beginners, relying on the most basic procedures, even if these procedures are those of strong readers. In such a case, the readers are heavily dependent on working memory. The entire knowledge domain is unfamiliar to lay readers and so the transfer between working memory and long-​term memory becomes more complicated. Without domain knowledge, readers may not have a means to permanently store or retrieve the new information. Technical vocabulary is often a feature of domain knowledge and is likely to be unfamiliar to those unacquainted with the domain. The key process for lay readers then becomes working memory, previously called short-​term memory. The term ‘short-​term’ memory dates from the earlier years of psychological study of memory, when short-​term memory was seen as a unitary short-​term bank of information. Some 60  years ago, George Miller described the limits of ‘short-​term’ memory as ‘the magical number seven plus or minus two,’ indicating that people seemed capable of managing about seven chunks of information in short-​ term memory (Miller 1956). Although George Miller’s idea has become much elaborated, psychologists, psycholinguists and linguists remain aware of this sort of limit on working memory and still approximate it at around seven. However, the model is no longer unitary and in the U.S., psychologists have developed a model encompassing three parts: the central executive, a visuospatial sketch pad and phonological loop (Baddeley 1992). But no matter what the shape of the model is, the limitations on working memory remain. So lay readers lack access to domain knowledge about specialized areas of information and their working memory presents limitations on easily processing new information. Add 42

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to those limitations sentences that are already well known to present processing problems and we have a recipe for comprehension difficulties. Processing problems may include sentence length, complexity, number of embeddings, the presence of negation or passivization, syntactic ambiguity and the absence of relative pronouns marking clauses. Awareness of these processing issues reaches back as far as the late 1960s and 1970s in the United States, as in Slobin (1966; passives, negatives), Fodor and Garrett (1967; embeddings and presence of relative pronouns) and Larkin and Burns (1977; embeddings and memory), and proceeds forward to the present, as in Lord (2002; subordinate clauses more difficult), Van Dyke and McElree (2006; retrieval interference), Van Dyke (2007; retrieval interference from more than one plausible subject), Reali and Christiansen (2006; pronominal subject clauses more difficult than object clauses) and Ye and Zhou (2008; passives and incompatible sentence alternatives). Although a short sentence may be as difficult to process as a longer sentence if the available slots are filled with technical and unknown terms, very lengthy sentences impose other problems. Embeddings, especially those in the subject NP, slow processing down; ambiguous syntax or scope increases processing difficulties; texts with more of these features impede comprehension more than those sentences with fewer such features. Additional issues may appear when lengthy sentences are presented in a bulleted list of non-​parallel items, inconsistently punctuated, as seen in U.S. immigration documents (Stygall 2002). Discourse-​level phenomena also may present difficulties to lay comprehension (organization, references to outside texts, cohesion, visual presentations of information, speech acts). As Tiersma (1999) suggests, poor organization may be a feature of legal texts. To the legal professional, a text may appear to be organized sensibly, but this organization may be based on a knowledge of how legal text works that is inaccessible to lay readers. For example, jury instructions often sound disordered to lay jurors. Attorneys, who know that the order of the instructions may roughly follow a pattern book of instructions, find the organization quite sensible, but although it may make sense to the legal professional, it has very few aids to comprehension for lay jurors (Stygall 1991). The lay reader of a particular corporation’s financial document may not know that all documents of that type have the same form, perhaps required by statute or regulation. Professional financial readers may unconsciously know the document type, without realizing that lay readers do not have experience of reading many such documents. Thus, the same text may seem sensible to the professional reader but disorganized to the lay reader. Another feature of professional and academic disciplinary discourse is explicit and visible exophoric referencing; that is, references to other texts completely outside the body of the text. In legal texts, there may be references to judicial decisions, legal journal articles, briefs, regulations or statutes (or all of these). Lay readers are distracted by such references, as they generally lack access to the texts being referenced. As I have suggested elsewhere, these exophoric references mark the text’s audience as readers other than laypeople. Professional readers at least would know of the references and how to access the other texts, while lay readers in general would not. An additional area that may merit linguistic attention is the language of mortgage and related loan documents. These materials display many of the same features already mentioned in this chapter. Generally, because mortgage and contract law is one of the oldest areas of legal practice in the Anglo-​American law, change in the documents is slow and rare. But some revisions of consumer documents in the U.S.  through the relatively recent establishment of the Consumer Financial Protection Bureau suggest that rather than changing and revising the difficult language document simplification could take place 43

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by just removing the difficult language altogether. A similar approach has been tested in the Netherlands as described in Mortgage Communication Design (Herijgers 2018). In the Herijgers studies, the researcher examined the rich oral and textual contexts produced especially for first-​time mortgage holders, demonstrating comprehension boosted by these other contexts rather than depending on complex written documents as is typical in the United States. The problems with the complex written loan and mortgage documents are referenced in the recently filed Consumer Financial Protection case against a company that promised buyers with foreclosure protection (BCFP v. Certified Forensic Loan Auditors, LLC, Case 2:19-​cv-​07722). As one of the counts in the CFPB notes, ‘Consumers generally did not understand the complexities of the residential-​mortgage industry and foreclosure-​defense law’ (14). Consumers were unable to understand that the so-​called foreclosure-​defense ‘took unreasonable advantage of the material risks, cost and conditions’ of the product being sold (15). It remains to be seen if such cases lead to changes in consumer documents. A recent attempt to address the unbalanced power of contracts between consumer and large and powerful corporations came with a within-​profession look at a possible restatement of contracts, headed by law and economics expert Omri Ben-​Shahar (2007). Margaret Jane Radin in Boilerplate: The Fine Print, Vanishing Rights, and the Rule of Law (2013) adopts more of a consumer friendly position and warns that boilerplate contracts often require consumers to give up fundamental rights, such as the right to a trial heard by a jury of peers. It remains to be seen whether either version, Ben-​Shahar or Radin, will have any impact on the actual language of contracts. A linguist working in this area should be aware of the work of these two scholars in particular and their possible influence on the language of contracts and the role of consumers. An additional set of resources for the linguist working on complex documents are those associated with document designers and technical communicators. As I have reported elsewhere, document designers did work with linguists in the 1970s and early 1980s on projects to improve the overall usefulness of complex documents to readers (Stygall 2002). These projects were often associated with consumer initiatives, such as Roger Shuy’s work to make Social Security documents more understandable (Shuy 1998). With the election of Ronald Reagan as President, emphasis on consumer understanding in the U.S. yielded to an emphasis on the amount of time it took to complete forms for the government. Plain English initiatives were reversed at the federal level and research funding for document design centers was lost. However, during the Reagan administration, a number of colleges and universities began programs in technical communication, sometimes associated with schools of engineering, sometimes associated with English departments. At least two books emerging from this tradition are useful to linguists as reference materials: Paul V. Anderson’s Technical Communication:  A Reader-​Centered Approach (2007) and Karen A.  Schriver’s Dynamics in Document Design (1997). Another set of resources emerging now in document design of special interest to linguists is the Document Design Companion Series from John Benjamins and Information Design Journal, both of which often feature linguists working on documents or collaborations between linguists and document designers.

Conclusion Many commentators have wondered how legal language and discourse could be improved. Most large companies hire an actuarial/​communications or communications consulting firm to work with their staff on developing the notices, plan descriptions 44

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and of various kinds of credit card documents. To my knowledge, these companies seem not to know of either linguists or technical communicators. A  linguist could certainly advise developers on better ways to communicate and on the discourse and syntax features to avoid. Some suggest Plain English standards or say that there should be a ‘Plain English’ law. Although those Plain English standards might help temporarily, it seems likely that the legal language would reappear in a form that meets the Plain English standards, but still remains mostly incomprehensible to lay readers. The idea that there would likely be a reformulation back into law  –​or in this case, legal language  –​has been discussed by those who theorize law as an autopoietic system, resistant to the aims and principles of other systems (Luhmann 2004; Tuebner 1993; King 1997). Similarly, it has been remarkably difficult to legislate language change. Together, the two tendencies suggest that while Plain English measures may help understanding in the short term, the prospects for long-​term change are problematic. Consequently, I believe that a better strategy would be to combine linguists with document designers to conduct usability testing on a representative sample of the target reading group and then revise the documents as necessary. And the final evaluation of the documents before they go out to lay readers would need to be made by a group including linguists, document designers and attorneys. In the meantime, linguists working in a forensic setting with these complex documents should examine and analyze them thoroughly, keeping in mind what the literacy levels of varying populations may be. The discourse and linguistic features that may impede reader understanding are prominent in these documents. Although I have described only two types of document here, I could have done the same analysis for real estate Truth in Lending Statements, End User License Agreements (EULAs for computer programs), Medicare forms, asylum requests, military disability forms, lease agreements, rental contracts and a host of others. We live in a world of complex documents that are difficult for almost all readers to understand.

Further reading Kutner, M., Greenberg, E., Jin, Y., Boyle, B., Hsu, Y. and Dunleavy, E. (2007) Literacy in Everyday Life:  Results from the 2003 National Assessment of Adult Literacy, Washington, D.C.:  U.S. Department of Education http://​nces.ed.gov/​Pubs2007/​2007480.pdf (accessed 12 August 2019). Shuy, R. (1998) Bureaucratic Language in Government and Business, Washington, D.C.: Georgetown University Press. —​—​—​ (2008) Fighting over Words: Language and Civil Law Cases, Oxford: Oxford University Press. Tiersma, P. (1999) Legal Language, Chicago: University of Chicago Press.

Legal sources 60 Fed. Reg. 64,320 to 64,324, 1995. 63 Fed. Reg. 68,678, 68,678, 1998. 12 C.F.R. § 226.5 through 226.16. Amara v.  CIGNA, Case No. 3:01CV2361 (MRK), ‘Memorandum of Decision.’ United States District Court, District of Connecticut www.ctemploymentlawblog.com/​erisa.pdf (accessed 30 December 2008). Consolidated Omnibus Budget Reconciliation Act of 1985, Pub. L. No. 99–​272 § 11006, 100 Stat. 82, 243 (1986). Economic Growth and Tax Relief Reconciliation Act of 2001, Pub. L. No. 107–​16, § 659, 115 Stat. 38, 140 (2001).

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Supplement I to 12 CFR Part 226, Regulation Z. Truth in Lending Act, 15 U.S.C. § 1601 et seq.

References Anderson, P. (2007) Technical Communication:  A Reader-​Centered Approach, 6th edn, Boston: Thomson/​Wadsworth. Baddeley, A. (1992) ‘Working memory’, Science, 255(5044): 556–​559. Barnes and Noble (2009) ‘“Terms and Conditions.” 40-​1163-​TC’ (received April 2009). Ben-​Shahar, O. (ed.) (2007) Boilerplate: The Foundation of Market Contracts, Cambridge: Cambridge University Press. Charrow, R. and Charrow, V. (1979) ‘Making legal language understandable:  A psycholinguistic study of jury instructions’, Columbia Law Review, 79(7): 1306–​1374. Dumas, B. (1990) ‘Adequacy of cigarette package warnings: An analysis of the adequacy of federally mandated cigarette package warnings’, in J. Levi and A. Walker (eds), Language in the Judicial Process, New York: Plenum. Elwork, A., Sales B. and Alfini, J. (1977) ‘Juridic decisions: In ignorance of law or in the light of it?’, Law and Human Behavior, 1: 123–​141. —​—​—​ (1982) Making Jury Instructions Understandable, Charlottesville, VA: Michie. Fodor, J. and Garrett, M. (1967) ‘Some syntactic determinants of sentential complexity’, Perceptions and Psychophysics, 2(7): 289–​296. Heaps, C. and Henley, T. (1999) ‘Language matters: Wording considerations in hazard perception and warning comprehension’, Journal of Psychology, 133(3): 341–​342. Herijgers, M.L.C. (2018) Mortgage Communication Design, Utrecht: LOT. King, M. (1997) A Better World for Children? Explorations in Morality and Authority, London: Routledge. Kutner, M., Greenberg, E., Jin, Y., Boyle, B., Hsu, Y. and Dunleavy, E. (2007) Literacy in Everyday Life:  Results from the 2003 National Assessment of Adult Literacy, Washington, D.C.:  U.S. Department of Education http://​nces.ed.gov/​Pubs2007/​2007480.pdf (accessed 12 August 2019). Larkin, W. and Burns, D. (1977) ‘Sentence comprehension and memory for embedded structure’, Memory and Cognition, 5(1): 17–​22. Lord, C. (2002) ‘Are subordinate clauses more difficult?’, in J. Bybee and M. Noonan (eds), Complex Sentences in Grammar and Discourse. Essays in Honor of Sandra Thompson, Philadelphia: John Benjamins, 223–​233. Luhmann, N. (2004) Law as a Social System, trans. Klaus Ziegert, Oxford: Oxford University Press. Lundeberg, M. (1987) ‘Metacognitive aspects of reading comprehension: Studying understanding in legal case analysis’, Reading Research Quarterly, 22(4): 407–​432. Macro International (16 March 2007) Design and Testing of Effective Truth in Lending Disclosures, submitted to the Board of Governors of the Federal Reserve System, Washington, D.C., www. federalreserve.gov/​dcca/​regulationz/​20070523/​execsummary.pdf (accessed 5 January 2009). —​—​—​ (15 December 2008) Design and Testing of Effective Truth in Lending Disclosures: Qualitative Study, submitted to the Board of Governors of the Federal Reserve System, Washington, D.C., www.federalreserve.gov/​newsevents/​press/​bcreg/​bcreg20081218a7.pdf (accessed 5 January 2009). Miller, G. (1956) ‘The magical number seven, plus or minus two’, Psychological Review, 63(2): 81–​97. Oppel, R. (1999) ‘No small change as pension plans are converted’, New York Times, 24 October: 3,  12. Radin, M.J. (2013) Boilerplate: The Fine Print, Vanishing Rights, and the Rule of Law, Princeton and Oxford: Princeton University Press. Reali, F. and Christiansen, M. (2006) ‘Processing of relative clauses is made easier by frequency of occurrence’, Journal of Memory and Language, 57(1): 1–​23. Rock, F. (2007) Communicating Rights: The Language of Arrest and Detention, Basingstoke: Palgrave Macmillan. Schane, S. (2006) Language and the Law, London: Continuum Schriver, K. (1997) Dynamics in Document Design, New York: Wiley. Shuy, R. (1990) ‘Warning labels:  Language, law, and comprehensibility’, American Speech, 65(4): 291–​303. —​—​—​ (1998) Bureaucratic Language in Government and Business, Washington, D.C.: Georgetown University Press. 46

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—​—​—​ (2008) Fighting over Words: Language and Civil Law Cases, Oxford: Oxford University Press. Slater, S. and Valente, C. (2009) ‘Barclays to End Final Salary Pensions’, 3 June http://​uk.reuters. com/​article/​idUKTRE5522Y620090603 (accessed 3 June 2009). Slobin, D. (1966) ‘Grammatical transformations and sentence comprehension in childhood and adulthood’, Journal of Verbal Learning and Verbal Behavior, 5(3): 219–​227. Stygall, G. (1991) ‘Texts in oral contexts: The “transmission” of jury instructions in an Indiana trial’, in C. Bazerman and J. Paradis (eds), Textual Dynamics of the Professions, Madison: University of Wisconsin Press, 234–​255. —​—​—​(2002) ‘Textual barriers to United States immigration’, in J. Cotterill (ed.), Language in the Legal Process, Houndmills: Palgrave, 35–​53. Tiersma, P. (1999) Legal Language, Chicago: University of Chicago Press. —​—​—​(2002) ‘The language and law of product warnings’, in J. Cotterill (ed.), Language in the Legal Process, Houndmills: Palgrave, 54–​74. Tuebner, G. (1993) Law as an Autopoietic System, Oxford: Blackwell. Van Dyke, J. (2007) ‘Interference effects from grammatically unavailable constituents during sentence processing’, Journal of Experimental Psychology, 33(2): 407–​430. Van Dyke, J. and McElree, B. (2006) ‘Retrieval interference in sentence comprehension’, Journal of Memory and Language, 55(2): 157–​166. White, A. and Mansfield, C. (2002) ‘Literacy and contract’, Stanford Law & Policy Review, 13 (2): 233–​266. Ye, Z. and Zhou, X. (2008) ‘Involvement of cognitive control in sentence comprehension: Evidence from ERPs’, Brain Research, 1203(8): 103–​115.

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4 Legal writing: attitude and emphasis Corpus linguistic approaches to ‘legal language’: adverbial expression of attitude and emphasis in supreme court opinions Edward Finegan and Benjamin T. Lee

Introduction The U.S. common law system relies heavily on the written opinions of appellate courts, and it is from such opinions that American jurisprudence is learned. Particularly in the first of the three years usually required to complete a doctor of laws degree, opinions rendered by appellate court judges are the principal focus of attention in law schools in the United States (Mertz 2007). Writing about legal decision-​making and the presentation of legal opinions, Solan (1993: 1) observes that ‘[a]‌ny judge who takes himself and his position seriously struggles with these dual tasks.’ Having clerked for an associate justice of the Supreme Court of New Jersey, he adds that ‘judges usually care deeply about making the best decision they can, and about conveying their decision in a manner that makes the decision appear as fair as possible to the parties, and often to the public.’ Once judges have made a decision about a case, however, they do not typically report the anguish that went into making it. Says Solan: ‘Any lawyer who has been on the losing side of a close question will recall the shock of reading how easily the judge rejects the losing arguments out of hand, as if they could not have been made by a thinking person’ (1993: 2). As we shall see with respect to split decisions made by supreme court justices, ‘any lawyer’ could readily encompass justices on both sides of the decision. Conley et al. (2019: 190) emphasize that ‘the details of legal discourse matter because language is the essential mechanism through which the power of the law is realized, exercised, reproduced, and occasionally challenged and subverted.’ The present chapter focuses on small details of legal language in a legal register that has received relatively little attention from forensic linguists but is crucially important in the education of law school students in the U.S. In particular, we examine adverbial expressions of attitude and emphasis in decisions rendered by the Supreme Court of the United States and the Supreme Court of California. While occasionally a justice may choose to read aloud all 48

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or part of his or her opinion from the bench, the opinions rendered by justices serving in these courts are drafted as documents intended to be published in written form, and they serve as reference points or precedents for subsequent litigation.

U.S. court systems By way of background and speaking somewhat generally, the U.S. has two major categories of court systems –​a federal system and the various state systems. The federal system comprises 94 judicial districts, whose trial courts are organized into a dozen regional circuits, each circuit with an appellate level court above. For example, the United States Court of Appeals for the Ninth Circuit handles cases that have been appealed from district courts in California and eight neighboring states, including far-​flung Hawaii, Alaska and two Pacific Ocean territories. Typically, a panel of three judges hears an appellate case, but occasionally all the judges in a circuit hear a case en banc. In the exceptionally large Ninth Circuit, with 29 authorized judgeships, an en banc hearing panel comprises 11 judges –​the chief judge of the circuit and a randomly selected ten others. Circuit court decisions constitute binding precedent within the district courts of the circuit and on subsequent three-​judge panels in the circuit but not on courts in other circuits. When different circuits arrive at competing conclusions about a point of federal law or when disagreements arise between individual states (and if it agrees to grant an appeal from a circuit court decision), the U.S. Supreme Court (referred to as SCOTUS) has jurisdiction. Being the highest court in the nation, its decisions, generally speaking, are binding throughout the country. Under the U.S. Constitution, the judicial branch holds equal status with the executive and legislative branches. As to state courts, there are as many systems as there are states, and each operates under the constitution and statutes of its state and within the reach of prior appellate decisions of that state. Although not always named ‘supreme court,’ each state has a highest court (and, like federal courts and SCOTUS, states’ highest courts typically handle both civil and criminal matters). State court systems usually have a website, as with California’s (www.courts.ca.gov/​), and a wider range of information is available from the National Center for State Courts at www.ncsc.org/​. Generally, courts of appeal rely almost exclusively on written records, in particular briefs written by attorneys on each side of a dispute and by amici (friend-​of-​the-​court) briefs written by third parties. Given that what most Americans understand about their judicial systems derives principally from experience with trial courts as commonly dramatized and occasionally broadcast on television, many have only a limited understanding of the workings of appellate courts beyond the fact of their existence, especially that of SCOTUS. To appreciate how Americans likely perceive their court systems, it may be helpful to think of legal drama series or the televised arbitration hearings in Judge Judy’s small claims court. Because televised courtroom dramas do not produce the written opinions that constitute the great bulk of what is studied in U.S. law schools, the opinions that law school students study and practitioners rely on –​the focus of this chapter’s analysis –​deserve more attention than forensic and other linguists have thus far afforded them.

Expressing attitude and emphasis: justice with an attitude Permit us to frame this report with a story. In mid-​2009 then-​President Barack Obama nominated Judge Sonia Sotomayor to fill the vacancy arising from the retirement of an associate justice from the nine-​member U.S. Supreme Court. Presidential nominees to 49

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federal courts are vetted by a committee of the U.S. Senate and then must be approved by a vote of the Senate. Sotomayor had served as a judge in the federal Second Circuit and was well qualified. Still, among those who lacked enthusiasm for the nomination or opposed it, some focused not on the judge’s judicial opinions but on something she had said in a speech delivered eight years earlier: I would hope that a wise Latina woman with the richness of her experiences would more often than not reach a better conclusion than a white male who hasn’t lived that life. (Savage 14 May 2009) Sotomayor’s statement was contrasted with one credited to Sandra Day O’Connor, the first woman appointed to the U.S. Supreme Court. O’Connor had remarked about judges that, in deciding cases, a wise old man and a wise old woman would reach the same conclusion. For our purposes here, Sotomayor’s speech is noteworthy because her nomination as an associate justice of the U.S. Supreme Court prompted widespread discussion about whether and to what degree judges are engines of sheer rationality –​pure logicians even, capable of applying the law to a particular set of facts –​or are influenced by matters other than knowledge of the law and what could be called legal logic. Thus, the degree to which the language of emotion finds its way into legal opinions became a matter of increasing scrutiny and linguistic interest. This chapter examines certain aspects of the linguistic expression of judicial attitude, taking its examples from written opinions rendered and published in the years 2008 and 2018 by SCOTUS and the Supreme Court of California (taken from Lexis for 2008 and the courts’ websites for 2018). Specifically, it focuses on adverbial expressions of attitude and emphasis. With respect to emphasis, it addresses a gap between a prominent feature of supreme court opinions and a near-​universal condemnation of it in legal-​drafting textbooks and elsewhere. As an example of a trial-​level judge who freely expresses her attitudes, Judge Judy has titled one of her books Beauty Fades, Dumb is Forever and another Keep it Simple, Stupid: You’re Smarter than You Look, while a third carries the commanding title Don’t Pee on My Leg and Tell Me It’s Raining. As in her books, so in her televised courtroom Judge Judy gives voice to strong opinions and unflinching judgments. She wears her sentiments on her sleeve and expresses her attitudes with force, doubtless encouraged by her television producers, who presumably chose the outspoken judge with television ratings in mind. By contrast, appellate court judges, such as those sitting on the panels mentioned above and on the supreme courts examined here, tend to be more circumspect in the language of their decisions. But by no means should a tendency toward circumspection suggest that supreme court judges mute their attitudes or the intended emphasis of their opinions. The tagline of Judge Judy’s show is ‘Justice with an attitude,’ and that tagline could tidily capture the thrust of this chapter. Naturally, judges have the same range of grammatical structures as other English speakers through which to convey attitudinal stance in their legal opinions. Those forms include structures like the following (in which the relevant examples have added underscore, as they do throughout the chapter): predicate adjectives ‘it is absurd to do this’; ‘It is therefore unsurprising that … ’; 50

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attributive adjectives ‘It is a sad day for the rule of law when such an important constitutional precedent is discarded’; ‘if Delaware could forbid the wharfing out that Article VII allowed New Jersey to permit, Article VII was a ridiculous nullity’; ‘In light of the fundamental nature of the substantive rights embodied in the right to marry—​and their central importance to an individual’s opportunity to live a happy, meaningful, and satisfying life as a full member of society … ’; verb choice ‘the Court warps our Constitution’; ‘the majority fails to persuade me’; ‘The majority ignores the fact that plaintiffs already have those rights and privileges.’ Excerpts from court opinions quoted in this chapter come from a corpus of supreme court opinions described below. Within the excerpts, internal citations to other court opinions have been silently omitted so as to permit a ready focus on the ordinary prose of the opinions. As a notorious example of an acerbic opinion writer, the late SCOTUS associate justice Antonin Scalia’s attitudes are palpable. For example, in a case involving ‘enemy combatants’ detained at the United States Naval Station at Guantanamo Bay, a majority of justices ruled that those detainees had certain rights of due process. Scalia dissented and in his dissenting opinion did not disguise his disdain for the majority opinion: ‘In the long term, then, the Court’s decision today accomplishes little. … In the short term, however, the decision is devastating’ and ‘It is nonsensical to interpret those provisions themselves in light of some general “separation-​of-​powers principles” dreamed up by the Court’ (Boumediene v. Bush). With adjectives like devastating and nonsensical and a verb like dreamed up, Scalia articulates his legal judgments and simultaneously manifests his personal feelings. A preferred weapon in many of his opinions is the deployment of adverbs. Not quite as earthy as Judge Judy, Scalia nonetheless pulls no punches in expressing his attitudes: Today the Court warps our Constitution in a way that goes beyond the narrow issue of the reach of the Suspension Clause, invoking judicially brainstormed separation-​ of-​powers principles to establish a manipulable ‘functional’ test for the extraterritorial reach of habeas corpus. … It blatantly misdescribes important precedents. … And, most tragically, it sets our military commanders the impossible task of proving to a civilian court … that evidence supports the confinement of each and every enemy prisoner. (Boumediene v. Bush) While much could be said about certain verbs (warps, misdescribes) and adjectives (brainstormed, manipulable, important, impossible), we focus here and in the remainder of this chapter on how jurists express attitude and emphasis in their use of adverbials. Our examination is of a relatively narrow range of adverbs –​namely, those expressing attitude and emphasis. Scalia’s caustic exploitation of adverbs is by no means a solitary practice. However calm, cool and collected the legal logic behind supreme court opinions may be, the justices’ adverbs have teeth –​and can bite.

Emphatic adverbials and their prohibition Certain kinds of adverbials receive special attention in legal writing textbooks and handbooks of legal usage. For example, Bryan Garner, regarded as the dean of American 51

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legal usage, notes that from the earlier sense ‘as a matter of course,’ ‘the phrase of course took on the sense “naturally; obviously; clearly” ’; he, like others, claims that it is ‘sometimes used to fortify lame propositions. It therefore requires careful, responsible use’ (Garner 2011:  629). About clearly, another shibboleth among legal-​ drafting guides, Garner approvingly quotes a literary scholar talking of judicial style: ‘when a judge (some other judge) begins a sentence with a term of utter conviction (Clearly, Undeniably, It is plain that …), the sentence that follows is likely to be dubious, unreasonable, and fraught with difficulties’ (Garner 2011: 163, citing Gibson 1961: 925). The point can be illustrated with examples from Scalia’s majority opinion in a case involving the putative right of an individual to bear arms (District of Columbia v. Heller) as in (1). (1) a) This comparison to the Declaration of Right would not make sense if the Second Amendment right was the right to use a gun in a militia, which was plainly not what the English right protected. … Story’s Commentaries also cite as support Tucker and Rawle, both of whom clearly viewed the right as unconnected to militia service. b) Nothing so clearly demonstrates the weakness of Justice Stevens’ case. … It is entirely clear that the Court’s basis for saying that the Second Amendment did not apply was … Obviously is another adverb attracting only unfavorable marks from legal-​drafting guides. Garner calls it a dogmatic word that ‘lawyers tend to use when they are dealing with exceptionally obscure matters’ (Garner 2011: 627, citing Gilmore 1974: 116, n. 63). He captions a chapter of The Winning Brief with a directive to ‘Shun clearly and its allies’ (Garner 2004: 363), a directive justified on the admittedly paradoxical grounds that words like clearly and obviously ‘protest too much. They signal weakness.’ Garner notes about ‘exaggerators’ that ‘Often a statement prefaced with one of these words is conclusory, and sometimes even exceedingly dubious’ (Garner 2016: 171). Garner is not alone in objecting to clearly and other exaggerators. A textbook widely used in U.S. law schools directs students to ‘avoid intensifiers’ and offers this paradoxical explanation: Because generations of writers have overused words like ‘clearly’ or ‘very,’ these and other common intensifiers have become virtually meaningless. As a matter of fact, they have begun to develop a connotation exactly opposite their original meaning. (Edwards 2014: 219) Other legal writing guides make similar comments, and if their assessments are accurate it is no wonder that novice legal drafters are directed to ‘rid your writing’ of adverbs like clearly, extremely, obviously, quite and very (Edwards 2019: 251). The author of that guide goes further: Where possible, delete adverbs in favor of additional facts and more vivid verbs. Vivid verbs, alone, are much more powerful than a ho-​hum verb with an adverb. Avoid such artificial intensifiers as ‘very’ or ‘extremely.’ (Edwards 2019: 209) 52

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The disparagement of intensifiers, exaggerators and emphatics in legal language extends beyond handbook and textbook authors. In 2007 in a discussion following a speech he gave at Northwestern University law school, the chief justice of the United States Supreme Court, John G.  Roberts, lambasted such adverbials and lamented their appearance in briefs submitted to SCOTUS. We get hundreds and hundreds of briefs, and they’re all the same. Somebody says, ‘My client clearly deserves to win, the cases clearly do this, the language clearly reads this,’ blah, blah, blah. And you pick up the other side and, lo and behold, they think they clearly deserve to win. How about a little recognition that it’s a tough job? I mean, if it was an easy case, we wouldn’t have it. (Barnes 2007: A15) From the textbook author to the handbook compiler to the chief justice of the United States Supreme Court, condemnation of some adverbials is loud and persistent.

Adverbs and adverbials Although less attended to in scholarship about legal language than some other features, adverbs and adverbials are nonetheless interesting and important in several ways. For one, they display unusual syntactic flexibility, serving to modify verbs, adjectives and adverbs, as well as entire clauses. For another, they may have single words within their scope, as in (2a), or complicated clauses, as in (2b). (2)  a)  Defendant contends the challenged condition … is unconstitutionally overbroad. b) Certainly such agreements would require courts to vacate clear errors appearing on   the face of an arbitration award that cause substantial prejudice. Solan (1993) discusses a case (United States v. Yermian) at whose heart was the scope of the expression knowingly and willfully as it appeared in a section of the United States Criminal Code. The defendant’s conviction at trial was overturned on appeal to the Ninth Circuit, which disagreed with the lower court’s interpretation of adverbial scope. Then, on appeal to the U.S. Supreme Court, the Ninth Circuit’s interpretation of adverbial scope was itself overturned –​although the highest court’s 5-​to-​4 decision underscores how difficult it can be to disambiguate the scope of an adverb unanimously. Schane (2006) discusses wide and narrow adverbial scope in another SCOTUS case (Liparota v. United States), while Tiersma (1999) talks about adverbial scope in statutory law. In legal contexts, then, ambiguities of adverbial scope carry some notoriety. Adverbials may also be ambiguous in ways other than scope (Biber et al. 1999: 782ff; Huddleston and Pullum 2002: 436), and this very disposition to ambiguity contributes to their attractiveness in legal opinions. Still, despite their playing a prominent role in the expression of attitude and because as emphatics and intensifiers they are the target of contempt and proscription in textbooks on legal drafting, adverbs and adverbials deserve closer examination by forensic linguists and professional analysts of legal language. Adverbials serve several communicative or grammatical functions, two of which (affect, or attitude, and emphasis) are examined in this chapter (see also Gales, Chapter 41, this volume). Not treated here are other adverbial kinds and functions: 53

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• adverbials marking stylistic stance, such as briefly, candidly, frankly, honestly, to tell the truth, in truth and in fact, only the last of which occurs more than sporadically in our corpus of supreme court opinions and seems often an intensifier; • adverbials marking epistemic stance, such as logically, psychologically, textually, inevitably and naturally, only the last two occurring more than sporadically in our corpus; • hedging, as in about, allegedly, almost, apparently, approximately, arguably, conceivably, generally, hardly, in effect, largely, likely, maybe, nearly, seemingly, virtually, perhaps, possibly, presumably, probably, relatively, reportedly, reputedly; • conjoining, as in accordingly, consequently, however, subsequently, thereby, therefore, thus, nevertheless, nonetheless, in addition, in conclusion, in short, in sum, instead and rather. Hedging and conjoining adverbials occur in supreme court opinions but lie beyond the ambit of this chapter. Ditto for adverbials expressing manner or circumstance (again, then, now, carefully, clearly, deceptively, deliberately, earnestly, erroneously, faithfully, frequently, often, seldom, plainly, quickly, respectfully, swiftly, unreasonably), which are also frequent but not specifically pertinent to judicial expression of attitude or emphasis. Noting that both clearly and plainly are listed above among the manner or circumstance adverbials highlights the point that adverbials may carry multiple meanings and serve different functions, depending on context of use. For example, in fact may mark stylistic or epistemic stance as well as emphasis, while clearly and plainly may indicate circumstance, epistemic stance or emphasis. Or consider simply. Like many adverbs, simply is polysemous. Five senses are listed in The American Heritage Dictionary, fifth edition, two of which (‘merely, only’ and ‘absolutely, altogether’) are common in court opinions. Linguists have categorized the five senses in different ways, including as manner or circumstance adverbials, markers of stance and markers of emphasis (see Biber and Finegan 1988, 1989). In our supreme court corpus the sense ‘merely, only’ can be seen in examples such as, ‘ “Keep arms” was simply a common way of referring to possessing arms, for militiamen and everyone else,’ while the ‘absolutely, altogether’ sense may be seen in ‘The Court is simply wrong when it intones that Miller contained “not a word” about the Amendment’s history’ (underscore added; italics in original).

COSCO-​II, CUSSCO and COCA To examine adverbial expression of stance and emphatics in supreme court opinions, a corpus is indispensable. To undertake the examination reported here, a corpus comprising decisions of the U.S. and California supreme courts was compiled for two calendar years a decade apart. Cases from a single calendar year encompass opinions rendered roughly in the second half of one term (e.g., the 2007–​8 term) and the first half of the following term (2008–​9). Like the corpus compiled for the earlier version of this chapter published in 2010 and called COSCO (Corpus of Supreme Court Opinions), the current corpus, COSCO-​II, includes only court cases that were not unanimously decided. By choosing only decisions with at least one dissenting opinion, we expediently excluded many merely procedural matters (which are otherwise abundant) and expected that cases with split decisions would likely prompt expressions of attitude and emphasis to a greater extent than those decided unanimously.

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COSCO-​ II, like COSCO, includes the majority opinion and all concurring and dissenting opinions in 17 California cases (comprising approximately 242,000 words) and 56 federal cases (approximately 586,000 words) for the 2008 calendar year. (Word counts reported for COSCO-​II better represent only majority and dissenting opinions than word counts reported for the predecessor corpus, which contained material commonly included in official reports of supreme court cases but outside the opinions themselves.) In addition to the 2008 opinions, COSCO-​II contains an additional 813,000 words from opinions for the same courts in the 2018 calendar year: 497,000 words in 76 federal cases and 316,000 in 14 California cases. In all, then, COSCO-​II contains approximately 1,641,000 words of majority and dissenting opinions, including citations. Because the opinions in supreme court (and other appellate court) decisions typically contain extensive citation to other opinions, frequency counts of linguistic features ‘per million words’ of legal opinion are distinctly conservative: were internal citations excluded from a corpus of judicial opinions to produce a more fluid running text, for example, frequency counts of any linguistic feature per million words would increase. Although historical change is not a focus of this chapter, frequency counts are presented separately for the two calendar years. As a standard reference of general American English, we rely on the Corpus of Contemporary American English (Davies 2020), generally called COCA, which contains one billion words covering the years 1990–​2019. Each of COCA’s eight subcorpora, or genres, of text –​Spoken, Fiction, Magazines, Newspapers, Academic, Web (Gnl), Web (Blog) and TV/​Movies  –​contains between 119  million and 130  million words. In the findings reported in this chapter, frequency counts in COSCO-​II are compared with the parallel counts in COCA as a whole and with its Academic subcorpus, which includes content from more than 200 peer-​reviewed journals covering a wide range of subject matter. The comparison with COCA serves to highlight just how different from general English (and in some cases even from Academic writing) are the frequencies of certain adverbials in supreme court opinions. Besides exploiting a 130-​ million-​ word Corpus of U.S. Supreme Court Opinions (CUSSCO) beginning in the 1790s (Davies 2017), researchers can readily compile corpora of American supreme court opinions, relying on material available from websites for individual state courts and SCOTUS itself. (Some sites also make available the briefs filed by attorneys and others.) Particularly noteworthy is that the SCOTUS website (www. supremecourtus.gov/​) makes available transcripts of oral arguments, which usually last for one hour (a mere half hour for each side, including questions from the bench). Audio recordings of oral arguments before SCOTUS have been made since 1955 and are available through the Oyez Project (www.oyez.org), going back several decades. Thus, written texts originating in speech (transcriptions of oral arguments by litigants and questions by justices) and texts originating in writing and not usually intended to be read aloud (briefs, court opinions), as well as audio recordings of the spoken materials, are available. Some state supreme court websites provide archived audio recordings of oral arguments, leaving researchers to produce transcripts of their own. Recordings of oral arguments, which may be highly interactional, may prove invaluable to forensic linguists keen to understand and describe this hitherto largely inaccessible legal register. Almost any aspect of the language of oral arguments could be analyzed and in some cases compared with the language of written briefs filed in support of one side or the other or with the written opinions of the court. In contrast to a burgeoning interest in supreme court cases and their attendant

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written and spoken registers among political scientists and communications specialists, forensic linguists are in the early stages of such analysis (for an application of automated analysis of content in advocacy briefs, see Evans et al. 2007; Apitz and Lin 2007). But forensic linguists are beginning to recognize the value of these resources and exploit them (see e.g. Tracy 2009).

Adverbs and adverbials in COSCO-​II Turning to the principal focus of this chapter, an extraordinary range of adverbials expressing judges’ attitudes toward the substantive content of their opinions is available in COSCO-​II. The adverbial markers of stance illustrated in examples (3.1–​3.7) may be paraphrased as something akin to, ‘It should not surprise us that … ’; ‘I find it remarkable/​ inexplicable that … ’; ‘It is most important to note that … ’; ‘It is significant that. … ’; and ‘I regard it as unfortunate that … .’ (3) 1. 2. 3. 4. 5. 6. 7.

Not surprisingly, the parties vigorously disputed the waiver issue, and it sharply divided the Court. Remarkably, this Court does not require petitioners to exhaust their remedies under the statute. … The Court inexplicably concludes, however, that the liquefied natural gas (LNG) unloading wharf at stake in this litigation ‘goes well beyond the ordinary or usual.’ And, perhaps most importantly, if the Government is not applying the Proclamation’s exemption and waiver system, the claim that the Proclamation is a ‘Muslim ban,’ rather than a ‘security-​based’ ban, becomes much stronger. Significantly, AB 1889 authorizes not only the California Attorney General but also any private taxpayer … to bring a civil action against suspected violators. … Happily, we need not imagine such cases, since they come before our courts every day. Unfortunately, it would likely create, rather than alleviate, confusion to change our terminology at this point.

In COSCO-​II, surprisingly occurs rarely and five out of six times in the negative, as in (3.1), while importantly characteristically appears in comparative or superlative forms (more than three out of four times), as in (3.4). Adverbial expression of attitudinal stance is less frequent than adverbial expression of emphasis, as we show below. In COSCO-​II adverbial emphatics are abundant –​serving to do little more than adding emphasis to an aspect of content but not otherwise adding content, as in the examples in (4). Example (4.1) exhibits an original utterance followed in parenthesis by the same utterance but without the emphatic, a contrast that highlights emphatics as serving chiefly to emphasize. (4) 1. 2. 3.

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But when discussing these words, the Court simply ignores the preamble. (But when discussing these words, the Court ignores the preamble.) The Navy’s alternative course … is surely not what Congress had in mind when it instructed agencies to comply with NEPA ‘to the fullest extent possible.’ … an ‘absolute certainty’ standard is plainly inconsistent with Brecht.

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4. 5. 6.

It is particularly appropriate for us to refrain from employing equal protection doctrine to thwart the will of the voters in this case. A drug purchase was not the only possible explanation for the defendant’s conduct, but it was certainly likely enough to give rise to probable cause. But the two readings of the language that Congress chose are not equally plausible: Of the two, Florida’s is clearly the more natural.

Attitudinal and emphatic adverbs in COSCO-​II, CUSSCO and COCA It would require considerable resources to examine each occurrence of selected adverbs in a corpus of over 1.6 million words in COSCO-​II, and it was not the aim of this chapter to carry out so detailed a study. Instead, we sought to highlight the availability of a range of linguistic resources for the study of supreme court opinions and to illustrate that, contrary to considerable legal posturing and widespread public belief, supreme court opinions, far from lacking in expression of attitude and emphasis, in many instances exceed the frequency of attitudinal and emphatic adverbials in a standard corpus of general American English and in Academic prose. As mentioned above, examining frequencies of adverbs in supreme court opinions and in COCA allows comparisons to be drawn between adverbial usage in court opinions and more general English. It is important to acknowledge again that no attempt is made here to distinguish among different functions of any adverbial form (e.g. plainly, of course). Still, comparisons of word counts spotlight the unusually high frequency of attitudinal and emphatic adverbs in court opinions. Table 4.1 shows frequencies per million words for seven attitudinal adverbs in subcorpora of COSCO-​II, in COCA as a whole and in its Academic subcorpus, and in CUSSCO. Table 4.2 shows frequencies per million words for 17 emphatic adverbials across the same corpora and subcorpora as in Table 4.1. In both tables, the column labeled CALSC 08/​ 18 reports frequencies in subcorpora of COSCO-​II containing opinions of the California supreme court in each of two calendar years  –​2008 and 2018. The column labeled SCOTUS 08/​18 reports frequencies in opinions of the Supreme Court of the United States in the same calendar years –​2008 and 2018. The column labeled SCOTUS 00/​10 reports frequencies in the decade-​by-​decade CUSSCO. That corpus differs from COSCO-​II most notably in its greater scope, covering each decade from the 1790s through most of the 2010 decade; in grouping opinions by decade; by including all decisions, not only those with dissents; and by incorporating more language material appearing in published reports of Table 4.1  Attitudinal adverbials per million words in four corpora

appropriately correctly importantly improperly properly fortunately unfortunately

CALSC 08/​18

SCOTUS 08/​18

SCOTUS 00/​10

COCA/​Acad

15/​29 59/​74 24/​37 23/​49 207/​449

12/​23 59/​52 22/​16 15/​29 132/​109

23/​20 63/​47 27/​19 27/​26 171/​133

7/​19 18/​31 17/​30 2/​3 29/​34

3/​8 4/​0

2/​2 7/​9

1/​2 7/​7

14/​11 50/​44

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court decisions than the strict adherence to majority and dissenting opinions captured in COSCO-​II. The column labeled COCA/Acad reports frequencies per million words for the entire COCA corpus and, following the slash, for its Academic subcorpus. Table 4.1 shows that the first five of the seven attitudinal adverbials examined are more frequent in supreme court opinions than in COCA as a whole. In both the California and U.S.  supreme court opinions, justices used appropriately, correctly, importantly, improperly and properly more frequently than COCA exhibits for general English. In a couple of instances, though, the frequencies in COCA’s Academic subcorpus exceed use in court opinions, as with appropriately and importantly. Only fortunately and unfortunately occur consistently more frequently in COCA than in court opinions. Those two adverbs are uncommon in legal opinions  –​and, when used, are sometimes deployed disparagingly rather than sympathetically, as when Justice Scalia, writing in the Heller majority opinion (mentioned above), said of another justice’s dissenting opinion in the same case: ‘Unfortunately for Justice Stevens’ argument, that later portion deals with the Fourteenth Amendment …’ Turning now to the much-​maligned adverbials that commonly serve as emphatics, Table  4.2 shows frequencies per million words (pmw) across the same corpora and subcorpora represented in Table 4.1. We do not claim that any adverb in this list serves exclusively as an emphatic, but the frequency counts are nevertheless likely to represent chiefly emphatic use, particularly in legal opinions. We did not examine adverbs like even and so, which are frequent but vary so much in function that comparisons across different corpora would be misleading. While not showing completely consistent patterns, we have boldfaced the first eight adverbs in the table as showing generally higher frequencies of use in legal opinions than in COCA and its Academic subcorpus. In both CALSC and SCOTUS in 2008 and 2018, the frequencies for simply, indeed, merely and plainly substantially exceed the frequencies

Table 4.2  Emphatic adverbials per million words in four corpora CALSC 08/​18

SCOTUS 08/​18

SCOTUS 00/​10

COCA/​Acad

simply indeed merely plainly

375/​279 251/​262 333/​252 21/​42

420/​378 359/​254 224/​150 122/​59

410/​303 310/​255 203/​175 82/​72

168/​180 97/​189 41/​74 4/​4

clearly precisely surely readily

296/​237 45/​73 29/​41 29/​32

158/​202 103/​95 97/​77 68/​54

255/​254 84/​70 91/​56 50/​43

107/​160 27/​57 34/​28 14/​37

particularly of course actually in fact fully highly

263/​131 78/​91 91/​344 59/​162 111/​85 82/​89

134/​115 162/​137 214/​129 150/​144 63/​81 42/​56

113/​105 204/​146 155/​146 199/​156 82/​70 54/​57

105/​222 259/​123 356/​135 151/​158 64/​103 69/​157

86/​110 86/​114 8/​44

64/​113 93/​63 12/​18

60/​70 95/​69 18/​15

187/​275 139/​93 99/​17

especially certainly absolutely

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in COCA and Academic writing. The same is almost as true of the infamous clearly and of precisely, surely and readily. Those four are also generally more frequent in COSCO-​II and SCOTUS 00/​10 than in COCA although their frequencies in COSCO-​II’s CALSC subcorpora are less than that in COCA or its Academic subcorpus. Of the remaining nine emphatics, six do not show a consistent pattern although several show at least some greater frequency in COSCO-​II subcorpora and in SCOTUS 00/​ 10 than in COCA or its Academic subcorpus. The bottom three  –​especially, certainly and absolutely –​are less frequent in court opinions than in COCA, and it is perhaps not surprising that supreme court judicial opinions are wary of expressing certainty and absolutism when, to repeat the words of Justice Roberts cited above, ‘if it was an easy case, we wouldn’t have it.’ An interesting contrast can be seen between the frequency of surely (seventh on the list in Table 4.2) and its near synonyms certainly and absolutely (the last two on the list). At least when used with a clause in its scope, and especially, as here, when collocating with a negative, surely often includes not just the notion of certainty but ‘surprise that there is any doubt’ (to cite The American Heritage Dictionary, 5th edn.), a point illustrated in examples from COSCO-​II: Surely not even the Court believes that the Amendment’s operative provision … is perfectly ‘clear and unambiguous.’ (Justice Stevens, dissenting in Heller) Congress surely could not have meant this phrase to contradict its express allocation of the burden, in the same amendment. (Justice Souter, for the Court in Meacham v. Knolls Atomic Power Laboratory) In Table 4.2, besides data for COCA as a whole, only its Academic subcorpus is broken out as being closest in genre to court opinions, but it is skewing in other COCA subcorpora that accounts for surprisingly high frequencies in COCA as a whole when compared to court frequencies. For example, relative to frequencies for of course in the three columns of court corpora (the highest being 204 in SCOTUS OO), COCA’s 259 pmw skews high because of the 412 pmw in its Spoken subcorpus and 327 in its Fiction. Even more striking, COCA’s 280 pmw for actually exceeds all columns, and it is the 711 pmw in COCA’s Spoken subcorpus that skews the overall frequency, while absolutely at 99 pmw in COCA skews high, owing to its 306 pmw in the Spoken subcorpus.

Efficacy of emphatics in appellate briefs The frequency of some emphatics in the supreme court opinions in COSCO-​II may be surprising, given the strong criticism they receive from drafting experts and the judiciary. While clearly is not the most frequent emphatic in our court opinions, its use is notably more frequent in them than in COCA, which represents more familiar genres of English. Others among the condemned emphatics  –​though not all  –​are far from uncommon. Given the frequent use of some emphatics –​including some of those most explicitly condemned –​one must wonder to what end handbook authors like Garner and textbook writers like Edwards are so insistent that legal drafters avoid such adverbs. In other words, given the nearly universal condemnation of such emphatics, the question remains whether attorneys who use those adverbs in briefs for appellate courts are as 59

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disadvantaged as drafting guides would suggest. Do lawyers fail more often when a brief utilizes the intensifiers condemned by drafting experts and ridiculed by the chief justice of the U.S. Supreme Court? Just that question was addressed in a study that exploited the availability of appellate court opinions and the related briefs filed in those cases. Long and Christensen (2008) carried out a statistical analysis of correlations between lawyers’ use of a dozen adverbial intensifiers (very, obviously, clearly, patently, absolutely, really, plainly, undoubtedly, certainly, totally, simply and wholly) in their briefs and the outcome of the cases in which the briefs had been filed. They analyzed 400 federal and state appeals cases to determine whether the widespread condemnation of clearly and its cousins affected outcomes. They randomly chose federal circuit court cases and state appellate cases from the years 2001–​3 roughly in proportion to the number of cases handled by those jurisdictions. They examined only civil cases in which there was ‘a clearly discernable outcome, usually either “reversed” or “affirmed,” and the selected cases had at least one brief ’ for each party –​usually the principal and the response brief (Long and Christensen 2008: 182). They made ‘every effort … to exclude the selected intensifiers when they were not used as intensifiers’ or appeared in quoted materials (2008: 182), a refinement not available to us in the frequency counts of Table 4.1 and Table  4.2. As a measure of intensifier usage rate, Long and Christensen tallied the number of (the 12) intensifiers per page for each brief. They found that decisions that were not unanimous prompted high rates of intensifiers in both majority and dissenting opinions and that dissenting judges were ‘by far the worst offenders.’ As Long and Christensen put it, ‘when things are clearly less clear in the judges’ chambers, the judges, too, are more likely to use “clearly” and other intensifiers’ (2008:  184), precisely as claimed by Garner (2004b) and Edwards (2019). Interestingly, however, no correlation was found generally between intensifier use in lawyers’ briefs and the outcome for the clients on whose behalf the briefs had been filed. Still, the analysis did uncover some fascinating correlations; in particular, ‘the rate of intensifier use is associated with a statistically significant change in the likelihood of success on appeal’ (Long and Christensen 2008: 181). According to Long and Christensen, ‘the conventional wisdom that intensifiers are associated with losing arguments is validated’ for the majority of cases. That means that authors of legal-​drafting textbooks should be relieved to learn that ‘in certain situations, excessive intensifier use in appellate briefs is associated with a statistically significant increase in adverse outcomes for the “offending” party’ (Long and Christensen 2008: 173). Looking more closely, however, one may wonder whether it pays less to know your judge than to know your judge’s writing style! Here’s why: for petitioners aiming to get a higher court to reverse a lower court ruling, the odds of reversal actually improved for appellants with high intensifier usage rates –​‘but only when the judge writing the opinion is also a prodigious user of intensifiers’ (Long and Christensen 2008: 185).

Language and thought Long and Christensen (2008) cite a study that identified scalar values attributed to the use of the intensifier very. Subjects were given sentences to read in which very was and was not used in modification of some quality or other –​e.g. very smart, very tall. Cliff (1959) found that intensifiers do indeed intensify and that very has a scalar value of 1.25.

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In other words, readers reading a sentence referring to a very tall student judged the student to be about 25% taller than a tall one and a very smart lecturer about 25% smarter than a smart one. Other research, however, has found that when not paired in contrasting sentences (with and without the intensifier) readers did not make a significant difference between adjectives modified and not modified by very. Long and Christensen (2008: 179–​ 180) conclude that: the best characterization of the literature seems to suggest that intensifiers, if isolated from other forms of powerless speech, or if used in simultaneous comparison with a phrase omitting the intensifier, actually do what intensifiers seem meant to do—​they intensify. On the other hand, when used in connection with other forms of powerless speech, and without reference to a phrase lacking the given intensifier, they may negatively affect the writer’s or speaker’s perceived credibility or competence—​they ‘detensify.’ Elsewhere in the psycholinguistic literature, Loftus (1996) found that the language form used in questioning can affect a witness’s reply (see also Eades 2008; Matoesian 1993). Van der Houwen’s (2005) discourse analysis of the televised Judge Judy trials also suggests a correlation between the judge’s insistence on certain language in litigants’ narratives and the way to reaching an acceptable decision among small claims litigants. From various sources, then, it seems fair to say that particular language choices influence a story and presumably the perception of facts behind the story (see Heffer, Chapter 13, this volume, for a discussion of narrative in trials). Eric Kandel, winner of the Nobel Prize in Physiology and Medicine in 2000, has marshaled evidence indicating that the physiological healing in the brain that pharmacotherapy achieves and that traditional psychotherapy achieves are strikingly similar. In other words, as fMRIs and other technologies now witness, therapeutic drugs and therapeutic talk have kindred effects on the brain (Kandel 1998, 2006). Of course, investigation into the power of discourse to influence the brain remains in its infancy.

Conclusion We have shown that, generally speaking, attitudinal and emphatic adverbials appear more frequently in U.S.  state and federal supreme court opinions than in general American English and even in Academic writing. Five of seven attitudinal adverbials examined here occur more frequently in supreme court opinions, and the two exceptions are rare in court opinions. Of the 17 emphatic adverbials examined here, about half are more frequent in supreme court opinions than in general American English. While emphatics are widely condemned by legal writing experts and even the chief justice of the U.S. Supreme Court, censures have had little if any discernible effect. Given a general understanding of supreme court justices as dispassionate appliers of law to a set of facts, their frequent deployment of attitudinal and emphatic adverbials shows the justices to manifest sometimes strong feelings about the issues and interpretations of their fellow jurists. Language in use –​that is, discourse –​doubtless affects perception, albeit in ways that remain little understood. Still, we ought not think that language form does not matter. Like naïve judges of language generally, appellate court judges, including supreme court justices, are not necessarily adept at understanding their own language use, and none of

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us adequately understands the effect of reading appellate court opinions on the minds of law students. It is the duty and the responsibility of forensic linguists to describe legal language in focused ways and in particular to explore its evaluative elements.

Further reading Biber, D. and Finegan, E. (1989) ‘Styles of stance in English: Lexical and grammatical marking of evidentiality and affect’, Text, 9(1): 93–​124. Fanego, T. and Rodríguez-​Puente, P. (eds) (2019) Corpus-​Based Research on Variation in English Legal Discourse, Philadelphia: Benjamins. Goźdź-​Roszkowski, S. (2011) Patterns of Linguistic Variation in American Legal English: A Corpus-​ Based Study, Frankfurt am Main: Peter Lang. Hunston, S. and Thompson, G. (2000) Evaluation in Text: Authorial Stance and the Construction of Discourse, Oxford and New York: Oxford University Press. Solan, L. (1993) The Language of Judges, Chicago: University of Chicago Press.

References Apitz, G. and Lin, J. (2007) ‘Interfaces to support the scholarly exploration of text collections’ in Proceedings of the CHI 2007 Workshop for Exploratory Search and HCI, San Jose, http://​ users.umiacs.umd.edu/​~jimmylin/​publications/​Apitz_​Lin_​CHI2007_​workshop.pdf (accessed 14 July 2020). Barnes, R. (2007) ‘Chief justice counsels humility:  Roberts says lawyers must put themselves in judges’ shoes’, The Washington Post, 6 February: A15. Biber, D. and Finegan, E. (1988) ‘Adverbial stance types in English’, Discourse Processes, 11(1): 1–​34. —​—​—​(1989) ‘Styles of stance in English: Lexical and grammatical marking of evidentiality and affect’, Text, 9(1): 93–​124. Biber, D., Johansson, S., Leech, G., Conrad, S. and Finegan, E. (1999) Longman Grammar of Spoken and Written English, Harlow: Longman, 853–​875. Cliff, N. (1959) ‘Adverbs as multipliers’, Psychological Review, 66(1): 27–​44. Conley, J.M., O’Barr, W.M. and Riner, R.C. (2019) Just Words: Law, Language, and Power, 3rd edn, Chicago and London: University of Chicago Press. Davies, M. (2020) The Corpus of Contemporary American English (COCA), www.english-​corpora. org/​coca/​ (accessed 14 July 2020). —​—​—​ (2017) The Corpus of US Supreme Court Opinions: 130 million words, 1790s–​2010s, www. english-​corpora.org/​scotus/​ (accessed 14 July 2020). Eades, D. (2008) Courtroom Talk and Neocolonial Control, Berlin: Mouton de Gruyter. Edwards, L.H. (2014) Legal Writing: Process, Analysis, and Organization, 6th edn, New York: Aspen Publishers. —​—​—​ (2019) Legal Writing and Analysis, 5th edn, New York: Wolters Kluwer. Evans, M., McIntosh, W., Lin, J. and Cates, C. (2007) ‘Recounting the courts: Applying automated content analysis to enhance empirical legal research’, Journal of Empirical Legal Studies, 4(4): 1007–​1039. Garner, B.A. (2004) The Winning Brief, 2nd edn, Oxford and New York: Oxford University Press. —​—​—​ (2011) Garner’s Dictionary of Legal Usage, 3rd edn, Oxford and New  York:  Oxford University Press. —​—​—​ (2016) Garner’s Modern English Usage, 4th edn, Oxford and New  York:  Oxford University Press. Gibson, W. (1961) ‘Literary minds and judicial style’, New York University Law Review, 36: 915–​930. Gilmore, G. (1974) The Death of Contract, Columbus: The Ohio State University Press. Huddleston, R. and Pullum, G.K. (2002) The Cambridge Grammar of the English Language, Cambridge: Cambridge University Press. Kandel, E. (1998) ‘A new intellectual framework for psychology’, American Journal of Psychiatry, 155(4): 457–​469. —​—​—​ (2006) In Search of Memory: The Emergence of a New Science of Mind, New York: W. W. Norton. 62

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Loftus, E. (1996) Eyewitness Testimony:  With a New Preface, Cambridge, MA:  Harvard University Press. Long, L.N. and Christensen, W.F. (2008) ‘Clearly, using intensifiers is very bad—​Or is it?’, Idaho Law Review, 45: 171–​189. Matoesian, G.M. (1993) Reproducing Rape: Domination through Talk in the Courtroom, Chicago and London: University of Chicago Press. Mertz, E. (2007) The Language of Law School:  Learning to Think like a Lawyer, Oxford and New York: Oxford University Press. Savage, C. (2009) ‘A judge’s view of judging is on the record’, The New York Times, 14 May, www. nytimes.com/​2009/​05/​15/​us/​15judge.html (accessed 14 July 2020). Schane, S. (2006) Language and the Law, London: Continuum. Solan, L. (1993) The Language of Judges, Chicago and London: University of Chicago Press. Tiersma, P. (1999) Legal Language, Chicago: University of Chicago Press. Tracy, K. (2009) ‘How questioning constructs judge identities:  Oral argument about same-​sex marriage’, Discourse Studies, 11(2): 199–​221. Van der Houwen, F. (2005) Negotiating Disputes and Achieving Judgments on Judge Judy. Unpub. Ph.D. diss., University of Southern California.

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5 Creating multilingual law Language and translation at the Court of Justice of the European Union Karen McAuliffe

Introduction This chapter focuses on the relationship between law, language and translation in the EU legal order, specifically in the case law of the Court of Justice of the European Union (CJEU). In that multilingual legal order, language plays a key role in determining judicial outcomes at the EU level, and also in shaping the development of that law. Using language as a lens through which to investigate the production of a key source of EU law can not only provide a fuller understanding of how CJEU case law has evolved, but can also illustrate the limitations of a multilingual legal system. The European Union (EU) is unique among international organizations insofar as its policy on multilingualism is concerned. Unlike other international organizations, which appear to function smoothly using relatively few official languages, linguistic diversity is considered one of the ‘cornerstones’ of the EU and there are today 24 official EU languages (Bulgarian, Croatian, Czech, Danish, Dutch, English, Estonian, Finnish, French, German, Greek, Hungarian, Irish, Italian, Latvian, Lithuanian, Maltese, Polish, Portuguese, Romanian, Slovak, Slovene, Spanish and Swedish). EU citizens have the right to use any of those 24 languages in correspondence with EU institutions, which must reply in the same language(s). The elected representatives of EU citizens in the European Parliament also have the right to speak and have interpretation into any of the EU’s official languages. In terms of EU law, EU Regulations and other legislative texts are published in 23 of the 24 official EU languages. There is currently a derogation in place for the Irish language, which effectively means that only regulations adopted by both the EU Council and the European Parliament are translated into Irish (Council Regulation 2015/​2264). The process of producing EU legislation is complex: quite apart from the rules governing the various stages of the ordinary legislative procedure, which are themselves complicated, the mechanics of drafting that multilingual legislation is also complex. Ostensibly, all language versions of EU legislation are produced in parallel. However, in reality, for practical purposes, legislation is generally drafted in one or two languages (more often than not the language chosen is English) and translations are provided at particular points in the process. Moreover, those who draft EU legislation are generally doing so in a language other 64

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than their mother tongue(s). The layers of translation in producing EU legislation are thus both visible (at ‘official’ translation points) and invisible (embedded in the drafting process). At the end of the procedure, all 24 language versions of the relevant legislation are considered equally authentic. It is, therefore, not difficult to see why academics and practitioners often focus on the multilingual nature of EU law, in particular when discrepancies between language versions of EU legislation arise. Numerous cases have been brought before the CJEU as a result of discrepancies or ambiguities between different language versions of EU legislation, and many commentators have seized upon those opportunities to liken the EU to a modern-​day ‘tower of Babel’ (for example: Paunio 2007 and Derlén 2009). In recent years, a number of significant projects have emerged, which deal with multilingual EU legislation emerging (for example: Marino et al. 2018; Biel 2014). There is, however, another source of EU law which warrants further exploration: the case law of the CJEU, the judicial institution of the EU. This chapter draws on data collected over a 15-​year period to explore the impact of multilingualism and translation on that case law. The CJEU, which began its life as an administrative court with the jurisdiction to decide on the misuse of powers by the institutions of the European Coal and Steel Community, has, through its case law, crafted an innovative constitutional architecture and system of regulation and, arguably, has done more to further European integration than any of the other EU institutions. It is not difficult, therefore, to see why the CJEU interests scholars across many disciplines. Legal and political science scholars, in particular, have written a great deal about the CJEU (cf. Harmsen and McAuliffe 2014). Historically, most of that literature has focused on the CJEU’s judgments: on what those judgments say and what impact they may have on EU policy and the EU legal order. Students and commentators alike consider the meaning and implications of the words chosen by the Court in those judgments. Furthermore, political science and legal scholars have generally treated the CJEU as a unitary body (Vauchez 2012). This is in a large part due to necessity since the deliberations of the CJEU are secret and no dissenting opinions are published. However, while the Court may be obliged to express itself with one voice, it is of course staffed by individuals from Member States with diverse social and educational backgrounds, languages and cultures. More recently, a new literature has emerged, which does something that the preceding legal and political science literatures haven’t tended to do: investigate what is happening behind the scenes of the CJEU’s case law (for example: Davies 2012; Davies and Rasmussen 2012; Davies and Nicola 2017). This literature brings a new dimension to our understanding of individual cases and to the narrative of EU law more generally. The case law produced by the CJEU is not handed down from a great platonic institution, ‘tucked away in the fairytale Grand Duchy of Luxembourg’ (Stein 1981: 1), nor simply drafted by judges alone in their secret deliberations. It is created through a unique multilayered and multilingual process. This chapter explores that process, focusing on the role that translation, whether visible or ‘hidden’, plays in the production of EU case law.

Methodology This chapter is based on fieldwork research, interviews and participant observation, carried out at the CJEU between 2002 and 2018. The interview sample for this chapter consisted of 147 interviews in total (105 lawyer-​linguists; nine judges; five advocates general and 28 référendaires). Apart from slight editing [in parentheses], the quotations in 65

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this chapter are as they were recorded. Interviewees are identified only as far as the group to which they belong. Participant observation involved: observing the interactions among lawyer-​linguists and between those lawyer-​linguists and members of the Court and their référendaires (the personal legal assistants who work for the judges and advocates general at the CJEU), both in professional contexts such as meetings, seminars etc. and more informal contexts such as Court social functions, coffee breaks, lunchtimes etc.; engaging to some extent in those activities; interacting with participants socially, and identifying and developing relationships with key stakeholders and gatekeepers.

Language and translation at the CJEU In exercising its jurisdiction to ensure that ‘the law is observed’ in the ‘interpretation and application of the [EU] Treaties’ (Treaty on European Union, Article 19) the CJEU delivers judgments, orders and opinions in the 24 EU official languages (although the derogation for the Irish language referred to above also applies to CJEU case law). However, in order to function effectively on a day-​to-​day basis, the institution operates using a single working language –​French. The choice of French as the working language of the CJEU is an historic one. At the time of the Court’s inception, French was (one of) the official language(s) of three of the six founding Member States. The Court was also closely modelled on the French Conseil d’Etat, which itself has had a considerable impact on the case law produced there (Arnull 2018). In simple terms, the use of a single working language means that documents coming into the Court in any/​all of the 24 official EU languages are translated into French to be processed/​worked with in the course of a case. All internal work and documents are produced in French and, at the other end of the process, the French language judgments are translated into the other 23 languages for delivery. Of course, the reality is not so simple or straightforward. This section clarifies the actual process in more detail, before going on to shine a light on how that process works in reality. Each case submitted to the Court of Justice has a ‘language of procedure’; this is the language in which the case is conducted and in which the official version of the judgment is delivered. The language of procedure is generally the language of the parties to the case, or the language of the national referring court in Article 267 TFEU procedures.1 As mentioned above, all internal work on the case is done in French, and the judgment is drafted in French and then translated into the language of procedure, and the other official EU languages. However, under Article 41 of the Rules of Procedure of the CJEU, only the version in the language of procedure is considered authentic. In terms of the ‘internal work’ mentioned above, the first step in the process is the translation of the application into French (where the application has not originated in French). Once the application has been translated, the President of the Court allocates the case to a judge rapporteur, who in turn passes responsibility for the case to one of his/​ her personal legal assistants, known as référendaires. The référendaire is responsible for managing the case file and drafting a preliminary report. The content and structure of the preliminary report tends to vary from judge to judge; however it usually includes a brief introduction setting out the point of the case, a summary of the legal and factual background and the submissions of the parties, as well as observations and recommendations by the judge rapporteur. The Court then decides whether to deal with the case in plenary session or to refer it to a Chamber, and whether or not there should be an oral hearing. The Court can sit in plenary session, as a Grand Chamber of 15 judges, or in chambers of three or five judges. Plenary sessions are rare. 66

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Some cases include an advocate general’s opinion; however, since 2004, if a case raises no new questions of law, then an advocate general’s opinion is not necessary. Advocates general are members of the Court, but are not judges and are not involved in deliberations. The role of the advocate general is to give a reasoned, non-​binding, opinion as to how they feel a case should be decided. The Court must take account of the advocate general’s opinion in a case, but is not obliged to follow it. In cases that include an advocate general’s opinion, the judge rapporteur and his/​her référendaire(s) must wait to receive that opinion before beginning to draft the substance of the judgment. In some straightforward cases, where the judge and/​or his/​her référendaire(s) can read the language of procedure, some of the preparatory work can be done at an earlier stage; but generally the judgment should not be prepared before receiving the advocate general’s opinion. Also, the opinion may have to be translated into French as, historically, advocates general wrote their opinions in their own mother tongues (see section on ‘pivot translation’ below). Since 2004 that practice has changed and today’s advocates general are expected to write their opinions in one or more of the Court’s ‘pivot languages’ (English, French, German, Italian, Spanish –​see below) (cf. McAuliffe 2008; McAuliffe 2012). The judgment is drafted in French. Members of the CJEU may request translation of any documents into their preferred language. However, due to the high volume of work and scarcity of resources, such requests are, in practice, almost never made. Contrary to what is often imagined by students of EU law, and indeed many established scholars, the judgment is drafted before the members of the Chamber deliberate on it. Of course, the judgment is not drafted in a vacuum: the members of a Chamber, and their référendaires, discuss cases and exchange notes de déliberé(s) throughout the process. Also, in some complicated cases the judge rapporteur may wish to suggest that certain points of the case be discussed in detail by members of the Chamber before the judgment is drafted. During the secret deliberations the Chamber makes any necessary amendments to the text. Once the members of the Chamber have deliberated and have come to an agreement on their collegiate judgment (which may take weeks or even months), the final version of that judgment is drafted, in French, by the judge rapporteur and his/​her référendaires. However, the final version of a judgment, as deliberated on by the members of the relevant Chamber, is not usually the authentic version of the judgment. As mentioned above, the authentic version is actually the version in the language of procedure. Therefore, more often than not, the authentic version of a CJEU judgment (the version signed by the judges) is a translation of the version agreed on by the judges in their secret deliberations (cf. McAuliffe 2012, 2017). This process can perhaps be most usefully illustrated by way of an example:  in the case of a question sent to the CJEU under the Article 267 TFEU reference procedure, by a Greek court, the language of procedure would be Greek. The questions sent to the CJEU by the Greek court (in Greek) would be translated into French, and into the other 23 official EU languages for circulation among EU member states/​publication in the Official Journal. All of the documents submitted to the CJEU in the case, whether they be arguments of parties before the Greek courts (in Greek) or interventions from other Member States, or EU institutions (in their respective languages) would be translated into French for internal use in preparing the report of the judge rapporteur/​opinion of the Advocate General/​final judgment. The final judgment would be drafted in French and then translated into the other 23 languages, including Greek. The Greek translation of that judgment would be the authentic version of the judgment, and the version that the judges from the relevant chamber sign (regardless of whether or not they can read Greek). 67

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Pivot translation The translation system used at the CJEU is mixed:  where possible, documents are translated directly from one language into another. However the ‘mega-​enlargement’ of 2004 and subsequent EU enlargements have added so many languages to the list of official EU languages that the CJEU, like the other EU institutions, now uses a pivot translation system. That pivot translation system works as follows: • There are five ‘pivot’ languages: French, English, German, Italian and Spanish; • Aside from French, each of the other four pivot languages are assigned to two or more of the post-​2004 official EU languages: The German language division provides translations from Bulgarian, Estonian and Polish; the English language division from Czech and Lithuanian; the Spanish division from Croatian, Hungarian and Latvian; and the Italian language division from Romanian, Slovakian and Slovenian. Neither Maltese nor Irish have been assigned to a pivot language division. Since English is the second official language of both Malta and Ireland, it is assumed that the Maltese and Irish lawyer-​linguists are able to provide English translations of documents in Maltese and Irish where necessary;2 • French, as the working language of the CJEU, is considered the pivot language for all of the other official EU languages. In other words, the French language division must have the capability to translate all other official EU languages; • Documents coming into the CJEU in one of the post-​2004 languages are translated into French and, where necessary, also into the relevant pivot language. At the end of the process the French language judgment/​opinion etc. may be translated through the relevant pivot language(s) into post-​2004 EU languages. It should be remembered that not all documents require translation. Pivot translation only affects the following documents: orders for reference for a preliminary ruling under Article 267 TFEU; observations or applications to intervene from ‘post-​2004’ member states, and opinions of advocates general. Again, the impact of the pivot translation system on the process may be most usefully illustrated by way of an example:  if, instead of an Article 267 reference from a Greek court, the question sent to the CJEU came from a Czech court, the language of procedure would be Czech. The question(s) sent to the CJEU would be translated into French and English (the pivot language for Czech), and from those languages into the other 21 official EU languages for publication in the Official Journal. The final judgment would, again, be drafted in French, and then translated into English, before translation into the other 22 official EU languages, including Czech. In such instance, while every effort would be made to translate the judgment directly from French into Czech, the realities of workload and resource mean that, more often than not, the Czech version of the judgment would be produced from the English translation of the original French judgment. Once again, the Czech translation would be the authentic version of the judgment, and the version that the judges from the relevant chamber sign (irrespective of whether or not they can read Czech).

Lawyer-​linguists and translations with the force of law Although the institutional translation regime at the CJEU is unique to that institution, there are of course challenges that are universal to legal translation. The biggest difficulties 68

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in legal translation generally arise because legal systems conceptualise reality in different ways. Legal translators do not translate words; rather they translate terms embedded in specific cultural models. Legal systems reflect principles and values that underlie the organization of a society. Thus the translation of legal rules is often considered to be an import of foreign methods of organization of a society, rather than a translation of words or ideas. Each legal system in the world has a particular vocabulary or unique legal language, which is linked to a view of the social order, within the relevant state, region or organization, which in turn determines the way that the law is applied and shapes the actual functioning of that society (McAuliffe 2015). Legal translation is, therefore, at its heart, concerned with the incongruency of legal systems:  elements of one legal system cannot simply be transposed into another legal system. And so, we often see the claim made in legal translation scholarship that the task of the legal translator is ‘to make the foreign legal text accessible for recipients with a different (legal) background’ (Pommer 2012: 283). However, Pommer’s claim only works with regard to texts that do not have the force of law in the target language. Translated texts which do have the force of law are distinct in that regard, because their translation is concerned with legal transfer as opposed to cultural transfer. Legal transfer is concerned with the legal effects of the translated text: a translation of a legal text should produce the same effects in the target legal system as it does in the source legal system (Šarčević 1997). In practice, of course, achieving a target text that expresses the precise meaning and achieves the legal effects intended by the author of the source text is extremely difficult, as it is largely dependent on the rules and methods of interpretation applied by the receiver(s) of the target text. In the context of EU law, ‘the ultimate goal of legal translation is to produce parallel texts that will be interpreted and applied uniformly by the courts’ (Šarčević 1997:  72). The CJEU, therefore, aims to produce statements of law that will have the same effect throughout all EU member states, in every language in which they are published, and through such statements to ensure the uniform application of EU law. Furthermore, in most cases before the CJEU, it is a translated text that is considered the legally authentic text of a judgment. Those responsible for producing those translations must therefore strive to achieve the almost impossible task described above. Their efforts to do so not only highlight explicit translation challenges, but also shine a light on a layer of translation that is not necessarily prima facie visible in the process. The actors responsible for translating CJEU case law are lawyer-​linguists. To be a lawyer-​linguist one must hold a law degree or be qualified as a lawyer in an EU member state, and pass a translation exam, translating from French and two other EU official languages into your mother tongue. Recently, there have been recruitment competitions for lawyer-​linguists (for post-​2004 language posts) in which candidates have been required to demonstrate translation proficiency in the relevant pivot language and two other EU official languages (i.e. no requirement to be able to translate from French). Also, information on language requirements provided on the CJEU’s own website refers only to ‘a perfect command of the language of the competition’ and ‘knowledge of at least two other official Community languages’.3 This can be seen as an explicit acknowledgement of the role of pivot translation at the CJEU. The title ‘lawyer-​linguist’ brings to mind two very different professions. On the one hand lawyers’ role definitions tend to be grounded in this specific, positive concept: that in order for ‘the law’ to function it has to be considered definite, precise and deliberate. Legal professional norms, which are referents for lawyers’ behaviour, generally relate to the need 69

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to remain faithful to ‘the law’, or the effort to avoid an uncertain rule of law (cf. Abel 1997; Abel and Lewis 1995). With regard to the profession of linguist or, more specifically, translator, role perceptions tend to draw on concepts such as the power, limitations or constraints of the translator (cf. Fraser and Beeth 1999; Goulet 1966). Underlying those role perceptions is the implicit, and in many cases explicit, acknowledgement of the indeterminate nature of translation. These two professions, and their respective norms, appear to be incompatible. Yet, in the context of CJEU lawyer-​linguists, they are brought together. While dealing with the classic problems of translation on a daily basis, the lawyer-​linguists at that Court also appear to be trying to balance a dual professional identity –​that of lawyer and linguist: … ok I’m a translator, but before that I  am a lawyer. We must balance the two somehow. It’s not easy … and where do our responsibilities really lie? (lawyer-​linguist) … we must walk a tightrope between law and language … (lawyer-​linguist) … a blend of lawyer and translator … [with] two responsibilities, to the language and to the law. How do we balance this consistently? (lawyer-​linguist) This balancing act is reflected in their output: ‘hybrid’ texts that are, on the one hand, very complex and, on the other hand, pieced together in an awkward or unwieldy manner (cf. McAuliffe 2011). Sometimes it’s important to translate something very literally, because if you don’t the legal meaning may be lost or ‘fudged’ … you end up with strange, clunky, Lego-​ like language … (lawyer-​linguist) At times I cringe inwardly because the translation seems so clunky. But the alternative is beautifully written [translations] which may cause confusion legally. We have to choose between the language and the law ultimately. (lawyer-​linguist) The impact of translation on the process of producing the CJEU’s case law is thus clear. The authentic versions of CJEU judgments largely comprise translated texts, which have been produced through direct or pivot language translation. Furthermore, there are multiple layers within the translation process itself, which incorporates a delicate balancing act between law and language on the part of the CJEU’s lawyer-​linguists. However, the impact of translation on the process of producing CJEU case law cannot be restricted to the points in the process at which ‘overt’ or ‘visible’ translation, whether direct or through a pivot language, occurs. Translation, in a broader sense, is embedded throughout the process and indeed in the culture of the CJEU itself. The following section explores the various layers of translation, which are not so visible, throughout the process.

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Layers of (hidden) translation As set out above, following the delivery, where relevant, of the Advocate General’s opinion, the judge rapporteur may begin to draft the judgment. In reality, the drafting of many reports and judgments are started, at least in terms of the research and legal background, before the Advocate General’s opinion is heard. As stated above, although practices vary across cabinets, the first version of the report and judgment is generally drafted by a référendaire, with varying degrees of input from the relevant judge throughout that drafting process. Those référendaires work in French, and are, of course, highly competent in that language, although the majority are not of French mother tongue, and this has an impact on how they work. First, while they draft in French, the thinking process behind that drafting, for many référendaires, is done in their own mother tongue. I tend to translate what I want to say into French instead of really working in French … (référendaire, interviewee’s emphasis) Consequently, the legal reasoning applied by those référendaires is based on the legal reasoning embedded in their national legal systems (or the legal system(s) of the state(s) in which they were educated). … all of my own reasoning and thinking about the case is done in my own language and then put into French when I come to the writing stage … (référendaire) The intellectual reasoning processes required to carry out such legal reasoning are developed in a particular cultural context, and then expressed in a legal language embedded in a particular legal order. It is almost impossible to separate a particular type of legal reasoning from the legal language in which that reasoning is embedded: a legal scholar is ‘reined in’ by his or her own legal language (Pozzo 2006: 9). In addition to that, many référendaires report working from glossaries they have constructed themselves on the basis of ‘settled case law of the Court’: … as a starting point … I scan my glossary of French terms and phrases frequently used by the Court and find something that covers the gist of what I want to say … (référendaire) I will usually have a basic idea in my head of the direction I want to go in and what I want to say and then I use the set phrases that I have collated in my glossary to start me off and shape what I write … (référendaire) That idea of ‘settled case law’ of the CJEU, together with the fact that most référendaires do not draft in their mother tongues, the use of automatic data retrieval programs, databases and other technology, as well as the internal pressure to speed up the translation process, leads to a tendency to repeat expressions and to the inevitable development of an institutional language –​a ‘Court French’ (McAuliffe and Trklja 2019):

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… all this cutting and pasting, repetition and the conventions of writing style etc. lead inevitably to a kind of hybrid language used within the Court –​a Court French. (référendaire) … entire phrases are repeated over and over again to the extent that eventually a new type of French has emerged: the French of the Court of Justice. (référendaire) That notion of a ‘Court French’, a hybrid and formulaic language unique to the CJEU, is a recurrent theme through both interview and observational data. Furthermore, corpus linguistic analysis, carried out in order to search for certain features of hybridity and formulaicity in the language of the case law of the CJEU, also demonstrates that the French used at and by the CJEU is indeed a hybrid and formulaic legal language, apparently unique to the CJEU (McAuliffe and Trklja 2018; McAuliffe and Trklja 2019). Furthermore, the language of the CJEU shapes a particular method of reasoning used by that Court and has an impact on how readers of CJEU judgments process those texts (McAuliffe and Trklja 2019). It can therefore be surmised that the référendaires drafting judgments at the CJEU are not only constrained by their own legal language(s) in the reasoning they employ, but are equally ‘reined in’ by the framework of the institutional language in which they work. The layers of ‘hidden’ translation thus go far beyond simply finding terminological equivalents. The impact of that ‘hidden’ translation on the linguistic development of the CJEU’s case law is quite clear: on the one hand, although the référendaires are working in French and applying EU law, they are reined in by their own legal language and the legal reasoning embedded therein. On the other hand, however, it would be simplistic to suggest that individual CJEU judgments follow and reflect clear differences between the various legal systems that make up the EU member states. It is quite clear that the legal reasoning employed by référendaires (and indeed judges) in the course of their work at the CJEU is not fully transposed from their respective national legal systems: … there are arguments that I have produced that are definitely ‘Court style’ arguments … it’s like the way that I argue has been changed [affected] by the mixed legal culture of the Court. (référendaire) The various different legal systems and cultures of those drafting the judgments … have enriched the case law of the Court and contributed to the development of that case law. (référendaire) It appears, therefore, that the hybrid and unique legal language of the CJEU (which exists in 24 linguistic forms) is inextricably bound to a hybrid and unique institutional culture within that institution, which in turn contributes to the development of a wider EU legal language. This supports claims made by Joxerammon Bengoetxea that the reasoning employed in the judgments of the CJEU is monolingual, but multicultural, and unique to an autonomous supranational EU legal culture (Bengoetxea 2011).

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The next stage in the process of producing a judgment at the CJEU further embeds the institutional language of the Court and adds another layer of hidden translation to its case law. The draft judgment is taken into the relevant chamber’s secret deliberations. This part of the process is of course inaccessible to anyone who is not a member of the chamber. Deliberations are ostensibly conducted in French, although English language translations of many of the documents under review are now routinely provided. Of course, none of the members go into the deliberations ‘blind’  –​notes de délibéré(s) are circulated among chambers prior to/​leading up to the meeting. This gives members the opportunity to work on their own submissions, and where relevant/​necessary produce written notes which can then be relied on or even read aloud in the deliberations. Although no one, other than the judges involved in the deliberations, knows where compromises may lie in the final text to emerge from the deliberations, the language of that text must encompass those compromises. The référendaire(s) responsible for incorporating the Chamber’s amendments may have the opportunity to discuss the phrasing of particular parts of the judgment with the judge rapporteur. However, the lawyer-​linguist(s) responsible for translating the judgment into the authentic language version rarely, if ever, know(s) where compromises in wording lie, or where ambiguity in the language of a particular part of a judgment is deliberate. Consequently, translation choices can sometimes result in unintentional manipulation of judgments at the translation stage: If you’ve been here long enough you’ll see your chickens coming home to roost! Often you see a word or phrase that sounds very clumsy and you translate it using something that’s not quite literal but sounds neater in [the target language] and then a few years later the phrase comes back to you in another case and you realise you shouldn’t have translated it the way you did in the first place because you’ve resolved an issue that shouldn’t have been resolved at that time. (lawyer-​linguist, acting in the role of reviser of translated texts) To reduce this risk, a literal approach to translation is usually prescribed at the CJEU: … that is why we tend to translate very literally at the [CJEU] even though the translation may sound very awkward –​the idea is to preserve ambiguity where [the members of the CJEU] want it. Often the wording of a judgment is a compromise formula as a result of disagreement in the deliberations and must therefore be translated very literally. (lawyer-​linguist) This difficulty with ambiguity represents the issue at the very core of the lawyer-​linguist’s role, as discussed above:  the reconciliation of the notions of ‘law’ and ‘translation’. However, while using a literal style of translation may well aid in the preservation of ideas or ambiguity between certain language pairs, this is by no means the case in every instance. Maintaining ambiguity (intentional or not) in translation is not always an easy exercise due to characteristics of different languages and language families. It is relatively easy, for example, to render ambiguity between languages of the same family (e.g. from French into another Romance language). However, it is far more difficult to render such ambiguity when one is translating into an entirely different language family (e.g. when translating from French into German/​Estonian/​Swedish etc.). This issue came up frequently in interviews with lawyer-​linguists:

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Translating ambiguity is a real problem because in some cases in some languages you have to be more precise and therefore will lose some or all of the ambiguity … in other languages you may even increase the ambiguity. (lawyer-​linguist, interviewee’s emphasis) An example of divergence in precision can be seen in the Santillo case (1980). In that case a preliminary ruling was sought on whether a lapse of time could render a ‘recommendation to depart’ invalid under Council Directive 64/​221. The CJEU, in the English language version of the judgment (the authentic version in that case), provided a criterion in terms of whether the lapse of time ‘is liable to deprive’ such a recommendation of its validity. Some commentators have pointed out that the French language version of the judgment (i.e. the original version) was more precise, employing the words ‘est de nature à priver’, and that the ambiguity of the English language version ‘may have misled the [UK] Divisional Court and the Court of Appeal in their application of the ruling’ (Brown and Kennedy 2000: 284). Such divergences in the relative ambiguity of texts are particularly significant in the case of judgments the authentic version of which is in a language other than French. Although, historically, the precaution was often taken to send the authentic (translated) version of a judgment for review to a native-​speaker member of the CJEU (even though he/​she may not have sat in the Chamber that decided the case in question), workload and resource constraints mean that that step is no longer regularly taken. An authentic version of a judgment that is less ambiguous or more precise than the original language version that has been deliberated over by the relevant chamber could have widespread legal implications: If the translation of a judgment ends up more precise than the French original, and that translation is the authentic language version of the judgment, then presumably lawyers and courts in the relevant Member State (and perhaps even in other Member States) will follow the authentic language version assuming that that is the correct version. (lawyer-​linguist) In other words, it is likely that those responding to or engaging with CJEU judgments at a national level would assume that the ‘authentic language version’ is the correct. Although the CJEU has set out a requirement, in CILFIT (1982), for national courts to compare language versions when interpreting EU legislation (all of which are considered ‘equally authentic’), how realistic is it to expect Member State courts and tribunals to compare up to 23 different language versions of a CJEU judgment before interpreting that judgment, in particular where that Court officially declares only one of those language versions ‘authentic’? (McAuliffe 2017; Kjær 2010) An example of a translation error, rather than of the difficulties of translating ambiguity, was at the core of the Replica Sports Kit cases before the UK Competition Appeal Tribunal in 2005. Those cases hinged on the definition of a ‘concerted practice’ (a form of coordinating practical cooperation between undertakings, without taking such cooperation to the stage of an agreement, in order to effectively, and knowingly, reduce or remove competition between them) in EU law, which is set out in the Cement judgment delivered by the CJEU in 2000. The English language version of that judgment (on which the parties in the Replica Sports Kit case were relying, and which was one of nine authentic 74

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language versions of that judgment, which was a single judgment delivered in 41 joint cases  –​see below) defined a concerted practice as occurring in different circumstances to those set out in the French language version of the Cement judgment (i.e. the original version of the judgment). The English language version of the relevant paragraph states: It is sufficient that by its statement of intention the competitor should have eliminated, or at the very least, substantially reduced uncertainty as to the conduct to expect of the other on the market (my emphasis). Whereas the French language version states: Il suffit que, à travers sa déclaration d’intention, le concurrent ait éliminé ou à tout le moins substantiellement réduit l’incertitude quant au comportement à attendre de sa part sur le marché (i.e. it is sufficient that by its statement of intention the competitor should have eliminated, or at the very least, substantially reduced uncertainty as to its own conduct on the market –​my translation and emphasis). The French language version thus indicates that, for a concerted practice to exist, it is sufficient that two competitors meet and that one receives information about the other’s likely conduct; whereas the English language version implies that one competitor has to inform the other of its intended conduct. In other words, the authentic English language version of that judgment is much more precise about the conduct necessary than the original French language version, in which the illegality occurs at an earlier stage in the process of negotiations between competitors. In the Replica Sports Kit cases, there had been a meeting where one party claimed that they had received information about other competitors’ intended prices but did not inform those other competitors of its own intended prices. Relying on the English language version of the definition of a concerted practice, that party claimed they had not acted illegally. The Cement case was, however, an unusual one in that there were nine languages of procedure (due to the number of parties involved in the case) and therefore nine equally authentic language versions of the judgment: Danish, Dutch, English, French, German, Greek, Italian, Portuguese and Spanish. In delivering its ruling in the Replica Sports Kit (2005) cases, the UK Competition Appeal Tribunal therefore compared four authentic language versions of the Cement judgment (French, German, Italian and Spanish) and concluded that the English language version of that judgment was incorrect. Under Article 267 TFEU, national courts may, and in some cases must, send questions on the interpretation and application of EU law (including CJEU judgments) to the CJEU. One would assume therefore that any divergences in language versions could be dealt with in that way. However, in line with the principle set out in CILFIT (1982), if EU law is sufficiently clear and precise then there is no need to send such questions to the CJEU. Thus, the real risk to the application of uniform EU law comes in cases where differences in language versions may not be brought to light (McAuliffe 2013). If literal translation is not always especially helpful, there are also instances where it is important to translate more conceptually. Bengoetxea uses the example of the translation of ‘direct applicability’ in Advocate General Kokott’s opinion in the Mikelsson (2009) case to highlight the importance of conceptual translation and the  role that translation plays in the CJEU’s ‘genuine multilingual reasoning’ (Bengoetxea 75

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2011: 118). In the different translations of the relevant point, there appears to be confusion as to whether the advocate general is referring to direct applicability (a literal translation followed in the English, Dutch, Swedish and Danish texts) or direct effect (a more ‘conceptual’ translation, followed in the French, Spanish, Portuguese and Polish translations). This is a significant point since the concepts of direct applicability and direct effect mean different things in EU law. Direct applicability is where a provision has immediate legal effect in member states’ legal systems, with no need for any further implementation, such as in the case of EU Regulations, which are immediately applicable within member state legal systems from their date of publication without any need for implementation. Direct effect is a principle of EU law whereby an individual can rely on a provision of EU law directly before a member state national court, without having to refer to national law. In relation to Mikelsson, Bengoetxea asks: ‘Have the translators or the reviewers confused the concepts, have they corrected the confusion of the AG, is there a distinction without a difference after all?’ (Bengoetxea 2011: 119). Whatever the answer, those types of difficulty represent the issue at the very core of the lawyer-​linguists’ role: the reconciliation of the notions of ‘law’ and ‘translation’ (cf. McAuliffe 2015). The importance of the role of translation, whether overt/​visible or implicit/​hidden, in the process of producing the case law of the CJEU can quite clearly be seen. Translation is imperative in delivering the CJEU’s message to affected and interested parties across EU member states, and indeed to the wider world. More important, however, is the impact that language and translation has on EU case law itself, and thereby on the development of EU law more generally.

Conclusion The relationship between law, language and translation in the EU legal order, and in the context of the case law of the CJEU in particular, is one which invites considerable investigation. This may be obvious to the audience at which this volume is aimed, since those interested in forensic linguistics or the relationship between language and law more generally will necessarily see the value in such consideration. Surprisingly perhaps, it is not always the case for lawyers involved in EU law. ‘The language question’ is often dismissed as something fairly trivial, not really of any relevance to ‘the law’, which, in spite of layers of complexity, does function relatively smoothly. It is, therefore, important to continue to highlight the impact of multilingualism on the development and application of EU law to more general audiences. Using language as a lens through which to explore the inner workings of the CJEU can provide a fuller, and more holistic, understanding of how its case law has evolved. As demonstrated in this chapter, multilingualism and translation have an impact on that case law, playing a key role in the development of that case law, as well as its reception throughout the EU. Moreover, acknowledging the impact of language and translation on the body of case law produced by the CJEU is important in order to highlight that there is more to the creation or development of case law than what is necessarily intended by the judges involved. That is likely the case in any court, but translation introduces another element whereby that intention may be distorted as that case law is delivered to and interpreted within the wider EU. Perhaps most fundamentally, understanding the impact that language and translation may have on CJEU case law allows scholars of EU law to work towards delimiting the inconsistencies which inevitably arise in the EU’s evolving multilingual legal system. 76

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Acknowledgements I would like to acknowledge the support of the European Research Council (ERC), for funding the ‘Law and Language at the European Court of Justice’ project (The LLECJ Project) under the EU Seventh Framework Programme (FP7), which provided much of the data on which this chapter is based.

Notes 1 Under Article 267 TFEU, national courts and tribunals can refer questions on the interpretation or application of EU law to the CJEU. These actions are often referred to as ‘indirect actions’ since the cases are taking place in the national courts, and only the questions relating to the application/​interpretation of EU law are submitted to the CJEU. 2 These language pairings are correct at the time of going to press; however, changes to pairings and the translation regime itself may be introduced according to specific pressures and requirements. 3 https://​curia.europa.eu/​jcms/​jcms/​Jo2_​10740/​en/​ (accessed 19 April 2019).

Further reading Baaij, C.J.W. (2018) Legal Integration and Language Diversity:  Rethinking Translation in EU Lawmaking, New York: Oxford University Press. Kjær, A.L. and Adamo, S. (eds) (2011) Linguistic Diversity and European Democracy, Ashgate: Farnham. Leung, J.H.C. (2019) Shallow Equality and Symbolic Jurisprudence in Multilingual Legal Orders, New York: Oxford University Press. McAuliffe, K. (2016) ‘Hidden translators: The invisibility of translators and the influence of lawyer-​ linguists on the case law of the Court of Justice of the European Union’, Language and Law/​ Linguagem e Direito, 3(1). Paunio, E. (2013) Legal Certainty in Multilingual EU Law: Language, Discourse and Reasoning at the European Court of Justice, Abingdon: Routledge. Pozzo, B. and Jacometti, V. (eds) (2006) Multilingualism and the Harmonisation of European Law, Alphen aan den Rijn: Kluwer Law International.

Legal sources CJEU

Case 131/​79 Regina v. Secretary of State for Home Affairs, ex parte Mario Santillo [1980] ECR 1585. Case 283/​81 CILFIT v. Ministry of Health [1982] ECR 3415. Case T-​25/​95 Cimenteries CBR and Others v. Commission [2000] ECR II-​491. Case C-​142/​05 Åklagaren v. Mickelsson and Roos [2009] ECR I-​4273.

UK Competition Appeals Tribunal

Case numbers 1019–​1022/​1/​03 Umbro Holdings Ltd v.  Office of Fair Trading; Manchester United PLC v. Office of Fair Trading; Allsports Ltd v. Office of Fair Trading; JJB Sports PLC v. Office of Fair Trading [2005] CAT 22.

References Abel, R. (1997) Lawyers: A Critical Reader, New York: The New Press. Abel, R. and Lewis, P. (1995) Lawyers in Society, Berkeley: University of California Press. Arnull, A. (2018) ‘The working language of the CJEU: Time for a change?’, European Law Review, 6: 904–​919. Begoetxea, J. (2011) ‘Multilingual and multicultural legal reasoning:  The European Court of Justice’, in A.L. Kjær and S. Adamo (eds), Linguistic Diversity and European Democracy, Farnham: Ashgate Publishing, 97–​122. 77

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Biel, L. (2014) ‘The textual fit of translated EU law: A corpus-​based study of deontic modality’, The Translator, 20(3): 332–​355. Brown, N. and Kennedy, T. (2000) The Court of Justice of the European Communities, Maastricht: Sweet & Maxwell. Davies, B. (2012) Resisting the European Court of Justice:  West Germany’s Confrontation with European Law, Cambridge: Cambridge University Press. Davies, B. and Nicola, F. (2017) EU Law Stories, Cambridge: Cambridge University Press. Davies, B. and Rasmussen, M. (2012) ‘Towards a new history of European law’, Contemporary European History, 21(3). Derlén, M. (2009) Multilingual Interpretation of European Union Law, Alphen aan den Rijn: Kluwer Law International. Fraser, B. and Beeth, H.T. (1999) ‘The hidden life of translators: The quest for the roots of quality’, Terminologie et Traduction, 2: 76–​96. Goulet, D. (1966) ‘Le cas du traducteur fonctionnaire’, Meta, 11(4): 127–​138. Harmsen, R. and McAuliffe, K. (2014) ‘The European Courts’, in J. Magone (ed.), The Routledge Handbook of European Politics, Abingdon: Routledge, 263–​279. Kjær, A-​L. (2010) ‘Nonsense: The CILFIT criteria revisited: From the perspective of legal linguistics’, in Hoch, Hagel-​Sørensen, Haltern and Weiler (eds), Europe: The New Legal Realism: Essays in Honour of Hjalte Rasmussen, Copenhagen: DJØF Forlag. Marino, S., Biel, L., Bajcic, M. and Sosoni, V. (2018) Language and Law: The Role of Language and Translation in EU Competition Law, London: Wildy. McAuliffe, K. (2008) ‘Enlargement at the Court of Justice of the European Communities: Law, language and translation’, European Law Journal, 14(6): 806–​819. —​—​—​(2011) ‘Hybrid texts and uniform law: The production of a multilingual jurisprudence by the Court of Justice of the European Union’, International Journal for the Semiotics of Law, 24(1): 97–​115. —​—​—​(2012) ‘Language and law in the European Union:  The multilingual jurisprudence of the European Court of Justice’, in Solan, L. and Tiersma, P. (eds), The Oxford Handbook of Language and Law, Oxford: Oxford University Press, 200–​217. —​—​—​(2013) ‘The Limitations of a multilingual legal system’, International Journal for the Semiotics of Law, 26(4): 861–​882. —​—​—​ (2015) ‘Translating ambiguity’, The Journal of Comparative Law, 9(2): 49–​71. —​—​—​(2017) ‘Behind the scenes at the Court of Justice: A story of process and people’, in B. Davies and F. Nicola (eds), EU Law Stories, Cambridge: Cambridge University Press, 35–​57. McAuliffe, K. and Trklja, A. (2018) ‘Superdiversity and the relationship between law, language and translation in a supranational legal order’, in B. Malkani, F. Rock, A. Creese and A. Blackledge (eds), Routledge Handbook on Language and Superdiversity, Abingdon: Routledge, 426–​441. —​—​—​(2019) ‘Formulaic metadiscursive signaling devices in judgments of the Court of Justice of the European Union: A new corpus-​based model for studying discourse relations of texts’, International Journal of Speech, Language and Law, 26(1): 21–​55. Paunio, E. (2007) ‘The Tower of Babel and the interpretation of EU law –​Implications for equality of languages and legal certainty’, in T. Wilhelmsson (ed.), Private Law and the Many Cultures of Europe, Alphen aan den Rijn: Kluwer Law International, 385–​402. Pommer, S. (2012) ‘The hermeneutic approach in legal translation’, in L. Cercel and J. Stanley (eds), Unterwegs zu einer hermeneutischen Übersetzungswissenschaft. Radegundis Stolze zu ihrm 60. Geburtstag, Tübingen: Narr, 274–​287. Pozzo, B. (2006) ‘Multilingualism, legal terminology and the problems of harmonising European private law’, in B. Pozzo and V. Jacometti (eds), Multilingualism and the Harmonisation of European Law, Alphen aan den Rijn: Kluwer Law International, 3–​20. Šarčević, S. (1997) New Approach to Legal Translation, Alphen aan den Rijn:  Kluwer Law International. Stein, E. (1981) ‘Lawyers, judges and the making of a transnational constitution’, American Journal of International Law, 75(1): 1–​27. Vauchez, A. (2012) ‘Keeping the dream alive: The European Court of Justice and the transnational fabric of integrationist jurisprudence’, European Political Science Review, 4(1): 51–​71.

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6 Legal interpretation The category of ordinary meaning and its role in legal interpretation Christopher Hutton

Introduction The category of ordinary meaning is central to legal interpretation. According to the ‘ordinary meaning doctrine,’ words in statutes, contracts and other legal texts are given their ordinary meaning unless the context requires otherwise (Slocum 2015). The topic of ordinary meaning raises questions about how the linguistic and interpretative culture of law relates to the language practices and beliefs of ordinary speakers (so-​called folk or lay linguistics), to specialist non-​legal frameworks such as lexicography, as well as to academic linguistic analysis (semantics, prototype theory, corpus linguistics and other approaches). But what is ordinary meaning and how is it to be determined? An implicit claim to neutrality, stability and communality makes ordinary language an intuitively attractive reference point in legal argumentation. But the category suffers from a corresponding sociological and sociolinguistic deficit. Put simply, it has intuitive plausibility and utility, but lacks empirical content. This piece examines the tensions between two incompatible positions with respect to ordinary language and legal interpretation. The first sees legal interpretation primarily as a specialized activity with its own standards, techniques and rationale. It follows that the interpretative culture of law represents a self-​regulated and reflexive set of practices not to be conflated with the interpretative strategies used by ordinary speakers. Finding the legally-​appropriate meaning of a word, phrase or text is fundamentally a question of law. Ordinary language as a category is a construct of law or legal fiction. The contrasting position argues for a substantial overlap between ordinary meaning-​finding practices and legal interpretation. It sees legal interpretation as grounded in ordinary interpretation, and views questions of interpretation as primarily questions of fact. This position correlates with a realist view of ordinary language. The greater the overlap between the linguistic culture of law and ordinary communicative practice, the greater the claim of external experts such as linguists to offer insight into legal interpretation. The discussion below focuses primarily on issues that arise when judges interpret mundane or banal English words embedded in legal texts. Such words may be of fundamental 79

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sociocultural significance, such as woman, family or parent, basic ontological categories such as animal or fruit, or everyday terms or activities, such as interview, information, biscuit, carriage or sandwich. The relevant genre of texts is primarily statutes, but analogous issues are raised by the interpretation of contracts, wills, patents and regulations that differentiate among classes of goods (taxes and tariffs).

The interpretive culture of law The interpretative culture of law is generally presented in the form of a set of rules and maxims. These are set out in works such as Michael Zander’s The Law Making Process (2004: 127ff.; Hutton 2009). As traditionally taught, these rules include the literal or plain meaning rule, understood as instructing the judge to apply the statute strictly without considering whether the result is absurd or could have been intended (see R v. Judge of the City of London 1892), the mischief rule, which instructs the judge to identify in the statute the problem to which it was directed and the remedy it proposed (Heydon’s Case 1584), and the golden rule, which states that the judge should follow the wording literally unless an absurdity would result (Adler v. George 1964). Contemporary discussions tend to see legal interpretation in terms of dualities, in particular between literal or textualist interpretation as opposed to ‘purposive’ or intentionalist approaches. In the latter case, the judge may tacitly or explicitly resort to a judicial micro-​amendment in order to find the answer to an ambiguity or apparent silence on the point that has arisen. Complicated terminological questions arise in relation to plain meaning, literal meaning, popular meaning, textual meaning, common usage, natural usage and so on. Ordinary is used in various combinations, such as ordinary and natural, ordinary and customary, ordinary and accustomed, etc. For some commentators, these terms are more or less synonymous; for others, there are doctrinal distinctions at stake. Manning (1997: 696), for example, distinguishes literal from textual meaning: ‘Textualism is not literalism. Not even the most committed textualist would claim that statutory texts are inherently “plain on their face,” or that all interpretation takes place within the four corners of the Statutes at Large.’ This piece will use the term ordinary meaning, since there is an implied subject position associated with this category, namely the ordinary speaker. In an 1899 essay on legal interpretation Oliver Wendell Holmes evoked the normal speaker of English (1899: 417–​ 418): ‘Thereupon we ask, not what this man meant, but what those words would mean in the mouth of a normal speaker of English, using them in the circumstances in which they are used.’ This speaker was ‘a special variety, a literary form, so to speak, of our old friend the prudent man. He is external to the particular writer, and a reference to him as the criterion is simply another instance of the externality of law’ (1899: 418). Petroski (2017) points out that this figure of the normal or ordinary speaker can be understood within both a ‘fictionalist’ and a ‘realist’ framework. The former reflects the notion discussed above that legal interpretation is primarily a question of the internal interpretative culture of law; the latter asserts that there is something sociologically or sociolinguistically factual about ordinary language and its speakers. Adopting the first view, Petroski notes that the normal speaker, like the prudent or reasonable man, is a legal construct, the personification of objectivity. This construct takes no account of ‘linguistic diversity’ (Petroski 2017: 114). Petroski argues that judges are reluctant to recognize the fictional nature of this figure explicitly, as it carries the corollary that ‘legal English and non-​legal English are, in fact, different’ (Petroski 2017: 118). Judges are not ordinary interpreters of texts

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but rather ‘players in a very serious game, operating according to a highly complex set of props and rules’ (2017: 122). One problematic category of terms consists of words or phrases that are integral to legal doctrine, yet which have broader, related, non-​legal meanings. Examples include negligence, causation, property. In the context of defamation law, the Supreme Court of Canada stressed in Hill v. Church of Scientology of Toronto (1995) that malice had a specific legal meaning (para. 145, internal references omitted): Malice is commonly understood, in the popular sense, as spite or ill-​will. However, it also includes … ‘any indirect motive or ulterior purpose’ that conflicts with the sense of duty or the mutual interest which the occasion created. … Malice may also be established by showing that the defendant spoke dishonestly, or in knowing or reckless disregard for the truth. In relation to intention in criminal law, Clarke (2016: 290) argues that some legal theorists assume that ‘ordinary language expresses adequately the complexity of our account of criminal blameworthiness, and that a unique ordinary-​language concept of intention reflects an equally unique theory of moral and/​or criminal blameworthiness.’ Other terms, while not formally legal terms of art nor intrinsically technical, take on enormous weight in particular legal domains. One example is investment. This has been interpreted in contrasting fashion, between, on the one hand, the Convention on the Settlement of Investment Disputes between States and Nationals of Other States (ICSID) and, on the other, bilateral investment treaties or BITs. Criticizing a judgment in which an ICSID tribunal ruled that the right to arbitration under a contract itself constituted an investment, Sattorova (2012:  278) argues that this stretched ‘language beyond breaking point’ and that, by contrast, the ordinary meaning of investment would offer a framework for consistency, drawing on its implication that investment is not merely an abstract asset or right but a complete, integrated process. In Brutus v.  Cozens (1973), where at issue was whether a protest during the Wimbledon tennis tournament amounted to insulting behaviour, Lord Reid stated (at 861): ‘The meaning of an ordinary word of the English language is not a question of law. The proper construction of a statute is a question of law.’ In other words, the factual determination of ordinary meaning is embedded in a wider legal interpretative inquiry.

Technical, trade and scientific meanings One issue that arises in a number of legal contexts is the distinction between ordinary meaning versus trade, technical, sub-​cultural or scientific meaning. In the case of Maurice v. Judd (1818) at issue was whether whale oil was subject to the same tax and inspection regime as fish oil. In the background to the litigation was the popular, common sense belief that whales were fish, buttressed by the Biblical division of creation into ‘fowl of the air, fish of the sea and beasts of the field.’ The court considered the views of whalers (who had no settled opinion), traders and dealers (who distinguished fish oil and whale oil in terms of quality), and representatives of the emergent taxonomic science –​who of course held that whales were mammals and not fish. This was a jury trial. The jury’s conclusion was that a whale was a fish and therefore that whale oil was fish oil (Burnett 2010).

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In Unwin v. Hanson (1891), Lord Esher MR stated in relation to statutory language that if the Act was ‘passed with reference to a particular trade, business, or transaction, and words are used which everyone conversant with that trade, business, or transaction, knows and understands to have a particular meaning in it, then the words are to be construed as having that particular meaning’ (at 119). In Hart v. Standard &c. Co. (1899), iron was held not to include steel, on the grounds that ordinary usage did not equate the two. In the Canadian case of DMNRCE v. Parke Davis & Co.(1954), Mr Justice Thorson stated that (at 21): [I]‌n the absence of a clear expression to the contrary, words in the Customs Tariff should receive their ordinary meaning but if it appears from the context in which they are used that they have a special technical meaning they should be read with such meaning. The court accepted that ‘biological product’ should be understood in its technical rather than ordinary meaning. In Pfizer Co. v. DMNRCE (1971), the Supreme Court of Canada had to interpret the phrase ‘tetracycline and its derivatives.’ While ‘tetracycline’ was evidently a scientific term, the court understood ‘derivative’ as being used in its ordinary rather than technical meaning. Mr Justice Pigeon wrote (at 460): Of course, because ‘tetracycline’ designates a specific substance the composition of which has been determined in terms of a chemical formula, resort may be had to the appropriate sources for ascertaining its meaning. In my view, this does not imply that ‘derivative’ is to be construed as it might be in a scientific publication. The question concerns the meaning of ‘derivative’ not of ‘tetracycline’. As these cases suggest, the decision as to what category of language is at stake in the analysis is frequently the crucial determination (see Irish 1993).

The dictionary and the language expert The use of general non-​specialist dictionaries by judges is in effect a semi-​institutionalized aspect of common law adjudication. Judges are held by a methodological fiction to know the English language perfectly, and the use of dictionaries is merely a means of reminding the judge of linguistic facts which are already known in some sense. Dictionaries are not meant to be dispositive of the matter before the court. In Nix v. Hedden (1893), where the question at issue was whether tomatoes were vegetables or fruit for the purpose of an import tariff, the court stated (at 306–​307): There being no evidence that the words ‘fruit’ and ‘vegetables’ have acquired any special meaning in trade or commerce, they must receive their ordinary meaning. Of that meaning the court is bound to take judicial notice, as it does in regard to all words in our own tongue, and upon such a question dictionaries are admitted not as evidence, but only as aids to the memory and understanding of the court. The court held unanimously that, following ‘common speech,’ tomatoes should be considered vegetables. There was nothing in the tariff regulations to imply the more technical, botanical meaning. The distinction between taking evidence on the one hand and 82

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recognizing facts through judicial notice on the other is problematic in the case of dictionary definitions, since such definitions do not represent linguistic facts as uncontested givens in the way that, say, it is a fact that Washington D.C. is the political capital of the United States of America. A long line of legal linguistic commentary has taken judges to task for their reliance on, and misuse of, the dictionary, particularly in the context of the rise of the New Textualism in the United States (Scalia and Garner 2012:  415–​424). A  number of interlocking arguments have been used against the reliance by judges on general dictionaries. One is that dictionaries are intrinsically ill-​suited to the task of representing ordinary meaning, in that they are unsystematic, haphazard and guided by institutionalized, genre-​specific conventions. Further, Solan (2010: 19) contends that: Dictionaries tell us too much. They describe the universe of all possible meanings. In the real world, words take on a more particular subset of possible meanings, determined by the context in which the word is used. An additional objection is that the use of dictionaries by judges is itself capricious, lacking a clear foundation in legal doctrine, and frequently an aid to result-​reasoning, whereby the judge either selects a particular definition that gives the desired result, or ignores inconvenient or contradictory ones (Aprill 1998; Kirchmeier and Thumma 1999). This critique has often been invoked in arguments for a more active role for linguists in core aspects of legal interpretation, including of statutory language. For Cunningham et al. (1994: 1563), when compared with the ‘analysis of a particular textual problem by a trained linguist,’ dictionaries are ‘a crude and frequently unreliable aid to word meaning and usage.’ Law offers no articulated account of the nature of dictionary meaning and of its relevance to interpretative disputes about actual usage or particular texts. However, there is a specifically jurisprudential line of thinking that rejects the authority of the dictionary on the grounds that law’s interpretative culture is autonomous and does not primarily trade in ordinary meaning. One key quotation is from Learned Hand (Cabell v. Markham 1945, at 739): Of course it is true that the words used, even in their literal sense, are the primary, and ordinarily the most reliable, source of interpreting the meaning of any writing: be it a statute, a contract, or anything else. But it is one of the surest indexes of a mature and developed jurisprudence not to make a fortress out of the dictionary; but to remember that statutes always have some purpose or object to accomplish, whose sympathetic and imaginative discovery is the surest guide to their meaning. This statement was cited, for example, by the House of Lords in R v. Secretary of State for Health, ex parte Quintavalle (2003, per Lord Steyn, at 21), as authority in support of purposive (as against literalist) interpretation. Another locus for this view is Lord Edmund-​Davies’ statement in R v. Caldwell (1981), in relation to the term recklessness, that the ‘law in action compiles its own dictionary’ over time and ‘what was originally the common coinage of speech acquires a different value in the pocket of the lawyer than when in the layman’s purse’ (at 969). The judge was dissenting from Lord Diplock’s assertion that the statutory term recklessness was as an ‘ordinary English word.’ Lord Diplock had argued that, at the time of the passing of the Criminal Damage Act in 1971, recklessness was not ‘a term of legal art with some more limited esoteric meaning than that which it bore in ordinary speech’ (at 966). 83

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If judges ‘do not make good linguists’ (Solan 1993: 59), the problem might lie not so much with the consulting of the dictionary per se, but with a lack of awareness of the limitations of dictionaries as aids to construction. One advantage of the dictionary, from the judge’s point of view, is that its definitions are blind to the contestations of the actual case. A linguist as expert witness, by contrast, would be subject to pressures arising from the facts of the case itself, and might in addition be working on behalf of a particular client, an underlying claim to methodological objectivity notwithstanding. More fundamentally, the general dictionary serves the ideology of one legal system, one language. If legal doctrine requires that there exist available facts about ordinary language external to law, then a standard dictionary is not only an interpretative tool but serves to bolster this central language ideology. In contrast to the dictionary, less focus has been placed on what might be termed the ‘linguistic thought experiment’ or the ‘test by hypothetical usage’ (see Hutton 2014: 48–​ 52). This takes the form of a trial contextualization of the word or phrase at issue. One much discussed case where this technique featured is Smith v. United States (1993). The case centered on the question of whether a defendant, in trading a MAC 10 automatic weapon (with a silencer) for drugs, ‘uses a firearm’ in relation to a drug trafficking offence and thereby was liable to the 30-​year sentence mandated for such weapons. The Court of Appeals upheld Smith’s conviction. In dissent, Justice Scalia stressed the need to consider context of use rather than the meaning of a word taken in isolation (at 242): To use an instrumentality ordinarily means to use it for its intended purpose. When someone asks, ‘Do you use a cane?,’ he is not inquiring whether you have your grandfather’s silver-​handled walking stick on display in the hall; he wants to know whether you walk with a cane. Similarly, to speak of ‘using a firearm’ is to speak of using it for its distinctive purpose, i.e., as a weapon. … The Court does not appear to grasp the distinction between how a word can be used and how it ordinarily is used. It would, indeed, be ‘both reasonable and normal to say that petitioner “used” his MAC–​10 in his drug trafficking offense by trading it for cocaine.’ … It would also be reasonable and normal to say that he ‘used’ it to scratch his head. In relation to issues such as these, courts have displayed a near-​universal reluctance to admit expert evidence in relation to the meanings of individual words or the interpretation of statutes and legal texts:  ‘Judges could, but rarely do, receive expert testimony on how the normal speaker of English would understand statutory language’ (Petroski 2017: 115). Courts in general make every effort to avoid allowing sub-​group or specialized meanings to trump the non-​technical or ordinary meaning. This reflects the ideal that statutory language is by default addressed in undifferentiated fashion to the world at large. Commenting on the meaning of nominal rent, Cozens-​Hardy MR, in Camden (Marquis) v. Inland Revenue Commission (1914) stressed this assumption (at 647): I thought that a modern Act of Parliament was framed in language which is intelligible to everybody, and which applies not to any local custom or consideration of that kind, but to the whole of Great Britain (and I think beyond that, elsewhere, but at any rate to the whole of England). It was ‘really not relevant to consider what a particular branch of the public may or may not understand to be the meaning of those words.’ A court might consult standard authors or consult ‘well known and authoritative dictionaries’ (at 648): 84

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But to say we ought to allow evidence to be given as to whether there is any such technical meaning, to be followed up of course by evidence as to what that special meaning is, would, I think, be going entirely contrary to that which seems to be the settled rule of interpretation. The jurisprudential counterpart to the assertion of the fundamental autonomy of legal language can be found in explicit rejections of the relevance of academic linguistics to statutory interpretation. One aspect of this is the complexity of the regulatory apparatus governing contemporary societies (Rasmussen 1995: 1053): We live in a complex, regulatory state. Drafting statutes in language that could be understood by all would not necessarily reduce this complexity. Simply because a statute is written in conventional language does not mean that the law is accessible in a meaningful sense. Tax law … requires a mediator between the text and the individual. While the case for wider comprehensibility is on the surface stronger in relation to criminal law, in reality its language is equally specialized: ‘Criminal law thus does not offer a home to linguistics any more than does civil law’ (Rasmussen 1995: 1055–​1056). Ross (1995: 1067) sees legislative history as much more relevant than ordinary meaning to the interpretation of statutes: ‘laws are not written for, nor need they be understood by, the average citizen speaker of English. Rather, most federal statutes are written for a narrower linguistic sub-​community of specialists and lawyers.’

What is a sandwich? The superficially mundane case of White City Shopping Center v. PR Restaurants (2006) triggered extensive scholarly controversy in the United States. In negotiating a lease with restaurant chain PR, a shopping mall, White City, agreed not to rent any further space to ‘a bakery or restaurant reasonably expected to have annual sales of sandwiches greater than ten percent (10%) of its total sales.’ It emerged that the mall was planning to lease space to a restaurant chain, Qdoba, which sold Mexican wraps (burritos, tacos and quesadillas). PR sought a preliminary injunction, claiming this would violate the terms of their agreement, as these food items were forms of sandwich. In its submission (http://​madisonian.net/​ downloads/​sandwiches/​brief.pdf), PR cited definitions from Webster’s Third International Dictionary (2002), first published in 1961 but successively updated: ‘food consisting of a filling placed upon one slice or between two or more slices of a variety of bread or something that takes the place of bread (as a cracker, cookie, or cake).’ Given the wide variety that now characterized this food form, the term included ‘items such as wraps, gyros, and, in this case, burritos, tacos, and quesadillas’ (Memorandum: 6). In its judgment the court denied that sandwich was an ambiguous term, and also cited a further part of the definition from Webster’s: ‘two thin pieces of bread, usually buttered, with a thin layer (as of meat, cheese, or savory mixture) spread between them.’ Applying this definition and ‘common sense,’ the judge found that there were no grounds to issue an injunction. Commenting, Scalia and Garner (2012: 55) agreed that, given the lack of a definition in the lease, ‘the court sensibly relied on a reputable dictionary.’ The injunction was rightly refused since ‘no reasonable speaker of English’ would describe a taco, a burrito or a quesadilla as a sandwich. 85

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In subsequent exchanges Judge Richard Posner criticized Scalia and Garner for failing to notice the outdated and inadequate nature of the dictionary definition (2013:  199–​ 200). More fundamentally, Posner argued that the case was decided primarily not on the strength of competing definitions, but as a reflection of business logic. It was PR who had drafted the exclusivity clause, and it had failed to include a definition of sandwich. Further, PR was on notice that there were such Mexican-​style restaurants in the vicinity, but omitted to clarify that the exclusion clause should cover this type of business. Posner’s legal philosophy is concerned primarily with determining the party to which economic or other losses should be assigned, given how markets ideally operate. He decries the obsession in legal culture with word meaning: ‘Dictionaries are mazes in which judges are soon lost. A dictionary centered textualism is hopeless’ (2013: 200). Taking a sociocultural viewpoint, Florestal (2008) pointed to the nexus of race and class underlying the case. The sandwich had aristocratic English origins and had become a mainstream all-​American food, whereas Mexican-​style food was marked as ‘ethnic’ or ‘exotic.’

Corpus linguistics and legal interpretation The rejection by legal linguists of the dictionary raises the question of what models or tools are proposed to replace it in the analysis of ordinary meaning. One strand of thought offers various frameworks from semantics and cognitive linguistics, including most prominently prototype theory (Solan 1998) and other models of meaning, such as conceptual ‘frame structure’ (Carney 2016; Barsalou 1992). While these frameworks do not claim to solve legal problems, they see themselves as offering more systematic and consistent representation of word meaning, for example in identifying and analyzing the core/​margin phenomena that often underlie hard cases. In recent years there has been the increasing promotion of corpus linguistics as a tool for lawyers and judges, as part of the rise of ‘big data’ (Mouritsen 2017; Gries and Slocum 2017; Gries, Chapter 38, this volume). The corpus is distinct from the dictionary in that it records usage in context rather than offering definitions abstracted from patterns of usage or intuited by the lexicographer. In the case of a dictionary definition, the judge needs to decide its relevance to the case and, if deemed relevant, its application within the interpretative process. Data obtained from a corpus is at one further remove, in that it is relatively raw. This, it could be argued, makes corpus data a more authentic resource, since it is, in comparison with the dictionary definition, ‘undigested’ and therefore free from definitional reduction. One decision that has been analyzed post hoc using corpus methods is Muscarello v. United States (1998). At issue was whether the phrase carrying a firearm in relation to a drugs offence covered not just having the weapon on one’s body or person but also included a weapon discovered in the glove compartment or trunk (boot) after the arrest. The U.S. Supreme Court found by a majority that the broader meaning applied, drawing on a range of textual and lexicographical sources, including searchable newspaper databases. For Mouritsen (2010), the methodology adopted was slapdash and ignored empirically ascertainable frequency. Further, ‘the majority’s discussion regarding the ordinary meaning of carry rests upon demonstrably incorrect assumptions about the content and structure of dictionaries,’ confusing the sense rankings offered by dictionaries with semantic importance. It was historical priority rather than semantic importance that was reflected in the ordering of meanings in an entry (Mouritsen 2010: 1931). Goldfarb (2017) used Corpus Pattern Analysis in likewise casting doubt on the Muscarello decision, an approach which works with usage patterns or collocations rather than individual words (see Hanks 2013). 86

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The use of an academic corpus is distinct from the open-​ended search of the worldwide web, typically a Google or Google News search. In United States v. Costello (2012), Judge Richard Posner used a Google News search in response to the government’s attorney’s use of dictionary definitions. The prosecution involved the offence of ‘harboring an alien.’ Posner argued that the fact that the defendant picked up someone at the bus station and gave them shelter at her home did not amount to harboring: ‘So the government’s reliance on the dictionary definition of “harboring” is mistaken, though a point of greater general importance is that dictionaries must be used as sources of statutory meaning only with great caution.’ Posner concluded on the basis of the Google search that the acts of the defendant did not amount to deliberate concealment from the authorities (at 1044): It is apparent from these results that ‘harboring,’ as the word is actually used, has a connotation—​which ‘sheltering,’ and a fortiori ‘giving a person a place to stay’—​does not, of deliberately safeguarding members of a specified group from the authorities, whether through concealment, movement to a safe location, or physical protection. This use of Google has been criticized by corpus linguists, on the grounds that the underlying algorithm is unknown, results may vary by location and time of day, and it is not possible to search only for the relevant verb forms (Mouritsen 2017; Lee and Mouritsen 2018:  812–​813). However, they sympathized with the move away from the dictionary towards a searchable database (see also Solan and Gales 2017: 1311). In State v.  Rasabout (2015), the Supreme Court of Utah had to decide whether the firing of 12 shots into a vehicle constituted 12 distinct discharges rather than a single episode. The trial court had amalgamated the 12 counts into a single conviction, whereas the Court of Appeals found 12 distinct offences. The Supreme Court concurred. While the decision was unanimous, there was disagreement among the justices as to the applicability of dictionary definitions and the appropriateness of Justice Lee’s use of corpus analysis. Lee had carried out a Google News search, but also consulted the Corpus of Contemporary English (COCA), concluding that discharge overwhelmingly applied to a single shot. The majority was concerned that corpus linguistics was an unfamiliar tool in law, and that its use blurred lines of expertise (para. 16, per Justice Parrish): ‘We decline to adopt his approach because, among other reasons, it is unfair to the parties and it attempts scientific research that is not subject to scientific review.’ A further case in point is the Michigan Supreme Court decision in People v.  Harris (2016). Police officers had falsely testified in a disciplinary hearing and the question was whether this misleading testimony was nonetheless information and therefore, under the Disclosures by Law Enforcement Officers Act, immune from use in any subsequent prosecution for obstruction of justice. Put another way, the question was whether information included false or misleading information. All seven judges made use of the Corpus of Contemporary American English (COCA). However, the decision was split four-​three in favor of the defendants, reversing the decision of the Court of Appeals to reinstate the charges. The majority searched for information and then looked for characterizations in terms of truth or falsity. The dissent took the same collocation-​frequency list but looked further into the context of some of these examples, i.e. the concordance lines, concluding that the ordinary meaning of information did not include false or misleading statements (see Ramer 2017). This trend has not met with universal approval, in part because it potentially represents a challenge to existing judicial culture and the proper recourse to ‘nontextual sources of 87

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interpretation’ (Byrne Hessick 2017: 1503). Herenstein (2017) rejects what she dubs the ‘Frequency Hypothesis’ that links frequency of occurrence to ordinary meaning.

Self-​classification and ordinary meaning There is one category of cases where the use of ordinary-​language reasoning becomes problematic, namely those relating to individual or group identities. Any use of definition in relation to the classification of people represents a form of objectification. Set against this is law’s potentially legitimate claim to determine personal and group identities for specified legal purposes. From 1790 to 1945 U.S.  naturalization law included a ‘racial prerequisite’ based on the category free white person. In short, ‘whiteness is a founding concept of the Union’ (Furumoto and Goldberg 2001: 85). This led to extensive litigation about whether identities from a range of categories were white:  East Asians (Chinese, Japanese, Koreans); South Asians; Southeast Asians, especially Burmese, Filipinos; those from the Middle East or Near East (Afghans; Arabs; Turks; Armenians); Pacific Islanders (Hawaiians); Mexicans, and others. One historically significant case is United States v. Bhagat Singh Thind (1923), where the Supreme Court considered whether Mr Thind, a Sikh, designated during the proceedings as a ‘high caste Hindu’, qualified as white. The court considered the technical meanings associated with the label Caucasian but found the complex of scientific arguments and competing definitions of limited help. It opted instead to apply the ordinary meaning: ‘What we now hold is that the words “free white persons” are words of common speech, to be interpreted in accordance with the understanding of the common man, synonymous with the word “Caucasian” only as that word is popularly understood’ (per Justice Sutherland, at 214–​215). Mr Thind lost his citizenship. The scientific meanings attached to Caucasian were much more inclusive, so the decision to apply the ordinary meaning represented a substantial narrowing of the legal category. In two 1909 decisions Syrians and Armenians, for example, were held to qualify as white (In re Najour 1909; In re Halladjian 1909). In a very different context, the House of Lords found in Mandla v. Dowell-​Lee (1983) that Sikhs were a racial group for the purposes of the Race Relations Act 1976, reversing the decision in the Court of Appeal (1983). Racial group was defined as follows: ‘a group of persons defined by reference to colour, race, nationality or ethnic or national origins.’ The Court of Appeal had applied a strict definitional approach, with Lord Denning MR noting that religion was excluded from this definition and that Sikhs were not racially distinct from the general population of the Punjab. Denning applied a narrow definition based on the ethnological idea of the division of races (at 9): ‘That is the meaning which I –​acquiring my vocabulary in 1934 –​have always myself attached to the word “ethnic”. It is, to my mind, the correct meaning.’ The House of Lords essentially adopted a broad, socially based definition, incorporating both objective and subjective elements:  ‘For a group to constitute an ethnic group in the sense of the 1976 Act, it must, in my opinion, regard itself, and be regarded by others, as a distinct community by virtue of certain characteristics’ (per Lord Fraser of Tullybelton, at 562). In both these cases (Thind and Mandla), the definitional approach represented by racial taxonomies was rejected in favor of socially salient categories and shared understandings. However, in Mandla the court also accepted that self-​definition played a role in establishing the criteria for recognition as a racial group. The complexities of law’s engagement with definitional issues of race, ethnicity and religion can be illustrated by the case R

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(E)  v.  Governing Body of JFS (2009), where, as in Mandla, school admissions were at issue. The court was in effect asked to intervene in matters relating to a community’s own self-​definition, that community being Orthodox Jewry:  ‘While the court welcomed the high standard of advocacy addressed to it, it has not welcomed being required to resolve this dispute’ (per Lord Phillips, at 8). There was no doubt that ‘the Jewish people are an ethnic group within the meaning of the Race Relations Act 1976’ (per Lady Hale, at 67). The UK Supreme Court reluctantly concluded that a school admissions policy that did not recognize non-​Orthodox conversion to Judaism constituted racial discrimination under the Act. Lady Hale nonetheless rejected any suggestion that the school (JFS) and the Office of the Chief Rabbi were racist ‘in the popular sense of that term.’ The court departed from popular usage and general understandings of what constitutes racism, impelled reluctantly to this conclusion by the logic of the legal categories. Another complex and contentious area has been law’s engagement with definitional questions relating to sex/​gender. One approach taken by courts was to invoke the ordinary meanings of man, woman and marriage so as to deny recognition to transgender identities (In re Estate of Marshall G. Gardiner 2002). On occasion this also included the direct application of dictionary definitions, in effect evoking lexicographic definitions as ‘quasi-​ statutes’ (Hutton 2011). However, as medical opinion evolved, courts began to accept that post-​operative identities might be recognized for the purposes of law. This represented a medicalization of the issue, since an authorized set of medical procedures were required, but it also accorded (ambivalent) recognition to self-​definition, since the surgery was elective and also difficult and painful. In the Australian case of Re Kevin (2011), the judge, taking into account societal changes, medical views and the administrative practices of official agencies, argued that the ordinary meaning of the word man and woman now included post-​operative transgender identities. One factor at work was that in Australia there is no Bill of Rights, so that reformist legal judgments must be asserted in terms of changes to ordinary language, rather than as reflecting fundamental rights. In Bellinger v. Bellinger (2003), by contrast, the House of Lords found that a transgender woman was not a woman for the purpose of marriage, reaffirming the received case law understanding of the ordinary meanings of man and woman. However, under the UK’s Human Rights Act the court was obliged to report to Parliament that there was an incompatibility between UK law and rulings of the European Court of Human Rights. The UK passed the Gender Recognition Act in 2004. In Australia, the issue was framed in terms of ordinary meaning; in the UK, case law understandings of the ordinary meaning of man and woman remained unchanged, and legal reform ultimately reflected the dynamics of human rights law. This points to the artificiality of ordinary language as a category, since it would be implausible to present this as an empirical finding about the differences between Australian and British English. As a generalization, ordinary meaning arguments have been used by courts to impose normative understandings of sex/​gender identities on individuals, treating the definitions of man and woman as objective and non-​negotiable social facts. For example, in the Hong Kong case of W v. Registrar of Marriages, the Court of First Instance (2010), the Court of Appeal (2012) and the dissent in the Court of Final Appeal (2013) all rejected the affirmed identity of the transgender party as a woman for the purpose of marriage, on the basis of ordinary meaning. The majority in the Court of Final Appeal found that a post-​ operative transgender woman was a woman for the purposes of marriage, drawing not on ordinary meaning but on their understanding of her constitutional rights.

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Conclusion The performativity of law requires the mystique of its professional language, and of its arcane interpretative culture. And yet, in deference to modern democratic orders, law also projects transparency, predictability and its grounding in ordinary language. In other words, judges are required to be both the disciplined purveyors of a judicial culture of impersonal self-​restraint acquired through long years of study and professional practice, as well as recognizably ordinary members of the speech community that constitutes the jurisdiction. The ordinary speaker, like the reasonable person, is a construct of law. There is likewise no sociological or sociolinguistic category that corresponds to ordinary English. Nonetheless, the argument could be made that common law adjudication requires the fiction of a single default language of the jurisdiction, one which is shared by, or accessible to, the members of the legislature, the legal profession and the public. It is against this jurisdictional language that specialist legal language (and where necessary, technical, scientific or sub-​cultural varieties) can be identified. This determination is frequently crucial to the decision. To call ordinary language a fiction at least offers a mode of clarification, in that it points to the lack of an empirically ascertainable set of facts corresponding to this label. The problem that this raises is not so much the use of dictionaries, corpora or linguistic analysis, but the question of identifying and labeling the category of language at issue. If ordinary language is primarily a legal construct then that would seem to preclude the involvement of empirical linguistic analysis in the legal process. That said, there is no intrinsic limit on the kinds of expertise that law can choose to call upon in determining ordinary meanings in legal contexts. What would be required is that expertise in academic linguistics, like the use of the dictionary, be somehow integrated or ‘domesticated’ into the interpretative culture of law, rather than, as present, being seen as a potentially hostile rival to the judge’s authority over the interpretative process.

Further reading Aprill, E. (1998) ‘Dictionary shopping in the Supreme Court’, Arizona State Law Journal, 30: 275–​336. Hutton, C. (2014) Word Meaning and Legal Interpretation:  An Introductory Guide, Basingstoke: Palgrave. Mouritsen, S. (2017) ‘Corpus linguistics in legal interpretation’, International Journal of Language and Law, 6: 67–​89. Slocum, B. (2015) Ordinary Meaning:  A Theory of the Most Fundamental Principle of Legal Interpretation, Chicago: The University of Chicago Press. Slocum, B. (ed.) (2017) The Nature of Legal Interpretation, Chicago: The University of Chicago Press. Solan, L. (2010) The Language of Statutes: Laws and their Interpretation, Chicago: The University of Chicago Press.

Legal sources Adler v. George [1964] 2 QBD 7. Bellinger v. Bellinger [2003] UKHL 21. Brutus v. Cozens [1973] AC 854. Cabell v. Markham, 148 F.2d 737 (2d Cir.) (1945). Camden (Marquis) v. Inland Revenue Commission (1914) 1 KB 641. DMNRCE v. Parke Davis & Co. (1953), [1954] Ex. CR 1, i TBR 12. Hart v. Standard &c. Co. (1899) 22 QBD 499. Heydon’s Case (1584) 76 ER 637. 90

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Hill v. Church of Scientology of Toronto [1995] 2 SCR 1130. In re Estate of Marshall G. Gardiner, 273 Kan. 191 (2002). In re Halladjian, 174 Fed. 834 (Circ. Ct., D. Mass. 1909). In re Najour, 174 F. 735 (N.D. Ga. 1909). Mandla v. Dowell-​Lee [1983] QB 1. Mandla v. Dowell-​Lee [1983] 2 AC 548. Maurice v. Judd, 3 American State Trials 603 (1818). Muscarello v. United States, 524 U.S. 125 (1998). Nix v. Hedden, 149 U.S. 304 (1893). People v. Harris, 885 N.W.2d 832 (Mich. 2016). Pfizer Co. v. DMNRCE (1971) 5 TBR 223 (TB App. 963). R v. Caldwell [1981] 1 All ER 961. R v. Judge of the City of London [1892] 1 QB 273. R (E) v. Governing Body of JFS [2009] UKSC 15. R v. Secretary of State for Health, ex parte Quintavalle [2003] UKHL 13. Re Kevin [2001] FamCA 1074. Smith v. United States, 508 U.S. 223 (1993). State v. Rasabout, 356 P.3d 1258 (Utah 2015). United States v. Bhagat Singh Thind, 261 US 204 (1923). United States v. Costello, 666 F.3d 1040 (7th Cir. 2012). Unwin v. Hanson [1891] 2 QB 115. W v. Registrar of Marriages [2010] 6 HKC 359. W v. Registrar of Marriages [2012] 1 HKC 88. W v. Registrar of Marriages [2013] 3 HKLRD 90. White City Shopping Center v. PR Restaurants, 21 Mass. L. Rptr. 565 (2006).

References Aprill, E. (1998) ‘Dictionary shopping in the Supreme Court’, Arizona State Law Journal, 30: 275–​336. Barsalou, L.W. (1992) ‘Frames, concepts, and conceptual fields’, in A. Lehrer and E.F. Kittay (eds), Frames, Fields and Contrasts. New Essays in Semantic and Lexical Organization, Hillsdale, NJ: Lawrence Erlbaum Associates, 21–​74. Burnett, D.G. (2010) Trying Leviathan, Princeton, NJ: Princeton University Press. Byrne Hessick, C. (2017) ‘Corpus linguistics and the criminal law’, Brigham Young University Law Review, 2010: 1503–​1530. Carney, T. (2016) ‘Using frames to determine ordinary meaning in court cases: The case of “plant” and “vermin”’, Stellenbosch Papers in Linguistics, 45: 31–​48. Clarke, D. (2016) ‘Intending as a defining feature of murder’, Dublin University Law Journal, 39(2): 285–​302. Cunningham, C., Levi, J., Green, G. and Kaplan, J. (1994) ‘Plain meaning and hard cases’, The Yale Law Journal, 103: 1561–​1625. Florestal, M. (2008) ‘Is a burrito a sandwich?’, Michigan Journal of Race and Law,14: 1–​59. Furumoto, K. and Goldberg, T. (2001) ‘Boundaries of the racial state: two faces of racist exclusion in United States law’, Harvard Blackletter Law Journal, 17: 85–​111. Goldfarb, N. (2017) ‘A lawyer’s introduction to meaning in the framework of corpus linguistics’, Brigham Young Law Review 2017: 1359–​1417. Gries, S. and Slocum, B. (2017) ‘Ordinary meaning and corpus linguistics’, Brigham Young Law Review, 2017(6): 1417–​1472. Hanks, P. (2013) Lexical Analysis: Norms and Exploitations, Cambridge, MA: MIT Press. Herenstein, E. (2017) ‘The faulty Frequency Hypothesis: Difficulties in operationalizing ordinary meaning through corpus linguistics’, Stanford Law Review Online, 70: 112–​122. Holmes, O.W. (1899) ‘The theory of legal interpretation’, Harvard Law Review, 12(6): 417–​420. Hutton, C. (2009) Language, Meaning and the Law, Edinburgh: Edinburgh University Press. —​—​—​(2011) ‘Objectification and transgender jurisprudence:  The dictionary as quasi-​statute’, Hong Kong Law Journal, 41: 27–​47.

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—​—​—​ (2014) Word Meaning and Legal Interpretation: An Introductory Guide, Basingstoke: Palgrave. Irish, M. (1993) ‘Interpretation and naming: The harmonized system in Canadian customs tariff law’, The Canadian Year Book of International Law, 31: 89–​150. Kirchmeier, J. and Thumma, S. (1999) ‘The lexicon has become a fortress:  The United States Supreme Court’s use of dictionaries’, Buffalo Law Review, 47: 227–​561. Lee, T. and Mouritsen, S. (2018) ‘Judging ordinary meaning’, Yale Law Journal, 127(4): 788–​879. Manning, J. (1997) ‘Textualism as a nondelegation doctrine’, Columbia Law Review, 97(3): 673–​739.  Mouritsen, S. (2010) ‘The dictionary is not a fortress. Definitional fallacies and a corpus-​based approach to plain meaning’, Brigham Young University Law Review 2010(5): 1915–​1980. —​—​—​(2017) ‘Corpus linguistics in legal interpretation’, International Journal of Language and Law, 6: 67–​89. Petroski, K. (2017) ‘The strange fate of Holmes’ normal speaker of English’, in B. Slocum (ed.), The Nature of Legal Interpretation, Chicago: The University of Chicago Press, 105–​129. Posner, R. (2013) Reflections on Judging, Cambridge, MA: Harvard University Press. Ramer, J. (2017) ‘Corpus linguistics:  Misfire or more ammo for the ordinary-​meaning canon’, Michigan Law Review, 116(2): 303–​328. Rasmussen, R. (1995) ‘Why linguistics?’, Washington University Law Quarterly, 73: 1047–​1056. Ross, S. (1995) ‘The limited relevance of plain meaning’, Washington University Law Quarterly, 73(3): 1056–​1067. Sattorova, M. (2012) ‘Defining investment under the ICSID Convention and BITs:  Of ordinary meaning, telos, and beyond’, Asian Journal of International Law, 2: 267–​290. Scalia, A. and Garner, B. (2012) Reading Law; the Interpretation of Legal Texts, St Paul, MN: Thomson/​West. Slocum, B. (2015) Ordinary Meaning:  A Theory of the Most Fundamental Principle of Legal Interpretation, Chicago: The University of Chicago Press. Solan, L. (1993) The Language of Judges, Chicago: The University of Chicago Press. —​—​—​(1998) ‘Law, language, lenity’, William and Mary Law Review, 40(1): 57–​144. —​—​—​ (2010) The Language of Statutes: Laws and their Interpretation, Chicago: The University of Chicago Press. Solan, L. and Gales, T. (2017) ‘Corpus linguistics as a tool in legal interpretation’, Brigham Young University Law Review, 2017(6): 1311–​1358. Zander, M. (2004) The Law Making Process, 6th edn, Cambridge: Cambridge University Press.

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Witnesses and suspects in interviews and investigations

7 Miranda rights Curtailing coercion in police interrogation: the failed promise of Miranda v. Arizona Janet Ainsworth

Miranda v. Arizona is without a doubt the most famous American criminal law opinion of all time –​it is hard to imagine any American who does not recognize its famous warning: You have the right to remain silent. Anything you say can be used against you in a court of law. You have the right to the presence of an attorney during any questioning. If you cannot afford an attorney, one will be appointed for you. In fact, thanks to the worldwide reach of American television and movies, the Miranda warnings are familiar even to citizens of countries in which they have no legal effect. Considered as a vehicle to promote widespread public awareness of law, Miranda is perhaps the most successful educational project of all time. But despite that superficial success, it has failed to achieve its original aim of protecting suspects in police custody from coercive interrogation. As a result, scholars and commentators have called Miranda a ‘spectacular failure’ (Thomas 2004: 1091), a ‘mistake’ (Stuntz 2001: 975), a ‘farce’ (Garcia 1998: 497), an ‘empty ritual’ (Uviller 1996: 124) and a ‘hoax’ (Slobogin 2003: 309). Most scholars agree that Miranda has had little impact on the outcome of police interrogation. Just as before Miranda, the vast majority of arrested persons still make incriminating statements to police under interrogation (Schulhofer 1996: 516–​538; Thomas 1996: 957; Donahoe 1998; Leo 2001: 1006–​1009; cf. Cassell and Hayman 1996; Cassell 1996a). Best estimates put the number of arrestees who answer police questions after receiving Miranda warnings at approximately 80% (Leo 2001: 1009). More to the point, the Miranda-​endorsed interrogation regime still permits the police to conduct lengthy incommunicado interrogations in which they are free to lie to the suspect, fabricate ‘evidence’ of his guilt, and alternately browbeat him with exaggerated threats of punishment and cajole him with implied promises of leniency, as long as the Miranda warnings precede the ordeal (White 2001). Whether or not the Miranda safeguards are effective in constraining coercive practices in police interrogation is a question with serious implications. DNA technology has now

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conclusively proven that significant numbers of people are convicted for crimes they didn’t commit. Although it is impossible to obtain completely reliable statistics on how many innocent people are convicted, best estimates (Thomas 2004: 546; Gilvelber 1997: 1336–​ 1346) suggest that at least 6,000 and possibly as many as 40,000 persons are erroneously convicted of serious crimes every year in the United States. Of those that have been ultimately exonerated due to DNA testing, one in four had confessed under police grilling despite being given the Miranda warnings (Drizin and Leo 2004: 905). Psychologists studying the phenomenon of false confessions have identified a number of ways in which police interrogation can sometimes lead innocent people to confess to crimes (Wrightsman and Kassin 1993:  123–​139). Once a confession is obtained, conviction is almost inevitable. Even when a coerced confession bears significant indicia of unreliability, a confession is nevertheless powerfully persuasive evidence to juries (Kassin and Sukel 1997). What this means is that, despite the panoply of constitutional constraints on police questioning imposed by Miranda and its legal progeny, problems in police interrogation are still a major contributor to miscarriages of justice in which the innocent are erroneously convicted of crimes. So, what went wrong? Much of the blame for the failure of Miranda can be laid at the feet of the Supreme Court itself through subsequent cases when it interpreted and fleshed out the mandate of Miranda –​cases resting on flawed assumptions about the nature of language and human communication. To understand the failure of Miranda as a public policy initiative, one must first understand why the Supreme Court felt the need to curtail unfettered police interrogation and what they hoped to achieve by implementing the Miranda framework.

Coercion and confessions The understanding that abusive police interrogation of suspects could result in false confessions is certainly not a new one. In the early 20th century, the Supreme Court was faced with a series of high-​profile cases in which patently abusive, even brutal, police interrogations had led to the conviction of probably entirely innocent defendants based on little more than their extorted confessions (see e.g. Brown v. Mississippi 1936). The Court held that the Fourteenth Amendment’s due process clause prohibited the introduction into court of any supposed confession that was obtained through coercive police behavior in the course of interrogation. Only voluntary confessions were to be admissible, because confessions that were procured through violence or threats pose an unacceptable risk that they might have been forced from an innocent person. As this voluntariness requirement developed, the Court expanded its reach beyond cases involving physical abuse to include confessions derived from other offensive police practices that might overbear the free will of the suspect. Whenever the conduct of the police interrogation was deemed to be manifestly unfair and over-​reaching, the resulting confession was held to be inadmissible, even in cases in which there was no serious doubt that it was in fact truthful (see e.g. Rogers v. Richmond 1961). One difficulty with this voluntariness test for the admissibility of confessions was that it required a contextually sensitive assessment of all of the characteristics of the suspect and of the conditions of the interrogation in order to determine whether the suspect’s free will had been overborne. Doing this on a case-​by-​case basis hamstrung police agencies

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in developing practical regulations and policies to govern interrogations and likewise put immense strain on the courts as a source of judicial oversight. Applying the voluntariness test on a consistent basis proved virtually impossible.

Miranda v. Arizona –​an attempt to prevent police over-​reaching and to promote reliability of confessions The Miranda opinion represented an admission by the Court that the due process voluntariness standard was inadequate to prevent abuses in police interrogations that could lead to untrustworthy confessions. In an exhaustive 60-​page opinion, the Miranda Court recounted the long history of abusive interrogation, beginning with the days in which physical abuse and threats of abuse were the order of the day and ending with contemporary law enforcement practices that, while less brutal than earlier interrogations, were in the Court’s view equally problematic. Interrogation of suspects behind closed doors, with no witnesses except the interrogators and the suspect, invited coercive tactics that were designed to pressure, trick, intimidate, coax and cajole arrestees into incriminating themselves. Detailing the many tricks and psychological ploys recommended in police interrogation manuals, the Miranda Court was deeply skeptical that those in police custody could meaningfully resist the psychological pressure inherent in incommunicado interrogation. The disapproval expressed in Miranda of the current state of police interrogation came close to suggesting that it should not be permitted at all. The Court, for all its jaundiced view of custodial interrogation, did not take that step, however. Instead, it sought, in its words, ‘to dispel the compulsion inherent in custodial surroundings’ (Miranda v. Arizona 1966: 458) by giving the suspect information about the legal rights he could interpose to protect himself from police over-​reaching. Above all, the arrestee would now need to be explicitly told that he had the right to refuse to answer police questions, and that, if he did choose to do so, he should be conscious that any answers he gave could later be used as evidence against him. Even that advice was in the Court’s judgment inadequate as a counterweight to the power of the police who had total domination over the arrestee. After all, the same coercive environment that might compel a person to respond to police questions might also make it difficult for him to make a reasoned decision about whether or not to cooperate, even if he knew that he had the right to remain silent. For that reason, the Court interpolated the requirement that the arrestee be additionally told that he would be permitted to consult with an attorney, if he wished, before deciding whether to answer police questions. The Miranda majority apparently was convinced that the ability to consult with defense counsel would change the one-​sided dynamics of police interrogation from a setting in which the overwhelming power of the state could overbear the will of the arrested person to one in which there was a more level playing field between the suspect and his accusers. Suspects armed with information about their legal rights could then choose whether it was in their best interests to answer police questions. If they were unsure of what their best choice might be, the Miranda warnings informed them that they had the right to consult with an independent agent, an attorney, who was committed to protecting their interests. Understanding their rights and options, arrestees could make rational and informed decisions about how best to respond to police interrogation. At least, that was the world optimistically anticipated by the Supreme Court in its Miranda decision. Reality was, however, to fall far short of this.

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Miranda as implemented: no remedy for police coercion after all The language of warning The Miranda opinion is predicated on the assumption that, as long as an arrested person understood that he had the right not to respond to police interrogation and that he had the right to have a lawyer assist him in dealing with the situation, the coercion inherent in being in police custody would be dispelled. This could only be true, however, if the language of the Miranda warning were sufficiently clear and comprehensible that the suspect who is given that information actually understood the nature of his rights and the choices that he could make. There is good evidence, however, to suggest that many who are given Miranda warnings do not have that requisite level of understanding. The language of the warning itself is in places insufficiently clear to adequately inform suspects of their rights. The ordering of the rights within the standard Miranda warning is illogical and confusing, beginning with information about the right not to answer questions, skipping ahead to the implication of deciding to answer questions, and only then going on to inform the suspect about the availability of legal counsel. Syntactically, the warning is couched in a highly embedded structure. For example, note the embedded series of clauses in the warning on the right to have a lawyer: You have the right     (to have a lawyer present)           (during questioning)               (to advise you)                     (prior to questioning) It is well known that the more highly embedded the language, the more difficult a text is to understand (Shuy 1998b: 56–​58). Sometimes variations on the canonical Miranda warning are given, and in many cases these variations are even less understandable. In a landmark study (Rogers et al. 2007), a team of researchers collected 560 variations on Miranda warnings used in state and federal jurisdictions throughout the United States and analyzed them for comprehensibility, using the Flesch Reading Ease test, the Flesch-​Kincaid test and the SMOG readability scale. What they found was that some rights –​for example, the right to remain silent –​ tended to be articulated in language classified as ‘fairly easy reading material,’ or language that would be understood adequately by 80% of the general population. Other parts of the warning, however, particularly the warnings involving waiver of rights, were phrased in such complex and convoluted ways that they were classed as ‘post-​graduate reading level.’ For example, the right of a suspect to have counsel present during questioning and to have counsel appointed in the case of an indigent was presented in such a fashion that only 11% of the general public would likely understand it (Rogers et al. 2007: 186). Consider one version of the warning on the right to counsel that the Rogers team assessed for comprehensibility:  ‘You have the right to consult with, and have present, prior to, and during interrogation, an attorney either retained or appointed’ (Rogers et al. 2007: 184). Note first that the verbs articulating the nature of the rights in this warning are conjoined, so that the hearer must process each of these rights separately. Further, note that the conjoined verbs ‘consult with’ and ‘have present’ are presented without an immediate direct object, which is not a typical feature of spoken English. In spoken English, 98

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hearers expect the direct object to closely follow the verb, whereas in formal written English, the reader can be expected to parse the sentence even when its elements occur in atypical positions. Intervening in this warning between those twinned verbs and the direct object is another doubled element –​this time a doubled prepositional phrase, ‘prior to, and during.’ Even when the direct object ‘attorney’ finally makes an appearance in the warning, it is immediately followed by the doubled adjectives ‘retained or appointed.’ English syntax almost always inserts adjectives before modified nouns, but in this case, adjectives constructed from verbs are placed in the highly unusual slot after the modified noun ‘attorney.’ In addition, the verbal adjectives ‘retained or appointed’ are used in specialized senses rather than in their ordinary meanings. ‘Retained’ generally means ‘kept’ or ‘held in,’ not in the meaning used here ‘hired with one’s own funds.’ Similarly, ‘appointed’ usually means ‘officially chosen’ and not ‘provided with public funds.’ Only someone already conversant with the practices of obtaining lawyers would likely understand the specialized meaning of these two verbal adjectives. As a spoken utterance, this sentence violates most of the norms of spoken English and would be challenging to parse even in formal written English and it would be a difficult utterance to understand fully even in the best of circumstances. Needless to say, the context of a high-​pressure, anxiety-​ ridden interrogation room only adds to the difficulty of making sense of such verbiage. In addition to poorly framed, vague and circuitous expressions, the Miranda warnings analyzed by the researchers were typically too dense in information for adequate comprehension and recall. Based on their analysis, the researchers concluded that, as used in many jurisdictions, much of the Miranda warnings would not be properly understood by a considerable percentage of the general public and would be inadequately understood by an even larger percentage of arrestees, given their statistically lower educational attainment. As this research shows, it is questionable whether the language of the Miranda warnings suffices to make clear to the average person what their constitutional rights are and what options are open to them in the course of police interrogation. When, however, the suspect is not the average person, the situation is evenly bleaker. Many of those arrested and subjected to custodial interrogation –​for example, juveniles, the mentally retarded and the mentally ill –​could well be less capable than the average person of understanding their rights (Solan and Tiersma 2005: 77–​82). Empirical research has borne this out. A study looking at the comprehension of the Miranda warnings by mentally retarded individuals concluded that they fail to understand the rights as articulated and that they therefore are not capable of making voluntary and intelligent decisions to exercise or to waive them (Cloud et al.: 2002). In fact, that same study demonstrated that even non-​retarded individuals with merely slightly lower than average IQs –​in the 70s and 80s –​have dramatically lower rates of comprehension than do persons of average intelligence (Cloud et al. 2002: 571–​572). Similar research shows that juveniles, too, have more limited comprehension of the rights than do adults, with markedly lower degrees of understanding by those under the age of 15 (Grisso 1980). Not surprisingly, perhaps, analysis of cases in which innocent persons were known to have confessed under police interrogation includes disproportionate numbers of those especially vulnerable groups –​the young and the cognitively impaired (Drizin and Leo 2004: 963–​969, 971–​973).

The language of waiver Assuming that a suspect actually does understand the rights given in the Miranda warning, there is still the question of under what circumstances his responses to subsequent 99

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interrogation should be considered legally admissible. The Miranda Court recognized that an arrestee might legitimately want to cooperate with the police and voluntarily respond to questioning, but it maintained a healthy skepticism about the likelihood of any purported waiver of rights, putting what it called ‘a heavy burden’ on the prosecution to demonstrate the validity of any such waiver (Miranda v. Arizona 1966: 475) and cautioning that ‘a valid waiver will not be presumed simply from the silence of the accused after warnings are given or simply from the fact that a confession was in fact eventually obtained’ (Miranda v. Arizona 1966: 475). Soon enough, however, the Supreme Court retreated from this position. Despite the Miranda Court’s presumption against the voluntariness of a waiver of rights by arrestees in police custody due to the oppressive atmosphere of incommunicado interrogation, in subsequent cases the Supreme Court has been far more willing to find that suspects have waived their Miranda rights. Even when the police reports of the words by an arrestee purporting to show waiver instead display frank incomprehension of the rights outlined in Miranda, courts have nevertheless counted them as valid waivers. For example, in North Carolina v. Butler (1979), the arrestee being questioned while in police custody agreed to answer questions orally but would not put anything in writing or sign the waiver form. The obvious implication of that statement is that the suspect must have erroneously believed that written statements and signed waiver forms would be harmful to him in ways that merely answering oral questions would not be. In short, the only reasonable construction of the suspect’s behavior is that he failed to understand that oral statements were every bit as binding on him as written statements and would be fully admissible in court. Yet the Supreme Court allowed the admission of his statements, finding that he had made a knowing and intelligent waiver of Miranda rights on these facts. Wisely, the Court did not even try to attempt to articulate a credible reason why someone would agree to incriminate himself by answering police questions orally but not in writing, despite knowing all along that the oral statements were binding and admissible. Perhaps any such attempt would have strained credulity to the breaking point and beyond (Kamisar 2007: 180–​181). Instead of requiring affirmative waiver by the defendant in that case, the Supreme Court noted that his silence in the face of the warnings, coupled with his incriminating responses to police questioning, qualified as ‘a course of conduct indicating waiver’ (North Carolina v. Butler 1979: 373). After Butler, it was no longer necessary for the prosecution to prove that a suspect had articulated either an understanding of his rights or of his desire to waive them and answer questions. Assuming that Miranda rights were read and that the suspect eventually responded to police questions, what the Miranda Court had once called the ‘heavy burden’ on the prosecution to show a knowing, voluntary and intelligent waiver of rights was satisfied. Having signaled to lower courts that the ‘heavy burden’ on the state to prove waiver was in fact almost no burden at all, the Supreme Court in effect sanctioned a lower court inquiry into waiver that was perfunctory at best. Once judges find that the defendant has waived his Miranda rights, moreover, the resulting confession is nearly always then admitted into evidence with no further meaningful examination as to whether it was the product of police over-​reaching or coercion (White 2001: 1219–​1220; Klein 2001: 1070). Because the making of incriminating statements is now treated as proof of waiver of Miranda rights, the law fails to protect the most vulnerable arrestees from police coercion and manipulation. A  representative example of this occurred in Miller v.  State (2002). In that case, a defendant, whom the trial judge found to be mentally retarded, was taken into custody and questioned by the police about a homicide. During that interrogation, 100

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the police lied to him about his having been seen just outside the victim’s office before his death. The police also fabricated a computer printout and fingerprint card purporting to be those of the defendant, and told him falsely that his fingerprints had been found at the death scene. They went on to show him a copy of a report that falsely stated that the victim had died of natural causes, and to suggest to him that the death could have been accidental. Despite the blatant use of lies by the police to a suspect who was arguably particularly vulnerable to such tactics because of his low cognitive capacity, the Indiana Supreme Court had no trouble concluding that his confession was admissible, finding that ‘beyond a reasonable doubt the defendant had voluntarily waived his rights, and that his incriminatory statements … were voluntarily given’ (Miller v. State 2000: 768). In another case involving an especially vulnerable arrestee, a Vietnamese-​speaking suspect with limited English competence was read an error-​filled Vietnamese language version of the Miranda warnings. When the police lied to him, telling him that he had been seen at the crime scene, he made incriminating statements. Despite the defective warnings and the fact that he never affirmatively waived his rights in any way, he, too, was held to have validly waived his rights simply by responding to police questioning (Thai v. Mapes 2005). In yet another such case, the reviewing court found a knowing and intelligent valid waiver of Miranda rights, by arguing that the suspect’s ability to write his name and answer questions was sufficient proof that he had adequate intelligence to understand the Miranda warnings, and by citing his record of prior convictions as proof that he must have had ‘at least a rudimentary understanding of his rights’ (U.S. v. Cuevas-​ Robledos 2006). This opinion directly contradicts the Miranda Court’s express insistence that evidence of past encounters with the police was inadequate to show appropriate knowledge of one’s rights, since what if anything a suspect learned about the constitutional rights in any earlier experience could ‘never be more than speculation’ (Miranda v. Arizona 1966: 471–​472). Not only may the police lie to suspects about the evidence in the case, they may also actively mislead the suspect about the nature of his rights (White 2006). Take, for example, the case of Soffar v. Cockrell (2002). In that case, the arrestee asked the interrogating detective how he could get a lawyer. The detective responded by asking Soffar if he could afford to hire a lawyer, knowing that he could not and also knowing full well that the Miranda rules mandate telling arrestees that, if they cannot afford to retain counsel, a lawyer will be appointed for them. The detective’s implied assertion that only those with money had the right to counsel was unsuccessful in persuading Soffar to talk, however, because Soffar then asked the detective how he could get a court appointed lawyer and how long it would take to procure one. The detective knew that the law required that suspects must be charged and provided with counsel within 72 hours of arrest, but that is not what he told Soffar. Instead, he lied to him and told him that he didn’t know how long it might take, but that he ‘guessed it could take as little as one day or as long as a month’ (Soffar v.  Cockrell 2002:  591). Given this discouraging  –​ and untrue  –​news about the unavailability of legal counsel, Soffar then replied, ‘So you’re telling me I’m on my own.’ The detective’s response, according to his own testimony at two hearings on the issue, was either ‘Yes, you are,’ or silence. Either way, the detective succeeded in discouraging Soffar from exercising his right to have a lawyer’s assistance by intentionally giving him misleading and false information about his rights. Nevertheless, the 5th Circuit Court of Appeal, in an en banc opinion, held that Soffar’s waiver of his rights was a knowing, voluntary and intelligent one, and Soffar’s death sentence was affirmed. 101

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The Soffar court is not alone in finding no violation of Miranda even when the police interrogator explicitly contradicts the Miranda warnings in ‘explaining’ them. In U.S. v. Abdi (2018), the interrogation in question was tape-​recorded, giving us this verbatim transcript: Abdi: ‘Is there a lawyer around now, by chance or no?’ Officer: ‘We don’t have one here, no.’ Abdi: ‘Okay, so if I was to request one, how long would it take for him to get here?’ Officer: ‘You would have to get your own.’ Abdi: ‘I would have to get my own? If I can’t afford one?’ Officer: ‘Then at court they would appoint one to you after your arraignment.’ Abdi: ‘And when would that happen?’ Officer: ‘Not sure.’ This information absolutely contradicts the Miranda warning, which states that those unable to afford a lawyer will be provided counsel during the interrogation. Not surprisingly, after being falsely told that he only had the right to appointed counsel after his formal charging sometime in the indefinite future, Abdi failed to assert his right to counsel during the interrogation, and the appellate court found no violation of Miranda had occurred. Likewise, in People v. Talbron (2018), Talbron was concerned about whether what he told the interrogator could be used as evidence against him in court. He asked the officer, ‘None of this is going to be used in court, is it?’ The officer lied to him and said, ‘This is between you and me right now, bro.’ Despite being falsely reassured that his answers to the interrogating officer could not be used against him, the reviewing court found no Miranda violation on these facts and permitted his statements to be used to convict him. Even explicit statements by an arrestee that he is refusing to waive his rights are often of no avail to a suspect attempting to assert his rights. In one such case, the suspect refused to sign a Miranda waiver form and, in addition, twice explicitly told his interrogators that he was not waiving any rights. When, despite his insistence, the police continued to question him and he made incriminatory responses to police questioning, the reviewing court ignored his explicit assertions that he did not intend to waive his rights and held that the fact that he eventually answered police allegations was enough to prove a valid waiver of his rights (U.S. v. Acosta 2006). As courts began to treat any response by suspects as evidence of waiver of his rights, police naturally sought to provoke suspect responses. Professor Richard Leo, who has observed hundreds of police interrogations in the course of his research, has detailed various tactics and stratagems adopted by the police in order to get suspects to respond to questioning (Leo and White 1999: 433–​435). He notes, for example, that they intentionally undercut Miranda in many ways. Officers minimize the suspect’s attention to the significance of the warnings by reciting them in perfunctory, unanimated tones, speaking quickly without making eye contact, and referring to the warnings, often jokingly, as a mere formality to be quickly dispensed with in order to get to more important matters (Leo and White 1999: 433–​435). In one such interrogation, the detective began his recitation of the Miranda warnings by saying, ‘Okay … let me go ahead and do this here real quick, like I said, so don’t let this ruffle your feathers or anything like that, it’s just a formality we have to go through, okay’ (Leo and White 1999: 434). In another case, the officer joked, ‘You’ve probably seen it on TV a thousand times. I know I’ve said it about

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ten thousand times.’ In a similar vein, a detective in another case preceded the warnings with the following: In order for me to talk to you specifically about the injury with [victim], I need to advise you of your rights. It’s a formality. I’m sure you’ve watched television with the cop shows, right, and you hear them say their rights and so you can probably recite this better than I can but it’s something I need to do and we can get this out of the way before we talk about what’s happened. (Leo and White 1999: 435) Discourse analyses of the required British cautioning of interrogated suspects show that, like their American counterparts giving Miranda warnings, British police administer cautions in a ritualistic, ‘hyperfluent’ manner, minimizing both their significance and their comprehensibility (Rock 2007: 156–​157). Once the Miranda warning is given, the police often emphasize to the suspect how much they want to hear his side of the story, encouraging him to respond by a variety of framings, such as exaggerating the cruelty or magnitude of the crime as they now understand it without the benefit of the defendant’s version, or suggesting that cooperating with the police will result in leniency or even dropping any charges (Leo and White 1999: 437–​ 448). In one interrogation of a juvenile suspect recorded by Leo, the officer framed the Miranda warnings as giving the child the opportunity to confirm that he was not guilty of the crime, saying ‘Uh, we’re gonna give you the opportunity to clear this whole matter up, and that’s gonna entail you answering some question to us. Okay? You feel comfortable with that?’ (Leo and White 1999: 445). Having framed the interrogation as a positive benefit to the suspect, the perfunctory recitation of the Miranda rights is hardly calculated to effectively warn the suspect about the very real potential of interrogation to provide incriminating rather than exculpatory evidence. As long as the suspect eventually responds to interrogation, the Supreme Court in Berghuis v. Thompkins (2010) has held that any such response counts as an implied waiver of the Miranda rights. In the Berghuis case, the defendant remained silent during several hours of police interrogation. Only when the officer asked him if he believed in God and if he prayed for forgiveness did the defendant verbally assent to the officer’s intimation that he had committed the crime. Despite his refusal to expressly waive his rights and his silence during what the state conceded was essentially a protracted police monologue, the Supreme Court held that any answer, given at any point during interrogation, would constitute a valid waiver of the Miranda rights. Even when the interrogated suspect is in great pain from injury, courts have found that their responses to police questioning count as waiver of their rights. For example, in U.S.  v.  Brown (2011), an arrestee with an untreated broken arm was held to have waived his rights when he answered police questions. According to the appellate courts, so did the suspect with a fresh gunshot wound in U.S. v. Peters (2018) and the suspect in Williams v. Lee (2019) who was suffering from a stab wound serious enough to have caused a punctured lung. Far from being what the Miranda Court called a ‘heavy burden’ on the prosecution, waiver has become the default presumption whenever the suspect ultimately succumbs to police questioning, whatever the circumstances. Whatever responses a suspect makes to police interrogation are held to constitute conclusive proof that he understood and chose to waive his rights, unless he explicitly takes specific steps to invoke his rights.

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The language of invocation One weakness in the specificity of the Miranda warnings is that they do not provide any guidance to suspects on how to claim their rights if they choose that option rather than waiving them. Given that, it would seem appropriate that courts would liberally construe attempts by suspects to invoke their rights as effective. Instead, the Supreme Court has held that, unless attempted invocations of Miranda rights are made using clear, unequivocal and unambiguous language, they are legally void (Davis v.  United States 1994). Without such a clear and unambiguous invocation, the police can continue their interrogation without restrictions and need not even attempt to clarify whether or not the suspect is trying to assert his rights. Examination of post-​Davis case law shows the ways in which courts have bent over backwards construing arrestees’ attempts to exercise their Miranda rights as fatally unclear or equivocal, thus denying them the protection of Miranda. Suspects must navigate a veritable linguistic minefield of disqualifying language in trying to exercise their Miranda rights. Some arrestees made the mistake of asking for their right to a lawyer using an interrogative syntactic or prosodic form instead of an imperative: • ‘Can I call my lawyer?’ (Washington v. State 2018). • ‘Is there any way I  can talk to an attorney before I  say anything further?’ (Conway v. State 2018). • ‘Is it possible for me to get a lawyer?’ (Nash v. Phillips 2018). • ‘If y’all think I did it, I know that I didn’t do it, so why don’t you just give me a lawyer dog, ‘cause this is not what’s up.’ (State v. Demesme 2017). • ‘Gotta lawyer right here now?’ (U.S. v. Santiful 2017). These requests were all rejected as invocations because they were interpreted as merely  theoretical questions about the availability of counsel rather than as actual requests for counsel. Reviewing courts here seemed to be under the mistaken impression that interrogative forms can never be meant as imperatives, despite the frequency in ordinary human interaction in which speakers do just that (Solan and Tiersma 2005: 54–​62). Other suspects were unsuccessful in their attempts to assert their rights because they used softened or indirect imperatives or they phrased their assertion of their rights with polite hedges: • ‘I think I should wait to talk to my public defender.’ (State v. Carter 2015). • Referring to the officer’s statement that she had the right to an attorney during interrogation, ‘I guess that would be a good idea, I’ve never really been in trouble like this.’ (U.S. v. Bradley 2018). • ‘If I can, I need first to talk to an attorney.’ (U.S. v. Gonzalez-​Delgado 2017). • ‘I feel like I should have an attorney.’ (Hudson v. Ryan 2017). • ‘I don’t have a lawyer. I guess I need to get one, don’t I? I guess you better get me a lawyer.’ (U.S. v. Havlik 2013). • ‘I’d like to speak to an attorney.’ (U.S. v. Brathwaite 2018). • ‘I wish I had a lawyer, man, you know what I’m saying.’ (State v. Anderson 2017). • ‘I am thinking it’s about time to get a lawyer, I guess.’ (Vieira v. State 2018).

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Preceding a demand for a lawyer with an initial subjunctive clause doomed the invocation of a suspect who said, ‘If people are saying that it’s me, then obviously I got to get a lawyer because I wasn’t’ (People v. Aguilar 2018). Despite the fact that the interrogator did indeed claim that other people were incriminating him, the mere existence of the initial qualifying clause disqualified this invocation. Similarly, the suspect who said, ‘I want my lawyer. If you want this recorded, I want a lawyer present,’ did not successfully invoke the right to counsel despite the fact that the interrogation was being recorded (U.S. v. Mohr 2014). In fact, preceding the demand for counsel with anything at all often dooms an attempted invocation, as when an arrestee said, ‘I don’t know what you’re talking about. I want a lawyer’ (Saintlot v. Department of Corrections 2018), or in another case, when the arrestee explained, ‘I don’t want to dig a hole. I need to speak to a lawyer’ (U.S. v. Sweeney 2018). Sometimes arrestees need the cooperation of the police in order to get an attorney to be present during questioning. Asking for police assistance in obtaining counsel, however, could render their attempted invocation invalid. For example, the suspect who responded to the Miranda warnings by asking that the police retrieve his lawyer’s business card was held not to have invoked his right to counsel (State v. Hayden 2018; also Lawrence v. Department of Correction 2018). Similarly unsuccessful was the hospitalized arrestee who asked police, ‘Could I get a phone in here so I can talk to a lawyer?’ (Jackson v.  Commonwealth 2006). The juvenile suspect who asked the police to call his parents to arrange to get him a lawyer was held not to have invoked his right to counsel, either (Monson v. City of Detroit 2019). Attempts to invoke the constitutional right to remain silent are likewise disqualified if they are deemed to be insufficiently direct and precise. The following responses to the Miranda warnings were all held too ambiguous or equivocal to count as successful invocations of the right to silence: • ‘I have nothing to say. I didn’t do anything.’ (U.S. v. Simpkins 2019). • ‘I’m just done. I didn’t do it. This is crazy. I don’t want to talk about this shit no more.’ (Dyson v. State 2018). • ‘I don’t want to talk, man.’ (U.S. v. Adams 2016). • ‘I wouldn’t want to say anything, ‘cause I  don’t know what’s going on.’ (Little v. State 2018). • Officer: ‘Do you feel like talking about anything related to the robbery?’ Arrestee: ‘No, sir.’ (Cook v. State 2018). • Officer: ‘Do you want to make a statement?’ Arrestee: ‘No.’ (State v. Ballentine 2018). Simply remaining silent during interrogation has also been held to be insufficient as an attempt to claim the Miranda right to remain silent. According to the Supreme Court, a suspect has to speak up in order to exercise his constitutional right not to speak (Berghuis v. Thompkins 2010). Not surprisingly, then, when an interrogating officer asked ‘Do you want to speak with the detective?’ and the arrestee responded by shaking his head ‘no’, his failure to orally assert his rights was fatal to his invocation (U.S. v. Stewart 2018). Even when the suspect tries to claim both the right to remain silent and the right to counsel, lack of sufficient precision often dooms the attempted invocation of Miranda rights: • ‘See, I actually wanted to speak to my lawyer first before I spoke to you guys.’ (May v. State 2018). 105

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• ‘See, if my lawyer was here, then we would talk. I’m supposed to have my lawyer here. You know that.’ (State v. Purcell 2017). • ‘I have a right, right? To plead the Fifth, have my attorney. To an attorney, who works for me.’ (Smoot v. Commonwealth 2018). These cases are among the most compelling for finding an invocation, in that they exemplify the very concern that led the Supreme Court in Miranda to interpose a right to counsel in the police interrogation context. As the Court saw it, a legally naïve arrestee might well not be in a position to determine how to respond to police questioning, or indeed whether to respond at all, without the assistance of legal counsel to advise him about how best to protect his interests. Therefore, those suspects whose attempts at invocation expressly articulate their need for legal advice before answering police questions ought to be cases deserving the most generous construal of the adequacy of rights invocations. A telling indication of the bankruptcy of the Miranda framework as currently implemented is the finding by criminal justice scholars that, once a purported Miranda waiver has been given and questioning begins, almost no suspects ever attempt to end the interrogation by invoking their rights (Stuntz 2001: 998). Yet it must be more the rule than the exception that an interrogation increases both in intensity and focus over time, with more pointed questions, more specific accusations and a greater adversarial tone as it unfolds. One would expect, then, that suspects who originally waived their Miranda rights, under the mistaken impression that they could explain away the case against them, would recognize as the heat was turned up that continued participation in the interrogation was no longer in their best interests. The fact that suspects seldom if ever attempt to terminate oppressive interrogations regardless of how onerous they become is strong evidence that they do not think that they have the power to do so.

Questioning ‘outside’ Miranda Almost immediately after announcing the Miranda framework for police interrogation, the Supreme Court began backpedaling from its underlying logic in a series of cases that permitted the admission of evidence obtained through police interrogation that violated the constraints of Miranda (see e.g. New York v. Harris 1971; Michigan v. Tucker 1974; Oregon v. Elstad 1985). In permitting expansive use by prosecutors of evidence obtained in violation of Miranda, the Court –​wittingly or not –​provided a positive incentive for police to ignore the Miranda rule. The primary mechanism for enforcing constitutional constraints on police investigatory practices is, after all, the knowledge by police and prosecutors that illegally procured evidence cannot be admitted in court. Knowledge that intentional violations of the constitution in the course of police investigation will result in no usable evidence thus acts as a positive deterrent to police over-​reaching. It was not long before the police came to appreciate that there were substantial benefits in violating Miranda’s strictures. In a process that came to be known as ‘questioning outside Miranda,’ some agencies actually instructed their officers on the advantages of intentionally violating Miranda, and on how to take advantage of circumstances that would allow the evidence into court, notwithstanding a purposeful violation of Miranda. For example, some police agencies recommended to officers that they consider violating the constitutional Miranda requirements in order to get a confession, and then, after getting incriminating statements, quickly Mirandizing the suspect and having him repeat the 106

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just-​procured confession. Even if the suspect refused to repeat the confession, officers were reminded that the illegally obtained confession could still be validly used as impeachment if the defendant testified in his own defense at trial (Leo and White 1999; Weisselberg 2001). In this way, Supreme Court cases permitting the use at trial of evidence acquired through violation of the Miranda framework actually appear in some instances to promote intentional police violations of the law (Leo and White 1999: 448–​450).

The Supreme Court reconsiders the Miranda framework Although the Supreme Court has, in the years since the Miranda opinion, significantly weakened its reach through its subsequent rulings, it has not abandoned it altogether. In 2000, the Court was asked to reconsider the constitutional status of Miranda and overrule it, and, to the surprise of many court-​watchers, it instead re-​affirmed the constitutional validity of the case (Dickerson v. United States 2000). What remains of the Miranda framework, however, is in a real sense an empty shell. Its doctrinal framework has remained in place; however, as a practical matter, Miranda rights are dangerously easy to waive and nearly impossible to invoke successfully. Worse yet, courts have been disinclined to look carefully at whether a confession meets the minimal standards of voluntariness and reliability as long as an initial Miranda waiver can be inferred (White 2001: 1219–​1220). Far from being a bulwark against coercion in police interrogation, the Miranda requirements, once satisfied, have instead shielded interrogation from the kind of searching judicial inquiry that could expose instances of police over-​reaching and undue pressure. To quote Yale Kamisar, widely recognized as the leading legal scholar on Miranda, the Supreme Court is ‘unwilling to overrule Miranda … and also unwilling to take Miranda seriously. That is the sad reality’ (Kamisar 2007: 230).

The role for linguists in preventing miscarriages of justice While it is apparent that the Supreme Court has no plans to scrap the Miranda framework in the near future, whatever its deficiencies, within that framework many issues occurring in individual cases present factual questions involving language usage and the appropriate interpretation to be accorded to that language. From a practical perspective, linguists could be extremely helpful in analyzing the discursive structure and linguistic content of interrogations. As Roger Shuy, one of the most experienced American forensic linguists, put it: [L]‌inguists know what to listen for in a conversation. They listen for topic initiations, topic recycling, response strategies, interruption patterns, intonation markers, pause lengths, speech event structure, speech acts, inferencing, ambiguity resolution, transcript accuracy, and many other things. Scientific training enables linguists to categorize structures that are alike and to compare or contrast structures that are not. (Shuy 1993a: xvii–​xviii) Linguistic evidence could be brought to bear on the question of whether a particular defendant likely had an adequate understanding of his rights from the warnings given to him. Such testimony would be especially pertinent when special reasons exist to be skeptical of whether the defendant had full understanding of the Miranda warnings –​for example, when the defendant had diminished cognitive capacity, or was not a proficient 107

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English speaker, or was deaf, or was a juvenile and so forth (see Solan and Tiersma 2005: 77–​87). Whether a suspect’s language showed that he knowingly and intelligently waived his rights; whether a waiver appeared to be coerced; whether a confession is credible evidence of guilt or instead only acquiescence to overbearing authority; whether the police deceptively promised leniency in return for an admission of involvement; whether a purported confession was of questionable reliability, because all of the pertinent information about the crime was fed to the suspect by the police –​all these are issues lending themselves to discursive analysis by linguists, and in a number of instances, linguists have done useful analyses on just such cases (see Shuy 1998b:  17–​33, 33–​40, 122–​139, 174–​ 185). Many different sub-​fields of linguistic expertise could be brought to bear on these questions, ranging from interactional discourse analysis (Watson 1990) to Gricean pragmatic analysis (Lakoff 1996) to phonetic analysis of intonation patterns (Shuy 1998b: 70–​ 83) to analysis of topic and response sequences (Shuy 1998b: 33–​40). One factor frequently limiting the ability of linguists to assist in assessing the reliability of confessions in these cases can be the lack of an objective record of the course of the interrogation. The text of the written and signed confession admitted into evidence is the end product of a lengthy process of questions and answers in which multiple, competing and conflicting narratives of the crime are created. During the interrogation process, details of the facts and attributions of motive and criminal responsibility sometimes originate with the interrogators and other times with the suspect, but by the time the confession is reduced to writing, it can be impossible to determine exactly who was responsible for word choice and narrative sequencing (Heydon 2005). Where there is neither a tape recording nor a transcript of the questioning, the linguist may be forced to reconstruct the interrogation from the memories and notes of the police and of the suspect. This admittedly partial and inaccurate record may stymie the linguist in drawing any valid conclusions (see Shuy 1998b: 58–​68, 140–​152, 154–​173). In addition, written records lack features such as the intonation and phonetic reduction in articulation of the original oral statements, features which can provide important clues to the proper interpretation of the meaning of the utterances (Shuy 1998b: 68–​72.). Pauses, hesitancy, emotional emphasis and the like are all key indexes of meaning that are eliminated in the reduction of a purported confession to a written narrative. If the primary policy concern in regulating police interrogation is to prevent abusive and oppressive interrogations that could result in unreliable confessions, the best remedy to both prevent and detect such practices would be to insist that all custodial police questioning be videotaped. Across the political spectrum, nearly all legal commentators on police practices  –​both those opposed to Miranda and those who approve of it  –​ agree that videotaping these sessions is highly desirable (Cassell 2001: 486–​492; Kamisar 2007:  188–​191; Slobogin 2003). In fact, after the Police and Criminal Evidence Act of 1984 made the taping of all significant police interrogations mandatory in Great Britain, police administrators themselves found that audio taping interrogations had been beneficial in promoting effective police investigation (Rock 2007). Currently American police understand that, when courts come to determine what happened during an interrogation, it is their word against that of the suspect, and in such ‘swearing contests,’ the suspect will always be disbelieved (Kamisar 2007: 191). Knowing that the sessions were being taped would likely discourage the police from adopting abusive and unfair tactics in their questioning in the first place. In any event, taping would provide an objective record of what transpired that could later be closely examined to determine exactly what was said, when and by whom. For example, since the Supreme Court has 108

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held that the precise language used by a suspect in attempting to invoke his rights is dispositive in whether he has efficaciously done so, there have been frequent contests over exactly what language was used by the invoking suspect (Shuy 1998b:  58–​68). A  taped record would eliminate such disputes. The experience of forensic linguists such as Roger Shuy in reconstructing and analyzing police interrogations clearly shows that if taping were required more generally in the United States, linguists could be of inestimable use in preventing miscarriages of justice resulting from unreliable confessions.

Further reading Leo, R. A. (2008) Police Interrogation and American Justice, Cambridge, MA: Harvard University Press [probably the last word on what goes on behind closed doors in police stations in the U.S.]. Leo, R. A. and Thomas, G. C. (eds), (1998) The Miranda Debate:  Law, Justice, and Policing, Boston: MA: Northeastern University Press [a very good and eclectic survey]. Rock, F. (2007) Communicating Rights: The Language of Arrest and Detention, Basingstoke: Palgrave Macmillan [a good comparative discourse analysis of the police caution in the UK]. Shuy, R. W. (1998) The Language of Confession, Interrogation, and Deception, Thousand Oaks, CA: Sage [Roger’s greatest ‘hits’ regarding police interrogation]. Solan, L. M. and Tiersma, P. M. (2005) Speaking of Crime:  The Language of Criminal Justice, Chicago: University of Chicago Press [they include a significant chapter on Miranda]. Weisselberg, C. D. (2008) ‘Mourning Miranda’, California Law Review, 96:  1519–​1600 [a more legally focused examination of why Miranda has failed].

Legal sources Berghuis v. Thompkins, 560 U.S. 370 (2010). Brown v. Mississippi, 297 U.S. 278 (1936). Conway v. State (2018) WL 3202827. Cook v. State (2018) WL 1802658. Davis v. United States, 512 U.S. 452 (1994). Dickerson v. United States, 530 U.S. 428 (2000). Dyson v. State (2018) WL 4575142. Hudson v. Ryan (2017) WL 1354939. Jackson v. Commonwealth, 187 S.W.3d 300 (Ky. S. Ct. 2006). Lawrence v. Department of Corrections (2018) WL 4511858. Little v. State (2018) WL 2979965. May v. State (2018) WL 6498634. Michigan v. Tucker, 417 U.S. 433 (1974). Miller v. State, 770 NE.2d 763 (Ind. 2002). Miranda v. Arizona, 384 U.S. 436 (1966). Monson v. City of Detroit (2019) WL 1057306. Nash v. Phillips (2018) WL 6975190. New York v. Harris, 401 U.S. 222 (1971). North Carolina v. Butler, 441 U.S. 369 (1979). Oregon v. Elstad, 470 U.S. 298 (1985). People v. Aguilar (2018) WL 3121533. Rogers v. Richmond, 365 U.S. 534 (1961). Saintlot v. Department of Corrections (2018) WL 4145887. Smoot v. Commonwealth (2018) WL 3595827. Soffar v. Cockrell, 300 F.3d 588 (5th Cir. 2002). State v. Anderson, 258 So.3d 44 (La. 2017). State v. Ballentine, 5 Wash. App. 2d 1020 (2018). State v. Carter, 172 So.3d 538 (Fla. 2015). State v. Demesme, 228 So.3d 1206 (La. 2017).

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State v. Hayden (2018) WL 2127401. State v. Purcell, 166 A.3d 883 (2017). Thai v. Mapes, 412 F.3d 970 (8th cir. 2005). U.S .v. Abdi (2018) WL 5248145. U.S. v. Adams, 820 F.3d 317 (9th Cir. 2016). U.S. v. Bradley (2018) WL 7114605. U.S. v. Brathwaite (2018) WL 1787943. U.S. v. Brown, 64 F.3d 115 (7th Cir. 2011) U.S. v. Acosta, 363 F.3d 1141 (11th cir. 2006). U.S. v. Cuevas-​Robledos, U.S. Dist. LEXIS 76300 (D. Oregon 2006). U.S. v. Gonzalez-​Delgado (2017) WL 874571. U.S. v. Havlik, 710 F.3d 818 (8th Cir. 2013). U.S. v. Mohr, 722 F.3d 1143 (9th Cir 2014). U.S. v. Peter (2018) WL 5282878. U.S. v. Santiful, 701 F. App’x 242 (4th Cir. 2017). U.S. v. Simpkins (2019) WL 148650. U.S. v. Stewart, 902 F.3d 664 (7th Cir. 2018). U.S. v. Sweeney, 887 F.3d 529 (1st Cir. 2018). Vieira v. State (2018) WL 3084155. Washington v. State, 253 So.3d 64 (Fla. 2018). Williams v. Lee (2019) WL 935958.

References Cassell, P.G. (1996) ‘All benefits, no costs: The grand illusion of Miranda’s defenders’, Northwestern Law Review, 90(3): 1084–​1124. —​—​—​ (2001) ‘Miranda’s social cost:  An empirical reassessment’, Northwestern University Law Review, 90(2): 387–​499. Cassell, P.G. and Hayman, B.S. (1996) ‘Police interrogation in the 1990’s: An empirical study of the effects of Miranda’, UCLA Law Review, 43: 839–​931. Cloud, M., Shepherd, G.B., Barkoff, A.N. and Shur, J.V. (2002) ‘Words without meaning:  The constitution, confessions, and mentally retarded suspects’, University of Chicago Law Review, 69(2): 495–​624. Donahoe, J.J. (1998) ‘Did Miranda diminish police effectiveness?’, Stanford Law Review, 50(4): 1147–​1180. Drizin, S.A. and Leo, R.A. (2004) ‘The problem of false confession in the post-​DNA world’, North Carolina Law Review, 82: 891–​1007. Garcia, A. (1998) ‘Is Miranda dead, was it overruled, or is it irrelevant?’, St. Thomas Law Review, 10: 461–​498. Gilvelber, D. (1997) ‘Meaningless acquittals, meaningful convictions:  Do we reliably acquit the innocent?’, Rutgers Law Review, 49(2): 1317–​1396. Grisso, T. (1980) ‘Juveniles’ capacity to waive Miranda rights: An empirical analysis’, California Law Review, 68(6): 1134–​1166. Heydon, G. (2005) The Language of Police Interviewing:  A Critical Analysis, Hampshire: Palgrave MacMillan. Kamisar, Y. (2007) ‘On the fortieth anniversary of the Miranda case: Why we needed it, how we got it—​and what happened to it’, Ohio State Journal of Criminal Law, 5(1): 163–​203. Kassin, S.M. and Sukel, H. (1997) ‘Coerced confessions and the jury: an experimental test of the “harmless error” rule’, Law and Human Behavior, 21: 27–​47. Klein, S.R. (2001) ‘Identifying and (re)formulating prophylactic rules, safe harbors, and incidental rights in constitutional criminal procedure’, Michigan Law Review, 99(5): 1030–​1080. Lakoff, R.T. (1996) ‘True confessions?:  Pragmatic competence and criminal confession’, in D.I. Slobin et al. (eds), Social Interaction, Social Context, and Language: Essays in Honor of Susan Ervin-​Tripp, Hillsdale NJ: Lawrence Erlbaum. Leo, R.A. (2001) ‘Questioning the relevance of Miranda in the twenty-​first century’, Michigan Law Review, 99(5): 1000–​1029.

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Leo, R.A. and White, W.S. (1999) ‘Adapting to Miranda: Modern interrogators’ strategies for dealing with the obstacles posed by Miranda’, Minnesota Law Review, 84: 397–​472. Rock, F. (2007) Communicating Rights:  The Language of Arrest and Detention, Basingstoke: Palgrave-​Macmillan. Rogers, R., Harrison, K.S., Shuman, D.W., Sewell, K.W. and Hazelwood, L.L. (2007) ‘An analysis of Miranda warnings and waivers:  comprehension and coverage’, Law and Human Behavior, 31: 177–​192. Schulhofer, S.J. (1996) ‘Miranda’s practical effects: Substantial benefits and vanishingly small social costs’, Northwestern Law Review, 90: 500–​563. Shuy, R.W. (1993) Language Crimes: The Use and Abuse of Language Evidence in the Courtroom, Malden MA: Blackwell. —​—​—​ (1998) The Language of Confession, Interrogation, and Deception, Thousand Oaks CA: Sage Publishing. Slobogin, C. (2003) ‘Toward taping’, Ohio State Journal of Criminal Law, 1(1): 309–​322. Solan, L.M. and Tiersma, P.J. (2005) Speaking of Crime:  The Language of Criminal Justice, Chicago: University of Chicago Press. Stuntz, W.J. (2001) ‘Miranda’s mistake’, Michigan Law Review, 99(5): 975–​999. Thomas, G.C. (1996) ‘Plain talk about the Miranda empirical debate: A “steady-​state” theory of confessions’, UCLA Law Review, 43: 933–​959. —​ —​ —​(2004) ‘History’s lesson for the right to counsel’, University of Illinois Law Review, 2004: 545–​597. Uviller, R.H. (1996) Tempered Zeal, Chicago: Contemporary Books. Watson, D.R. (1990) ‘Some features of the elicitation of confession in murder interrogations’, in G. Psathas (ed.), Interaction Competence, Lantham, MD: University Press of America. Weisselberg, C.D. (2001) ‘In the stationhouse after Dickerson’, Michigan Law Review, 99(5): 1121–​1167. White, W.S. (2001) ‘Miranda’s failure to restrain pernicious interrogation practices’, Michigan Law Review, 99(5): 1211–​1247. —​—​—​(2006) ‘Deflecting a suspect from requesting an attorney’, University of Pittsburgh Law Review, 68(1): 29–​75. Wrightsman, L.S. and Kassin, S.M. (1993) Confessions in the Courtroom, Newbury Park CA: Sage.

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8 Witnesses and suspects in interviews Collecting oral evidence: the police, the public and the written word Frances Rock

Introduction Imagine a police interview. What is the main thing going on? Whether your imagined interview was between men, women or was mixed sex; involved adults or a child; a witness, a victim or a suspect; a group or only two individuals; whether it was conducted monolingually or through an interpreter; whether it was in a cramped police interview room or a state-​of-​the-​art rape crisis unit, it probably had one key feature: instant, interpersonal interaction between a police officer and lay person. Sure enough, the Code of Practice which regulates detention in England and Wales (Code C) defines interview as ‘the questioning of a person regarding their involvement, or suspected involvement, in a criminal offence or offences’ (Home Office 2019: 42). So, your imagined police interview probably centred on two main participants, one seeking to elicit information from the other. At the very least, your interview participants, however numerous they are, are probably orienting to talk, even if the interviewee might be trying to avoid talking. Other chapters of this book show the influence of the talk of participants with particular characteristics (Aldridge-​Waddon, Chapter  18), the awareness of audience (Haworth, Chapter  10) and the potential of spoken questions in forming consensus (May et al., Chapter 2). Talk is obviously crucial to interviews but it is not the only or, I argue, always the most important linguistic activity which shapes them. Let’s look a little more closely at the interview you had imagined. The other linguistic activities that you might have called to mind are reading and writing. This chapter will focus on the place of reading and writing in police interviews, showing how these activities figure in, how they are oriented to and how influential they are on the structures, practices and outcomes of police interviews.

How do reading and writing figure in interviews? Other chapters have shown the potential for written texts which have been created before and ‘taken into’ the interview to offer protection, or to fail to do so (Ainsworth, 112

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Chapter 7) and also the potential for written texts which were created during interviews to be ‘brought out’ and to influence later parts of the legal system (Ehrlich, Chapter 19; Haworth, Chapter 10). These chapters illustrate how reading and writing impinge on interviews as both input and outcome. The influence of such reading and writing on interviews has increased in those countries which adopt the PEACE method of interviewing. These include England, Wales, Australia and, increasingly, parts of the USA. This model was devised by a British Government Steering Committee (Home Office 1992) and introduced to police personnel in England and Wales through training during the 1990s. The model’s influence has been entrenched in Great Britain through its central position in the Association of Chief Police Officers’ Investigative Interviewing Strategy, which introduced a five-​tier interview-​training programme designed to classify interviewing skills and train officers across the policing organisational structure. PEACE was also integral to moves to professionalise the Police Service through an investigative skills training programme first introduced in 2008 by the National Policing Improvement Agency. The PEACE model, based on techniques from cognitive interviewing and conversational management, proposes that investigative interviewing, as opposed to interrogation, depends for its success on a very specific set of activities and skills. The concepts denoted by the acronym PEACE are not intended to highlight the importance of reading and writing, but, as my summary below makes clear, reading and writing are integral to those concepts and thus to contemporary interviewing methods: Planning and preparation: Takes place before the interview begins and involves both ‘legal and logistical issues of interview preparation’ (Williamson 2006:  172). This includes activities like making notes about legal topics such as points to prove and identifying any practical needs, for example, an appropriate adult to help those interviewees who are unable to read. Engage and explain: Describes the opening phases of an interview during which the officer will explain the upcoming interview procedure, for example, why someone in the room might be writing during the interview, and the legal issues which relate to the interviewee, such as their right to legal advice. Account:  Denotes the main ‘questioning’ sequence and therefore has obvious relevance to texts produced during planning and preparation. During the account phase, the officer will both use notes written before the interview and make notes for further questioning or subsequent investigation. Closure:  Provides both formal termination of the interview, as the officer explains legally required matters such as what will happen to recordings that might have been made, and informal termination, as the officer explains what might happen next. Evaluation: Post-​interview assessment at this stage provides both a platform for the officer’s personal and professional development and, in relation to the investigation itself, the incentive to review the interview records and, if necessary, generate further investigative activities. PEACE, if followed correctly, requires that officers see the interview not as an isolated activity, neatly delimited from the world outside the interview room, but as part of a chain of activities intended to improve interview outcomes in police terms. Inherent in this process are chains of written and spoken texts: texts created in one setting and used in innovative, and even surprising, ways in another. Inherent too in investigative interviewing 113

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and PEACE is the notion that reading and writing are not bounded activities quietly undertaken in solitude and then filed away, but part of the tapestry of linguistic activities of everyday life. These notions require further exploration to equip us to move on.

Intertextuality and literacies in police interviews As Bauman points out, social life is ‘discursively constituted, produced and reproduced in situated acts of speaking and other signifying practices that are simultaneously anchored in their situational contexts of use and transcendent of them, linked by interdiscursive ties to other situations, other acts, other utterances’ (Bauman 2004: 2). Metaphors from the research literature help us to envisage such interdiscursive ties. These metaphors include seeing signifying practices such as texts as:  part of a ‘web’ with other texts (Seebohm 2004), formed through ‘sedimentation’ of texts and practices (Pahl 2002; Silverstein and Urban 1996); recycled (Aronsson 1991) and being ‘shipped around’ creating complex trajectories (Blommaert 2005: 76, see also Maryns 2006: 14–​199). This process, frequently, although not exclusively, referred to as recontextualisation, was brought to prominence by Bauman and Briggs. They point out that texts can be decontextualised or treated as ‘self-​contained, bounded objects, separable from their social and cultural contexts of production and reception’ (Bauman and Briggs 1990:  72) having first become extractable through entextualisation (1990: 73). Decontextualisation implies that a text will be recontextualised in a different context (1990:  74)  –​this recontextualisation, our focus here, will create changes in ‘form, function and meaning’ (1990: 75). Recontextualisation involves both shifting and changing something of a text, discourse, genre or style by slotting it into another text, discourse, genre or style and, crucially, altering its use and environment and creating new meanings (Linell 1998:  145). As this suggests, this process is not ‘neutral’ but an ‘act of control’ (Bauman and Briggs 1990:  76). Fairclough points out that specific choices in the way that events are represented and transformed depend ‘on the goals, values and priorities of the communication in which they are recontextualised’ (Fairclough 1995:  41). Thus research which recognises the way texts develop from, through and into other texts, contexts and discourses gives insight into both the backgrounds or ‘secret lives’ of texts and, importantly in legal settings, into how particular versions of events, people, places and things get presented and given primacy (Mehan 1996: 253). Many people tend to think of reading and writing as a set of skills which are taught and tested at school and, if learned well, can be used for a lifetime. This conception has been dislodged by the New Literacy Studies movement which instead works with a notion of literacy practices: ‘the general cultural ways of utilising written language which people draw upon in their lives’ (Barton and Hamilton 2000: 7). These practices are taken up in varied ways and for varied purposes under the influence of discursive practices, so that literacy itself is seen as situated in cultures and ideologies (Street 1984). This perspective makes it possible to recognise literacies (multiple realisations of literacy) as ‘located in particular times and places’ and therefore ‘indicative of broader social practices’ but also ‘positioned in relation to the social institutions and power relations which sustain them’ (Barton et al. 2000: 1). In turn, this facilitates perspectives on individuals, identities, social processes, social events, discourses and broader institutional structures, which are inaccessible through blander, skills-​based views of literacy or through the examination of only the traces of literacy events: texts. For example, a skills-​based perspective on a police interview with someone who has been categorised as unable to read would assert 114

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that that person should be provided with a helper, to read written material to them when necessary before and during the interview. A more productive alternative would involve investigating issues such as the implications of ‘unable to read’ here; how texts, reading and writing influence the interview and its sociolegal significance; how the prioritisation of particular forms of knowledge and practice influence the activities and identities of each participant; and, through the analysis of both texts and literacy practices, what the presence of a helper accomplishes. This chapter uses naturally occurring data from British police investigations to show both how writing that feeds into the interview process influences the content and effect of talk (in the next section) and how writing that comes out of the interview process is created through the interview itself (in the following section).

Writing that is brought into interviews In the process of the Engage and Explain phase of a PEACE interview with a suspect, one important task for the interviewer is to present the legislation that will apply throughout the interview. In England and Wales, this is accomplished through the statement, and, if necessary, explanation, of several rights. You might remember that in the first paragraph of this chapter, I noted that the detention rulebook, Code C of the Codes of Practice, defined interview with a suspect as meaning questioning about a criminal offence or offences. The full definition importantly adds that this questioning ‘must be carried out under caution’ (Home Office 2019: 42). So, in the eyes of the legal institution, for an interview with a suspect to be an interview, it must be preceded by a particular form of words, a ‘caution’. The caution is thus a constitutive, formal mechanism which frames the interview, marking and delimiting it for the legal institution. The caution is also an important component of the interactional work undertaken by interview participants to accomplish what has been called ‘intertextual framing’ or framing within an interaction through which text-​ types are related to one another (MacLachlan and Reid 1994:  13). Officers themselves recognise this framing function and describe reciting the caution as being like putting a flag up and saying ‘right now the investigation starts’ and they use the caution along with a range of linguistic and paralinguistic measures to accomplish framing throughout the interview (Rock 2007: 287–​292). This form of words will have been read, recited and heard repeatedly by the interviewing officer. Knowing the caution is seen by police officers as an important marker of their professional identity, as one officer put it, a tool of the trade. You might like to consider how you would memorise this written formulation: You do not have to say anything. But it may harm your defence if you do not mention when questioned something which you later rely on in Court. Anything you do say may be given in evidence. The caution influences interviews most obviously by imbuing words and silences with significances which differ dramatically from those attached to them in other settings (Ainsworth 2008; Shuy 1997). Readers who know something of the legal system in the USA will note that this form of words expresses similar content to the ‘Miranda warnings’ (see Ainsworth, Chapter 7, this volume), which, like the Caution, convey a right to not self-​incriminate, but they also state the right to an attorney. This right to legal advice is not missing from the British criminal justice system  –​suspects should be offered free, independent legal advice repeatedly throughout pre-​ interview detention (Police and 115

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Criminal Evidence Act 1984: s.58) –​but it is not expressed through a formulaic wording. Miranda warnings, along with cautions in most other jurisdictions, are also different from this ‘caution’ in offering an unqualified right of silence. The warning about the possible negative consequences of remaining silent, expressed in the middle sentence above, was introduced in the mid-​1990s, in an attempt to deter suspects from remaining silent during interview but then fabricating a story in time for any court attendance. Whether it has been successful is a legal matter, although police officers’ reported scepticism about this (e.g. Rock 2007: 141) is unlikely to be insignificant to their speech activities in interview. However, from a linguistic, sociolinguistic and pragmatic perspective, we can usefully investigate what happens to the caution when it enters police interviews and how it affects those interactions and the participants involved, as I illustrate below. As well as the meaning and function of the caution, the form of the wording is also influential (Gibbons 2001b; Cotterill 2000). When the wording was first debated in the House of Lords, one peer remarked, ‘I ask the House to consider very carefully whether this is a comprehensible set of words’ (Hansard, 23 February 1995, in: Woods 2006: 103). Procedure enshrined in the Codes of Practice acknowledges potential shortcomings of the wording by informing officers that ‘If it appears [that] a person does not understand the caution, the person giving it should explain it in their own words’ (Home Office 2019: 41). In this way, officers are taken out of the role of animator, i.e. of simply uttering the words authored by the government, and put into the author role, as they ‘take the local environment and the local hearership into consideration’ (Goffman 1981: 255). Police officers’ explanations of the caution exemplify literacy practices through which they work on written information in relation to the task at hand. Some always explain it in the same way; others innovate, tailoring their explanations to the suspect in front of them (Rock 2007). Thus these explanations also illustrate recontextualisation –​officers transfer meaning from the written text into a new context which they come to constitute by establishing expectations, commenting on the source text and confirming or challenging it. Contextualisation cues or ‘surface features … by which speakers signal and listeners interpret what the activity is, how semantic content is to be understood and how each sentence relates to what precedes or follows’ (Gumperz 1982: 131) figure here too. The police officers in the two extracts below, both speaking at the beginning of separate interviews  –​one in England, one in Wales  –​recontextualise the caution in ways which illustrate how the shift in participant roles, from animator to author, and the shift from reciting a monologic, written wording to delivering a lesser-​or even un-​scripted dialogue (we cannot be sure which) allow the police officers to accomplish a great deal beyond their official cautioning work: (1)  Officer 1 1 IR: before we go any further (.) I must caution you (.) that is I must tell you that you do not have to say anything ((states whole caution)) do you understand that caution (then) 2 IE: yeah 3 IR: I don’t wish to be awkward but can you just explain to me what it means to you so that I know you understand it 4 IE: it means (.) if I don’t (.) ur open my mouth at court and say something I didn’t say (.) previously they’ll want to know (.) why (.) I haven’t uh given them this new piece of information (.) and why-​why it wasn’t mentioned before 116

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5

IR:

yeah that’s (.) that’s the majority of it (.) good as-​good an explanation as I’ve heard so far laugh just-​just to remind you = = consider I’m coming up for the-​ ((laugh)) just to reiterate and re-​emphasise the first bit you do not have to say anything alright (.) so what you said there (.) anything that you later m-​(.) mention (.) could go against you if you don’t mention it now but bit the first bit-​it’s a right and entitlement you don’t have to say anything I’m going ask you a few questions (.) it’s up to you whether you answer them or not the second bit as you say (.) spot on and the third bit is: anything you do say may be given in evidence anything you say it’s on this tape (.) we know it’s you speaking it can be played in court as evidence yeah

6 7 8 9 10

Both: IR: IE: Both: IR:

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Officer 2 IR: before I’m allowed to ask you any questions Darren I’ve got to caution you and the caution goes like this you do not have to say anything ((states whole caution)) um I’m going to explain what that means to you and that means this (.) the questions that I’m about to ask you during this interview (.) you have Darren a legal right not to answer those if you don’t want to I can’t make you answer those questions if you wanted to you could sit there and jus-​just stare at the walls I don’t personally advise that you do that but that’s your right IE: yep IR: okay do you under-​you understand that IE: I understand yeah IR: okay the second part of the caution Darren means this but it may harm your defence if you do not mention when questioned you’re only going to get questioned by me once and that’s now okay? something which you later rely on in court and what that means is this if you tell me nowt ((i.e. nothing)) during this interview now which has been indicated by Mr Harris ((solicitor)) and then if this matter went to court you decided to tell the court something different the court might be less inclined in certain-​certain circumstances to believe you they might think to them-​ selves well why didn’t he say that to the police at the time do you understand that IE: I understand IR: now anything you do decide to tell me (.) is obviously recorded on that interview tape and I can tell the magistrates if it goes to court what you’ve said alright IE: yeah

2 3 4 5

6 7 8

In the talk of both officers we can see evidence of a cautioning routine which is typical of this explanation activity. This routine involves stating the official wording, providing an explanation and seeking to assess comprehension at various stages. Both officers begin similarly in that they contextualise the caution as part of police procedure and a felicity condition of the interview. In extract (1), this is accomplished through before we go any 117

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further where pronoun choice and the journey metaphor (Lakoff 1988: 435–​440) combine to convey that the officer and interviewee are, to some extent, in things together. Extract (2), on the other hand, sees official procedures invoked and problematised as a prelude to cautioning, as the officer asserts before I’m allowed to ask you any questions … I’ve got to caution you. These opening orientations, I  suggest, develop throughout each explanation –​the explanations are not simply neutral regurgitations of the ‘facts’ presented in the caution; rather through these explanations the officers orient to the upcoming interview, to the suspect and, potentially, establish context and relational positionings for the interview. Officer 1, whose opening was broadly conciliatory, apparently recognises that asking someone to explain something that has just been said to them is inherently threatening both to the positive face desire to be viewed as competent and thus approved of and to the negative face desire to be unimpeded by requests for talk (Brown and Levinson 1987). He therefore mitigates his request or plays down its face threat (Fraser 1980). He does this throughout turn 3, explaining that his request is not mischievous, but rather in the suspect’s interest. Further mitigation follows in turns 7 and 10 when the officer’s own explanation is presented as a reminder (turn 7) and reiteration (turn 10) and minimised, in both cases, through just. In turn 5, the officer develops his presentation of self and cooperative orientation to the suspect by delivering an extremely positively graded evaluation (Hunston and Sinclair 2000:  92) of the suspect’s words, through a comparative adjective group, as good … as which compares the suspect’s explanation to all the others that the officer has heard. The officer’s explanation, though it might be felt to be a little incoherent in places, also attends to the suspect by acknowledging him and anaphorically referring to his contribution (what you said there), foregrounding the suspect’s autonomy by presenting choices about the exercise of rights as up to you and providing further evaluation of the suspect’s explanation as spot on. The integration of the evaluation into the officer’s explanation heightens the sense that the officer is attending to the suspect. Officer 2, on the other hand, seems to develop the rather confrontational stance he had established with his first turn’s orientation to rules and restrictions on interviewing. After stating the caution, he does not query the suspect’s comprehension, implying that the suspect is unlikely to understand completely if at all. This implicature is developed by the officer’s bald on-​record (Brown and Levinson 1987: 94–​101) statement that he will explain and his failure to seek to establish whether this is required. Maintaining silence during a police interview is extremely difficult due to the pressure of the second part of the question and answer pair that is so central to interviewing. This officer appears to alleviate this difficulty for the suspect by suggesting a way to be silent sit there and … stare at the walls. However, the choice of just here, along with the personal criticism of this strategy, casts what is perhaps the only viable way to be silent in a police interview (say nothing and look away from the interviewer) extremely negatively. The use of the suspect’s first name early in turns 1 and 5 does not appear motivated by a need to establish recipiency, as the addressee is clear from the interview context and co-​text. Darren indeed appears multifunctional, indexing power relations through its position and stance through its selection in preference to a V form (a more respectful form of address such as Mr Bloggs), possibilities usefully discussed in relation to political interviews by Rendle-​ Short (2007: 1521–​1522). Through what might be seen as a marked address term (Jaworski and Galasiński 2004) the officer can be said to assert his position in relation to the suspect and his orientation to the information which follows. The details of the explanation are also telling. In turn 5, the officer stresses that questioning is a unique opportunity (you’re only going to get questioned by me once and that’s now) with the implication that this is an 118

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opportunity worth taking. This possible encouragement to talk is supported later in the same turn by the officer’s placement of his reference to the solicitor’s advice to say nothing which implies critique of that advice. The existence of a right to silence influences police interviews with suspects because it establishes discourse rules about how silence and speech should be interpreted and formalises ways of resisting cooperation with the police, through an explicit rights invocation in the USA or the use of silence in the UK. However, as I have shown, the way that officers deliver the information about this right during the Engage and Explain phase is also influential. In the UK, the opportunity for the interviewing officer to engage in exchanges ostensibly aiming to explain the caution allows space for some innovative and apparently helpful explanation of a crucial right, but, as the extracts above show, also provides for powerful discursive work. Affiliation in cautioning can be just as potent as disaffiliation. This illustrates Bauman and Briggs’s point that examining recontextualisation can reveal ‘differential legitimacy in claims to and use of texts, differential competence in use of texts and differential values attached to various types of text’ (Bauman and Briggs 1990: 76). Furthermore, cautioning sits uncomfortably in the Engage and Explain phase. In turn 8 of Extract 1 the suspect says ‘consider I’m coming up for’, indicating shared knowledge about the suspect’s legal situation and the place of this interview in that situation, knowledge which cannot be acknowledged within the cautioning procedure.

Writing that is taken from interviews Moving from the passage of texts into interview during the Engage and Explain phase of the PEACE structure, the Account phase sees crime narratives elicited and processed so that words can be entextualised and pass out of the interview. This places serious cognitive demands on both interviewers and interviewees. Interviewers will undertake a range of activities including listening, devising questions, delivering questions, reacting to answers, writing notes on points for clarification, writing a statement, holding in mind prior utterances, imagining a crime context, reading texts produced by them and others before and during the interview. They will also engage in a range of identity-​related activities, such as showing empathy and encouraging disclosure, and of procedural activities, such as ensuring that the interview complies with legal requirements in terms of its duration. Interviewees too will potentially listen and respond to questions, deliver narratives, write or draw (for example mapping a crime location) and undertake a range of strategies for activating short-​and long-​term memories sometimes with the interviewer’s help. In addition, the interviewee may have to work with a range of emotions during the interview such as fear, anger and guilt. Ultimately, both participants share in the reflexive capacity of entextualisation as they ‘render stretches of discourse discontinuous with their discursive surround, thus making them into coherent, effective and memorable texts’ (Bauman and Briggs 1990: 74). I will now investigate this Account phase as it occurs in interviews with a witness (see also Rock 2017). I focus on a witness rather than a suspect interview, as in the previous section, because these involve fewer participants. This makes it easier to maintain the current foci, transformation and literacies. Additionally, I do not mention the caution again because I am now concerned with transformation of evidence from the witness, not information from the state. In any case, the caution is not routinely recited in witness interviews. It is only ever used in interviews of witnesses who may reasonably be expected to later become suspects to ensure that their evidence would be admissible if they were charged with an offence. 119

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The extracts below are from an interview with a ‘significant’ witness. This is a category of witness identified by the police as needing a particularly thorough, highly proceduralised interview. This may be because they have seen a serious crime, such as murder, or experienced one, such as rape, or because they might, in due course, become suspected of the crime under investigation. The significant witness interview has two key characteristics: first, it is likely to be conducted by a police officer with specialist training and, unlike other witness interviews, it will be audio-​recorded. In addition to the audio recording, a written statement will be produced to be signed by the witness as a true record of the event as is routine in Anglo-​Welsh witness interviews. Even in relation to significant witnesses, the written statement, rather than the recording, may become the main reference text during subsequent investigations, due to its brevity. Thus, written statements have the power to shape investigations, court proceedings and beyond, as they are recontextualised through use in those settings (see Haworth, Chapter 10, this volume). Recontextualisation of the witness’s story begins in the witness interview. Through the interview process the witness’s experience of a crime event is mediated by such factors as their selective accounting (for whatever reason) (Holmberg 2004), their transformation of their experience into talk, as well as the interviewer’s mental representation of the witness’s words and entextualisation of the witness’s words as they convert talk to text (Komter 2006; Gibbons 2001a). Most of these transformational processes are not observable. We cannot study how objectively the witness encodes their experience, as we did not observe the source event and, even if we had, we could not share their perspective. Likewise, we cannot observe the interviewer’s mental processing of the words they hear. We can, however, observe entextualisation. By comparing an audio recording of a police interview with the resulting written statement we can trace the intertextual processes apparent in spoken negotiation. Comparison can also reveal differences between the spoken interview and the written statement. Police interviews themselves are comprised of multiple recontextualisations because during the interview the officer and witness talk through the narrative several times thereby producing several spoken versions which are all different (Johnson 2008). Officers will typically seek to elicit an initial narrative and will subsequently probe that narrative in order to expand on the initial account, to check and test details and to construct a written version in real time using this talk. In the case of the extracts below, four versions were produced (Rock 2001 elaborates): Version 1: Version 2: Version 3: Version 4:

The witness’s account, delivered with minimal intervention by the police officer. The witness narrates the whole event as he sees it and the police officer asks just three questions. The interviewer asks 257 questions which elicit a more detailed but less chronological account. The interviewer makes copious notes throughout this version. The interviewer feeds back information from his notes to the interviewee, seeking confirmation or expansion whilst expanding his notes yet focusing them into a statement. The interviewer reads the final statement aloud, requesting confirmation and occasional extra details throughout (Stokoe and Edwards 2008).

This talk results in a written statement. Using the notion of literacies as social practices, we can observe that this recontextualisation is constitutive and purposive. The examples below illustrate details 120

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of transformational processes in the police interview by presenting dialogic sections from interviews accompanied by the resulting written text. Line numbers indicate each extract’s position in the original interview. Errors in the written statement are as in the original. In extracts (3) and (4), below, the officer and witness discuss the layout of a house in which a murder was committed. Extract (3)  is from version 2 during which the officer pursues details. Extract (4) is from version 4 when the statement is finalised: (3) From version 2: 177 IR: describe the man’s house and stuff inside 178 IE: … ((description of objects in the house)) … 179 IR: he owns the flat 180 IE: he owns the flat yeah 181 IR: okay um is it a house (.) or is it a like a flat = 182 IE: = it’s like it’s like a it’s a house but it’s like put it like two (.) two houses sort of put it as a flat 183 IR: two floors yeah 184 IE: yeah 185 IR: okay and which floor is his house on = 186 IE: = he’s he’s on the top (4) From version 4: 751 IR: when you get to the top of the stairs where are you 752 IE: urm when you get to the top of the stairs you have to take (.) a right 753 IR: (3.9) yeah 754 IE: and then you have to-​when you take a right there’s a (.) you got (.) got a door-​ door on your left door on the right (.) and a door in front of you but we went (.) in the door on the right 755 IR: and what room was that = 756 IE: = that was the living room In extract (3), the officer seeks a description and provides prompts around ownership of the man’s home, its status as flat or house and its location within a larger building. The officer and witness do not return to this until around an hour later in the statement-​ making session, when the officer is drafting text during version 4. Then, as illustrated in extract (4), the officer requests information about the flat’s layout and receives not only that but also an implicit description of the witness’s movement through the property. Extract (5), below, shows how the information from extracts (3) and (4) was incorporated into the written statement: (5) From the written statement: When we got to the mans [sic] house we went in [sic] it is a flat on the 1st floor … To enter the flat you climb up the stairs turn right into the living room. The witness’s suggestion to put it like two (.) two houses … put it as a flat (Extract (3), turn 182) is a spoken answer to a spoken question. Yet the witness orients to the literate dimension of the interaction. He does this by making a direct suggestion about how the officer should formulate his text even though this was not the explicit focus of the question. As for the officer, his ongoing, attentive writing activities are apparent in the way his written texts relate to the talk as he weaves information from the early and later parts of 121

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the interview. Some of that information is introduced by the witness, the notion of a flat, a word which is incorporated into the statement, and the location of that flat on the first floor, for which the witness uses the formulation top floor. Other information is provided by the officer on the basis of inference. To illustrate, add the two extracts below, from earlier parts of the interview, to extracts (3) to (5), above: (6) From version 1: 4 IE: we went to his house anyway and he (.) he invited us in and we was like saw some girls and that and so (.) went up to the house which-​(.) the girls (knew) everybody-​everybody else there (.) went to the house (.) started having a laugh (7) From version 2: 175 IR: when you got to the house what happened 176 IE: just talking (.) and laughing and all that and having a little mess about In both of these extracts, the witness describes his arrival at the murder scene without specifying how he entered the victim’s home or the house’s layout, instead noting the invitation to enter and activities inside. Indeed, throughout the interview there is no direct mention of having got to the top of the stairs until the officer introduces this in line 752 (extract (4)) very close to the end of the interview in the final version of the narrative. Thus, the officer has inserted details of location which will no doubt help readers who are downstream in the criminal justice process but does not represent events exactly as the witness did. The officer also shapes the description of the victim’s home through the questions he asks (Cederborg 2002: 163). The witness might not have identified the house as a flat without the officer’s intervention because elsewhere he recounts having used the word house to denote the property while at the crime scene on the day of the murder. A final feature of the transformational processes here is that some of the information is lost in the final version. The officer asked about ownership of the flat in line 179 but, despite the witness’s confident answer, this information does not materialise in the final statement. What are the implications of this? Is there a cost, for example, to acting on the witness’s voice (Maryns 2006; Trinch and Berk-​Seligson 2002: 410–​411)? While the transformational processes described above have influenced the formulation of the written statement, it is not clear whether this influence will be adverse and if so for whom (Hill 2003). The degree to which witnesses are represented in their statements is, however, not just a triviality (Jönsson and Linell 1991; Hunt and Borgida 2001). Witnesses’ statements can be presented to courts and form the basis of examination, with any discrepancies being highlighted in court, potentially to the great detriment of the witness’s testimony (Thornborrow 2002: 56–​58). The extracts below illustrate just one way in which this can become a problem. In extract (8), the officer and witness have been discussing an encounter, at some shops, between the witness and the suspects shortly after the alleged murder. The witness explains that he was talking to a local woman when this conversation began: (8) From version 3: 363 IR: just tell me about the conversation you had at the shop 364 IE: well I was talk-​I was talking to ur (.) is this this woman (.) saying ur (.) talking about what was it now urm (.) I can’t remember what I was talking about properly (.) just come-​was just one of those one-​off conversations just (on like that) 122

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365 366

IR: IE:

which woman is this um l-​oh well local woman

In version 4 (extract (9)), as the officer is finalising the statement, he refers again to the woman who was introduced by the witness in version 3, linking her to the presence of the suspects: (9) From version 4: 657 IR: they caught up with you by the shops (.) and said look what he’s done to my hand and you could see that Dave had a deep cut in the middle of his right palm and it was bleeding = 658 IE: = yeah = 659 IR: = but it wasn’t bleeding that bad you were talking to local woman at the shop you don’t know her name This woman is potentially an important additional source of information and, according to the witness, a feature of the events for him. Her presence in version 4 is therefore not surprising as it indicates that the officer will incorporate mention of her into the final statement. However, in fact she is totally absent from the final statement as extract (10) shows: (10) From final statement: As I got down the stairs they were coming down behind me they caught up with us by the shops the offlicence [sic]. David showed us his hand with a cut small but deep to the palm of his right hand, he said look what hes [sic] done to my hand, it was bleeding. This absence potentially loses an important evidential lead and leaves the witness vulnerable to confusion during cross-​examination in any subsequent court appearance. These processes are ubiquitous in witness statements and efforts to understand them will show how recontextualisation can impact on the experiences of victims and witnesses. Interviewers are aware of and articulate about the influence of transformational processes on police interviews, and as Bauman and Briggs have observed ‘participants themselves may be directly and strongly concerned with the social management of entextualisation, decontextualisation and recontextualisation’ (Bauman and Briggs 1990: 74). In excerpt 11, below, from a research interview I conducted, an officer describes how this affects his work during investigations, when he uses statements from police officers recounting their own experiences: (11) all you can go by I mean is what it says in statements obviously when you read a statement it can be different to what’s happened out on the street I mean when they write a statement it’s detailed but what may have occurred and took maybe 10 15 minutes to sort out you’ll have in 2 pages well 2 pages in detail isn’t going to cover 15 minutes so you don’t always realise exactly what’s gone on. For him, even the first-​person transformation of experience implies processes which act on information. Interestingly, he added that his own literacy practices in using these

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abbreviated texts might involve contacting the police officer to seek an extended verbal account and thus, as an investigator, entering the transformational process himself.

Conclusion The two ideas of chains of texts and of literacies provide a valuable perspective on police interviews by highlighting their situatedness and their reliance on entextualisation through negotiated talk. Police interviews are influenced by the texts which constitute and define them and which constitute and define the linguistic and paralinguistic activities which they comprise. Police interviews in turn influence legal practices and processes both investigative and judicial; yet the mechanisms through which many of those interviews are converted into written format require much further research.

Further reading Gibbons, J. (2001b) ‘Revising the language of New South Wales police procedures: Applied linguistics in action’, Applied Linguistics, 22(4): 439–​469. Park, J. and Bucholtz, M. (2009) ‘Public transcripts: Entextualization and linguistic representation in institutional contexts’, Text and Talk, 29(5): 485–​502. Pavlenko, A. (2008) ‘‘I’m very not about the law part’:  Nonnative speakers of English and the Miranda warnings’, TESOL Quarterly 42(1): 1–​30. Solan, L. and Tiersma, P. (2005) Speaking of Crime: The Language of Criminal Justice, Chicago: The University of Chicago Press (see ­chapters 4 and 5). Van Charldorp, T. (2013) ‘The intertwining of talk and technology:  How talk and typing are combined in the various phases of the police interrogation’, Discourse and Communication, 7(2): 221–​240.

Legal sources Police and Criminal Evidence Act 1984

References Ainsworth, J. (2008) ‘“You have the right to remain silent… but only if you ask for it just so”: The role of linguistic ideology in American police interrogation law’, International Journal of Speech, Language and the Law, 15(1): 1–​21. Aronsson, K. (1991) ‘Social interaction and the recycling of legal evidence’, in N. Coupland, H. Giles and J. Wiemann (eds), Miscommunication and Problematic Talk, London: Sage. Barton, D. and Hamilton, M. (2000) ‘Literacy practices’, in D. Barton, M. Hamilton and R. Ivanič (eds), Situated Literacies: Reading and Writing in Context, London: Routledge, 7–​14. Barton, D., Hamilton, M. and Ivanič, R. (2000) ‘Introduction: Exploring situated literacies’, in D. Barton, M. Hamilton and R. Ivanič (eds), Situated Literacies: Reading and Writing in Context, London: Routledge,  1–​6. Bauman, R. (2004) A World of Others’ Words:  Cross-​ Cultural Perspectives on Intertextuality, Oxford: Blackwell Publishing. Bauman, R. and Briggs, C. (1990) ‘Poetics and performance as critical perspectives on language and social life’, Annual Review of Anthropology, 19: 58–​88. Blommaert, J. (2005) Discourse, Cambridge: Cambridge University Press. Brown, P. and Levinson, S. (1987) Politeness:  Some Universals in Language Usage, Cambridge: Cambridge University Press. Cederborg, A. (2002) ‘The discourse of police interviews: The case of sexually abused children’, in H. Giles (ed.) Law Enforcement, Communication and Community, Amsterdam: John Benjamins, 155–​172. 124

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Cotterill, J. (2000) ‘Reading the rights: A cautionary tale of comprehension and comprehensibility’, Forensic Linguistics, 7(1): 4–​25. Fairclough, N. (1995) Media Discourse, London: Arnold. Fraser, B. (1980) ‘Conversational mitigation’, Journal of Pragmatics, 4(4): 341–​350. Gibbons, J. (2001a) ‘Legal transformations in Spanish: An ‘audiencia’ in Chile’, Forensic Linguistics, 8(2): 24–​43. —​—​—​(2001b) ‘Revising the language of New South Wales police procedures: Applied linguistics in action’, Applied Linguistics, 22(4): 439–​469. Goffman, E. (1981) Forms of Talk, Oxford: Blackwell. Gumperz, J. (1982) Discourse Strategies, Cambridge: Cambridge University Press. Hill, M. (2003) ‘Identifying the source of critical details in confessions’, Forensic Linguistics, 10(1): 23–​61. Holmberg, U. (2004) ‘Crime victims’ experiences of police interviews and their inclination to provide or omit information’, International Journal of Police Science & Management, 6(3): 155–​170. Home Office (1992) Circular 22, London: HMSO. —​—​—​ (2019) CODE C Revised Code of Practice for the Detention, Treatment and Questioning of Persons by Police Officers, London: Home Office. Hunston, S. and Sinclair, J. (2000) ‘A local grammar of evaluation’, in S. Hunston and G. Thompson (eds), Evaluation in Text:  Authorial Stance and the Construction of Discourse, Oxford:  Oxford University Press, 74–​101. Hunt, J. and Borgida, E. (2001) ‘“Is that what I  said?”:  Witnesses’ responses to interviewer modifications’, Law and Human Behaviour, 25(6): 583–​603. Jaworski, A. and Galasiński, D. (2004) ‘Vocative address forms and ideological legitimization in political debates’, Discourse Studies, 2(1): 35–​53. Johnson, A. (2008) ‘“From where we’re sat …”: Negotiating narrative transformation through interaction in police interviews with suspects’, Text and Talk, 28(3): 327–​349. Jönsson, L. and Linell, P. (1991) ‘Story generations: From dialogical interviews to written reports in police interrogations’, Text, 11(3): 419–​440. Komter, M. (2006) ‘From talk to text: The interactional construction of a police record’, Research on Language and Social Interaction, 39(3): 201–​228. Lakoff, G. (1988) ‘Cognitive semantics’, in U. Eco (ed.), Meaning and Mental Representation, Bloomington: Indiana University Press, 119–​154. Linell, P. (1998) ‘Discourse across boundaries: On recontextualisation and the blending of voices in professional discourse’, Text, 18(2): 143–​157. Maclachlan, G. and Reid, I. (1994) Framing and interpretation, Carlton, Vic:  Melbourne University Press. Maryns, K. (2006) The Asylum Speaker: Language in the Belgian Asylum Procedure, London: St. Jerome Publishing. Mehan, H. (1996) ‘The construction of an LD student:  A case study in the politics of representation’, in M. Silverstein and G. Urban (eds), Natural Histories of Discourse, Chicago:  The University of Chicago Press, 253–​276. National Policing Improvement Agency (2008) Professionalising Investigation Programme. Pahl, K. (2002) ‘Ephemera, mess and miscellaneous piles: Texts and practices in families’, Journal of Early Childhood Literacy, 2(2): 145–​165. Rendle-​Short, J. (2007) ‘‘‘Catherine, you’re wasting your time’’: Address terms within the Australian political interview’, Journal of Pragmatics, 39(9): 1503–​1525. Rock, F. (2001) ‘The genesis of a witness statement’, Forensic Linguistics, 8(2): 44–​72. —​—​—​ (2007) Communicating Rights: The Language of Arrest and Detention, Basingstoke: Palgrave Macmillan. —​—​—​(2017) ‘Recruiting frontstage entextualization: Drafting, artifactuality and written-​ness as resources in police-​witness interview’, Text and Talk, 37(4): 437–​446 Seebohm, T. (2004) Hermeneutics: Method and Methodology, London: Kluwer Academic Publishers. Shuy, R. (1997) ‘Ten unanswered language questions about Miranda’, Forensic Linguistics, 4(2): 51–​73. Silverstein, M. and Urban, G. (1996) ‘The natural history of discourse’, in M. Silverstein and G. Urban (eds), Natural Histories of Discourse, Chicago: The University of Chicago Press, 1–​20. Stokoe, E. and Edwards, D. (2008) ‘“Did you have permission to smash your neighbour’s door?” Silly questions and their answers in police-​suspect interrogations’, Discourse studies, 10(1): 89–​111. 125

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Street, B. (1984) Literacy in Theory and Practice, Cambridge: Cambridge University Press. Thornborrow, J. (2002) Power Talk:  Language and Interaction in Institutional Discourse, Essex: Longman. Trinch, S. and Berk-​Seligson, S. (2002) ‘Narrating in protective order interviews: A source of interactional trouble’, Language in Society, 31(3): 383–​418. Williamson, T. (2006) Investigative Interviewing, Uffcolme, Devon: Willan Publishing. Woods, N. (2006) Describing Discourse: A Practical Guide to Discourse Analysis, London: Hodder Arnold.

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9 False confessors The language of false confession in police interrogation Philip Gaines and Belén Lowrey-​Kinberg

Introduction A confession to a crime, usually given while in police custody, consists of a ‘criminal suspect’s oral or written acknowledgement of guilt, often including details about the crime’ (Garner 2004:  317). The formal version of a confession is the ‘post-​admission narrative (a detailed description of how and why the crime occurred)’ (Leo 2009: 333) –​a stylized statement structured and prepared by the investigator and usually signed by the suspect. A somewhat less compact but also regularly used format for the formal confession is a series of question and answer exchanges in which the investigator elicits specific answers in relation to the criminal actions of the suspect and other confirming/​supporting details. Confession can also mean, less formally, an acknowledgement of guilt in what Leo (2009: 333) calls the ‘I did it’ admission –​the first statement by the suspect that he or she committed the crime. A false confession, then, is a formal confession or ‘I did it’ admission that is not true. False confessions come in a range of types and are given for a variety of reasons (see below), but the common vital characteristic is that the suspect is innocent of the crime being investigated. False confessions are almost always given in the context of a police interrogation or interview; thus, linguistic analysis of false confessions will necessarily treat the language of both the suspect and the interviewer. This chapter discusses the discursive structure and content of 1) false confession statements themselves and 2) interrogation questions and statements in interviews eliciting false confessions. Conventional wisdom has it that an innocent person, even under intense police interrogation, would never willingly confess to a serious crime. However, research has shown that this ‘myth of psychological interrogation:  that an innocent person will not falsely confess to police unless he is physically tortured or mentally ill’ (Leo 2008: 196) is not only a general commonplace but is also pervasive within the criminal justice system. Once a suspect has confessed to a crime, the assumption that the confession is true and voluntary is difficult to set aside. Leo and Davis (2010: 22) note that

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[l]‌ike police, prosecutors rarely consider the possibility that an innocent suspect has falsely confessed. Some … stubbornly refuse to admit that one occurred even after DNA evidence has unequivocally established the defendant’s innocence. Perhaps more surprising than the fact that false confessions occur at all is the number of suspects who admit to crimes they did not commit. The most recent statistics from the Innocence Project indicate that of approximately 367 exonerees –​defendants convicted and later proven by DNA evidence to be innocent –​28% gave a false confession (Innocence Project, 2020a, 2020b). While it is difficult, for a number of reasons, to extrapolate accurately from these hard figures or to otherwise estimate the absolute or average annual number of false confessions (see, for example, Kassin and McNall 1991; Leo 2008), researchers are becoming increasingly convinced that the DNA exoneration data represents only a small fraction of relevant cases. Additional research on estimates by police investigators themselves on the frequency of false confessions confirms these findings. For example, in a survey of 631 investigators from 18 law enforcement departments in the U.S. and Canada, Kassin et al. (2007:  392) found that officers estimated that, on average, 4.78% of their interrogation subjects gave false confessions –​a rate of nearly one in 20. Referring to the Kassin et al. study, Davis and Leo suggest that, if these investigators’ estimates are accurate, ‘police interrogators elicit thousands, if not tens of thousands, of false confessions every year’ (Davis and Leo, 2011a: 7). It should be noted that the statistics cited here all emerge from studies conducted in the United States. While the U.S. is by no means the only country with a false confession problem, the overwhelming majority of research on the phenomenon has been conducted there, where studies on the prevalence of false confessions have been ongoing since the 1980s. Reasons for this intense research focus in the U.S. –​as opposed to a much more limited inquiry in, for example, the UK, Australia and New Zealand –​are discussed below. It is well understood that false confessions overwhelmingly lead to wrongful convictions and subsequent imprisonment, a conclusion supported by multiple research studies. Leo and Ofshe’s (1998) study of cases in which confessions later proven to be false were used as evidence found that defendants were convicted 73% of the time. In other research, Kassin (2006) found that the rate of jury convictions for trial defendants who had given false confessions was 81%. In light of these statistics, Leo’s summary of the situation does not seem overstated: If there is no worse error than the wrongful conviction and incarceration of the innocent, then … false confessions—​especially in capital cases …—​are one of the most serious problems in the American criminal justice system today. (Leo 2008: 247–​248)

The cause of false confessions Starting in the 1980s and greatly expanding in the 1990s, research pioneered by psychologist Saul Kassin and sociologist and legal scholar Richard Leo and their collaborators has studied the relationship between false confessions and police interrogation in the U.S. What scholars have discovered is that the vast majority of false confessions are induced by police investigators themselves (Leo 2008:  197–​198; Leo et  al. 2009:  44). While Leo (2008: 197) notes cautiously that there is ‘no single cause of false confession and … no 128

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single logic or type of false confession,’ he also makes it clear that false confessions ‘occur for well-​studied and well-​understood reasons’ (Leo 2008: 198) and that the ‘primary cause of police-​induced false confession is psychologically coercive interrogation methods’ (Leo et al. 2009: 44). Such methods have historically been associated with the Reid Technique, the dominant interrogation model in the U.S. and Canada. The Reid technique is presented in Inbau, Reid and Buckley’s (2013) Criminal Interrogation and Confessions, first published by John Reid and Fred Inbau in 1962 and now in its fifth edition and described by Kassin and McNall (1991:  234) as ‘the most popular of … several manuals … available to advise law enforcement officials on how to get recalcitrant suspects to confess.’ Although there are well over 15,000 individual, independent police departments in the United States, research (see Meyer and Reppucci 2007:  760–​761; Kassin 2014:  114) suggests that the great majority of investigators approach interrogation in keeping with the principles and techniques advocated by the developers of the Reid Technique. According to Inbau et al.’s manual, interrogators should follow the ‘Reid Nine Steps of Interrogation®’: 1. Direct, Positive Confrontation: Asserting certainty of the suspect’s guilt. 2. Theme Development: Minimizing the offensiveness of the suspect’s actions by means of a theme that provides a moral excuse. 3. Handling Denials: Rejecting and giving no credence to the suspect’s denials of guilt. 4. Overcoming Objections: Discrediting any evidence of innocence offered by the suspect 5. Procurement and Retention of a Suspect’s Attention: Counteracting the suspect’s disengagement from the interrogation and the interrogator’s theme. 6. Handling the Suspect’s Passive Mood: Not allowing the suspect’s sense of despair to cause him to withdraw from interaction. 7. Presenting an Alternative Question: Asking a question that calls for the suspect to offer one of two explanations for having committed the crime, thus providing an initial admission. 8. Having the Suspect Orally Relate Various Details of the Offense: Eliciting facts and other details about the crime that substantiate and elaborate on the initial admission. 9. Converting an Oral Confession into a Written Confession: Implementing the procedures necessary to convert the suspect’s statements into a legally-​admissible formal confession. Although Inbau et al. (2013: 5) claim that the purpose of the nine-​step interrogation is to ‘learn the truth’ rather than ‘elicit a confession,’ trainees are told that an interrogation should not be conducted unless the investigator is ‘reasonably certain of the suspect’s guilt’ (Inbau et al. 2013: 5). This guilt-​presumptive orientation justifies an interrogation process that is variously confrontational, aggressive, argumentative, dismissive of denial, relentless, deceptive, manipulative, disingenuous and dishonest. Such an approach has proven to be quite effective in extracting admissions, a disturbingly high number, unfortunately, from innocent suspects. Police interview protocols are quite different in other anglophone countries such as the UK, Australia and New Zealand, national contexts in which police interrogation has seen significant research. After several high-​profile murder cases (resulting in multiple wrongful convictions) exposed the risks associated with coercive interrogation, the British Parliament in 1984 enacted the Police and Criminal Evidence Act (PACE). As summarized by Leo, 129

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PACE made it illegal for British police interrogators to lie about evidence to induce confessions. PACE also required them to record or otherwise memorialize the entirety of their interrogations. PACE and other English police reforms have changed the culture of British police interrogation. Prior to PACE, British interrogation—​like American interrogation today—​was confrontational, and its purpose was to elicit incriminating statements and confessions. (Leo 2008: 326) Additional reforms included the adoption of the PEACE (Preparation and Planning, Engage and Explain, Account, Clarify and Challenge, Closure, Evaluation) model of investigative interviewing –​an approach that has also been adopted nationwide in New Zealand and is steadily gaining ground in Australia. PEACE ‘makes no overt attempt to persuade a non-​compliant suspect whom the interviewer thinks is guilty to confess [and] allows the truth to be revealed without the use of manipulative and coercive tactics and the risk of false confessions’ (Snook et al. 2010: 223). Moreover, the use of non-​coercive interviewing techniques does not appear to hinder police from obtaining true confessions; as Snook reports, ‘[b]‌oth before and after the implementation of PEACE in England and Wales, roughly 50% of suspects confessed to their crimes’ (222), suggesting that ‘interviewers are just as effective using PEACE as they are using Reid’ (222). Since the enactment of the PACE Act and subsequent reforms correspond closely to the beginning of research on false confessions in the U.S., it is not surprising that scholarly attention to the problem of false confessions has been virtually exclusive to the latter context. Thus, the focus of this chapter is almost entirely on false confessions in the U.S.

The psychology of false confession The decision to falsely confess Costanzo and Leo (2007:  81) describe the use of coercive interrogation methods as a ‘process of psychological manipulation and influence through which the techniques of modern police interrogation are structured to move (presumed guilty) suspects from denial to admission.’ When an innocent suspect is confronted with the interrogator’s certainty that he is guilty, apparently incontrovertible evidence of his guilt, a scenario in which continued denial will result in the worst possible outcome and a relentless interrogation that will not end until he confesses, the suspect is brought to a state of ‘hopelessness and despair’ (Costanzo and Leo 2007: 82). In addition, when the investigator offers the hope that a confession will greatly minimize the consequences and that the interrogation will end and the suspect will be able to go home, confession is deemed to be the rational choice –​the ‘appropriate and optimal course of action’ (Costanzo and Leo 2007: 82). Once the interrogator has foreshadowed the risks associated with not confessing, the next step is to offer the suspect what Russano et al. (2005) call a ‘deal,’ in which implied promises of leniency are made in exchange for a confession. Russano et al. (2005: 485) conclude from their experimental research results that offering deals to suspects in the real world may lead innocent persons to confess simply because they believe that they are better off accepting the known consequences of the deal than taking their chances of winning at trial. 130

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Voluntary false confessions A small subset of false confessions to police are entirely voluntary, a phenomenon explained by Kassin and Wrightsman (1985:  76) as ‘[a confession that is] purposefully offered in the absence of elicitation.’ Voluntary false confessions can emerge from a wide range of possible motivations and causes, such as desire for notoriety or fame, inability to distinguish facts from fantasy, guilt for other transgressions, hope for leniency, protection of another person, or mental illness of one kind or another. While voluntary false confessions are certainly a subject of no small interest to psychologists, their low frequency, idiosyncratic nature and relative unrelatedness to police interrogation make them peripheral to the critical question of how is it that other innocent suspects are induced to falsely confess to a crime they haven’t committed.

Interrogation-​induced false confessions Researchers in the behavioral sciences have developed classification schemes for categorizing false confessions that result from coercive police interrogation. The categories identify types of false confession from the perspective of their psychological etiology, that is, how the confession came to be realized in the mind of the confessor rather than their form and discursive realization. In Kassin and Wrightsman’s original (1985) formulation, interrogation-​induced false confessions are either coerced-​internalized (‘when the suspect—​through the fatigue, pressures, and suggestiveness of the interrogation process—​ actually comes to believe that he or she committed the offense’ (78)) or coerced-​compliant (‘wherein the suspect publicly professes guilt in response to extreme methods of interrogation, despite knowing privately that he or she is truly innocent’ (77)). An oft-​cited example of a coerced-​internalized false confession is that of Marty Tankleff, who  –​despite a complete absence of evidence against him  –​was arrested, interrogated and ultimately convicted in 1988 for the murder of his parents (who he had discovered brutally killed in his home) on the basis of a confession given under extreme coercion. During the interrogation, officers falsely told Tankleff: 1) that a ‘humidity test’ had been performed in the bathroom proving that he had showered, purportedly to wash the victims’ blood off, 2) that his hair had been found in his mother’s hand and 3) that his father had awakened from a coma and identified Tankleff as his assailant (Kassin et al. 2010: 17–​18). Confused and overwhelmed, Tankleff told the interrogators that his father had never lied to him and that he had possibly blacked out and had in fact committed the murders. Police then helped Tankleff construct a plausible scenario explaining his culpability, which was later converted into a confession prepared by the police and signed by Tankleff. Coerced-​compliant false confessions are much more frequent than the internalized type and are usually followed by complete retractions. An example of a coerced-​compliant false confession is that of 16-​year-​old Nga Truong who was arrested and interrogated for the crib death of her infant son in 2008. During the video-​recorded interrogation, police relentlessly accused Truong of smothering her baby (despite no evidence of her having done so), with Truong continually and vehemently denying guilt. When police told Truong that, if she were to confess, she would not be arrested but would instead be released and later given assistance from a social service agency, Truong decided to confess, first asking the interrogators ‘What kind of help can I get?’ and then finally giving the police what they wanted (Extract 1). 131

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(1) IE IR IE IR IE

Do I have to say it? You do. Can I just admit it, that I did that? You don’t have to go into great detail, but what did you do? I killed my son. I smothered Khyle.

(Author’s data)

While the social sciences have provided a rich knowledge base for understanding the phenomenon of false confessions (e.g. references above), their discipline-​specific emphasis has primarily –​and appropriately –​been on the underlying causes, psychological nature and systemic impacts of false confessions rather than on the linguistic content of the dialogues from which they emerge. Deep analysis of the language of source materials for interrogation and confession –​recordings and transcripts of police-​suspect interactions –​ is properly the bailiwick of linguistics. Only very recently, however, have scholars of language and law begun to examine the discourse of interrogation and confession. The great majority of this work has been related to the criminal justice systems of Britain and Australia, where the interrogation of suspects is much more tightly regulated (see above) and its coercive techniques generally prohibited. With respect to the more psychologically manipulative methods used by investigators in the U.S., little attention has been paid as yet to the linguistic processes and structures of coercive interrogation in cases of false confession. Examples of such research are given below.

Linguistic form/​content of false confession discourse/​statements Scholars have recruited various methods for identifying language features that differentiate true from false confessions, with varying degrees of success. Although studies of false confession use a range of methodologies, the language features identified in the literature can be subsumed under three broad categories: content features, discourse features and lexical or syntactic features.

Linguistic content of false confessions Richard Leo (2008:  166) explains that formal confessions  –​in order to be credible as evidence of guilt –​must be persuasive and also appear genuine. Leo’s research finds that several common themes are found in formal confessions –​what he calls ‘postadmission narratives’:  a convincing storyline, accounts of motives, detailed explanations, general and specific crime knowledge, expression of emotions and indications of voluntariness. As Leo explains, many interrogators ‘seek to influence the suspect’s narrative to create the appearance that his confession is believable, if not compelling; that it comes entirely from the suspect and is voluntary; and that it is self-​authenticating and therefore reliable’ (Leo 2008: 167). By weaving in apparent knowledge of the crime, along with the confessor’s emotions, motive and explanations for behavior, confessions become realistic and believable narratives. Although one might expect that false confessions would contain sparse or incorrect details of the crime in question, the opposite turns out to be true. In fact, in a study of 38 false confessions from 1989 to 2009, Garrett (2010) found that 36 contained specific

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and accurate crime details. Moreover, 27 of these false confessions contained facts that had not been released to the public. In a subsequent review of 26 additional cases from 2009 to 2014, Garrett (2015) found again that 24 contained crime details. Appleby et al. (2013) conducted a content analysis of 20 false confessions, identifying 26 separate categories that appeared with varying levels of frequency. All false confessions in the sample, for example, contained the time and location of the crime. Further, every confession described visual details as well as the victim’s behavior. Other details present in many but not all confessions include references to co-​perpetrators, witnesses or other parties, and descriptions of the victim’s appearance and words; details contained in false confessions often include not only the confessor’s actions and motives but also those of the victim. (See below for an explanation of how such details appear in false confessions.) To place these findings in context and better understand the role of details in how confessions are perceived, the authors conducted an experiment in which mock jurors were asked to read a confession and deliver a verdict. The details presented in the confession varied between treatment groups. Results showed that even a straightforward confession –​a ‘non-​elaborated admission of guilt’ (Appleby et al. 2013: 124) –​was sufficient for mock jurors to render a guilty verdict. Subjects who were presented with a confession that contained crime details or a motive for the crime were even more likely to believe in the guilt of the confessor. This research demonstrates that false confessions that are complex and detail-​rich are highly convincing to jurors, but also that even narratives lacking in detail are found to be convincing. To account for the many ‘content cues that people associate with truth telling—​such as vivid sensory details of the crime, scene, and victim,’ Kassin (2005: 223) explains that such details ‘can become known to an innocent suspect through leading questions (on which see more below), overheard conversations, photographs, visits to the crime scene, and other secondhand sources’ (see also Garrett 2010).

Discourse features of false confessions Case studies of false confessions have also revealed patterns in their discourse-​level features. For example, Stygall (2008) examined the Wenatchee ‘sex ring’ case, a series of child sex crime prosecutions that took place in 1994 in which 43 people (both men and women) were charged with child sexual abuse. All defendants were eventually found to be innocent, despite a number of them confessing and pleading guilty to the crimes. Stygall examines discourse-​level features present in four of the women’s confessions and compares these features to the known writing samples of the confessors which consisted of their courtroom testimony, letters written from jail and recorded conversations with the women’s defense attorneys. One discourse feature is the way locations are referenced. In each confession, the addresses of the homes where the crimes took place are named. Conversely, in the known writing samples only general descriptions (e.g., ‘at my house’) are used by these same women. Episode length was also inconsistent between the confessions and the known samples. Whereas episode length varies considerably in the known discourse (anywhere from a low of two sentences to a high of 79 sentences), in the confession episodes length is consistently ten to 14 sentences. Further, the confessions all contain statements of sexual gratification  –​an element absent in the known writing samples. Although the known samples were not necessarily accounts of the crimes, because they consisted of courtroom testimony, letters from jail and conversations with defense attorneys it is possible that similar subjects were discussed. She concludes that 133

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for all of the discourse features examined, there is no match between the confessions and the known samples. Moreover, the discourse features of the confessions are quite similar, with the consistency across police statements again suggesting a single author rather than multiple defendants. (Stygall 2008: 233) As confessions are essentially narratives of past events, they are naturally amenable to narrative analysis. Doty and Hiltunen (2002), for example, studied the confessions of the women accused in the Salem (Massachusetts) Witchcraft Trials of 1692. Using Labov’s narrative analysis framework (Labov 1997), the authors examine how the confessions of the women are transformed into vivid stories. The confessions in this case are elaborate and convincing, which –​the authors note –​would have helped the women avoid execution, possibly thanks to their cooperation with the investigation. In creating their detailed accounts, the confessors weave together such narrative elements as social, cultural and religious details (including even the shape of the devil); reports of attendance at meetings of witches; the naming of others as witches; and expressions of repentance. In other work, Lowrey and Ray (2015) use Labov’s narrative framework to compare the narrative structure of the false confessions of Marty Tankleff, John Kogut and Antron McCray with three true confessions –​those of Susan Smith, Jake Evans and Robert Riggs. All three of the true confessions are for homicide: Smith killed her children, Evans killed his parents and Riggs killed a friend over an argument about drugs. A limitation of the study design used by Lowrey and Ray lies in identifying whether the ‘true’ confessors were truly guilty. Generally speaking, obtaining a satisfactory comparison group is a significant challenge facing wrongful convictions researchers; without DNA testing of defendants in ‘true’ convictions it is impossible to know for certain whether the correct perpetrators have been convicted. The authors examine the confessors’ use of evaluation devices  –​defined by Labov as ‘information on the consequences of the event for human needs and desires’ (Labov 1997:  403)  –​including thoughts, inner dialogue, future and modal verb forms, and explanations. Lowrey and Ray discovered several patterns in the use of evaluation within false confessions as compared to true confessions. The three true confessions were found to contain justifications for the confessor’s actions, as well as deflection of blame. Further, ‘[w]‌hile these confessions admit to the crime, they also demonstrate remorse, hesitation, and deflection of blame’ (Lowrey and Ray 2015: 290). In one example, Robert Riggs, who confessed to killing a man named Angel over an unpaid debt, uses evaluative devices to deflect blame onto the victim (Extract 2, evaluation in bold). (2) 15.  I grabbed the hammer which was in the closet directly to my left. 16.  I stepped forward 17. and hit Angel over the head trying to get him off of Michael and maybe knock him unconscious. 18.  I was in a panic and very concerned at the level of anger Angel was displaying. 19.  After the first blow, he turned and grabbed the hammer. 20.  He might have gotten his hands on it. 21.  I’m not sure, 22.  but I snatched it back 134

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23.  24.  25.  26.  27. 

and hit him in the head again. He started to go down, but he was still pissed off and he started going for Michael again. So, I hit him a third time.

This example demonstrates that, although Riggs is confessing to criminal conduct, he nevertheless creates an ‘integrating narrative’ –​i.e., one ‘which minimize[s]‌the role of the narrator in a negative event’ (Lowrey and Ray 2015: 290). The authors find that this theme of shifting blame away from the confessor was present in the other true confessions as well. In contrast, the false confessions examined in the study do not contain mitigation of blame, nor is the crime itself evaluated in any way. For instance, the confession of John Kogut, wrongfully convicted of the rape and murder of a young woman, describes the crime in the following way (Extract 3). (3) 92.  93.  94.  95.  96.  97.  98.  99. 

I took the rope which was a hard nylon type. I wrapped it double around her neck, and then I twisted it like a corkscrew. I twisted it for a few minutes, until her body went limp, and I felt she was dead. I rolled her body up in the quilt, and I threw her over my shoulder and into the van. I threw the rope into the van, and then I dropped the body into the floor of the van.

Here, the events of the crime are described in a straightforward fashion, without any shifting of guilt. The authors conclude that [t]‌he placement of evaluation in the narrative can help interrogators discern issues and concepts in the narrative that confessors deem most reportable. Although an interrogator believes the crime to be the most reportable event of the narrative, a confessor may view the justifications for the crime as more reportable … Placement of evaluation can therefore assist investigators in uncovering motives, the confessor’s state of mind, and key events, which in turn can help guide interrogators’ questioning patterns (Lowrey and Ray 2015: 296) By examining the text of false confessions, researchers have uncovered linguistic features at the level of discourse that help us understand the structure of false confessions and their linguistic composition. These features may provide clues as to their authenticity (Stygall 2008), help explain the way they become believable stories (Doty and Hiltunen 2002) and distinguish them from true confessions (Lowrey and Ray 2015). These studies, therefore, suggest that discourse-​level features may be used to examine the validity of a confession and its authorship.

Lexico-​grammatical and syntactic features of false confessions A third strand of false confession research has used laboratory-​style experiments to determine the lexical and syntactic features that may differentiate true from false confessions. 135

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Although the details vary, the basic format of these studies consists of participants being instructed to produce either true or false confessions (or both) based on a set of circumstances manufactured by the researchers. These statements are then compared for differences across a range of lexical and syntactic features. It should be noted that these studies are partially based in the literature on lie detection. A long line of research has found certain features to be correlated with deception, such as fewer details, repeated words or phrases, and more negative statements. Because false confessions are untrue, it logically follows that the language contained in them may be similar to that in deceptive statements (DePaulo et  al. 2003; Villar et al. 2012). In one laboratory-​ style experiment using the basic design described above, the researchers elicited true and false confessions and true and false denials (Ali and Levine 2008). The resulting statements were analyzed using the Linguistic Inquiry and Word Count software (Tausczik and Pennebaker 2010). Although none of the differences were statistically compelling, the results showed that deceptive speakers exhibited significantly fewer negative emotions, less discrepancy, fewer modal verbs, [and] more modifiers [;]‌and they spoke longer. Relative to confessions, denials were characterized by shorter sentences, more negations, greater discrepancy, fewer past tense verbs, and more present tense verbs. (Ali and Levine 2008: 87) Villar et al. (2013) conducted recorded interviews in which undergraduate students were asked to provide a true account of a social transgression as well as a separate, false account of an experiment-​designated social transgression. The participants’ anxiety was also measured via the Depression Anxiety Stress Scale. The results showed that there were significantly fewer adjectives in the false confessions as compared to the true confessions. Noun and verb use also differed between the two, with fewer verbs and more nouns in false confessions. Furthermore, there was a relationship between anxiety and language in both the true and false accounts, with higher anxiety correlated with fewer adjectives, although it is important to note that the external validity of these results is questionable given that the situation would not result in any negative consequences for the participant, unlike a real interrogation setting. Finally, Villar et al. (2014) identified several statistically significant differences between elicited true and false confessions as well as across modalities (written vs. oral confessions). The relevant features were words associated with remorse (e.g. ‘I felt a bit bad’ or ‘I felt really guilty and selfish’) as well as amplitude. There were almost twice as many expressions of remorse in the true confessions as opposed to the false. Moreover, remorse words were more frequent in oral confessions than written confessions. In addition, expressions of remorse in false confessions were ‘louder’ (had a higher average intensity). Together these findings suggest that oral confessions may constitute a more useful medium for determining the truthfulness of confessions. Future research should examine whether or to what extent the features discussed in this section are present in innocent defendants’ false confessions as opposed to true confessions. Applying the lexical patterns evident in speech elicited in the laboratory to actual confessions has the potential to further our understanding of false confessions and how to identify them before they can be used as evidence.

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Linguistic form/​content of police interrogation in cases of false confession In contrast to the significant amount of research treating the linguistic and discursive forms of false confessions, considerably less work has been done by linguists and discourse analysts on the language of interrogation in cases of false confession. The main reason for this deficiency is the difficulty of finding complete transcripts of recorded interrogations of suspects who have been subsequently proven –​almost always through enhanced DNA testing –​to be innocent. The linguistic research on police interrogation, particularly in the UK and Australia, has contributed much to an understanding of the linguistic and discursive structures and processes in both coercive and non-​coercive methods of police interviewing. And while it is certainly the case that many of the findings of this research would likely apply to the interrogation of the innocent, such a study is beyond the scope of this chapter. Some work, however, has been done on the content and structure of interrogation discourse in cases of false confession. In this section, we examine three discursive strategies that have been employed by investigators to elicit statements from innocent suspects which were deemed by juries to have been incriminating: 1) leading questions and statements, 2) questions with embedded presuppositions and 3) contamination –​or the disclosure of non-​public crime facts.

Leading questions and statements A leading question is one that suggests a certain answer –​i.e., that ‘leads’ the respondent to an answer preferred by the questioner. Due to the influence of leading questions, they are forbidden in the direct examination of friendly witnesses in court. Such is not the case, however, in police interrogation. In fact, leading questions are encouraged in the Reid Technique since they invite answers that are more likely to be incriminating. In the case of the interrogation of an innocent suspect, this can be especially problematic. An example is found in Roger Shuy’s analysis of an interrogator’s questions and a suspect’s answers in a murder case. It was argued by the prosecution that the questions posed by the detective were answered in ways that confirmed the former’s assumption of certain incriminating ‘facts.’ Police and the prosecution determined that the suspect’s answers were sufficient to indicate agreement with the details of the account offered, thus ‘confirming’ the theory advanced by the investigator. IE responses such as in Extract 4 were posited as constituting incriminating statements. (4) IR IE IR IE IR IE IR

[Y]‌ou know—​now that you’ve talked to me—​what happened, don’t you? You might not want to accept it consciously, but you know, from talking to me, what happened, don’t you? Give me that much. OK. You know that, don’t you? Tell me yes. Yes, I guess so, I didn’t really (unintelligible)—​ You do know this. I wish I could see it. You can see it…You still having’ a hard time? 137

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IE … IR IE … IR IE … IR IE

Yeah, some things—​ You know what I’ve told you’s true. You know it, don’t you? I can’t—​I wish I could see it. You hear the noise, you’re asleep…you’re on the couch. You remember jumping up and standing and seeing the gun. I’d like to be able to see it. But you remember standing over him and seeing the gun…and you remember leaving him asleep on the couch. I don’t know how it got there.

Commenting on Monroe’s vague and non-​committal statements, Shuy observes that her actual words do not support a confession. Her compliance never reached admission of what she was accused of, and it is likely that the jury was contaminated by what they heard [the investigator] saying, rather than by Monroe’s own language. (Shuy 1998: 139) Clearly, in isolation, none of the IE’s statements here contain anything reasonably construable as a confession or admission. What granted them any incriminating force in the minds of the jurors was their relation to the leading questions and statements made by the IR: ‘you know what happened, don’t you?’, ‘you might not want to accept it consciously,’ ‘you know that, don’t you?’, ‘you can see it,’ ‘you hear the noise…you’re on the couch. You remember jumping up and standing and seeing the gun,’ ‘you remember standing over him.’ Here, the IR uses two common leading strategies:  1) the use of the tag question don’t you?, which solicits confirmation of the matrix statements asserting the IE’s knowledge of what happened, and 2) providing the propositional content of the preferred narrative through statements that merely seek affirmation of the reliability of that content. As Shuy notes, such leading questions and statements can be especially powerful –​and dangerously so –​in the case of false confessions since juries can be led to conclude that compliant answers constitute confirmation of the truth of the IR’s propositions.

Presupposition-​bearing questions In the above case, the IR’s strategy was to ask questions and make statements that simply call for affirmative responses in order to secure their validity. A similar but more manipulative approach is to ask the IE presupposition-​bearing questions (PBQs) which  –​if answered in any way other than to challenge the presuppositions –​inadvertently confirm them. Gaines (2018b) examines the deployment of such PBQs in the video-​recorded interrogation of a 14-​year old falsely accused –​and subsequently convicted –​of murder. The following exchanges occurred during the portion of the interrogation in which the IE was consistently and vehemently denying any involvement in the crime.

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a. IR: IE: b. IR: IE: c. IR: IE: d. IR: IE: e. IR: IE:

Lorenzo? Did you do this on your own? No. Did they make you do it? No. Your job was just to drag her out? No. How’d your shoe print get in the blood? I don’t know, sir. Sh—​ You didn’t wanna kill her, didja? No.

In a. and b., the presupposition is that Lorenzo ‘did this,’ in c. that he had a ‘job’ in the murder, in d.  that his shoe print was in the victim’s blood, and in e.  that he killed the victim. One of the characteristics of yes/​no PBQs such as these is that an answer of ‘yes,’ ‘no’ or ‘I don’t know’ necessarily confirms the presupposition. So, for example, when the IE answers ‘no’ to the question of whether he did what he did on his own, this does not logically constitute a denial of having done it, only of not having done it on his own. Likewise, the IE’s ‘no’ answers in b., c. and e. confirm the presuppositions that he did it, that he had a job in the murder and that he killed the victim in spite of not wanting to. The answer of ‘I don’t know’ in d. confirms the presupposition that his shoe print was in the blood. Inasmuch as the IE was in the phase of the interview in which he was steadfastly denying involvement in the murder, it must be presumed that his negative answers were attempts to deny having committed the crime. In other words, in a., the IE’s ‘no’ is intended as a denial of having done ‘this’ –​i.e., the murder –​rather than having done it on his own. The same interpretation applies to the rest of the IE’s answers. The IR’s use of PBQs, however, unwittingly forces the IE into exactly the opposite result!

Confession contamination In the work cited above, Shuy’s reference to the jury having been ‘contaminated’ by the investigator’s language anticipates later work on another feature of interrogation discourse:  confession contamination by interrogators. As discussed above, research has shown that false confessions tend to consist of ‘rich and textured narratives that contain a broad range of details about how the crime was committed’ (Appleby et al. 2013: 124). This raises the crucial question of how such details, supposedly provided by the suspect, find their way into a formal confession. As Garrett points out, recently enhanced DNA testing, which proves beyond reasonable doubt the innocence of a falsely accused suspect, ‘provides us with “something like a crystal ball,” allowing us to uncover how supposedly detailed confession statements could have been made by a person who we now know to have been innocent’ (Garrett 2015: 408). What the crystal ball reveals is that the details

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of inside crime knowledge come from investigators themselves in a process called confession contamination –​ one of the most well-​studied phenomena in the behavioral science research on false confessions. Thanks to the groundbreaking work of Brandon Garrett (2010, 2015), we now know that contamination is pervasive and ‘overwhelmingly prevalent in false confessions among persons exonerated by DNA tests’ (Garrett 2015: 408). Reporting on his research, Garrett summarizes as follows: A total of ninety-​four percent, or sixty-​two of sixty-​six false confessions by DNA exonerees to date, were contaminated by such allegedly ‘inside’ information. Almost without exception, these confession statements were contaminated with crime scene details which these innocent suspects, as we now know, could not have themselves been familiar with until they learned of them from law enforcement. (Garrett 2015: 410) Discourse analytic work has begun to examine the form and content of confession contamination by police interviewers. Hill (2003) conducted a close analysis of an audio-​ recorded interrogation to determine the source of ‘key details’ about the crime, finding that none of the said details came from the confessor but instead were supplied by the police. In other work, Gaines (2018a) examined a police interrogation in the rare case of a voluntary false confession to murder. Although the suspect does falsely admit to having committed the crime, he is of course unable to supply any inside crime knowledge –​information that is crucial to the eventual assembly of the formal confession. Early in the interview, the IRs sought to elicit from the IE knowledge about a candle that had been found near the crime scene. First, the IR clues the IE to the fact that some means of lighting the scene of the crime was used by the perpetrator: IR: IE:

Well, it was dark in the house; how did you see? A lighter.

Receiving an obviously wrong answer, the IR stacks additional information onto the original clue in the following question –​this time specifically mentioning a candle: IR: IE:

Did you ever light a candle? Yeah, there was a candle in the living room.

More transparent yet is contamination introduced by explicitly marking the fact that the inside crime knowledge is known to the police. In the following, the IR first marks the known crime fact that an attempt was made by the perpetrator to make the victim comfortable after she had been placed in the trunk of a car: IR:

What all did you do to make her comfortable? See that’s another thing we know…

Then, rather than depending on the expectation that the IE would know that such an attempt had been made, the IR overtly tells the fact: IR: 

140

there’s certain things that—​we want to be able to show those certain things, you know, that she was tr—​you know, tried to be made comfortable…

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This disclosure is the first of a series of overt clueings as to certain details of the crime scene: IR: IE: IR: IE: IR: IE: … IR: IE: IR: IE:

Okay. And what did you take out of the other side of the trunk to make her comfortable for her legs. Think it was the tire, I’m not sure. A box or anything? I—​ Got to answer out loud. Yeah. Okay. Do you remember any tools that were in the trunk? There was a jack. I don’t think there was anything else. I don’t remember. How about a hammer? I think there was a hammer; I’m not sure.

Because the IE’s confession is false but voluntary, he is motivated to give answers that will solidify the IR’s belief that he is the perpetrator, hence his ‘acknowledgement’ that he had taken a box and a hammer from the trunk –​both facts supplied by the IR. As we have seen, this contamination can take the form of vague clues, more-​specific follow-​up clues, marked knowledge of the facts and even overt disclosures.

Conclusion and suggestions for further research As we have seen, research has begun to identify and describe certain linguistic and discursive characteristics of false confession statements and of the language of interrogators in cases of false confession. It must be emphasized, however, that  –​for now  –​these findings should be considered quasi-​idiosyncratic. Without a sizable corpus of interrogation transcripts, it is impossible to confidently identify patterns of linguistic and discourse structure and processes across the genre so as to be able to talk about what ‘typical’ interrogations and false confessions look like. It is too early to make general observations about the presence of linguistic markers or discursive patterns in false confessions or the language of interrogation associated with them. However, what the studies cited here do reveal is some of the ways in which, first of all, interrogation discourse can be realized in a specific instance of the interrogation of an innocent suspect  –​in other words, explanations about how certain questioning strategies are consistent (if not obligatory) with the interrogation of an innocent suspect  –​and, secondly, explanations of how and why certain linguistic and discursive patterns are more likely than others to emerge in the context of a suspect telling a story that isn’t true. Such explanations have significant implications for the larger issue of determining the reliability of a confession. In other words, as research identifies more specific characteristics of both interrogation language and false confession discourse, analysis of confessions whose validity is in dispute may be of assistance to officials in the enforcement and judicial arms of government in determining whether a given confession is false. Such collaboration could serve the ends of justice at each step of the criminal justice process:  the interrogation itself, the collection of evidence by both prosecutors and defense attorneys, decisions on the admissibility of confessions at trial, and –​in the final instance –​appeals for post-​conviction relief. 141

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Further reading Ali, M. and Levine, T. (2008) ‘The language of truthful and deceptive denials and confessions’, Communications Reports, 21(2): 82–​91. Gaines, P. (2018a) ‘Discourse processes in false confession contamination by police interrogators’, International Journal of Speech, Language and the Law, 25(2): 175–​204. Gaines, P. (2018b) ‘Presupposition as investigator certainty in a police interrogation: The case of Lorenzo Montoya’s false confession’, Discourse and Society, 29(4): 399–​419. Lowrey, B.V. and Ray, S. (2015) ‘Mitigating murder: The construction of blame in true and false confessions’, Discourse Studies, 17(3): 282–​298. Shuy, R.W. (1998) The Language of Confession, Interrogation, and Deception, Thousand Oaks, California: Sage Publications.

References Ali, M. and Levine, T. (2008) ‘The language of truthful and deceptive denials and confessions’, Communications Reports, 21(2): 82–​91. Appleby, S., Hasel, L. and Kassin, S. (2013) ‘The forensic confirmation bias: Problems, perspectives, and proposed solutions’, Journal of Applied Research in Memory and Cognition, 2(1): 42–​52. Costanzo, M. and Leo, R.A. (2007) ‘Research and expert testimony on interrogations and confessions’, in M. Costanzo, D. Krauss and K. Pezdek (eds), Expert Psychological Testimony for the Courts, Mahwah, New Jersey: Erlbaum, 69–​98. Davis, D. and Leo, R.A. (2011) Interrogation-​Related Regulatory Decline: Ego Depletion, Failures of Self-​Regulation and the Decision to Confess, Law Research Paper No. 2011–​24, University of San Francisco. DePaulo, B.M., Lindsay, J.J., Malone, B.E., Muhlenbruck, L., Charlton, K., and Cooper, H. (2003) ‘Cues to deception’, Psychological Bulletin, 129(1): 74–​118. Doty, K. and Hiltunen, R. (2002) ‘“I will tell, I will tell”: Confessional patterns in the Salem witchcraft trials’, Journal of Historical Pragmatics, 3(2): 299–​335. Gaines, P. (2018a) ‘Discourse processes in false confession contamination by police interrogators’, International Journal of Speech, Language and the Law, 25(2): 175–​204. —​—​—​(2018b) ‘Presupposition as investigator certainty in a police interrogation:  The case of Lorenzo Montoya’s false confession’, Discourse and Society, 29(4): 399–​419. Garner, B. (ed.) (2004) ‘Confession’, Black’s Law Dictionary, 8th edn, St. Paul, Minnesota: Thomson West, 317. Garrett, B.L. (2010) ‘The substance of false confessions’, Stanford Law Review, 62(4): 1051–​1119. —​—​—​(2015) ‘Contaminated confessions revisited’, Virginia Law Review, 101: 395–​454. Hill, M.D. (2003) ‘Identifying the source of critical details in confessions’, International Journal of Speech, Language and the Law, 10(1): 23–​61. Inbau, F.E., Reid, J.E., Buckley, J.P. and Jayne, B.C. (2013) Criminal Interrogation and Confessions, Burlington, Massachusetts: Jones and Bartlett Learning. Innocence Project (2020a) Exonerate the Innocent, www.innocenceproject.org/​exonerate/​ (accessed 14 February 2020). —​—​—​ (2020b) DNA Exonerations in the United States, www.innocenceproject.org/​dna-​exonerations-​ in-​the-​united-​states/​ (accessed 14 February 2020). Kassin, S.M. (2005) ‘On the psychology of confessions’, American Psychologist, 60(3): 215–​228. —​—​—​(2006) ‘Internalized false confessions’, in M. Toglia, R. Lindsay, D. Ross and J. Read (eds), Handbook of Eyewitness Psychology, Mahwah, New Jersey: Erlbaum. —​—​—​(2014) ‘False confessions: Causes, consequences, and implications for reform’, Policy Insights from the Behavioral and Brain Sciences, 1(1): 112–​121. Kassin, S.M., Drizin, S.A., Grisso, T., Gudjonsson, G.H., Leo, R.A. and Redlich, A.D. (2010) ‘Police-​induced confessions:  Risk factors and recommendations’, Law and Human Behavior, 34: 3–​38. Kassin, S.M., Leo, R.A., Meissner, C.A., Richman, K.D., Colwell, L.H., Leach, A.-​M. and Fon, D.L. (2007) ‘Police interviewing and interrogation: A self-​report survey of police practices and beliefs’, Law and Human Behavior, 31: 381–​400. 142

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Kassin, S.M. and McNall, K. (1991) ‘Police interrogations and confessions:  Communicating promises and threats by pragmatic implication’, Law and Human Behavior, 15(3): 233–​251. Kassin, S.M. and Wrightsman, L.S. (1985) ‘Confession evidence’, in S.M. Kassin and L.S. Wrightsman (eds), The Psychology of Evidence and Trial Procedure, Beverly Hills, California: Sage Publications: 67–​94. Labov, W. (1997) ‘Some further steps in narrative analysis’, Journal of Narrative and Life History, 7(1–4): 395–​415. Leo, R.A. (2008) Police Interrogation and American Justice, Cambridge, Massachusetts:  Harvard University Press. —​—​—​(2009) ‘False confessions:  Causes, consequences, and implications’, The Journal of the American Academy of Psychiatry and the Law, 37(3): 332–​343. Leo, R.A., Costanzo, M. and Shaked-​Schroer, N. (2009) ‘Psychological and cultural aspects of interrogations and false confessions: Using research to inform legal decision-​making’, in D.A. Krauss and J.D. Lieberman (eds), Psychological Expertise in Court:  Vol. Psychology in the Courtroom, Burlington, Vermont: Ashgate, 25–​55. Leo, R.A. and Davis, D. (2010) ‘From false confession to wrongful conviction: Seven psychological processes’, The Journal of Psychiatry and Law, 38(1–2): 9–​56. Leo, R.A. and Ofshe, R.J. (1998) ‘Consequences of false confessions: Deprivations of liberty and miscarriages of justice in the age of psychological interrogation’, Journal of Criminal Law and Criminology, 88(2): 429–​496. Lowrey, B.V. and Ray, S. (2015) ‘Mitigating murder: The construction of blame in true and false confessions’, Discourse Studies, 17(3): 282–​298. Meyer, J.R. and Reppucci, N.D. (2007) ‘Police practices and perceptions regarding juvenile interrogation and interrogative suggestibility’, Behavioral Sciences and the Law, 25(6): 757–​780. Russano, M.B., Meissner, C.A., Narchet, F.M. and Kassin, S.M. (2005) ‘Investigating true and false confessions within a novel experimental paradigm’, Psychological Science, 16(6): 481–​486. Shuy, R.W. (1998) The Language of Confession, Interrogation, and Deception, Thousand Oaks, CA: Sage Publications. Snook, B., Eastwood, J., Stinson, M., Tedeschini, J. and Houser, J.C. (2010) ‘Reforming investigative interviewing in Canada’, Canadian Journal of Criminology and Criminal Justice, 52(2): 215–​239. Stygall, G. (2008) ‘ “Did they really say that?” The women of Wenatchee: vulnerability, confessions, and linguistic analysis’, Journal of English Linguistics, 36(3): 220–​238. Tausczik, Y.R. and Pennebaker, J.W. (2010). ‘The psychological meaning of words:  LIWC and computerized text analysis methods.’ Journal of Language and Social Psychology, 29(1): 24–​54. Villar, G., Arciuli, J. and Mallard, D. (2012). ‘Use of ‘um’ in the deceptive speech of a convicted murderer’, Applied Psycholinguistics, 33(1): 83–​95. Villar, G., Arciuli, J. and Paterson, H. (2013) ‘Linguistic indicators of a false confession’, Psychiatry, Psychology, and Law, 20(4): 504–​518. —​ —​ —​(2014) ‘Remorse in oral and handwritten false confessions’, Legal and Criminological Psychology, 19(2): 255–​269.

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10 Police interviews in the judicial process Police interviews as evidence Kate Haworth

Introduction Police-​suspect interview discourse has a vital function in the criminal justice process. For the police themselves, the formal interview with a suspect is a key part of any investigation into a criminal offence. In many jurisdictions, the interview later goes on to have a significant further function as a piece of evidence in itself, exhibited and presented in court as part of the prosecution case. Words spoken during the interview thus have a dual context, being produced in both interview room and courtroom, and a correlating dual function, being both investigative and evidential. Yet these contexts and functions are very different, and perhaps even conflicting, as we shall see. In addition, interview data undergo changes in format en route from interview room to courtroom, substantially affecting the integrity of the evidence. This ‘contamination’ of verbal evidence makes a stark contrast with the forensic treatment of physical evidence, which according to long-​accepted principle must be preserved as intact as possible. This chapter will explore the influence of all these factors on police-​suspect interviews in England & Wales (E&W), and will demonstrate that there are potentially serious implications for their role as evidence. It will also serve to illustrate that linguistics offers a powerful set of tools for unpicking exactly how something as socially significant as criminal evidence can be discursively ‘constructed’.

The role of police-​suspect interviews The process begins when the police conduct an interview with someone suspected of committing a criminal offence. In the UK, these interviews are routinely audio-​recorded, with video recording additionally used for the most serious cases. An official transcript known as the ‘Record of Taped Interview’ (ROTI) is then produced from the recording, and so from here on the interview interaction is available in two versions:  one spoken and one written. In practice, however, reliance is placed almost entirely upon the written version rather than the recording. 144

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The interview forms an important part of the initial police investigation. The interviewee may have admitted involvement, or pointed the investigation in a different direction. Witnesses and other suspects will also be interviewed at this stage, and information passed on in any one of these interviews may be crucial in guiding the conduct of the others. The decision about whether to charge the interviewee, and if so with what offence(s), is generally taken by the Crown Prosecution Service (CPS), and the interview is a key part of the information on which they base their charging decision. This decision can be a delicate one: for example, the distinction between various levels of offence may depend solely on proving the intention, knowledge or awareness of the perpetrator (the mens rea element of an offence), but the consequences in terms of the length of the sentence can be enormous. Notable examples are the distinction between murder and manslaughter and between possession of drugs and possession with intent to supply. It is of course extremely difficult to get ‘inside the mind’ of the suspect in order to prove this element of an offence, and so their own words at interview can be an extremely important source of evidence. If the CPS decides to proceed, the interviewee becomes a ‘defendant’ and the matter will go to trial –​unless, of course, a guilty plea is entered. The interview now becomes part of the package of courtroom evidence against the defendant. In some cases the transcript will be edited further at this stage by agreement between the prosecution and the defence, for example to remove inadmissible or prejudicial material which should not be seen by the court. The way in which interview data are presented to the court is particularly interesting. Technically, the actual evidence is the recording, not the transcript (R v.  Rampling [1987] Crim LR 823), but transcripts are admissible as ‘copies’ of the original evidence (s.133 & 134(1) Criminal Justice Act 2003). What happens in practice is that the recording is rarely played, and reliance is placed solely on the transcript. The rather bizarre custom is for the transcript to be ‘performed’ by being read out loud. Since the interview forms part of the prosecution case, the normal procedure is for a police witness to play himself by acting as the interviewer, and the prosecution lawyer to take the part of the defendant interviewee. Although copies of the transcript are also made available to the court, it seems highly likely that the oral performance will become the predominant version in the minds of those present. Lawyers for both prosecution and defence use the interview material in whatever way they can to support their case. Comparisons are commonly made between what a suspect says at trial and what they said (or at least are reported to have said) at interview. The defence will seek to use the earlier interview as evidence of the defendant’s consistency; the prosecution will point to any differences as a sign of inconsistency, and therefore dishonesty and potential guilt. Further, an important legal provision  –​s.34 Criminal Justice and Public Order Act (CJPOA) 1994  –​allows the court to ‘draw inferences’ if a defendant seeks to rely on something in their defence at trial which they did not bring up during earlier questioning, including their police interview. As Bucke, Street and Brown comment with regard to these ‘inferences’, ‘[w]‌hile the legislation does not specify that these need be adverse to the defendant, the likelihood is that they would be’ (2000: 1). This provision is predominantly aimed at those who invoke their ‘right to silence’ and make no comment at interview, but it equally affects every suspect who did choose to answer questions but, for whatever reason, ‘failed to mention’ something which later becomes part of their defence case. The evidential function of the police-​suspect interview is therefore extremely important. It can be observed in action in the following example, taken from the trial of Dr Harold 145

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Shipman. Here, Shipman (W) is being cross-​examined by prosecution counsel (Pr). (The text below, including the punctuation, is that of the official court transcript.) (1) Interview evidence in court Pr Now I am going to ask you please to look at what you told the police when they interviewed you in relation to Mrs Mellor’s medical history. Could you go please first of all to page 251. Page 251. Do you have it in front of you? We will just wait until everybody has it in front of them. Page 251, a third of the way down. […..] You are aware that this document is an agreed transcript taken from a tape-​recorded interview which is admitted to be accurate? W It reflects what was said on the day, yes. Pr Yes, and can be played if needs be. You don’t dispute the content, that this accurately represents the interview do you? W No. [Counsel reads long extracts from the interview] Pr […..] you were telling the police that she, page 251, ‘She came back 10 days later to tell me about it again.’ That’s what it says page 251, ‘She came back 10 days later to tell me about it again.’ That is completely at odds, isn’t it, with the evidence you have given this morning? W No, I don’t think it is. Pr […..] Do you agree you gave one version to the police and a different one today? W I agree that the version that was taken down in the police station is different from the one I said today, yes. Pr Well why did you give a different version to the police to the one that you are giving today? W Because today I am more sane. Pr Today and in the days preceding today you have had time to concoct a false story, haven’t you? W No. Pr You had not thought about this line of defence, had you, when you saw the police? W I didn’t realise I had to have a line of defence when I saw the police. (Trial transcript, Day 34) Aside from the many other fascinating elements of this exchange, it demonstrates the importance of the interview as a piece of evidence in the criminal process. This is, in one sense, the ultimate purpose for the interview –​indeed Baldwin (1993) comments that ‘[i]‌nstead of a search for truth, it is much more realistic to see interviews as mechanisms directed towards the ‘construction of proof’’ (327). It can also be seen that the interview’s appearance here in a courtroom as a physical exhibit (‘page 251, a third of the way down’) is completely different functionally and contextually from the site of its original production.

Some problems The treatment of interview discourse just outlined will ring several alarm bells for anyone who has studied spoken discourse from a linguistic perspective, as it is based on several questionable assumptions. Firstly, for interviews to be legitimately used as evidence, it is essential to be able to establish exactly what was said during the original interaction. This is entirely dependent on the 146

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adequacy of the format in which they are presented. The various different incarnations of the interview are treated by the legal system as if changes in format have no effect on the content, but this is surely not the case. Secondly, direct comparisons between what was said at interview and at trial assume that an honest person will give exactly the same version of events on two different occasions, even when elicited by a questioner with a very different agenda, in front of a different audience, in a different context and after the passage of some considerable time, with no doubt several re-​tellings in between. Again, it is erroneous to assume that these factors will not have any effect. Thirdly, the current system presupposes an ideal scenario where a police interviewer asks questions about an incident and the interviewee, in replying to those questions, has every opportunity to say whatever they wish. However, given the nature of police-​suspect interview interaction, where one participant is prescribed the role of questioner and the other that of respondent, combined with the highly unequal power relations between participants, this ideal scenario cannot exist. In order to challenge some of these assumptions we shall first consider the findings of research into the influence of format, context and audience on interaction, and then illustrate the problems with examples from police-​suspect interviews.

Format The differences between spoken and written modes of language are long established in linguistic research (e.g. Biber 1988, Halliday 1989). This therefore presents a particular set of problems when attempting to convert any text from one format to the other. This difficulty has been fully appreciated by those linguists who need to convert spoken data to a written format to make them accessible to their readers, and hence has become an important methodological consideration in this field (e.g. Ochs 1979; Bucholtz 2000, 2007). However, written transcriptions of spoken data are widely used in the criminal justice process without any recognition of these challenges. This has been given some attention by linguists with an interest in the legal system. Walker, an ex-​court reporter, has highlighted problems with the process of producing contemporaneous ‘verbatim’ transcripts of courtroom proceedings (1986, 1990), an area also addressed by Eades (1996) and Tiersma (1999: 175–​179). Fraser’s research focuses on the transcription of covert recordings (see e.g. Fraser 2003, 2014, 2018), and the serious consequences that can ensue when such transcriptions are used as evidence, especially in the case of indistinct recordings. (See also Shuy 1993, 1998; Coulthard, Johnson and Wright 2017: 130–​133; Gibbons 2003: 27–​35.) All these studies demonstrate the difficult representational choices facing those transcribing spoken data for use in legal contexts, and, troublingly, highlight the many inadequacies in current practice. However, it must be acknowledged that current E&W practice is fairly unusual in even attempting to produce verbatim transcripts of police-​suspect interviews from audio recordings. Prior to the introduction of mandatory tape recording in 1992 (Police and Criminal Evidence Act 1984), formal written records were produced by the interviewers themselves from contemporaneous notes or even memory. Not surprisingly, these have been shown to be poor representations of the interaction which actually took place (Coulthard 1996, 2002). Worryingly, this is still the method used in E&W for obtaining witness statements (see Rock 2001). 147

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This practice is also still used for police-​suspect interviews in other jurisdictions, despite the fact that, again, linguists have been pointing out the problems for many years. In a Swedish study, Jönsson and Linell (1991) highlight substantial differences between the account produced orally by a suspect and the corresponding written report produced by the interviewer, which they link with differences between spoken and written language. Gibbons (2001:  32) makes similar observations of witness interviews in Chilean audiencias, and comments: ‘[t]‌he question we have to ask is whether the judicial process, and hence justice itself, is threatened by the fact that the judge receives a digested version of the evidence’. Komter’s work has long shed light on these processes in the Dutch system (e.g. 2002, 2006, 2019), and in the same jurisdiction van Charldorp (2013) demonstrates the tangible interference that the production of a contemporaneous written record has on the interaction as it happens. (See also Eades (1995) and Gibbons (1995) on Australian cases.) It is significant that the transformations and inaccuracies observed in all these studies nearly always assist the prosecution, not the defence (see also Bucholtz 2009). Taken together, these studies highlight serious deficiencies in the production of written records of spoken interaction across various legal contexts and jurisdictions over a considerable number of years. The current E&W system of recording and transcribing police-​ suspect interviews is a significant advance compared with previous practice and with other jurisdictions, but unfortunately this appears to have led to an assumption that problems no longer exist. Further, in the E&W system the interview data are not only converted from spoken to written format, but also from written back into spoken when the transcript is read out loud in the courtroom. This process has received considerably less academic scrutiny (although see Haworth 2018: 443–​445), but it once again cannot be described as a neutral, problem-​free exercise. This is especially true given that the oral presentation is performed only by representatives of the prosecution. We will now look at an example which demonstrates how the format changes undergone by police interview data affect their evidential integrity (Haworth 2006:  757). It relates to a crucial point in the Harold Shipman trial. It must be acknowledged that the data used here are certainly open to question for exactly the reasons just outlined, given that we must rely on the official trial transcript, but it is nonetheless a striking illustration. Shipman was a doctor accused of murdering a large number of his patients, often by administering fatal overdoses of diamorphine. In response to a specific question during one of his police interviews, he denied that he kept any dangerous drugs, yet diamorphine was found at his home during a search. Not only did this give him the means to commit the murders, but this denial at interview proved that he had lied to the police. This significantly undermined his honesty and integrity, an aspect which was relied on heavily by the defence during the trial, tapping into the image of trust and respectability typically accorded to family doctors. This deceitful response at interview was therefore hugely significant, as emphasised repeatedly by the prosecution. However, it appears that errors crept into the version presented in court. According to my own transcription from the audio recording, the relevant exchange is as follows: (2a) Author’s version IR er re the drugs, (.) you don’t keep drugs in er (.) your surgery, (.) is that correct IE I don’t keep any drugs (.) if you’re talking about controlled drugs

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This is a very straightforward –​and untrue –​denial. Yet the official police transcript puts this differently: (2b) Police transcript IE  I’ve given your drugs. Are you talking about controlled drugs? There is a crucial difference in meaning here. This version contains a clear implication that Shipman has voluntarily handed over drugs to the police, when in fact he did exactly the opposite: he hid them and lied about it. The official police transcript, which is the version presented to the court as evidence, thus seriously undermines an important prosecution point. But that is not all. Not surprisingly, during cross-​examination the prosecution challenge Shipman about this point, and use exactly this part of the interview to do so. However, the version ‘quoted’ by prosecution counsel is different again: (2c) Prosecution version IE  I have given you all the drugs. Are you talking about controlled drugs? (Trial transcript, Day 32) Compared to the police transcript, this contains the significant addition of ‘all’. This version is much more helpful to the prosecution, in that this would still amount to a lie:  Shipman cannot have given the police all the drugs if more were then found at his house. I am certainly not suggesting that this alteration was deliberate, but nevertheless it is certainly helpful to the agenda of the person quoting the ‘evidence’. This example clearly and concisely demonstrates the transformations which interview data can undergo, stage by stage, from interview room to courtroom. It shows that by the time the process reached the crucial stage where the jury were considering the interview as evidence in deciding on their verdict, the content was significantly different from what Shipman actually said in his interview. Indeed, following a more detailed exposition of this process of data transformation, Haworth (2018: 19) concludes that the criminal justice system ‘currently institutionally embeds contamination into the processing of interview data, without any apparent concern for the evidential consequences’.

Context As we have seen, a significant feature of police interview discourse is that it does not simply occur in the interview room, but is reproduced and recontextualised from interview room to courtroom (see e.g. Komter 2002). This recontextualisation is not unique to police interviews, however, and has been investigated as a feature of some other institutional, and especially legal, texts. Walker (1986) considers a similar process of taking original data out of context and putting them to a slightly different legal use, namely by judges assessing transcripts of witness evidence when determining appeals. This demonstrates the significance of the chosen representation of certain contextual language features in the transcripts (e.g. pauses, ‘ungrammatical speech’:  Walker 1986:  418) and their influence on the judges’ decision-​making process. (See also Coulthard 1996.) In a rather different take on the same underlying phenomenon, Aronsson (1991) considers the ‘recycling’ of information in various institutional processes, and highlights the resulting misinterpretation and 149

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‘miscommunication’ which can result. (See also Jönsson and Linell 1991). There is, of course, a strong link between the recontextualisation of the data and the corresponding changes in format just discussed. This idea of ‘messages travel[ling] across sequences of communication situations’ (Jönsson and Linell 1991:  422) links with the concept of ‘trans-​ contextuality’, as developed in the work of Briggs and Blommaert. Briggs (1997) traces elements of a ‘confession statement’ supposedly made by a young woman in an infanticide case, examining its relation to statements made by others connected with the case and official documents produced in relation to it. He traces what is described as the ‘circulation of discourse’ (538), in particular the way in which the statement was subsequently used within the judicial process that ultimately convicted the woman. This highlights the strong influence of the wider judicial sequence in which the relevant interaction occurred over the content of the statement produced. Blommaert (2001) addresses similar processes involving narratives of African asylum-​ seekers in Belgium. He examines how the asylum-​seekers’ stories, as given in their original interview with immigration officials, are then institutionally processed: ‘[t]‌he story of the asylum seeker is remoulded, remodelled and re-​narrated time and time again, and so becomes a text trajectory with various phases and instances of transformation’ (438). Blommaert shows that these processes go further than simply questions of transcription and format change, emphasising the significant ramifications of the recontextualisations, while also raising important questions of ownership and control over the asylum-​seekers’ stories. It is important to recognise the inequality in access to the transformative processes undergone by such data. Just as with Blommaert’s asylum-​seekers, police interviewees lose all control over the subsequent ‘trajectory’ of their words as soon as they have been uttered. Picking up these concepts of trans-​contextuality, ‘text trajectories’ and intertextuality in the legal process, Heffer, Rock and Conley (2013: 13) collect together various studies of ‘textual travels in the law’, encompassing a wide range of contexts and data types, and adding further weight to the argument that such treatment of linguistic data almost inevitably results in the loss or distortion of the lay voice as it travels through the legal system. All these studies demonstrate the importance of looking beyond the immediate site of production of institutional discourse, and of seeing such texts as just one part of much wider processes. This is clearly true of police interview discourse and its important role as criminal evidence. The next step is to consider the influence of those wider processes and institutional functions over the interview interaction itself.

Audience A useful starting point for such an analysis is a consideration of the effect of audience on interaction. It is a well-​established principle, from sociolinguistic studies of speaker style (Giles and Powesland 1975, Bell 1984) to studies of the narrative construction of identity (e.g. Schiffrin 1996), that speakers adapt their talk according to the intended audience. Indeed Sacks, Schegloff and Jefferson (1974: 727) describe ‘recipient design’ as ‘perhaps the most general principle which particularizes conversational interactions’.

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But the recontextualisation of police-​suspect interview interaction means that it has several different audiences –​from those initially present, to lawyers preparing their cases, to the judge and jury of the courtroom –​each of which has a slightly different purpose for it. Much depends on how successfully the participants meet the needs of all those audiences during the interview itself. Failure to do so can lead to dire consequences for an interviewee, but is it reasonable to expect them to cater for so many diverse needs? By the same token, how challenging a task is this for police interviewers to manage successfully? There are some parallels with courtroom discourse, where interaction between questioner and witness is to a large extent a display for the ‘overhearing audience’ of the jury (Drew 1992). However, although the courtroom jury is arguably also the most important audience for police-​suspect interview discourse, they are of course not present at the original interaction. It is therefore instructive to consider another context with parallels in this respect. In broadcast news interviews, the presence of an overhearing, non-​present and often temporally remote audience is an essential feature, and hence has been the focus of some research (e.g. Heritage 1985, Greatbatch 1988, Clayman and Heritage 2002). This has shown that in that context the overhearing audience is by far the most influential in discursive terms. News interviewers use strategies which position them not as the primary recipients of the interviewee’s talk, but as conduits to the overhearing audience who are the real intended target for the interviewee’s talk (Heritage 1985: 100). However, despite the similarities between these contexts, there are some important distinctions. Firstly, Heritage observes of the news interviewer that their ‘task is to avoid adopting the position of the primary addressee of interviewee’s reports’ (1985: 115). Yet the police interviewer is an intended primary recipient: they are part of the team investigating the offence in question, and may be directly involved in decisions about charging and detaining the interviewee immediately consequent to the interview. The interviewee thus has more than one ‘primary’ audience to maintain, and they are situated very differently in relation to the talk  –​physically, temporally and in terms of their purpose. Meanwhile the interviewer has an extremely difficult position to maintain, as both ‘conduit’ and primary recipient of the interviewee’s talk –​stances which are effectively mutually exclusive. In addition, the role would seem to demand neutrality, yet the interviewer’s institutional position as a member of the police force is clearly anything but. Further, in broadcast interviews the participants are under no illusion regarding the true purpose of the interaction or the primary intended audience. It is less clear whether that can be said of police interviewees. They are made fully aware that they are being recorded and therefore ‘overheard’ and will probably have a basic grasp of the legal process that may ensue, but this is not the same as knowing the identity and purpose of those who will listen to that recording. On the other hand, the interviewers’ relationship with the future audiences is completely different. They belong to the same institutional system, and it is part of their professional role to be aware of the subsequent evidential use of the interview. This is therefore an important distinction between the interviewer’s and interviewee’s positions. (For a more detailed discussion, see Haworth 2013.)

Data analysis We will now look at examples from police-​suspect interviews to observe the influence of all these aspects in the interaction itself, and how this may affect its future role as evidence. (Transcripts here are the researcher’s own.) 151

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(3) Interview 5.11.2/​1: Assault PC IR so the next question is would you agree that apart from meself and y-​ yers-​ yourself, there is no one else present in this [room.] IE [mm.] yep. The interviewer’s question here is entirely redundant for the purposes of himself and the interviewee, but is a method of providing information purely for future audiences of the interview. It is reminiscent of a magician asking a person on stage with him to confirm, for the more distant audience, that there is no rabbit in his hat. It is, of course, an example of exactly the same discursive phenomenon. Stokoe and Edwards (2008:  93) document similar ‘silly questions’ in police-​suspect interviews, especially in connection with ‘intentionality’, or mens rea. For example: (4) ‘Silly question’ (Stokoe and Edwards 2008: 90) IR   Did Melvin give you permission to throw the hammer at his front door?   (pause) IE  NO!! Such questions have a clear evidential function, attempting to establish ‘on record’ an essential element of the relevant criminal offence. As Stokoe and Edwards (2008:  108) comment, ‘[u]‌nder the guise of ‘silly’ or ‘obvious’ questions, police officers work to obtain, for the record and for later use in court, something very serious indeed’. These examples demonstrate interviewers’ clear awareness of, and accommodation to, the future overhearing audiences and the future evidential value of the interview. On the other hand, the following illustrate that interviewees often have no such awareness. (5) Interview 5.11.2/​1: Assault PC 1 IR the officer’s received injuries that amount to, what we call ABH […] and I’ll 2 tell you what they are, graze to the left right elbow, graze to the lar-​ left 3 right knees, graze to the left right rear shoulder, soreness, at bruising below 4 right breast and to the nip of his er nobe on his-​node on his er on his chest. 5 (.) okay? 6 IE (there) look there I’ve got some 7 IR yeah, [(? what you) s-​] 8 IE [from falling on] the floor [(?)] 9 IR [(I) hear] what you’re saying, but the 10 officer’s saying, that those (.) those (.) number of bruisings occurred, whilst 11 he was effectively arresting you. (.) and during the struggle that ensued. This interview concerns offences relating to assaulting a police officer while being arrested. But the circumstances surrounding the attempted arrest are confused, with a number of different people involved and the interviewee himself receiving injuries. Yet despite the evidential importance of the information, there is a striking contrast between the amount of detail provided about the officer’s injuries and those of the interviewee, who merely invites the interviewer to ‘look there’ (line 6). This use of context-​dependent deixis displays the interviewee’s lack of recognition of the interview’s subsequent audio-​only format, and his failure to take into account the

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needs of any non-​present audience. It also demonstrates his focus on the interviewer as sole audience for his talk: ‘look’ can have only one intended recipient here. It is not even clear (to anyone not present) what he means by ‘some’ –​the interviewer’s previous turn could provide ‘grazes’, ‘bruising’ or even the general ‘injuries’ as the intended referent. There is thus no evidential value whatsoever to the interviewee’s response here. Yet despite this, the interviewer fails to pursue or provide the missing information for his future audiences. By not establishing evidence of the interviewee’s injuries here, the interviewer leaves the defence potentially disadvantaged in any claim of self-​defence at a later stage, due to s.34 CJPOA 1994. However, it also leaves a potential gap in the evidence available for future prosecution audiences, particularly in relation to the charging decision. The following is a further example of what can happen when an interviewee fails to take the future audiences and their purposes into consideration. The interviewee has been shown photographs taken from CCTV footage of the scene of a burglary, showing the perpetrator. The interviewer is alleging that this is the interviewee, yet he fails to make an adequate denial. (6) Interview 2.26: Burglary IR can you tell me whether or not you were involved in this offence, IE like I say I’m not saying anything at this time. IR right, IE if it goes to court, or whatever the lawyer sees fit, by looking at the evidence that you’ve showed me, then I will decide on what to do then. in court. IR okay. [..…] IE t-​to be honest, the photographs don’t look that good. er and, (???) show the lawyer them. IR right, […..] IE because to me, all as that shows is, someone who is an average build, looks to me like between brown and black hair, face you cannae make out because it’s blurred, [there’s] (nae) eyes, (nae) nose, [(you can] see) IR [okay,]          [cause]     because what we’re doing now is arguing whether or not (.) erm whether or not you feel there’s enough evidence to get you through a court. but I’m asking you a simple question, which is, have you committed this offence! IE well like I say, I’m not saying anything at this time! I’ll let the lawyer decide. What is striking about this example is that it shows an interviewee being explicitly aware of the future court context, while simultaneously failing to consider that those who will be present in that context are also an audience for his current talk. In other words, he has overlooked the multi-​purpose, trans-​contextual nature of police interview discourse, and is treating the interview as purely investigative, not evidential. His point here is that the photos are insufficient on their own to convict him, which may well have been the case. Yet I would argue that for a later court audience attempting to reach a verdict, the photos combined with these responses at interview are almost certainly enough, regardless of the quality of the images. He has effectively incriminated himself.

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Prosecution v. defence Thus far we have seen that interviewers do address the future audiences and their purposes during interview interaction. I now wish to refine this observation and suggest that they are not addressing all future audiences, but that their professional position will make them focus mainly on collating evidence for the future prosecution audiences –​by which I mean their fellow investigating officers, the CPS and courtroom prosecutors. Meanwhile if interviewees focus only on the interviewer as their audience, they are likely to take their cue from them in terms of tailoring the content of their utterances. It is also the case that interviewers, with their more powerful institutional and discursive role as questioner, have considerably more control over interview interaction than do interviewees (e.g. Greatbatch 1986). Putting all these factors together, there is a strong likelihood that the account elicited from an interviewee during an interview will end up being tailored much more towards the future prosecution audiences, while their own defence needs go unmet or even undermined. Indeed, research on police-​suspect interview discourse has almost universally shown that the prosecution version of events is privileged over the suspect’s story (e.g. Auburn et al. 1995, Heydon 2005, esp. 116ff.; although see Haworth 2017). This has potentially serious ramifications for the assumption built into s.34 CJPOA 1994 that an omission of supporting material for the defence at interview is an indication of guilt. It can have other equally serious consequences in terms of the evidence produced through interview interaction, as shown by the example below. As noted earlier, key elements of a prosecution case often depend on the difficult task of providing evidence of a suspect’s knowledge and intentions. In the case already discussed above, relating to assaulting a police officer, a more serious offence is potentially available, namely ‘Assault with intent to resist arrest’ (s.38 OAPA 1861). This has a maximum sentence of two years’ custody, compared to six months for a basic ‘Assault on a constable’ (s.89(1) Police Act 1996). The interviewer’s questioning here is clearly designed to elicit –​indeed to create –​ evidence regarding this specific offence element of intent, in the form of the interviewee’s response. (7) Interview 5.11.2/​1: Assault PC 1 IR right when he grabbed hold of yer, 2 IE yep 3 IR why-​w-​what did you believe he was doing when he grabbed hold of yer. 4 IE what, when he was-​I thought he was trying to hurt me at the end of the 5 day-​I was just angry, I didn’t know what was going off [(or)] 6 IR [no.] when the 7 officer, grabbed hold of yer, 8 IE yeah 9 IR cos earlier on you actually said at the beginning, that when the 10 off[icer grabbed hold of yer] 11 IE [I thought he was just getting me out of the garden.] 12 IR you thought that he was going to arrest 13 [yer. and you didn’t want to] be arrest[ed.] 14 IE [yeah at first yeah.]         [I didn’t] wanna. 15 IR [(?)] 154

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16 17 18 19 20 21 22 23 24 25 26

IE IR IE IR IE IR IE IR IE

[cos] I hadn’t done owt wrong at the end of the [day.] [so] am I right making the assumption then, that at the point that he grabbed hold of yer, you thought you were g-​being arrested.= =yeah. and you didn’t want to be ar[rested so-​] [I’m not gonna lie] yeah. right. okay th-​ I did [r-​] [what] I’m asking you James, is to keep it straight. yeah I did resist arrest cos I didn’t want to get arrested.

The sequence begins with the interviewer asking what the interviewee believed was going on at the point that the officer grabbed him. The interviewee’s initial response raises two significant points for the defence. Firstly, he states he thought the officer was ‘trying to hurt me’ (line 4), which supports a potential claim of self-​defence. Secondly, he says that he ‘didn’t know what was going off’ (line 5), which indicates that he didn’t realise that he was being arrested, which would support a defence to the s.38 offence. Yet the interviewer does not pick up on either of these aspects, instead interrupting with ‘no’ (line 6), indicating that this is not the response he wanted. He then suggests an alternative answer, which instead fits a finding of guilt: ‘you thought that he was going to arrest yer. and you didn’t want to be arrested’ (lines 12–​13). Significantly, the interviewee does then agree with this proposition, actually echoing the interviewer’s words (‘you didn’t want to’, ‘I didn’t wanna’: lines 13–​14), despite the fact that this contradicts his immediately prior utterance (line 11), and his original response to the question (lines 4–​5). Having received this preferable response, the interviewer moves to a formulation which contains none of the elements of the interviewee’s own unprompted utterances, but once again explicitly spells out the elements which would support a prosecution case (lines 17–​21). Again, the interviewee agrees with this (line 22). This sequence is rounded off with a very interesting exchange. The interviewer asks the interviewee to ‘keep it straight’ (line 25). In response, the interviewee himself provides a form of summary (line 26), but includes only those points repeatedly stressed by the interviewer, and none of those which he raised independently. He also notably uses offence terminology: ‘resist arrest’. It is effectively a confession to the more serious offence. In the space of these few exchanges, then, the interviewee has gone from making valid points supporting his defence, to making damaging admissions. What the analysis shows is how this transformation from defence to prosecution evidence is achieved discursively by the interviewer.

Discussion: interviews as evidence This chapter has shown that police-​suspect interviews have a significant role as evidence in the criminal justice process. We have also observed the tension created by their dual role as both investigative and evidential events. Interviewers are professionally attuned to the subsequent evidential role of the interview, leading to an apparent focus on the needs of the future prosecution audiences, and an inclination not to pursue ‘on-​record’ evidence which may support a defence. At the same time, interviewees appear to orientate

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more to its initial role as part of the preliminary police investigation, and to tailor their account according to cues from the interviewer as sole audience for their talk, often to their cost. This can lead to the interview simply confirming whatever version of events the interviewers are currently working on, thus undermining both its investigative and evidential function. We have also seen that interview data undergo various transformations in format, raising serious questions about evidential consistency. As we move away from the original speech event, the format of the data becomes more corrupted while the uses to which they are put become more important. This is clearly not a desirable correlation. Overall, linguistic research suggests that, even with the many current safeguards, police-​suspect interviews as presented in evidence are still not accurate and faithful representations of the interviewee’s words, nor do they present interviewees with a neutral opportunity to put forward their own full version of events. And ultimately, the rather unexpected and self-​contradictory result is that the nature of the interview’s later role as evidence actually adversely affects its own evidential quality and value.

Further reading Bell, A. (1984) ‘Language style as audience design’, Language in Society, 13(2): 145–​204. (A useful model for the influence of various audiences on interaction.) Haworth, K. (2018) ‘Tapes, transcripts and trials:  The routine contamination of police interview evidence’, International Journal of Evidence & Proof, 22(4): 428–​450. (A more detailed analysis of the transformative processes undergone by UK police interview data.) Heydon, G. (2005) The Language of Police Interviewing: a critical analysis, Basingstoke: Palgrave. (Extended linguistic analysis of police-​suspect interview discourse, using Australian data.) Komter, M.L. (2019) The Suspect’s Statement:  Talk and text in the criminal process, Cambridge: Cambridge University Press. (Extended illustration of the evidential use of police-​ suspect interview records in the Dutch (Roman Law) system.)

References Aronsson, K. (1991) ‘Social interaction and the recycling of legal evidence’, in N. Coupland, H. Giles and J. Wiemann (eds), ‘Miscommunication’ and Problematic Talk, Newbury Park: Sage. Auburn, T., Drake, S. and Willig, C. (1995) ‘“You punched him, didn’t you?”: versions of violence in accusatory interviews’, Discourse & Society, 6(3): 353–​386. Baldwin, J. (1993) ‘Police interview techniques:  Establishing truth or proof ?’, British Journal of Criminology, 33(3): 325–​352. Bell, A. (1984) ‘Language style as audience design’, Language in Society, 13(2): 145–​204. Biber, D. (1988) Variation across Speech and Writing, Cambridge: Cambridge University Press. Blommaert, J. (2001) ‘Investigating narrative inequality: African asylum seekers’ stories in Belgium’, Discourse & Society, 12(4): 413–​449. Briggs, C. (1997) ‘Notes on a ‘confession’: on the construction of gender, sexuality and violence in an infanticide case’, Pragmatics, 7(4): 519–​546. Bucholtz, M. (2000) ‘The politics of transcription’, Journal of Pragmatics, 32(10): 1439–​1465. —​—​—​(2007) ‘Variation in transcription’, Discourse Studies, 9(6): 784–​808. —​—​—​(2009) ‘Captured on tape: Professional hearing and competing entextualizations in the criminal justice system’, Text & Talk, 29(5): 503–​523. Bucke, T., Street, R. and Brown, D. (2000) ‘The right of silence: The impact of the Criminal Justice and Public Order Act 1994’, Home Office Research Study 199, London: Home Office. Clayman, S. and Heritage, J. (2002) The News Interview: Journalists and Public Figures on the Air, Cambridge: Cambridge University Press. Coulthard, M. (1996) ‘The official version: Audience manipulation in police records of interviews with suspects’, in C.R. Caldas-​Coulthard and M. Coulthard (eds), Texts and Practices: Readings in Critical Discourse Analysis, London: Routledge, 166–​178. 156

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—​—​—​(2002) ‘Whose voice is it? Invented and concealed dialogue in written records of verbal evidence produced by the police’, in J. Cotterill (ed.), Language in the Legal Process, Basingstoke: Palgrave,  19–​34. Coulthard, M. and Johnson, A. (2007) An Introduction to Forensic Linguistics: Language in Evidence, Abingdon: Routledge. Coulthard, M., Johnson, A. and Wright, D. (2017) An Introduction to Forensic Linguistics: Language in Evidence, 2nd edn, Abingdon: Routledge. Drew, P. (1992) ‘Contested evidence in courtroom cross-​examination:  The case of a trial for rape’, in P. Drew and J. Heritage (eds), Talk at Work:  Interaction in Institutional Settings, Cambridge: Cambridge University Press, 470–​520. Eades, D. (1995) ‘Aboriginal English on trial: The case for Stuart and Condren’, in D. Eades (ed.), Language in Evidence: linguistic and legal perspectives in multicultural Australia, Sydney: University of New South Wales Press, 147–​174. —​—​—​(1996) ‘Verbatim courtroom transcripts and discourse analysis’, in H. Kniffka, S. Blackwell and M. Coulthard (eds), Recent Developments in Forensic Linguistics, Frankfurt am Main: Peter Lang GmbH, 241–​254. Fraser, H. (2003) ‘Issues in transcription: factors affecting the reliability of transcripts as evidence in legal cases’, Forensic Linguistics, 10(2): 203–​226. —​—​—​(2014) ‘Transcription of indistinct forensic recordings: Problems and solutions from the perspective of phonetic science’, Language and Law/​Linguagem e Direito 1(2): 5–​21, http://​ojs.letras. up.pt/​index.php/​LLLD/​article/​view/​2429 (accessed 14 July 2020). —​—​—​(2018) ‘ “Assisting” listeners to hear words that aren’t there: Dangers in using police transcripts of indistinct covert recordings’, Australian Journal of Forensic Sciences, 50(2): 129–​139. Gibbons, J. (1995) ‘What got lost? The place of electronic recording and interpreters in police interviews’, in D. Eades (ed.), Language in Evidence:  Linguistic and Legal Perspectives in Multicultural Australia, Sydney: University of New South Wales Press, 175–​186. —​—​—​(2001) ‘Legal transformations in Spanish:  An ‘audiencia’ in Chile’, Forensic Linguistics, 8(1): 24–​43. —​—​—​ (2003) Forensic Linguistics:  An Introduction to Language in the Justice System, Oxford: Blackwell. Giles, H. and Powesland, P.F. (1975) Speech Style and Social Evaluation, London: Academic Press. Greatbatch, D. (1986) ‘Aspects of topical organization in news interviews:  The use of agenda-​ shifting procedures by interviewees’, Media, Culture and Society, 8(4): 441–​455. —​—​—​(1988) ‘A turn-​taking system for British news interviews’, Language in Society, 17(3): 401–​430. Halliday, M.A.K. (1989) Spoken and Written Language, Oxford: Oxford University Press. Haworth, K. (2006) ‘The dynamics of power and resistance in police interview discourse’, Discourse & Society, 17(6): 739–​759. —​—​—​(2013) ‘Audience design in the police interview: The interactional and judicial consequences of audience orientation’, Language in Society, 42(1): 45–​69. —​—​—​(2017) ‘The discursive construction of evidence in police interviews: Case study of a rape suspect’, Applied Linguistics, 38(2): 194–​214. —​—​—​(2018) ‘Tapes, transcripts and trials:  The routine contamination of police interview evidence’, International Journal of Evidence & Proof, 22(4): 428–​450, http://​journals.sagepub.com/​ doi/​10.1177/​1365712718798656 –​open access (accessed 14 July 2020). Heffer, C., Rock, F. and Conley, J. (eds), (2013) Legal-​Lay Communication: Textual Travels in the Law, Oxford: Oxford University Press. Heritage, J. (1985) ‘Analysing news interviews: Aspects of the production of talk for an overhearing audience’, in T.A. van Dijk (ed.), Handbook of Discourse Analysis, Vol. 3, London: Academic Press, 95–​117. Heydon, G. (2005) The Language of Police Interviewing:  A Critical Analysis, Basingstoke: Palgrave. Jönsson, L. and Linell, P. (1991) ‘Story generations: From dialogical interviews to written reports in police interrogations’, Text, 11(3): 419–​440. Komter, M.L. (2002) ‘The suspect’s own words:  The treatment of written statements in Dutch courtrooms’, Forensic Linguistics, 9(2): 168–​192. —​—​—​(2006) ‘From talk to text:  the interactional construction of a police record’, Research on Language and Social Interaction, 39(3): 201–​228. 157

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—​—​—​ (2019) The Suspect’s Statement: Talk and text in the criminal process, Cambridge: Cambridge University Press. Ochs, E. (1979) ‘Transcription as theory’, in E. Ochs and B.B. Schiefflen (eds), Developmental Pragmatics, New York: Academic Press, 43–​72. Rock, F. (2001) ‘The genesis of a witness statement’, Forensic Linguistics, 8(2): 44–​72. Sacks, H., Schegloff, E.A. and Jefferson, G. (1974) ‘A simplest systematics for the organization of turn-​taking for conversation’, Language, 50(4): 696–​735. Schiffrin, D. (1996) ‘Narrative as self-​portrait: Sociolinguistic constructions of identity’, Language in Society, 25(2): 167–​203. Shuy, R.W. (1993) Language Crimes: The Use and Abuse of Language Evidence in the Courtroom, Oxford: Blackwell. —​—​—​ (1998) The Language of Confession, Interrogation and Deception, Thousand Oaks, CA: Sage. Stokoe, E. and Edwards, D. (2008) ‘“Did you have permission to smash your neighbour’s door?” Silly questions and their answers in police-​suspect interrogations’, Discourse studies, 10(1): 89–​111. Tiersma, P. (1999) Legal Language, Chicago: University of Chicago Press. Van Charldorp, T. (2013) ‘The intertwining of talk and technology:  How talk and typing are combined in the various phases of the police interrogation’, Discourse & Communication, 7(2): 221–​240. Walker, A.G. (1986) ‘Context, transcripts, and appellate readers’, Justice Quarterly, 3(4): 409–​427. —​—​—​(1990) ‘Language at work in the law: The customs, conventions, and appellate consequences of court reporting’, in J.N. Levi and A.G. Walker (eds), Language in the Judicial Process, New York: Plenum Press, 203–​244.

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11 Assuming identities online Authorship synthesis in undercover investigations Nicci MacLeod

Introduction This Handbook, along with the articles in journals such as the International Journal of Speech, Language and the Law and Language and Law /​Linguagem e Direito, is testament to the breadth and diversity of the kinds of task in which forensic linguists engage. Within the set of tasks broadly defined as authorship analysis we might wish to distinguish between two areas of activity: first, there is sociolinguistic profiling, whereby the linguist offers assistance in the investigation of what sort of person produced a text; second, comparative authorship analysis refers to those tasks in which the linguist gives their opinion on the most likely author of an anonymous text from a candidate set. Most recently, police investigators in England and Wales have called upon the services of forensic linguists for their assistance in a somewhat different authorship task: the taking-​over of an individual’s online identity for the purposes of intelligence gathering and/​or securing an arrest. One context in which this is a routine strategy is operations against online child sexual abuse and/​or exploitation. Imagine the scenario: a caregiver discovers a child has been taking part in sexualized Instant Messaging (IM) conversations with an adult online. The police are alerted, and the victim is removed to a place of safety. An undercover officer (UCO) takes her place, engaging the adult in IM conversation in an attempt to set up a meeting to secure an arrest on suspicion of grooming under the Sexual Offences Act 2003 (discussed in the next section). The UCO must synthesise –​that is, construct from available resources –​the victim’s identity. The role of language in this process of identity assumption cannot be overstated. In the anonymous online world with restricted access to physical attributes of identity, language becomes pivotal to our projection of self (see Tagg 2015). Undoubtedly, the synthesis of another individual’s linguistic persona is not a straightforward task. It requires close analysis of the target persona’s usual linguistic style, an understanding of the causes of variation in language, and, I will argue here as we do elsewhere (Grant and MacLeod 2020; Grant and MacLeod 2018; MacLeod and Grant 2018), an awareness and suppression of the officer’s own linguistic identity. It is a cognitively demanding, time constrained activity, with UCOs often having just hours 159

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to prepare for the live operation in order to avoid a sudden and unexplained break in communication. The wary perpetrator, already likely to be on high alert to the possibility of being apprehended, must not have their suspicions aroused that the person they are talking to is no longer the child that they have been grooming for sex for days, weeks or months. Academic linguists, including the author, have been involved for several years in the delivery of the Pilgrim training programme, a course designed to ‘improve the legal knowledge and undercover policing skills of those staff who operated online’ (HMIC 2014: 153). Academic involvement in assisting with such activities is, of course, laden with ethical considerations. Critical scholars might argue that this activity risks further empowering an already dominant group (the police). However, Wodak (1996) maintains that there are a number of domains in which changes to discursive practices have the potential to advance the interests of the powerless. Thus, the credible counterargument is that the most effective way of assisting powerless groups –​for example, the innocent accused and child victims themselves –​is to ensure that online investigations are conducted in the most informed, evidence-​based manner possible. In bringing language analysis to this arena we can contribute to improving the quality of prosecutions of the guilty and defences of the innocent. Working directly with practitioners, such as in the way set out in this chapter, is the most effective method of ensuring that the insights arising from linguistic research are put to meaningful use in improving the investigative process and the delivery of justice. This chapter considers the role of the forensic linguist in training UCOs in the particular task of authorship synthesis in IM, drawing on work carried out within a wider project investigating the assumption of identities online. I  set out a stratified model of language based on Herring’s (2004) four-​level hierarchy of computer-​mediated discourse, and explain how the model has been adapted and translated into useful training tools for UCOs. There follows some discussion of the effectiveness of this training for UCOs’ skill at identity assumption, asking and answering the following questions. How can we best describe a linguistic individual? What are the necessary and sufficient levels of description that allow an identity to be taken on without discovery? I conclude with some observations on what this work tells us about the relationship between language and identity, an update on theoretical contemplation which began in Grant (2010) and which continues in Grant and MacLeod (2018) and Grant and MacLeod (2020).

The policing of online child sexual abuse Just as the evolution of Internet and mobile communication technologies has revolutionised communication and other activities for the law-​abiding public, so too have they aided the commission of particular categories of crime. One example of this is that child sex offenders now have direct and easy access to potential victims for grooming via chat rooms and IM. They have made use of these channels both to target children for sexual abuse and to facilitate networking with other offenders in order to share abusive imagery. The anonymity afforded by the Internet has led to individuals, including children, feeling less inhibited about the sharing of personal information and forming of intimate relationships over a relatively short period of time. The concern here is with the specific criminal context of what is known as online grooming. ‘Grooming’ lacks a definition in English law and is a notoriously fuzzy concept, but the offence is described as ‘arranging or facilitating the commission of a child sex offence’ in the Sexual Offences Act 2003 (SOA) s.14. The offence is subject to a maximum 160

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sentence of 14 years’ custody. Going on to meet the child following grooming, as set out in s.15 of the SOA 2003, could result in a further maximum 10 years’ custody (Sentencing Council 2013). In order to commit this offence, the offender must arrange to meet the victim with the intention of sexual activity and, crucially, must not reasonably believe that the victim is 16 or over. The amendments brought in by the Serious Crime Act 2015 s.67 also outlaw the preparatory offences themselves, regardless of whether arrangements are actually made to meet in person, setting out a maximum of two years’ imprisonment on indictment. UCOs must remain cognisant of the relevant legal issues –​for example, they must avoid operating as agents provocateurs. That is to say, they must anticipate and deflect any subsequent accusations of having incited illegal behaviour from their targets during the course of their communications (see Martellozzo 2013). The Police and Criminal Evidence Act 1984 (PACE) further constrains the UCOs, as officers must also avoid conducting an illegal interview, and The Regulation of Investigatory Powers Act 2000 (RIPA) ss.26–​29 requires that all their undercover actions be legally authorised and warranted. Keeping detailed records of the online interactions and the investigative decisions made at each stage is therefore imperative. It may be the case that UCOs will have to provide operational cover for one another –​multiple officers may be required to operate as one specific offender or victim within an operation due to changing shift patterns, illness or leave. Similarly, a single officer may be involved in multiple concurrent operations. An example of the kinds of IM interactions that occur between offenders and victims of online sexual abuse appears below. These data are from a resolved case and were recovered from the offender’s computer then provided by an English police force at the conclusion of his trial. (1) Abusive chat log 1 Victim: 2 3 Offender: 4 5 Offender: 6 Victim: 7 Offender: 8 Victim: 9 Offender: 10 Victim: 11 Offender: 12 Victim: 13 Offender: 14 15 Victim:

ahh okaii .. most boiis wnt mee too just strip n stuff like tht for them on cam but it dnt feeel right:/​…:L:L:L:L lol i aint most boys;) id rather see a pic of a nice girl in her undies rather then naked that stuff shud be in person :L lol not sayin come meet me btw aha :L:L dw ii know:L lol now u know wot i like…what do u like? ii like too c a boy topless on cam thats bwt it tbh lol lol may be able to help u out with that 1 if u ever wanted :Lfankyhuu .. same with your teasin fing :L.. but am fat (N) u dont look fat body pic mite help dat tho :P ii feel it :L

Even in this short extract we can see that there are a number of linguistic habits, on the phonological, lexical, pragmatic and interactional levels, on the part of the victim that would need to be emulated if a UCO was to successfully assume her identity online. In terms of lexis and phonology, as well as her frequent use of (often multiple) emoticons (lines 2, 6, 8, 12 and 15) she also uses a number of initialisms: dw for ‘don’t worry’ (line 8) and tbh for ‘to be honest’ (line 10). She uses letter repetition for emphasis (lines 1, 2, 161

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8, 10, 12 and 15), vowel deletion (lines 1, 2, 10), letter-​word substitution (lines 1 and 10), pronunciation stylization (e.g. fankkyhuu and fing on line 12) and g-​dropping (line 12). Moving up to the level of pragmatics, we can see that in this extract the victim produces expressive statements about her feelings and her likes and dislikes (lines 1–​2, 10 and 15). At the interactional level we can see that she has taken up and responded to the topic of ‘teasing’ over webcam (lines 1–​2 and 12) and her own viewing preferences (line 10), but she produces at most minimal responses to the topics of meeting in person (line 6) and sending a picture of her body (line 15). If we wanted to make any comments about the social identity the victim is projecting we might comment on her reference to her extensive experience: what most boiis [boys] wnt (line 1), to her assertion that she has a certain moral code and assesses these requests as dnt feel right (line 2), that she knows her own preferences (but note the ‘nervous’ or ‘shy’ laughter) (line 10) and that she is rather self-​critical of her appearance (lines 12 and 15). There is undoubtedly a lot for the UCO to remember about this victim’s linguistic identity. Add to this the extra-​linguistic intelligence that they must retain when they enter the live operation –​family members, pets, school life, friends, etc. –​ and the true scale of the cognitive demands of the task begins to emerge.

Training linguistic analysis and synthesis Trainee UCOs complete the Pilgrim training across three months, including a residential week at either end. It is within the second of these residential weeks that the linguistics input is delivered –​and it occupies just half a day of the programme. Given the limited time available, cuts had to be made to the scope of linguistic phenomena that were originally deemed relevant. The resulting course content is based, therefore, on a highly simplified fraction of the stratified model in Table 11.1.

Table 11.1  Domains of computer-​mediated discourse analysis (from Herring 2004: 18) Phenomena

Issues

Methods

Structure

typography, orthography, morphology, syntax, discourse schemata

Genre characteristics, orality, efficiency, expressivity, complexity

Structural/​Descriptive Linguistics, Text Analysis

Meaning

Meaning of words, utterances (speech acts), macrosegments

What the speaker intends, what is accomplished through language

Semantics, Pragmatics

Interaction

Turns, sequences, exchanges, threads

Interactivity, timing, coherence, interaction as co-​constructed, topic development

Conversation Analysis, Ethnomethodology

Social behaviour

Linguistic expressions of status, conflict, negotiation, face-​ management, play; discourse styles, etc.

Social dynamics, power, influence, identity

Interactional Sociolinguistics, Critical Discourse Analysis

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The linguistic component of the Pilgrim training maps on to the first three domains Herring (2004) sets out. A paper-​based pro-​forma is distributed, on which there are spaces to record information about a target linguistic persona in terms of the structural level (vocabulary choices, spelling variants and frequencies), the level of meaning (specifically speech-​act classes as set out in Searle (1969)) and the level of interaction (topics introduced, maintained and rejected (see Gumperz 1982)). The following day, in a mock-​disruption of the scheduled course activities, the trainees are briefed for an operation matching the scenario I set out above: a child has been identified as at risk from an online sexual offender she is planning to meet that evening, she has been removed to a place of safety, and the trainee UCOs have just two hours to prepare for engaging with the ‘offender’ via IM. The UCOs are paired up, and to assist in this preparation they are provided with the historical chat logs of conversations between the offender and the victim. The online chat begins, and while one trainee engages with the ‘offender’ the other assists their colleague, collecting open-​source intelligence and referring back to the chatlog where necessary. During the course of the IM conversation the trainees must get confirmation from the ‘offender’ (actually a trainer in a different room in the building) of the elements that must be established in order for a charge to be made under SOA 2003 s.15 (see MacLeod and Grant 2018 for more on the Pilgrim training course). The content of the chats is, at times, sensitive, and understandably reflective of the interlocutors’ professional identities and experiences. Extract 2 below is taken from one of these roleplayed conversations –​note that part of the trainer’s role is to instruct the trainee pair when they should swap roles, hence the contribution on line 6. (2) Training chat log 1 Trainee: i am a virgin 2 Trainer: gonna do u anal do u know what that is 3 Trainee: yh 4 Trainer: fuck no u aint 5 Trainer: well u wont be in a bit 6 Trainer: CHANGE STUDENT 7 Trainee: i hope so 8 Trainer: what u gonna wear 9 Trainee: my school uniform Trainees are encouraged to immerse themselves in the role-​play, and to pursue the pre-​ specified investigative points to their best ability. Trainers, in their role as the offender, are instructed to engage in challenging behaviour and a degree of sexualised talk that might be expected to test the capabilities of the trainees. In the genuine operational setting, UCOs must also master details of the child’s life including their family and school life, and from any captured chat logs understand what the victim has told the offender and vice versa. Chiang and Grant (2017) show that suspicious offenders can and do engage in conversational moves involving the assessment and management of risk, and this sometimes occurs through quizzing the children on aspects of their previous interactions. For the linguistic portion of their analysis, the UCOs must understand a specific victim’s performed identities within the interaction so that they can successfully deceive the offender. Prior to any linguistic training, trainees tend to stereotype and overestimate victims’ use of what one might describe as ‘netspeak’ or ‘textspeak’. In the task described above, 163

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trainee UCOs draw on a markedly wider range of initialisms than is evident in the victim’s historic chats, for example using ‘lol’, when it has not occurred in the historic log. While the historic log shows that the victim never uses a number to substitute a word or syllable, trainees often do, as in (3). (3) Training chat log 1  Victim says: yh gud. take yu long get to train i got 2 leave soon. u still wnt know 2       wot im wearin? In general the historic log shows the victim’s phonetic stylisations to be representative of fairly standard speech, while a number of trainees select spellings with strong accent stylisation, as well as various representations of the sound of laughter, which do not appear anywhere in the victim’s writing. Furthermore, while the victim only omits vowels a handful of times in the historic chats, there is a substantially higher level of vowel omission in the chat of trainees. Finally, some trainees shift into uppercase part way through their conversations, while the victim makes no use whatsoever of upper case in her writings. The failure to accurately assume the victim’s identity is also often evident in their overuse of g-​clipping, again rare in the victim’s own style, but used more often than not by trainees. Linguistic training on structural features results in considerable improvement but not entirely accurate replication of a persona from historic chat logs. UCOs improve in observing the proportionate use of some words; as well as picking up the use of the more unusual variants such as ‘dnt’ and ‘pls’, the trainee UCOs learn to alternate these forms with the more standard spellings ‘don’t’ and ‘please’, providing a more accurate synthesis of the victim’s style. Despite this, our investigations (MacLeod and Grant 2018) have shown that the rate of use of terms inconsistent with historic chats barely reduces following training. Before training UCOs tend to use terms derived either from their stereotype of a victim’s chat or from their own style  –​in short, there is identity ‘leakage’ (Grant and MacLeod 2018). Examples of inconsistent items persisted post-​training, particularly the non-​standard spellings stereotypical of ‘netspeak’. G-​ clipping and vowel deletion continue to be over-​extended even following training, as shown in (4). (4) Training chat log 1 Victim says     wht u doin for me?u havin my cherry lol 2 Role Player says   u will have too much clothes on though 3 Victim says    wen we meetin 4 Role Player says   look u had bad day… you no 5 Victim says    ? 6 Victim says     ur jus messin wid me 7 Victim says    babe 8 Victim says    wuu2 Observations that a victim had used these features in the historic chat seems to be the basis of a rule, but trainees fail to build into the rule the fact that this particular victim has considerable use of the standard variant for these features too. Most current research and practice in authorship analysis principally occurs at the structural level. This may be because most reported authorship analysis questions concern largely monologic texts, driving the discipline towards focusing on low-​level structural 164

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features. Some work has been done at a functional level of analysis (e.g. Nini and Grant 2013). However, because the use of structural features has been shown to be sufficiently effective in many attribution tasks, there appears to have been little motivation to include analysis of discursive patterns in addressing traditional authorship analysis problems. For authorship synthesis too, the structural level is undoubtedly important. In post-​ task evaluations trainers noted issues such as ‘over use of text speak –​not so much in original’ and ‘heavy use of punctuation’. It is clear, however, from some of the trainers’ contributions to the chats, that higher levels of linguistic behaviour might also be open to scrutiny by interlocutors, and thus play a pivotal role in the analysis of authorship for the purposes of synthesis. Italicised comments in Extract 5 are those that relate to the level of meaning, while those underlined are observations made at the interactional level. (5) Trainers’ comments 1.   you askin a lot today; whats up wiv u you aint not been horny wiv me b4 is summat wrong; wtf y u no talk sexy wiv me; who are u? you taked and played sexy b4 2.   no worri cutey u no scared when u on cams so what change 3.   why you keep asking who i am? It is clear from the examples in (5) that trainers also flagged up pragmatic and topic issues as having the potential to cause suspicion: noting that the ‘victim’ is askin a lot, i.e. producing more interrogatives, and seems less willing to discuss sexual topics. As part of their post-​operation evaluation of trainees’ performance one trainer wrote ‘lots of questioning as a result felt very cold and clinical’. Comments such as these, along with the within-​ chat log challenges as exemplified in (5), above, suggest an assumption by trainers that a genuine offender would be alerted by language features such as a higher than usual degree of interrogatives, or by a reluctance to engage with sexual topics. Of course, these are comments from trainers simply roleplaying the part of an offender, instructed to express their frustration in an exercise specifically designed to test the trainees’ mettle under pressure, rather than from genuine online predators. As part of the wider project a series of experiments was conducted, in order to gain a deeper insight into the types of linguistic incongruence that arouse online participants’ suspicion that the individual they are conversing with is not who they purport to be. In these chats, in contrast to the training chats discussed above, there was no brief for participants to challenge their interlocutor’s behaviour at every turn (see Grant and MacLeod 2016; MacLeod and Grant 2016 for more on the experiments). After engaging in a 15-​minute conversation over IM, participants were asked to identify when they believed their interlocutor had been substituted –​and what had led them to this decision. A selection of their comments appears in (6). (6) Experimental participants’ comments on suspected substitution 1.  No turn initial capitalisation; NNS features e.g. superfluous determiners; lack of plurals; increase in exclamation marks; increase in ‘hahaha’. 2.   Shorter turns; decrease in multi turn contributions. 3.  There is a slight topic discontinuity in that one of the subtopics gets picked up as the new global topic for the rest of the conversation. 4.   Apologised for long pause by saying phone had gone off. 5.   Decrease in questions.

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It is clear from the first comment that for these individuals, too, changes at the structural level are noticeable and potentially indicative of a substitution. But, again, this is not the full story. Comments on turn length (comment 2), topic management (comment 3) and speech acts (comment 5) also make an appearance here. When approaching questions of identity assumption in authorship synthesis it is clearly important to be able to replicate the target’s language at the structural level. The question then arises: can disguise be successful in a case where structural level features are accurately reproduced but patterns of meaning, interaction and social behaviour differ from the target’s past performance? In the Pilgrim historic chat logs, the victim’s use of speech acts is complex owing to the chat log representing her interactions with multiple identities (although these identities transpired to all belong to the same individual offender –​see Chiang and Grant, 2017. Given such complexity it is hard to describe the victim’s characteristic use of speech acts, but there are some patterns that emerge. She uses a significant proportion of directive as well as commissive speech acts, and even within coercive interactions she attempts to bargain, using utterances which contain a combination of directive and commissive force. At the start of one particular coercive interaction there is a long run of interrogatives where she is trying to get information about the offender’s identity and intentions. She is also highly expressive (mostly about the sexual acts). Perhaps one main characteristic of this individual is that she draws on a wide range of linguistic resources expressing herself through a mix of different speech acts, as detailed above. This is not true of all the individuals analysed within the wider project; others demonstrate a preference for just one or two types of speech act in their interactions. Prior to training UCOs show very little awareness of potential variation in speech acts, and their analysis notes show no evidence that they consider anything like this in their preparation for engagement. Perhaps because of this lack of awareness, trainees show considerable individual variation in their engagement as the victim. Several trainees, for example, use a high proportion of interrogatives in an attempt to pin the ‘offender’ down to a time and location for their meeting, and to elicit his phone number. For other trainees there is a clear difficulty in using directives while playing the role of the victim. In the historic chat the victim often tells the offender what to do, including directing him in online sexual activity. Another aspect where the trainees perform less well is in their use of expressives as a way of deflecting the apparent suspicion of the offender. Some trainees naturally perform better. One was observed to use a fairly high but appropriate number of directives: ‘i wana meet u propa’; ‘giv me ur numba’; ‘wana lose my virginity’, and also a number of interrogatives: ‘who r u agan’, ‘how will i kno its u’, in keeping with the victim’s online identity as recorded in the historic chat logs. This variation in ability to assume the victim’s identity at the pragmatic level clearly marks a training need. Post-​training there was more consistency with the historic chat logs, but there were also some individual UCOs who clearly struggled with their analysis and performance at this pragmatic level. The best trainees could be observed in the preparation phase of the simulated operation using the linguistic input and attempting to better understand the way the victim used language in the interactions. Some, however, persisted in using extended runs of interrogatives that are not generally characteristic of the historic chat. This tendency may well relate to the operational task of intelligence gathering but is nevertheless a point of difference between the actual persona of the victim and the officer assuming that persona. As such it marks a point of potential discovery and thus operational failure. 166

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Moving on to topic management (the interactional level), it goes without saying that this is an important function in the relationship between the interactants. As well as ensuring consistency in identity performance, there are strong operational reasons for accuracy with regard to topic management. One concern is that undercover officers might leave themselves open to accusations of acting as agents provocateurs if they are seen to instigate or participate in sexual conversations while acting the part of the child. However, many children have been so effectively groomed and sexualised that they themselves instigate sexual topics of conversation and initiate online sexual activity. Failure to act consistently with this past behaviour during identity assumption may risk alerting the perpetrator to the victim’s replacement by the UCO. As we saw above, suspicions are raised by ‘offenders’ where UCOs are reluctant to engage in sexual activity that has been normalised between offender and victim. Amongst the list of topics initiated by the victim in the historic chat are sexual topics, including online sexual activity, and she also engages in sexual activity at the instigation of the offender. The chat logs of trainee UCOs prior to linguistic input show significant differences at the level of interaction to the target persona. In the historic chat the victim introduces sexual topics and sexual activity on several occasions. In the overwhelming majority of cases, trainee UCOs fail to do this. Not only this, but they decline sexualised talk when it is attempted by the ‘offender’. This natural reluctance to engage in online sexual activity while performing as a 14-​year-​old needs to be overcome by UCOs in these tasks, and some find this difficult to achieve. An explicit learning objective of the simulation exercise is to facilitate officers doing this more effectively, while staying within their authorisation and avoiding going further than activity and discussions analysed in the historic chat. A further feature of the pre-​training chat is the nature and quantity of topics of operational interest to the UCOs. As well as performing the victim’s identity in a sufficiently convincing manner they must try to obtain information about the offender which might identify them, be explicit about the victim’s age so that the offender will fall within the terms of the Sexual Offences Act, try and arrange a location to meet away from other children who might be endangered by a sexual predator, and get a description of the offender so that they can be easily recognised at the meet. All these tasks may create points of inconsistency with the victim’s previous chat, and it is part of the skills that the officers develop to work these new topics naturally into conversation. After training, officers show consistent improvement in this area, and demonstrate an appreciation of how language analysis can protect against accusations of acting as agents provocateurs. Points of inconsistency typically involve introduction of the operational issues as discussed above –​ for example, a UCO assuming the identity of a child cannot, for obvious reasons, acquiesce to repeated requests to turn on their webcam. Post-​training chats show a reduction in structural level identity performance flaws, and none were commented on by the trainers in their evaluations in the post-​training condition. Rather, as we can see in (7) all comments appear to centre on incongruencies at the pragmatic or interactional levels: (7) Trainers’ in-​chat comments on trainees’ linguistic performance after training 1.   ur annoying me wont cam dictating where I have to go 2.   u ok not like u not to talk dirty is this the sis or what? On the whole, however, there tends to be a notable reduction in linguistically focused challenges post-​training. Challenges focus either on the content of previous chat or more 167

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behavioural differences observed by the trainers. This suggests a marked improvement in trainees’ ability to emulate the style of the victim, suggesting some success for training input on linguistic analysis. Trainees’ performance before and after training was examined in order to evaluate the usefulness of the linguistic model for adopting a persona, and to discover the basis on which trainers might indicate suspicion of identity assumption by their interlocutor. It appears that the provision of the structured linguistic analysis was shown to be trainable to these non-​ linguists and that there was improvement at all levels of linguistic analysis. Prior to the linguistic training, trainees tended to concentrate their efforts at identity assumption almost exclusively by mimicking vocabulary features, but in doing so they tend to overestimate the victim’s use of ‘netspeak’ or ‘textspeak’ spellings. Subsequent to training this stereotyping is generally reined in and most students perform better, recognising that the victim used a range of variants for some terms and that the ratio of use could be copied. Prior to training, pragmatic patterns and patterns in turn-​taking and topic control are almost entirely neglected by UCOs in their attempts at identity assumption. After training they improve in their emulation of these patterns, and doing so is important to avoid detection. The principal finding of this research is that there are important contributions to be made by linguists to this challenging area of police work. We should continue to strive for linguistic input in these contexts, to ensure investigations are carried out with the firmest possible evidence base.

Theorising language and identity The work described in this chapter has provided some rich insight into the relationship between language and identity, and it is worth setting out here where the theoretical contributions might lie. The notion of idiolect, that is, an individual’s ‘distinct and individual version of the language they speak and write’ (Coulthard 2004:  432), is a well-​discussed one in the authorship analysis literature. In the first edition of this Handbook, Grant (2010) argues that a theory of idiolect is unnecessary, and that measures of stylistic consistency suffice when it comes to questions of authorship. In extending Johnstone’s (1996, 2009) resource model of identity, he maintains that our identities are at once facilitated and constrained by our sociolinguistic histories, the interactional situation and our cognitive structures (Grant 2010, Grant and MacLeod 2018; 2020). Brubaker and Cooper (2000) distinguish between ‘strong’ and ‘weak’ understandings of identity, summarizing the ‘strong’ approach as being concerned with sameness over time or across persons. From this perspective, identity is something that all people and groups have, and is something to be ‘discovered’ and about which one can be mistaken, i.e. there are clear boundaries between categories. This maps rather tidily onto the simplistic understandings of identity evident in the quantitative social sciences, including most traditional variationist sociolinguistics and the vast majority of computational linguistic work in the area of authorship profiling and attribution, which correlate social behaviour with macro identity categories such as age, gender and social class (see, for example, Argamon et al. 2003). From the ‘strong’ perspective, identity is no more than simply a collection of broad social categories (Bucholtz and Hall 2005). There are a number of reasons for rejecting this position from the outset, and many theorists have found themselves in a similar position. As Johnstone puts it, ‘it is more enlightening to think of factors such as gender, ethnicity, and audience as resources that 168

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speakers use to create unique voices, than determinants of how they will talk’ (1996: 56). Increasingly uncomfortable with the ‘strong’ identity theory and viewing it as incongruous with a post-​structuralist approach to social behaviour, they have favoured instead a move towards a more positional or ‘weak’ understanding of identity, as something an individual ‘does’ rather than something that they ‘are’ (see Butler 1990). Identity does not emerge at a single analytic level, but operates at multiple levels. Even at one point in a single interaction, different kinds of positions can occur simultaneously (Bucholtz and Hall 2005). However, Brubaker and Cooper argue that these ‘weak’ understandings are routinely packaged with standard (and almost obligatory) qualifiers: multiple, in flux, contingent, fragmented, constructed, negotiated –​which ‘risk becoming mere placeholders … in their insistence that identities are multiple, malleable, fluid and so on, soft identitarians leave us with a term so infinitely elastic as to be incapable of performing serious analytical work’ (2000: 11). Thus, there are two pitfalls to avoid in developing a theory of identity. First, there is the rather deterministic view of identity as a set of static social categories with a predictable effect on linguistic behaviour. Second, the view that an individual’s identity is radically unconstrained seems too slippery a notion to work with. A theory that asserts that identities are entirely interactionally negotiated will struggle to account for an idea of persistence of personal identity, which is at the heart of the type of authorship analysis tasks that forensic linguists often face. One process that featured prominently in the early, ‘strong’ explorations of linguistic style, but which is less often articulated within the resource model as described by Johnstone (1996, 2009), is the possibility that identity performances are constrained. The resource model does not suggest that an individual can, in any moment of interaction, be whomever they choose. The resources available constrain individuals to a large but specific portfolio of identity performances. The resource-​constraint model as set out in Grant and MacLeod (2018; 2020) avoids the pitfalls that come with being wholly deterministic on the one hand, as well as those associated with theories that view identity as being entirely interactionally negotiated on the other. According to this model, while some resources afforded us by our sociolinguistic histories may persist across different interactional moments, others, such as those emerging from the audience or purpose of the interaction, are more dynamic. More importantly, while an individual’s sociolinguistic history might provide them with myriad identity resources from which to draw, they cannot perform an identity for which the resources are simply not present –​ they are, in this regard, sociolinguistically constrained. This is a point to remember when we consider that the performance of an alternative identity requires the acquisition of a new set of identity resources –​ but also the suppression of resources that were not available to the target persona. To illustrate this, let us turn to the idea that less competent or less well-​trained UCOs’ identity assumption can be subject to identity ‘leakage’, as touched upon earlier. That is to say, where identity assumption is only partially successful we find hybrid identities, which draw on both the ‘home’ set of language resources of the UCO and also those of the target identity. Figure 11.1 below gives us an insight into one particular feature –​the inclusion or omission of apostrophes to mark possession and omission –​in the habitual style of two experimental participants. As Figure  11.1 shows, the ‘victim’ in this simulated exercise demonstrates a preference for omitting apostrophes in positions where we might expect to see them, i.e. in contractions and possessive forms. In contrast, the ‘UCO’, chatting as themselves, has an 169

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'Leakage': Apostrophes 'UCO'

'Vicm'

'UCO' as 'Vicm'

0%

20%

40% Inclusion

60%

80%

100%

Omission

Figure 11.1  Apostrophe omission/​inclusion

overwhelming preference for including apostrophes. When the UCO attempts to assume the victim’s identity they are partially successful, in that there is a noticeable decrease in the frequency of their apostrophes. It seems they have noticed and assumed a new feature into their repertoire. However, they are unable to entirely suppress their inclination to include apostrophes. They have studied the victim’s chat and this has given them the resources to become more like her –​but they are also drawing on language resources which are part of their own long-​held habits yet were rarely used by the victim. It is an interesting, but as yet unanswered, empirical question as to whether an officer who is linguistically close to a target identity will do better at performing that identity. This linguistic leakage and performance of hybrid identities is not limited to lower-​level features –​in other examples we see UCOs unable to suppress discursive or pragmatic habits.

Conclusions The operational work described in this chapter brings to the fore the theoretical issues concerning the very idea of a linguistic individual. Carrying out authorship analysis and synthesis tasks necessarily requires an understanding of linguistic identity as to some extent persistent, i.e. elements of one’s identity must remain fairly stable across different texts and interactions –​the task would be impossible were this not the case. Reconciling this with contemporary understandings of identity as fluid and emergent has been the central aim of the work presented here. Since at least the 1990s, the issue of identity has established itself firmly at the top of the academic agenda within the social sciences, owing to the fact that its study ‘enables the gap between the micro level of the individual and the macro level of the social order to be bridged’ (Preece 2016: 3). While there has been a turn in applied linguistics, matching that across the social sciences as a whole, from essentialist views of identity towards more social constructionist understandings, the theory to emerge from the explorations here is neither deterministic nor wholly interactionist. This work has important implications for forensic linguists engaged in authorship analysis tasks. Until now, scholars and practitioners have been faced with the choice of understanding individual style either as a product of sociolinguistic experiences (e.g. 170

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McMenamin 2010) or a product of cognitive competence (e.g. Chaski 2001), or, in the case of most computational approaches (e.g. Juola et al. 2006), as existing in something of a theoretical vacuum. In order to comment upon the likely background of an author, or to offer an opinion on the similarity or distinctiveness of an author’s choices when compared to an anonymous text, the linguist must view an individual’s cognitive structures and/​or sociolinguistic experiences, including their membership of particular social categories, as to some degree determining the linguistic choices they are likely to make when producing a text. Evidently a theory of identity is a timely addition to the forensic linguistics literature. In order to become a specific different linguistic persona one needs to understand not only that persona, but also how any linguistic persona is performed and created. This requires an analysis of identity performance in separate and specific interactions, and also an understanding of how linguistic identity might persist across different interactions where context, mode of production and audience may change. Grant (2010) suggests that the idea that we draw on our sociolinguistic experiences when producing a stretch of language allows for the possibility that we also draw on cognitive resources simultaneously. If this is the case, then an individual’s linguistic persona is better understood as being assembled on the basis of resources and constraints provided by sociolinguistic and cognitive capacity, rather than being determined by either one. As we have seen, at any given moment, a factor relating to the context, or an individuals’ sociolinguistic history, or their physicality and so on, may be simultaneously operating as both a constraint on, and a resource for, their identity performance. As set out in Grant and MacLeod (2018; 2020) factors that can operate simultaneously as resources and constraints for identity performance include an individual’s sociolinguistic history, the communities of practice in which they participate, and the immediate resources provided by the situational affordances of any ongoing interaction. They also include the technologies to which they have access and also their physicality. Any individual at any specific moment has a wealth of resources to draw on to perform their developing identities across the portfolio of possible identities afforded by these resources. The negotiation and renegotiation of identity through discursive practice is rich because of the variety of resources that can be available to an individual, allowing them to develop divergent identities to accommodate to different individual interactions and situations. With the continuing advance of technology and increased opportunities for anonymous communication online, it is clear to see that the future will present an expanded requirement for forensic linguists to assist with online policing tasks –​not just training for identity assumption but also, for example, the infiltration of online criminal communities. By ensuring that such assistance is underpinned by empirical testing and robust theory, we can safeguard the overriding rationale of forensic linguistic work: improving the delivery of justice through language analysis.

Acknowledgement The work reported on here was supported by ESRC grant ES/​L003279/​1.

Further reading Baxter, J. (2016) ‘Positioning language and identity: Poststructuralist perspectives’, in S. Preece (ed.), The Routledge Handbook of Language and Identity, Abingdon: Routledge, 34–​49. Darvin, R. (2016) ‘Language and identity in a digital age’, in S. Preece (ed.), The Routledge Handbook of Language and Identity, Abingdon: Routledge, 523–​540. 171

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Drummond, R. and Schleef, E. (2016) ‘Identity in variationist sociolinguistics’, in S. Preece (ed.), The Routledge Handbook of Language and Identity, Abingdon: Routledge, 50–​65. Grant, T. and MacLeod, N. (2020) Language and Online Identities:  The Undercover Policing of Internet Sexual Crime, Cambridge: Cambridge University Press. Johnstone, B. (1996) The Linguistic Individual:  Self-​ Expression in Language and Linguistics, Oxford: Oxford University Press.

Legal sources Police and Criminal Evidence Act 1984, www.legislation.gov.uk/​ukpga/​1984/​60/​contents (accessed 13 July 2020). Regulation of Investigatory Powers Act 2000, www.legislation.gov.uk/​ukpga/​2000/​23/​contents (accessed 13 July 2020). Serious Crime Act 2015, www.legislation.gov.uk/​ukpga/​2015/​9/​contents/​enacted (accessed 13 July 2020). Sexual Offences Act 2003, www.legislation.gov.uk/​ukpga/​2003/​42/​contents (accessed 13 July 2020).

References Argamon, S., Koppel, M., Fine, J. and Shimoni, A.R. (2003) ‘Gender, genre, and writing style in formal written texts’, Text –​Interdisciplinary Journal for the Study of Discourse, 23(3): 321–​346. Brubaker, R. and Cooper, F. (2000) ‘Beyond “identity”’, Theory and Society, 29(1): 1–​47. Bucholtz, M. and Hall, K. (2005) ‘Identity and interaction:  A sociocultural linguistic approach’, Discourse Studies, 7(4–​5): 585–​614. Butler, J. (1990) Gender Trouble, Abingdon: Routledge. Chaski, C. (2001) ‘Empirical evaluations of language-​ based author identification techniques’, Forensic Linguistics, 8(12): 1350–​1771. Chiang, E. and Grant, T. (2017) ‘Online grooming:  Moves and strategies’, Language and Law/​ Linguagem e Direito, 4(1): 103–​141. Coulthard, M. (2004) ‘Author identification, idiolect, and linguistic uniqueness’, Applied Linguistics, 25(4): 431–​447. Grant, T. (2010) ‘Text messaging forensics: Txt 4n6: Idiolect free authorship analysis?’ in M. Coulthard and A. Johnson (eds), The Routledge Handbook of Forensic Linguistics, Abingdon: Routledge, 536–​550. Grant, T. and MacLeod, N. (2016) ‘Assuming identities online: Experimental linguistics applied to the policing of online paedophile activity’, Applied Linguistics, 37(1): 50–​70. —​—​—​(2018) ‘Resources and constraints in linguistic identity performance –​A theory of authorship’, Language and Law/​Linguagem e Direito, 5(1): 80–​96. —​—​—​ (2020) Language and Online Identities: The Undercover Policing of Internet Sexual Crime, Cambridge: Cambridge University Press. Gumperz, J.J. (1982) Discourse Strategies, Cambridge: Cambridge University Press. Herring, S. (2004) ‘Computer-​mediated discourse analysis:  An approach to researching online behavior’, in S. Barab, R. Kling and J.H. Gray (eds), Designing for Virtual Communities in the Service of Learning, Cambridge: Cambridge University Press, 338–​376. HMIC (2014) An Inspection of Undercover Policing in England and Wales, www.justiceinspectorates. gov.uk/​hmicfrs/​wp-​content/​uploads/​an-​inspection-​of-​undercover-​policing-​in-​england-​and-​ wales.pdf (accessed 13 July 2020). Johnstone, B. (1996) The Linguistic Individual: Self-​expression in Language and Linguistics, Oxford: Oxford University Press. —​—​—​(2009) ‘Stance, style, and the linguistic individual’, in A. Jaffe (ed.), Stance: Sociolinguistic Perspectives, Oxford: Oxford University Press, 29–​52. Juola, P., Sofko, J and Brennan, P. (2006) ‘A prototype for authorship attribution software’, Literary and Linguistic Computing, 21(2): 169–​178. MacLeod, N. and Grant, T. (2016) ‘ “You have ruined this whole experiment…shall we stop talking now?” Orientations to the experimental setting as an interactional resource’, Discourse, Context and Media, 14: 63–​70. 172

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—​—​—​(2018) ‘ “go on cam but dnt be dirty”:  linguistic levels of identity assumption in undercover online operations against child sex abusers’, Language and Law/​Linguagem e Direito, 4(2): 157–​175. Martellozzo, E. (2013) Online Child Sexual Abuse:  Grooming, Policing and Child Protection in a Multi-​media World, Abingdon: Routledge. McMenamin, G. (2010) ‘Forensic stylistics: Theory and practice of forensic stylistics’, in M. Coulthard and A. Johnson (eds), The Routledge Handbook of Forensic Linguistics, Abingdon: Routledge, 487–​507. Nini, A. and Grant, T. (2013) ‘Bridging the gap between stylistic and cognitive approaches to authorship analysis using Systemic Functional Linguistics and multidimensional analysis’, International Journal of Speech, Language and the Law, 20(2):173–​202. Preece, S. (2016) ‘Introduction: Language and identity in applied linguistics’, in S. Preece (ed.), The Routledge Handbook of Language and Identity, Abingdon: Routledge. Searle, J.R. (1969) Speech Acts: An Essay in the Philosophy of Language, Cambridge: Cambridge University Press. Sentencing Council (2013) Sexual Offences Guideline Consultation, https://​consult.justice.gov. uk/​sentencing-​council/​indecent-​images-​children/​supporting_​documents/​sexual%20offences_​ Indecent%20images%20of%20children.pdf (accessed 13 July 2020). Tagg, C. (2015) Exploring Digital Communication: Language in Action, Abingdon: Routledge. Wodak, R. (1996) Disorders of Discourse, London: Longman.

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Language in the courtroom

12 Order in Court Talk-​in-​interaction in judicial settings Paul Drew and Fabio Ferraz de Almeida

Introduction In this chapter, we highlight the principal themes in the study of courtroom interaction that Drew co-​authored: Order in Court; we then give an overview of the subsequent research into judicial interactions, research conducted largely from or informed by a conversation analytic perspective. The scholarly environment in which Order in Court was published 40 years ago in 1979 was so different from that of today that it might be useful to recall how it came to be written. Atkinson and Drew had been working individually on interactions in rather different quasi-​judicial settings, Atkinson on UK coroners’ courts investigating the circumstances and causes of sudden deaths, and Drew on a judicial Tribunal of Enquiry into the violent events in Northern Ireland beginning in 1968, an enquiry chaired by Lord Justice Scarman and widely known as the Scarman Tribunal (HMSO 1972). They were much influenced by the emerging paradigm and methodology of Conversation Analysis (CA), at the time when, to begin with, there were only six publications in CA, including the famous turn-​taking paper by Sacks, Schegloff and Jefferson (1974). Sacks et  al. proposed a turn-​taking system for mundane, informal social conversation; however, the interactions that they were investigating were anything but mundane, and could hardly be regarded as conversation  –​they were characterized by formal exchanges of questions and answers, in which participants’ contributions were constrained in various ways, for instance by rules of procedure and rules of evidence. They were, therefore, each attempting to apply the perspective and methodology of CA to an interactional form –​ judicial/​legal questioning –​for which CA seemed almost by definition not to be suited. If Sacks et al. (1974) was a ‘simplest systematics’ for informal conversation, how might that be applicable to the analysis of interaction in judicial interactions? The key to resolving this puzzle was twofold. First came the understanding that the turn-​taking system in courtroom examination was a restricted form of the turn-​taking system explicated by Sacks et al., as will be explained in a moment. Sacks et al. were setting out a turn-​taking system for casual interaction; Atkinson and Drew were exploring the differences between the structures of speech in formal court hearings and those in casual social conversation –​in effect a comparative exercise, which others subsequently developed 177

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more successfully and more generatively. (For an overview of subsequent research into e.g. news interviews, legal and medical interactions, see Heritage and Clayman 2010.) Second, Sacks had been explicit from the beginning that he was enquiring into and attempting to develop a science of social action; talk as such was not his primary focus –​he investigated talk, and talk-​in-​interaction, as being a vehicle for social actions. Because talk could be recorded, replayed and thereby ‘observed’ repeatedly, and in detail, it provided him and his colleagues with material with which to investigate social action (indeed, there are close parallels between Sacks’s early writings and the first few pages of Weber’s Economy and Society 1978, ch.1). The insight that examination in courts represents a restricted form of the turn-​taking system as set out in Sacks et al., and the focus of CA on social action, were the underpinnings of the studies in Order in Court.

Key themes in Order in Court In retrospect, Order in Court represented a more radical innovation than applying the methodology of CA to judicial hearings; Atkinson and Drew were taking the first steps in developing a programmatic statement of the application of CA to studying institutional interactions in general. A  more formal and comprehensive programmatic statement of this application of CA took a further decade to evolve. In Talk at Work: Language Use in Institutional and Work-​Place Settings, Drew and Heritage (1992) set out the key conceptual themes in applying CA’s methodology –​originally developed for the study of mundane, informal social interaction –​equally to less mundane, more formal interactions in institutional settings such as medical interactions (CA research into medical consultations of many kinds has become especially prominent in the past 20 years), media news interviews, calls to the emergency services, classroom interaction and many more (see especially Heritage and Clayman 2010). But Order in Court began the exploration of quite general dimensions or aspects of institutional interactions, aspects that were novel to researchers then, but which remain key themes underpinning the analysis of judicial and indeed all institutional interactions. These included the turn-​taking system for judicial hearings, the nature of questioning in courtroom examination, the social actions conducted in such interactions, and strategy in interactions (and the connection between strategy and ‘power’).

The pre-​allocated turn-​taking system for courtroom interaction Sacks et al. (1974) had proposed a model of turn-​taking in ordinary (social) conversation that was locally managed. That is to say, the order in which people speak, what they say, the type of turn and the content of turns are not fixed; nor is the length of time each person speaks. These matters are all locally managed on a moment-​to-​moment basis, through procedures and practices by which participants ‘negotiate’ who speaks next, what they say, and how long they take or are given to say it. This is no place to review the extraordinarily rich and compelling research into the complexities of turn-​taking, including overlap onset, next speaker allocation, turn construction units, incremental additions to turns and so forth (see Clift 2016). The key to understanding how judicial and other institutional interactions ‘work’ is that they are characterized by similarly restricted turn-​ taking systems. For instance, in direct or cross-​examination in court, the order in which participants speak is, first, the lawyer (counsel, attorney), followed by the witness or 178

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defendant; what each says is fixed –​questions and answers, respectively; the ‘content’ of what they say can be restricted (e.g. by rules of evidence, judges’ decisions about admissibility etc.); and how long they speak can be subject to restrictions (again, by judges’ interventions) (Atkinson and Drew 1979, ch.2). In short, whereas turn-​taking in ordinary social interaction is locally managed by the participants themselves, through orderly but locally contingent practices, the turn-​taking system for judicial hearings –​as for so many other institutional interactions –​is one characterized by a restricted pre-​allocated turn-​ taking system, according to procedures that are mobilized somewhat externally (i.e. lying outside the control of the principals).

Questioning A principal way in which the turn-​taking system in courts in pre-​allocated is that the turn types are fixed, i.e. that attorneys/​counsel ask questions and witnesses/​defendants answer those questions. This rather obvious but nonetheless under-​ researched aspect of the examination of evidence in courts led to an initial exploration of how questioning is conducted and how questions are constructed in judicial examination, including: techniques of questioning; how questions build on (accept or confirm) prior answers, or whether they doubt or ‘question’ prior answers; how a line of questioning can be built, and so on. Questioning in this and other settings has since become a significant focus of enquiry, much of which helps to further illuminate how the precise construction of questions can impact the interactional character or ‘force’ of questions (e.g. on negatively constructed questions, see Heritage 2002; and on and-​prefaced questions, including those in judicial examination, see Heritage and Sorjonen 1994; see also Ehrlich, Chapter 19, this volume). It might be helpful to illustrate briefly a key point made in the paragraph above, that questions may be designed either to accept, confirm and build upon a prior answer; or alternatively not to accept, to doubt the prior answer. Here first is an example from direct examination, in which the attorney’s questioning is essentially cooperative; his questions to the defendant are in a trial for accessory to murder. (1) Murder Trial: direct examination of the defendant 1 DC: As you: went from the ca:::r up the cement wa::lk to the 2 front door. (0.3) (d’) you know whether you were obse:rved 3 or did you hear anyone call out? 4 (0.3) 5 D: No no-​one call’d me. 6 (0.5) 7 DC: And you (0.5) went in the front (door) ( )? And up the 8 stai:rs? Can you descri:be how you wen’up the stai:rs? 9 D: Mh I ^ra:n up. 10 (1.0) 11 DC: Now tell< (.) his honour an’ the ju:ry exactly what you 12 di:d (.) at the time you got (up) to:: (.) the 13 doo:r that was the: (.) entrance door ‘nto (.) uh: Ezra 14 MacClean’s room. 15 (1.0)

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16 17 18 19 20 21 22 23 24

D:

D: (I go ‘i-​I ra:n up the) stairs (n’hhah wuz) bangin’ on the doo:r an’ I said Ezra it’s Dot.hh I got sump’n impot’nt to tell you. (1.0) DC: An:d (.) what was that something that th’tche wannid to tell. D: .mth That’e wuz (comin’) with the gu:n (.) (.pt) try to leave,do sump’n. Get awa:y, (1.5) DC: An:d (.) after you knocked on the doo:r, …

It is clear that each of the defence attorney’s questions in this excerpt, in lines 7–​8, 11–​14, 20 and 24, is designed to fully accept and then build upon the defendant’s prior answer; in short, the attorney’s questions endorse the defendant’s answers (this is true also of his question in lines 1–​3, though the prior answer by the defendant, in which she testifies that she went up the walkway to the front door of the victim’s apartment, are not shown). Contrast that with the subsequent cross-​examination of the same defendant by the District Attorney (prosecuting). The background to the charge is that the defendant’s boyfriend (Larry) shot dead a friend after an altercation a few hours earlier, during which the friend/​victim stabbed and wounded Larry. It is alleged that Larry then drove with the defendant back to their apartment, collected a shotgun, drove back to the victim’s apartment where, the prosecution claims, the defendant went on ahead to persuade the victim to open his door, thereby gaining access for Larry. (2) Murder trial: cross-​examination by the District Attorney 1 DA: And you had strong feelings over Larry at that time? 2 D: Yes (.) I was his girlfriend at the time. 3 DA: You were upset because he was stabbed? 4 D: I wasn’t upset. 5 DA: You weren’t upset? You were happy? 6 D: No. 7 DA: You had no feelings at all about the wound that he had. 8 D: I was concerned about what was going on. 9 DA: Did you feel sad that he was wounded? 10 D: I don’t know. 11 DA: You don’t know how you felt? I mean you could have 12 been happy? 13 D: No. 14 DA: You know you didn’t feel happy. 15 D: I gue::ss. 16 DA: But you don’t know if you felt sad or not? 17 D: I felt ba:d some. ((D’s voice breaks)) 18 DA: You felt ba:d some. You do remember. 19 D: Yes, I felt bad some. 20 DA: You remember that. And so it went on. By contrast with the defence attorney’s questions in direct examination, in (1), in which questioning was cooperative and each question accepted tacitly or overtly (by repeating something of the witness’s prior answer), here in 180

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cross-​examination in (2) the prosecuting District Attorney’s questioning is hostile, as is evident in the way questions are designed to challenge or even undermine the prior answer (e.g. D: ‘I don’t know’, DA: ‘You don’t know how you felt?’, D: ‘I wasn’t upset’, DA:  ‘You weren’t upset, You were happy?’). These examples illustrate the different styles of questions managed through the design of questions, and indeed the strategic design of questions (see below).

Social actions From our account of the restricted, pre-​allocated turn-​taking system for courtroom examination, it is clear that whether or not lawyers’ turns are constructed as interrogatives –​ they may, for instance, be constructed linguistically in declarative forms –​they should be and are required normatively to be ‘questions’ to the witness; likewise, witnesses should answer, and hence witnesses’ turns should be recognizable as ‘answers’ to the question asked. However, Atkinson and Drew showed in Order in Court that ‘questions’ and ‘answers’ were only minimal characterizations of participants’ respective turns at talk. ‘Questions’ and ‘answers’ were only the means, the vehicles, for other social actions –​the kind of actions that constitute and are the core of the business or ‘work’ (in the ethnomethodological sense) of courtroom interactions. Such actions include, on the one hand, the questioner accusing, blaming, challenging, encouraging, ‘questioning’ in the sense of doubting (e.g. the veracity of evidence), objecting and so forth; and on the other hand, witnesses and defendants defending, justifying, denying, rebutting, persuading and describing (events and incidents etc.). Here are examples of a counsel (C) for a judicial inquiry, accusing the witness, a senior police officer called as a witness, of not taking sufficiently firm action to quell a ‘mob’ attacking Catholics. (3) From Order in Court, 1979, ch.4 1 C: What I am suggesting to you is that you had information 2 or means of information that this mob had burned and 3 petrol bombed Catholic property and Catholic people. 4 W: No. 5 C: And that was rather a polite way to address them or 6 to address the command for orders as to how they were to 7 be dealt with. 8 W: No, that is not so. In (4), we see the prosecution witness (W), who is the alleged victim in a trial for rape, answer questions defensively, implicitly rebutting the implications of the defence attorney’s prior questions. (4) From Drew 1992, Rape trial 1  A: Well yuh had some uh (p) (.) uh fairly lengthy 2 conversations with thu defendant uh: did’n you? 3 (0.7) 4 A: On that evening uv February fourteenth? 5 (1.0) 6 W: We:ll we were all talkin. 7 (0.8) 181

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8 9 10 11 12 13 14

A:

W: W:

Well you kne:w. at that ti:me. that the defendant was. in:terested (.) in you (.) did’n you? (1.3) He: asked me how I’(d) bin: en (1.1) J-​just stuff like that

Her answers in lines 4 and 12/​14 are designed to counter the implication that she and the defendant had any close or intimate conversations (a deux) on the evening in question, as a result of which they had come to some understanding. In this respect they are defensive. Such actions as we see here, accusations and defences, are at the core of what each side is doing, or attempting to do in courtroom (cross)-​examination, and are explored especially in ­chapters 4 and 5 in Order in Court. While these actions are necessarily packaged in the design of ‘questions’ and ‘answers’, nevertheless ‘questions’ and ‘answers’ are only the ‘wrapping’ in which accusing, challenging, defending and so on are conducted. A key insight in Order in Court is that turns are designed to attend to their sequential position as questions or answers (i.e. to exhibit their character as one of those utterance types), while simultaneously accomplishing or performing the other actions in those turns (Atkinson and Drew 1979: 68–​76). Hence, such action sequences as accusing-​defending/​justifying are interactionally and locally coordinated –​unlike the broad parameters of the pre-​allocated management of turns in examination as questions or answers. Those explorations of the construction and sequential management of action, of accusations, justifications, challenges, defences and the like were very much informed by the work of Austin (1962) on performatives and Searle on speech acts (Searle 1969), indeed by the ordinary-​language philosophers who had convincingly demonstrated that language delivers action. That is perhaps the key insight informing CA’s perspective on (legal) language-​in-​interaction, and the starting point in Order in Court; that language delivers action is as vital to scientific analysis and to understanding interaction now as it was then.

Strategy and the micro-​analysis of ‘power’ As noted in Order in Court (particularly in ­chapter 2), being the questioner puts the lawyer/​ attorney/​counsel in the position of being able to control the agenda of the interaction. Furthermore, by ‘renewing’ this control with each subsequent question –​which in effect responds to the witness’s prior answer and can indicate a stance towards that answer –​ the questioner/​attorney can construct a line of questioning leading towards an objective, a summary or conclusion the implications of which, in cross-​examination at least, can undermine the witness’s account, impugn them or compromise their evidence. The witness or defendant can of course attempt to thwart where they anticipate the attorney is leading, to thwart the lawyer’s perceived objective (see e.g. the witness’s defensive turn designs in (4) above and (5) below). But questions are regularly or even generally constructed in such a way as to damage or undermine an opposing witness’s testimony, whichever way the witness answers. The significance of showing how attorneys manage to construct lines of questioning was twofold; first, in identifying a line of questioning we are able to detach the questioner’s

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project from the sequences through which that project is advanced. Levinson summarized this as follows: … we need to be able to distinguish projects as courses of action from the sequences that may embody them. A  clear example of this can be found in courtroom interaction …, where examination is conducted by means of question-​answer sequences. Completely different courses of action are likely to be found in examination-​in-​chief, where the council for a client interrogates the client or his witness to extract a presentation favorable to their case, compared to cross-​examination, where the other side’s council interrogates the witness in order, for example to make a charge stick, or to show the witness is unreliable … Exclusively in the latter case, questions may become the medium for sustained accusation (Atkinson & Drew, 1979), and the witness typically designs answers to resist this project. (Levinson 2013: 121) The second point of significance is that this view of a line of questioning or a questioner’s project offered a radically different and new perspective on ‘power’ in interaction. The attorney’s power was invested in their control over the agenda of the interaction, which by virtue of the restricted turn-​taking system, and their consequent ability to develop a line of questioning, enabled them to draw evidence to a conclusion by summarizing the evidence-​so-​far in such a way as to compromise the witness’s evidence. The force and novelty of this way of conceptualizing power was acknowledged in reviews of Order in Court; in effect, Atkinson and Drew were deconstructing the acknowledged power of attorneys and other legal professionals, by showing that this power resided in the interactional resources at their disposal, and the affordances associated with questions, and witnesses’ answers to questions  –​particularly to bring (pieces of) evidence together in ways that might be damaging to witnesses or defendants in cross-​examination. This processual account of the questioner’s power was considerably developed by, among others, Woodbury (1984) in her taxonomy of the ‘control’ exercised by different question forms (an approach utilized by Ehrlich, Chapter 19, this volume), and in a subsequent paper on contested evidence in a rape trial (Drew 1992), demonstrating that attorneys can construct contrasts that arise out of a line of questioning, contrasts which implicate inconsistencies in a witness’s evidence, and thereby highlight the unreliability of that evidence. An example will help to illustrate both the data used in CA and the ‘power of summarizing’ that attorneys have as a resource that enables them to draw conclusions from a line of questioning that is damaging to the witness. The witness in (5) is the alleged rape victim being cross-​examined by the defence attorney. (5) From Drew 1992, Rape trial 1 Att: An’ at tha:t ti:me (0.3) he: asked ya to go 2 ou:t with yu (0.4) isn’t that c’rect 3 (2.1) 4 Wit: Yea h 5 Att: With him. (.) izzn’at so? 6 (2.6) 7 Wit: Ah don’t remember 8 (1.4)

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9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 29

Att:

30 31

Att:

32 33 34 35 36 37 38 39 40 41 42 43 44 45 46 47

Wit: =Yeah=he asked me if he could? (1.4) Att: He asked if he could? (0.4) Wit: Uh hmm= Att: =Kiss you goodnigh:t (1.0) Att: An you said: (.) oh kay (0.6) izzat right? Wit: Uh hmm (2.0) Att: And is it your testimony he only kissed yuh (‘t) once? (0.4) Wit: Uh hmm (6.5) Att: Now (.) subsequent to this…

Att: Wit: Att: Att: Wit: Att:

Wit: Wit:

W’l didn:’e: a:sk you if uh: (.) on that night that uh::: (.) he wanted you to be his gi:rl (0.5) Didn’e ask you that? (2.5) I don’t remember what he said to me that night. (1.2) Well yuh had some uh (p) (.) uh fairly lengthy conversations with thu defendant uh: did’n you? (0.7) On that evening of February fourteenth? (1.0) We:ll we were all talkin’. (0.8) Well you kne:w. at that ti:me. that the defendant was. in:terested (.) in you (.) did’n you? (1.3) He: asked me how I’(d) bin: en (1.1) J-​just stuff like that Just asked yuh how (0.5) yud bi:n (0.3) but he kissed yuh goodnigh:t. (0.5) izzat righ:t.=

The attorney builds or develops a line of questioning, culminating in the damaging contrast between the way in which the defendant greeted the witness (just asked me how I’d been, i.e. a greeting between acquaintances but not close or intimate friends), and their considerably more intimate manner of parting (he kissed you goodnight) (lines 30–​31). Two aspects of this sequence are striking; first, the witness evidently attempts to deflect or obstruct the direction in which she can see these questions leading; second, she attempts to deflect the damaging implication in the contrast –​implying that something must have 184

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taken place during the evening to put them on a more intimate footing –​by explaining that he asked for permission to kiss her (he asked me if he could, line 32), the formality of which aims to counter that implication. However, her attempt only results in a win-​win for the attorney, reflected in the attorney’s extended and repetitive highlighting of her answer (in lines 34, 37 and 39; for a detailed analysis see Drew 1992). This is a particularly vivid illustration of the development of a line of questioning; from the beginning of this excerpt, the attorney is attempting to establish that the witness and defendant came to some kind of ‘understanding’ on an evening (14th February, Valentines’ Day) when they met before the alleged rape. As well as shedding new light on the exercise of (micro) power in courtroom examination, the explication of a line of questioning in examination  –​especially the prospective management of an accusation (Atkinson and Drew 1979, ­chapter 4: 112–​117) –​provided an analytic account of strategy in courtroom interaction. Until this point we in CA had been wary of attributing ‘strategy’ to speakers’/​participants’ conduct, largely on the ground that ‘strategy’ generally refers to a cognitive state, some intention on the speaker’s part. By a ‘line of questioning’ Atkinson and Drew had recast ‘strategy’ as an observable attribute of speakers’ conduct, and of the way in which one question–​answer sequence provided the building block for the next, culminating in a damaging summary (in (1), a contrast). (See also Drew 1990 for further development of these themes.)

Limitations of Order in Court In summarizing some of the principal themes in Order in Court, something of its novelty and its strengths have been highlighted. In retrospect, the focus on social action  –​for instance, on accusing, defending, justifying  –​stands out as a key theme. Nevertheless, there were significant limitations to its enquiries at that point. Atkinson and Drew were, for instance, studying only quasi-​judicial hearings; neither had access to recordings of actual (criminal) court trials, until subsequently the late Brenda Danet, of the Hebrew University of Jerusalem, generously allowed access to her recordings of US criminal trials. The legal settings that were explored in Order in Court were coroners’ courts and judicial tribunals of enquiry as proxy for courtroom interactions. Another limitation is that while Atkinson had recordings of hearings in coroners’ courts, Drew did not have recordings of the tribunal of enquiry which was the focus of many of the empirical ­chapters –​only official transcripts of the daily hearings of the inquiry were available. A corollary is that there were no video recordings of any of these data, which is a significant drawback. While there may be other limitations to the studies in Order in Court, one that is particularly striking perhaps, in retrospect, is that while questioning was at the heart of the pre-​allocated turn-​taking system for courtroom examination, Atkinson and Drew did not investigate in any detail question design. They were content to characterize attorneys’ turns as being questions, without considering or analysing the specific linguistic form of questions. For example, each of the examining attorney’s questions in lines 1–​2, 5, 9–​10, 12, 16–​17 and 23–​25 in (1) are negative constructions, achieved either by didn’t you prefaces or by negative tag questions (e.g. didn’t you or isn’t that so in turn final position). Heritage (2002) has since shown that negative interrogatives are in fact treated as assertions, rather than (genuinely) questioning; they are hostile, more pressing, and thereby put more pressure on the witness to agree to evidence that might compromise her position. There has been more research subsequently that reveals the interactional ‘work’ that different linguistic designs or formats of questioning achieve (see for instance Heritage and Sorjonen 1994: 22–​23 on 185

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and-​prefaced questions in court interactions). One might also consider as a limitation of their study that courtroom trial interactions were treated as independent of other parts of the criminal/​judicial process, such as police questioning of the suspect; these other constituent stages in the judicial process have been the focus of much subsequent research (see, for example Haworth, Chapter 10, this volume).

Recent developments in research into social interaction in judicial settings Order in Court has built a platform for subsequent research on language and the judicial process. Although other studies in the field were published shortly after (cf. Danet and Bogoch 1980; O’Barr 1982), Atkinson and Drew’s focus on social action and sequence organization offered a unique alternative to understand talk-​ in-​ interaction in legal settings. As we have mentioned here, the insight that ‘questions’ and ‘answers’ were only the vehicles for mobilizing the core activities, such as accusing, denying, justifying, was crucial. Accusations are not only present in the official charges brought forward by the prosecution. They can also be implied in the questions asked by the judges. Analysing interactions in Dutch criminal courts, Komter (1994) demonstrated that these questions generate different types of defence depending on whether they are oriented to the facts of what happened, or to a defendant’s moral stance towards their conduct (e.g. by putting themselves in the position of the victims, as when asked ‘Have you ever stopped to think how those ladies would react to that?’). In either case, though, defendants face the same dilemma, given that they need to be cooperative without compromising their defence. A solution to this problem is reached through the use of a range of communicative practices such as eliding the agency of actions and offering selective admissions, selective memory and alternative descriptions (Komter 1994). Several other studies have expanded our understanding of the management of accusations and defences in courtrooms (Galatolo and Drew 2006; Hobbs 2003; Matoesian 1993) while others have explored the ways in which questioning can be designed to impugn or compromise evidence, and character, in judicial interactions besides those in open court. For instance, in his investigation into plea bargaining in misdemeanour cases in the US, Maynard (1984) identified sequences through which one party presents a position and the other responds to that, thereby bargaining over a disposition that is acceptable to both parties (prosecution and defence). According to Maynard, such sequences constitute the environment in which various features of plea bargaining are produced, such as ‘exchange’, ‘compromise’, ‘disagreement’, etc. In findings that parallel those by Atkinson and Drew, Maynard demonstrated that these features of bargaining are products of the sequential organisation of talk in that context rather than being an outcome of external influences, e.g. asymmetries of power between the state and the accused. The key to subsequent work by other (CA) scholars in judicial legal settings is that research has developed further in directions that overcome some of the limitations outlined in the previous section. Although police and judicial settings are separate entities with their own properties and dynamics, they are connected by the references to and invocations of, for instance, the suspect’s statement when questioned by the police. This connection is explored by Komter (2019), whose research demonstrates how talk in police interrogation is transformed into a written record, and is then turned into an official piece of evidence, and how this report is invoked and mobilized by legal professionals in the courtroom trial. By following cases from police interrogation through to trial, she was able 186

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to develop a more complete picture of the ‘career’ of the suspect’s statement in the Dutch legal system and revealed the ‘decontextualisation of the real-​time, lived experience of the interaction in the police interrogation and its recontextualisations as the fixed material reality of the text of the police report and as resource for the professionals’ performance of their institutional tasks’ (Komter 2019: 179). In England and Wales, before being questioned in a courtroom, defendants often meet with lawyers to discuss their strategy and build their defence. Halldorsdottir (2006) showed how law, codes and guidelines are invoked in these encounters. She demonstrated how the orientation to legal standards and materials reveals the practical projects participants are advancing, and that these projects comprised a series of actions that fit with the lawyer’s objective to build a feasible and cogent defence, while nevertheless advising the client about the potential outcomes of the trial. At the time Order in Court was published, audio recordings of judicial proceedings were very difficult to access, and video cameras were hardly ever used inside courtrooms. However, in the last four decades, there has been a transformation in the transparency of judicial processes, including courtroom hearings, in several legal systems internationally, where trials and judicial hearings have started being filmed as part of the court procedure. The implementation of new technologies provides researchers with an unprecedented opportunity to access visual material in the judicial context. In addition to this, CA is rapidly moving towards the use of video data to study the interplay of talk and bodily conduct and examine how material resources feature in the production of social actions (Heath and Luff 2013). Johnson argues convincingly that ‘A multimodal analysis acknowledges the combined spoken and gestural turn as a continuous stretch of communication, rather than speech fragmented by silence’ (Johnson 2020: 357). A glimpse into any judicial context reveals that participants –​lawyers, judges, witnesses, defendants –​are all involved in much more than ‘talking’; they gaze at each other, use hand gestures and engage with objects, as Johnson demonstrates in the context of police interviews with suspects. In a similar vein, Matoesian (2013; see also Matoesian and Gilbert, Chapter 16, this volume) pointed out that one cannot have a complete understanding of legal practices by looking solely at speech; one has to examine the multimodal coordination of activities. Matoesian showed, for example, that several interactional tasks are accomplished employing material objects. Mobilising these objects constitutes a central resource in legal settings, especially trials. A good example is how inconsistency and credibility are interactionally constructed through the combination of talk, written reports, bodily movement, gaze, audio recordings and material objects. According to him, ‘material conduct integrates with language and other multimodal resources to “grab attention” in an interdiscursive escalation of narrative suspense and incremental amplification of evidential intrigue’ (Matoesian 2013: 635). For instance, objects such as photos can play a significant role in the construction of persuasive legal oratory, as persuasion does not rely only on the oral dimension of language. In judicial trials, the temporal synchronisation of speech, gaze and gesture operates as an attempt to instruct the overhearing audience about the relevance of the material objects (Gilbert and Matoesian 2016). The importance of a multimodal approach to legal/​judicial interactions goes well beyond research into courtroom interactions; as was mentioned, Johnson has adopted a multimodal approach to the analysis of police questioning of suspects, enabling her to demonstrate that police officers’ gestural accompaniments in animating suspects’ evidence can work subtly to transform that evidence, for example from what a witness proposed as a defensive action into an offensive one, thereby shifting blame from the victim (in the suspect’s version) to the suspect (in the police officer’s version). 187

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Johnson suggests that ‘A transcription that records only speech and silence (You say you made a grab for the knife (1.0). Are you saying you were (2.0) ss-​stabbed with the knife (1.0) or are you saying you (0.5) grabbed the knife↓?’) therefore fails to acknowledge the major communicative weight that is carried by the gestural layer. The silences are used to enact grabbing and stabbing actions with a knife and to confront the suspect with his own action’ (Johnson 2020: 379). In addition to video recordings of legal proceedings, we have seen in the last decade the introduction of videoconference technologies in judicial settings; videoconferencing (e.g. in which defendants appear and are questioned via a video link from the facility in which they are being held) can reduce the costs of transporting defendants from prisons to courts. This system has a dramatic impact on the work led by judges, as it introduces additional tasks and creates new competence requirements for legal professionals, which increases the pressure on their usual routines for managing court proceedings (Verdier and Licoppe 2011). We have highlighted the novel but exploratory character of Order in Court and some of the associated shortcomings of the research represented in that study. Amongst these limitations was the unusual nature of the court hearings. Despite these limitations, Order in Court has remained influential in studies of social interaction in judicial settings over the past 40 years. The key insights generated by the original research, focusing on social action in particular, have been further investigated in ways that perhaps remedy the shortcomings of that early work. Research has now been done in civil and criminal courts, from both adversarial and inquisitorial systems, and much of the more recent work is based on actual audio or video recordings of interactions.

Future directions CA research in judicial settings has expanded considerably since the publication of Order in Court, but it remains relatively small in comparison to conversation analytic studies in other settings, e.g. medical interactions. Since its beginning, CA has contributed to various debates on legal practices. It has done so by, among other things, showing the fundamental character of language use in talk-​in-​interaction in judicial proceedings, and how legal professionals employ ‘questioning’ in the construction of a case, including their strategies for supporting or undermining a witness’s evidence. Looking toward further developments in the field, one can say that despite what has been achieved in the last 40  years, there are many aspects of the judicial process that remain to be explored. The increasing use of new technologies in judicial settings calls for investigation of how these new tools play a role in participants’ activities in different legal contexts. As justice systems in several countries are gradually implementing video recordings as part of their court proceedings, new possibilities for research emerge. So far most of the work done on multimodal analysis in judicial settings has been based on dramatic or high-​profile cases which are made publicly available (e.g. on TV; see e.g. Rickford and King 2016). Although understanding these cases is certainly relevant, we should consider investigating the more mundane lower tariff cases, representing as they do the vast majority of legal work that is so significant to the fabric of law-​in-​action in our societies. Another potential development in CA studies in judicial settings is related to the reflexivity of legal concepts in action, e.g. causation and intentionality. In courtrooms, both 188

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legal professionals and lay people orient to a legal vocabulary and legal standards of evidence and proof that are established in legislation, statutes, case law and rules of evidence. At the same time, this vocabulary is constantly constructed and reshaped through these interactions. Considering this reflexive feature of social interaction, future CA research should investigate the practices involved in transforming lay narratives and accounts into legally relevant material (Ferraz de Almeida 2018). Order in Court has also laid the groundwork for investigating police practices, particularly police questioning (David, Rawls and Trainum 2017; Kidwell 2009; Komter 2003; Stokoe and Edwards 2008; Watson 1990) and the interactional construction of written records (Komter 2006; Van Charldorp 2014; Haworth, Chapter 10, this volume). However, the legal restrictions for collecting audio or video data from courtroom proceedings have limited the advancement of longitudinal studies and the creation of a CA agenda which would integrate the various phases of the judicial process, e.g. from police interrogations/​interviews through to trials. This agenda would allow us to comprehend the interconnections between a multitude of actions, activities and practices employed by professionals and lay people across several institutional contexts in which language and legality play an important role, including emergency calls, traffic stops, police interviews with suspects and victims, and courtroom hearings and examinations. By looking at materials from the different stages of the legal process, in various legal systems, CA would be able to produce a more detailed yet holistic understanding of the judicial arena and show how the array of practices that constitute law-​in-​action are profoundly interconnected.

Further reading Atkinson, J.M. and Drew, P. (1979) Order in Court:  Verbal Interaction in Judicial Settings, London: Macmillan. Drew, P. (1992) ‘Contested evidence in courtroom cross-​examination: The case of a trial for rape’, in P. Drew and J. Heritage (eds), Talk at Work, Cambridge: Cambridge University Press, 470–​519. Gilbert, K.E. and Matoesian, G.M. (2016) ‘Multimodal action and speaker positioning in closing argument’, Multimodal Communication, 4(2): 93–​111. Heritage, J. and Clayman, S. (2010) Talk in Action: Interactions, Identities, and Institutions, Oxford: Blackwell. Komter, M.L. (2019) The Suspect’s Statement:  Talk and Text in the Criminal Process, Cambridge: Cambridge University Press. Matoesian, G.M. (1993) Reproducing Rape, Chicago: University of Chicago Press. Verdier, M. and Licoppe, C. (2011) ‘Videoconference in French courtrooms’, International Journal of Law, Language & Discourse, 1(3): 1–​28.

References Atkinson, J.M. and Drew, P. (1979) Order in Court: Verbal Interaction in Judicial Settings, London: Macmillan. Austin, J.L. (1962) How to Do Things with Words, London: Oxford University Press. Clift, R. (2016) Conversation Analysis, Cambridge: Cambridge University Press. Danet, B. and Bogoch, B. (1980) ‘Fixed fight or free for all? An empirical study of combativeness in the adversary system of justice’, British Journal of Law and Society, 7(1): 36–​60. David, G.C., Rawls, A.W. and Trainum, J. (2017) ‘Playing the interrogation game: Rapport, coercion, and confessions in police interrogations’, Symbolic Interaction, 41(1): 3–​24. Drew, P. (1990) ‘Strategies in the contest between lawyer and witness in cross-​examination’, in J. Levi and A. Walker (eds), Language in the Judicial Process: New York, Plenum, 39–​64.

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—​—​—​(1992) ‘Contested evidence in courtroom cross-​examination: The case of a trial for rape’, in P. Drew and J. Heritage (eds), Talk at Work, Cambridge: Cambridge University Press, 470–​519. Drew, P. and Heritage, J. (eds) (1992) Talk at Work:  Interaction in Institutional Settings, Cambridge: Cambridge University Press. Ferraz de Almeida, F. (2018) Police Interviews with Suspects in Police Stations in England, PhD thesis, Loughborough University, UK. Galatolo, R. and Drew, P. (2006) ‘Narrative expansions as defensive practices in courtroom testimony’, Text and Talk, 26(6): 661–​698. Gilbert, K.E. and Matoesian, G.M. (2016) ‘Multimodal action and speaker positioning in closing argument’, Multimodal Communication, 4(2): 93–​111. Halldorsdottir, I. (2006) ‘Orientation to law, guidelines, and codes in lawyer-​client interaction’, Research on Language & Social Interaction, 39(3): 263–​301. Heath, C. and Luff, P. (2013) ‘Embodied action and organizational activity’, in J. Sidnell and T.  Stivers (eds), The Handbook of Conversation Analysis, Chichester:  Wiley-​Blackwell, 283–​307. Heritage, J. (2002) ‘The limits of questioning: Negative interrogatives and hostile question content’, Journal of Pragmatics, 34(10–11): 1427–​1446. Heritage, J. and Clayman, S. (2010) Talk in Action:  Interactions, Identities, and Institutions, Oxford: Blackwell. Heritage, J. and Sorjonen, M-​ L. (1994) ‘Constituting and maintaining activities across sequences: And-​prefacing as a feature of question design’, Language in Society, 23(1): 1–​29. Hobbs, P. (2003) ‘“You must say it for him”: Reformulating a witness’ testimony on cross-​examination at trial’, Text, 23(4): 477–​511. H.M.S.O. (1972) Violence and Civil Disturbances in Northern Ireland, 1969:  Report of a Tribunal of Inquiry (chaired by the Hon. Mr Justice Scarman), Belfast: Her Majesty’s Stationery Office. Johnson, A. (2020) ‘ “Are you saying you were stabbed…?” Multimodality, embodied action, and dramatised formulations in “fixing” the facts in police interviews with suspects’, in M. Mason and F. Rock (eds), The Discourse of Police Interviews, Chicago Studies in Linguistics, Chicago: University of Chicago Press, 359–​393. Komter, M.L. (1994) ‘Accusations and defences in courtroom interaction’, Discourse & Society, 5(2): 165–​187. —​—​—​(2003) ‘The interactional dynamics of eliciting a confession in a Dutch police interrogation’, Research on Language and Social Interaction, 36(4): 433–​470. —​—​—​(2006) ‘From talk to text: The interactional construction of a police record’, Research on Language and Social Interaction, 39(3): 201–​228. —​—​—​ (2019) The Suspect’s Statement: Talk and Text in the Criminal Process, Cambridge: Cambridge University Press. Kidwell, M. (2009) ‘What happened?:  An epistemics of before and after in “at-​the-​scene” police questioning’, Research on Language and Social Interaction, 42(1): 20–​41. Levinson, S. (2013) ‘Action formation and ascription’, in J. Sidnell and T. Stivers (eds), The Handbook of Conversation Analysis, Chichester: Wiley-​Blackwell, 103–​130. Matoesian, G.M. (1993) Reproducing Rape, Chicago: University of Chicago Press. —​—​—​(2013) ‘Language and material conduct in legal discourse’, Journal of Sociolinguistics, 17(5): 634–​660. Maynard, D.W. (1984) Inside Plea Bargaining: The Language of Negotiation, New York: Plenum. O’Barr, W.M. (1982) Linguistics Evidence:  Language, Power and Strategy in the Courtroom, New York: Academic Press. Rickford, J.R. and King, S. (2016) ‘Language and linguistics on trial: Hearing Rachel Jeantel (and other vernacular speakers) in the courtroom and beyond’, Language, 92(4): 948–​988. Sacks, H., Schegloff, E.A. and Jefferson, G. (1974) ‘A simplest systematics for the organization of turn-​taking for conversation’, Language, 50(4): 696–​735. Searle, John R. (1969) Speech Acts: An Essay in the Philosophy of Language, Cambridge: Cambridge University Press. Stokoe, E. and Edwards, D. (2008) ‘ “Did you have permission to smash your neighbour’s door?” Silly questions and their answers in police-​suspect interrogations’, Discourse Studies, 10(1): 89–​111. Van Charldorp, T. (2014) ‘“What happened?” From talk to text in police interrogations’, Language and Communication, 36: 7–​24. 190

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Verdier, M. and Licoppe, C. (2011) ‘Videoconference in French courtrooms’, International Journal of Law, Language & Discourse, 1(3): 1–​28. Watson, D.R. (1990) ‘Some features of the elicitation confessions in murder interrogations’, in G. Psathas (ed.), Interaction Competence, Washington, DC: University Press of America, 263–​296. Weber, M. (1978) Economy and Society: An Outline of Interpretative Sociology, edited by G. Roth and C. Wittich, Berkeley: University of California Press. Woodbury, H. (1984) ‘The strategic use of questions in court’, Semiotica, 48(3–4): 197–​228.

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13 Narrative in the trial Constructing crime stories in court Chris Heffer

Introduction Any case brought to court presents a story of wrongdoing. Witnesses expect to tell stories, lawyers and jurors transform evidence into stories and even judges deliberate with the help of stories (Wagenaar et al. 1993). Yet the law as an institution has historically considered the adjudication process as a matter of rigorously testing hypotheses rather than comparing stories and so has introduced numerous anti-​narrative checks to trial procedure (Keane and McKeown 2020). The result is a fascinating tension between narrative and anti-​narrative forces that is both played out in the hybrid discourse genres of the trial (Heffer 2005) and fundamental to the interface between language and law more generally (Brooks 1996). Stories are constructed, and have been studied, in a wide variety of different courtroom contexts, such as in plea bargaining, small claims and Islamic courts. This chapter, though, will focus on the most widely studied context, and the one where the tensions between narrative and anti-​narrative forces are perhaps at their greatest: contemporary common law criminal trials before a judge and jury. I begin with an overview of the relevance of narrative to the trial process in general. I  then work in semi-​narrative fashion through the linear sequence of trial genres (jury selection → preliminary instruction → opening statements → witness examination → closing arguments → summing up → deliberation and verdict → sentencing) to show how narrative in a variety of forms manages to emerge in the trial despite the evident institutional anti-​narrativity.

Narrative and the trial process Narrative may be considered more central or more peripheral to the trial process according to one’s definition of narrative and one’s theory of the trial. A narrow, clause-​based definition of narrative (Labov and Waletzky 1967), combined with a truth-​testing view of the lawyer’s task and a mathematical model of juror decision-​making, will lead to the impression that narrative is well-​nigh irrelevant to jury trial. On the other hand, a broad 192

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approach to narrative based on participants’ situated understanding of when ‘stories’ are involved, combined with a ‘storied’ view of the lawyer’s task (Brooks 1996) and a ‘story model’ of juror decision-​making (Pennington and Hastie 1991) might lead to the impression that the trial is solely about narrative. While the exceptionally a-​chronological and non-​linear nature of the trial make it difficult to sustain the claim that it is in the form of a story (Cotterill 2003: 23–​25; Gibbons 2003: 157–​159), the trial can legitimately be seen as the construction of a story or stories from at least two perspectives. Firstly, the most widely supported and empirically tested theory of jury decision-​making, the ‘story model’ (Pennington and Hastie 1991), holds that jurors decide cases by constructing their own stories from the evidence and then considering the fit between these stories and the legal charges. Jackson (1988:  65–​88) rightly notes that juries will also construct partial stories of the trial they have experienced (‘trial stories’), which can affect the plausibility of the putative crime stories. Secondly, prosecutors –​though not always lawyers for the defence –​see themselves as constructing a story for the jury. In their opening speeches, they often make metadiscursive comments on the tale they are going to tell through their evidence e.g. ‘Let’s tell a different story’ (Harris 2005: 220). And when they lose a case, they are likely to attribute it to the juries not ‘buying’ their story. Given that, as we shall see, occurrences of narrative discourse in the trial are very restricted, the crime story must be conveyed through non-​narrative as well as narrative modes of discourse. It is useful to make an operational distinction, then, between the ‘crime story’, the cognitive template or skeleton structure conceived by lawyer, witness, judge or jury, and instances of narrative discourse in which that story is narrated. Forensic evidence, for example, usually provides support for the crime story, but is very rarely conveyed through narrative discourse (Heffer 2005: 101). The crime story is pieced together during the investigatory stages of a case and is not linked to any one specific telling. In order to account for the fact that trials intimately involve stories but narrative discourse is comparatively rare (Stygall 1994), Heffer (2005) and Harris (2005) all turned to Bruner’s (1990) conception of narrative as a mode of thought. Reasoning in the narrative mode means striving to understand the actions and intentions of people situated in place and time, while reasoning in the ‘paradigmatic’ or logico-​scientific mode means striving for context-​independent logical and scientific descriptions and explanations. The narrative mode is a search for verisimilitude, the paradigmatic mode a search for veracity or verification. While the narrative mode of thought is prototypically realised in narrative discourse and the paradigmatic mode in scientific argument, they can become strategic input to any form of discourse, thus creating the ‘hybrid’ forms of discourse (neither clearly narrative nor non-​narrative) that can be found in the trial. These hybrid forms in turn are manifestations of an ongoing tension between truth and narrative in the trial (Griffin 2013). One way of gaining a very broad initial understanding of the institutional and strategic complexity of ‘forensic narrative’ in jury trial is to see the trial process as a sequence of genres, each focused primarily on different evidential goals (Maley and Fahey 1991; Gibbons 2003; Cotterill 2003). Although the genre sequence in a trial is linear, the evidential goals are hierarchical: the facts of the case need to be determined; these are woven into crime stories; the stories are filtered through the legal framework provided by the charges and rules of evidence; and all this takes place within the context of the jury’s

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Jury Selection Preliminary Instruction

Deliberation and Verdict

Legal Framework

Opening Statement(s) Witness Examination (Prosecution) Witness 1 Witness 2

Story Construction

‘Fact’ Determination

Narrative witnesses Support

Jury Instruction Closing Arguments Witness Examination (Defence) Witness 1 Witness 2

Figure 13.1  A model of jury trial as a complex genre (adapted from Heffer 2005: 71)

decision-​making process (Heffer 2005: 70–​72). In most jurisdictions, the trial genres seem to be paired up in terms of their evidential focus (jury selection with deliberation, preliminary instruction with final jury instruction, opening statements with closing arguments). This creates a neat two-​part trial structure indicated in Figure 13.1.1 As the trial progresses, the focus moves from the ‘higher’ goal of decision-​making to the ‘lower’ goal of fact determination and then moves back up to decision-​making. However, the discursive work performed in early genres will necessarily influence later ones. For example, both the legal framework and the story constructions will influence the type of facts that counsel will focus on in witness testimony. Similarly, the closing speeches will weave together the facts determined in the evidential phase into convincing narratives but they will also anticipate the legal charge or summing up by fitting these stories into a clear legal framework. Nevertheless, given the necessary anti-​ narrative constraints on trial discourse  –​ narrative is powerful and, like all power, can be and is abused  –​trial lawyers have to carefully ‘navigate’ their crime stories through the trial (Heffer 2012). Narrative navigation involves not just narration, the usual focus of work on narrative, but also the crucial elements of emplotment, the drawing of a heterogeneous collection of events into a meaningful story, story negotiation, or the negotiation by the parties of the scope of the forensic narrative and the salience of elements within it, and character navigation, or the ongoing maintenance and ascription of a story agent’s identity (Heffer 2012). Crucially, these other three elements of narrative navigation can occur outside contexts of narration, such as in cross-​examination or even in legal submissions. Thus, while the trial is not a narrative, it centrally involves narrative throughout. Furthermore, different agents in the construction of crime stories in court have different capacities to get their story across to the significant forensic audience: the judge and jury. Voice, or the capacity to make oneself understood on one’s own terms (Blommaert 2008), is not directly correlated with the freedom to narrate. ‘Relational’ litigants in small claims courts can narrate freely but, in focusing on human relationships rather than legal rules, they fail to get their point across to judges and so effectively lose their voice (Conley and 194

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O’Barr 1990). Voice needs to be projected and that projection may fail to lead to responsive understanding for a number of reasons (Heffer 2017). The speaker may be inaudible, or stylistically incomprehensible; they may fail to highlight their points or poorly index shared understanding. Their language may be non-​standard or what they say unauthorised. They may fail to converge with audience expectations or fail to be persuasive. The hearer may not be listening or fail to comprehend; or they may frame what they hear in other terms or focus on the ‘wrong’ things. All these forms of failed projection can lead to a narrator losing narrative voice (Heffer 2017). Bearing in mind the ongoing demands of narrative navigation and the projection of voice, the following sections explore how narrative emerges, is implicated in and takes on various distinctive forms through the course of the trial.

Jury selection and emplotment All narratives must have one or more narrators to tell the story and one or more narratees to listen. The primary narrators of the crime story are the lawyers representing the prosecution, who bring the case to court; the primary narratees are the jurors who will decide the facts of the case. In plotting their crime story for jurors, in weaving together the evidence in a forensically meaningful fashion, the forensic narrator is guided by both institutionally set parameters and folk-​psychological narrative scripts. A legal story of rape must involve elements demonstrating the legally required element of lack of consent by the victim, but a convincing folk-​psychological story of rape would involve the victim not changing her mind, even if this is legally irrelevant (Ehrlich 2013). In a jurisdiction such as England and Wales where no information about prospective jurors may be obtained and where there is no right to challenge the empanelment of jurors without cause, lawyers are only able to guess from appearance and body language the likely narrative scripts of the audience before them. In many jurisdictions, though, lawyers are allowed to actively de-​select jurors via questionnaires and interrogation, or voir dire (‘to speak the truth’). In this case, trial lawyers are able to some extent both to pick an audience that is likely to be favourable to their story and to design their narrative plot and presentation to suit that particular audience (Cotterill 2003: 11–​18). One of the main objects of active jury selection, for which specialist ‘jury consultants’ are employed for many US cases, is to select jurors most likely to share the narrative scripts closest to the party’s crime story. Narrative scripts  –​variously known in the psychological and forensic literature as ‘plots’, ‘scripts’ (e.g. Stygall 1994), ‘story’ or ‘narrative schemas’ (e.g. Heffer 2005), ‘master narratives’ (e.g. Coulthard et  al. 2017) and ‘narrative typifications’ (Jackson 1988; Cotterill 2003) –​are cognitive scaffolds for typical narrative action. These scripts are not universal but tend to vary across communities of practice. Scripts of police misconduct and bigotry, for example, are more likely to be held by African-​Americans than White Americans (Hastie and Pennington 1996: 972–​973). In the extreme case of the OJ Simpson criminal trial, which involved almost 1000 potential jurors and six weeks of voir dire interrogation, Cotterill (2003:  17) notes that many of the 293 jointly-​constructed questions on the jury questionnaire clearly tried to gauge reaction to the parties’ proposed storylines. For example, jurors were asked to react to the statement that professional athletes tend to be more aggressive towards women, which linked with the prosecution’s story of the testosterone-​ charged, misogynistic

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celebrity footballer. They were also asked the following question (with tick-​box levels of seriousness): How big a problem do you think racial discrimination against African-​Americans is in Southern California? This was directly linked to the defence story of OJ Simpson being racially targeted by the police, which evokes the narrative script of police bigotry favoured by many African-​ Americans. Since responses to this question were clearly divided on racial lines, when the defence succeeded in empanelling eight out of 12 jurors of African-​American origin, Cotterill (2003: 13) notes that they effectively managed to ‘design the audience’ in their favour as well as being subsequently able to plot their story for that audience.

Preliminary instruction, the legal framework and story negotiation After being empanelled, the jury receive some form of preliminary instruction on the law. This can range across jurisdictions from, minimally and far from helpfully, the reading of the formal indictment (as in England and Wales) to detailed instructions on the law applying to the case. Preliminary instructions set down in one form or another the ‘law of narrative’ regulating whether and how stories may be told at trial (Gewirtz 1996: 136). In other words, they legally define the scope of the forensic narrative (Heffer 2012: 275). Entire crime stories can be silenced because they are not legislated against; as was the case until recently with marital rape stories. The indictment sets the scope of the forensic narrative in the space delineated by the charges. On count 1 the defendant stands charged with theft, contrary to section 1, subsection (1) of the Theft Act 1968. The particulars of offence are that the defendant on a day between the 15th day of January 1995 and the 13th day of May 1997 stole cash to the value of £8.58 belonging to a person or persons unknown. (Author’s data) Far from being a narrative, this is a ‘normative syllogism’ in which the major premise is the legal rule, the minor premise the crime events and the conclusion is to be determined by the jury (Jackson 1988: 37–​45). The legal rule is not actually stated, but instead is referred to intertextually (‘section 1, subsection (1) of the Theft Act 1968’), while the crime event (‘stole cash’) is not narrated but stated as one of the ‘particulars of offence’. The scope of the forensic narrative is restricted not just by the indictment but also by legal presumptions and rules. The presumption that jurors come to court as legal blank slates acts as a form of narrative exclusion since we know that lay people have narrative scripts for crime categories and that these often do not match those of the law (Smith 1991). For example, the lay script for kidnap involves a ransom, which is not an ingredient of the legal offence. The rules of evidence (Keane and McKeown 2020) more generally filter out potentially salient narrative elements that are either not considered relevant to the ‘facts in issue’ (those relating to the legal definition of the offence) or are considered to compromise the fairness of the decision-​making process. Crucially, though, both the scope of the forensic narrative and the salience of narrative elements can be negotiated to some extent by the legal parties, so that story negotiation 196

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becomes a central element of the trial lawyer’s narrative navigation through the trial (Heffer 2012: 274–​276). The opposing parties both agree, pre-​trial, on narrative elements that are not in dispute, thus rendering them non-​salient, and are engaged in a continuous battle with each other, adjudicated by the judge, over the admissibility of certain pieces of evidence, which might be central elements in one party’s plot. Each charge, each witness and each item of evidence is ‘at risk’ and open to challenge. A successful legal submission to the judge might exclude a key narrative element, such as an expert report corroborating an element in the crime story, and narrative elements contributed by a witness may be retracted following an objection that they introduce hearsay or speculation. Such exclusions can lead to a loss of narrative voice (Heffer 2017) both for the witness and for the forensic narrator, the trial lawyer.

Opening statements, narration and character navigation The Opening Statement, at least in the US, is the trial lawyer’s main opportunity to narrate their overall story of the crime to the jury. That story, as manifested in the opening statement, has been described variously in the literature as a ‘kernel’ (Snedaker 1991), ‘macro-​ narrative’ (Cotterill 2003), ‘master narrative’ (Heffer 2005) or ‘core narrative’ (Gibbons 2003), which, respectively, the ‘satellite’, ‘micro’, ‘witness’ or ‘sub’ narratives of the witness examination phase then ‘fill out, elaborate, and extend’ (Snedaker 1991: 134). Harris (2005: 220) describes the opening statement as ‘the clearest instance of the narrative mode in a trial’. However, this is narrative strictly at the service of argumentative ends. According to US law, the opening statement is not meant to contain argument, but narrative is a subtle form of argument which slips the paradigmatic net of the law. Several researchers (e.g. Harris 2005; Heffer 2005: 75–​77) have noted that the structure of the master narrative text embedded into the opening statement often takes the same form as the central elements of Labov and Waletzky’s personal experience narratives (Labov and Waletzky 1967): Orientation: who?, when?, what?, where? Complicating Action: then what happened? Evaluation: so what? Resolution: what finally happened? In Labov and Waletzky’s model, evaluation occurs both as a structural-​functional element that is external to the narrative clauses and interrupts the narrative action to comment on its significance (Evaluation) and as an ongoing form of appraisal woven into the core narrative clauses and conveyed through a variety of lexical, phonological, grammatical and discoursal means (evaluation). Structural Evaluation in courtroom narratives makes an explicit evidential Point about the guilt or innocence of the defendant (Harris 2005). Ongoing clause-​internal evaluation, on the other hand, functions in a more holistic fashion, gradually building up a certain impression of guilt or innocence (Heffer 2005: 77). Given the argumentative aim of the opening statement, the Point often frames the Orientation and Core Narrative (Harris 2005), as in the following extract from the prosecution opening of the Marv Albert sexual assault case tried in Virginia in 1997. Ongoing

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evaluation (including that in non-​narrative clauses) is indicated by underline; minor Points are in [square brackets]: Point

Orientation

Core Narrative

Point

May it please the Court, counsel, ladies and gentlemen. On February 12th, a coarse and crude abuse of a human being took place. It took place at the hands of that man. And it took place and was accomplished by his physical domination of a 41-​year old woman, a woman who had been his friend; a woman who had been his lover; a woman who he knew for ten years; a woman who had cared for him. But it was a woman whose human dignity he chose to ignore on this night in his egocentric quest for sexual gratification. … At that time, Ms. Perhach was living in Florida, in Miami. She was undergoing the stress and beginnings of the break-​up of a marriage. She had two children. And she began to try to get herself back on her feet by seeking employment … …He called her again that day, about 1.30, this time on her cell phone as she’s shopping, again trying to make arrangements for when are we going to meet, got somebody to take the tickets, and, oh, by the way, do you have somebody for the threesome? … [H]‌e grabs her and he throws her on the bed and he jumps on her back. [She is shocked.] He then begins to bite her back. [The first bite is a complete shock.] But as she realizes what is going on, she says, stop, it hurts. But he did not stop. He continued to bite her on the back in a painful way. [In fact, he mocked her.] He said, aw, come on, you know you like this. … It was a crude use of a human being. And the evidence will show that it was done by this man for one purpose. He wanted a scenario that night. And the dignity of the human being that was with him did not matter. She was his property, and that’s a crime. (Adapted from Harris 2005: 221–​223. My analysis.)

In addition to the explicit indications of the probative Point at the beginning and end of the statement (‘crude abuse of a human being’ points to the technical charge of sodomy), we have other minor Points indicating the complainant’s lack of consent (‘The first bite is a complete shock’) and the defendant’s recklessness with regard to her lack of consent (‘In fact, he mocked her’). The statement is also replete with Labovian categories of ongoing clause-​internal evaluation: intensifying repetition (‘a woman who’ … ‘a woman who’); negative comparators (‘he did not stop’); correlatives (‘coarse and crude abuse’) and explicatives (‘again trying to make arrangements … for the threesome’). The switch to the conversational historic present at dramatic moments (‘He grabs her and he throws her…’) is also an internal evaluation device since it enables the listener to relive the drama as if it were present. So is the sudden switch to direct speech (‘make arrangements for when are we going to meet…’). As Harris (2005: 222) notes, the prosecutor makes extensive use of ‘those very resources of belief, opinion, intent and subjective evaluation which the rules of evidence prohibit’. It is all these evaluation devices that transform a referential account into a highly persuasive forensic narrative. The impression of guilt or innocence built up gradually through ongoing clause-​internal evaluation is strengthened through the strategic choice of words. Cotterill (2003: 68–​83) shows how the apparently neutral words ‘encounter’ and ‘control’, used by prosecutors in 198

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the opening statements of the OJ Simpson criminal trial, take on negative semantic associations, or ‘semantic prosodies’, through frequent collocation with negative words such as ‘prejudice’ and ‘problems’. In the Marv Albert opening, the prosecutor appears to be using ‘human’ and ‘human being’ in a similarly non-​neutral way, perhaps to draw on the double meaning of ‘sodomy’ as both ‘buggery’ and ‘bestiality’. The opening statement not only provides the opportunity to narrate the full crime story but it also establishes the characters in that story. These characters need to be navigated carefully for forensic effect. According to Bamberg (Bamberg 2011), in autobiographical storytelling, speakers ‘constructively navigate’ their identities between points on three continua: high/​low agency, sameness/​difference and constancy/​change. In a forensic context, trial lawyers can be seen as navigating not their own identities but those of the key characters in their crime stories. For example, the prosecution will attempt to ascribe high agency to the defendant as this suggests criminal responsibility, while the defence might attempt to ascribe low agency to suggest they are passive victims of circumstance. Similarly, the prosecution will generally want to ascribe a constant negative character trait to the defendant (e.g. a ‘liar’ or a ‘violent man’) rather than a sudden momentary change in character (e.g. ‘lied on this occasion’, ‘lost his temper’) as this will cement criminal responsibility. These forensic tendencies in character navigation are confirmed to some extent through Chaemsaithong’s (2019) quantitative work on representation strategies in opening statements. As predicted in Heffer 2012, Chaemsaithong, drawing on an analysis of grammatical transitivity, found that the prosecution ascribed high (or ‘full’) agency to the defendant, as represented by a predominance of active material verbal processes (e.g. ‘they struck’, ‘the defendant shot’, they killed’ (253)) and low (or ‘limited’) agency to the victim, as represented by intransitive processes and progressive aspect (e.g. ‘was sitting outside of Leisure World on a park bench … reading a book, bothering no one’ (256)). In contrast, the defence mitigated the defendant’s agency by, for example, suppressing the defendant as actor (e.g. ‘There’s a shooting’) and impersonalizing the victims (e.g. ‘people are killed’) (256). Rosulek (2015) found similar patterns in closing statements, with the prosecution ascribing high agency to the defendant and the defence suppressing the agency of the victims. In all of these ways, then, opening statement narratives may construct a cognitive filter through which jurors will then view the subsequent evidence.

Witness examination and mediated narration Institutionally, the evidential phase of the trial is concerned with the determination, or verification, of the facts, which explains its thesis–​antithesis structure: Prosecution Case → Defence Case Examination (by friendly counsel) → Cross-​examination (by opposing counsel) Despite the dialectic institutional structure, lawyers control the emergence of the crime story during the evidential phase in two ways: by selecting and sequencing their witnesses; and by guiding those witnesses through their main examination (called ‘direct examination’ in the US and ‘examination-​in-​chief’ in British Commonwealth countries). In most run-​of-​the-​mill jury trials, involving few witnesses and lasting a day or two, lawyers have little choice in the selection of witnesses, but more choice in the sequencing 199

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of those witnesses. Advocacy manuals, which should be taken as rough guides to what the profession considers to be good practice rather than surrogates for empirical observation, recommend following the chronological order of events (Stone 2009). However, while there is some evidence that lawyers in England do make an effort to follow a chronological or at least ‘narrative + support’ structure, as indicated in Figure 13.1 (Heffer 2005: 80), in the US context both Stygall (1994: 123) and Cotterill (2003: 40) claim that the actual sequence of events is simply ignored. (Clearly it does not help when a trial involves over 120 witnesses testifying over nine months, as was the case with OJ Simpson.) Turning to individual witness examinations, at first sight there appears to be very little in the way of narrative discourse. Stygall (1994: 118) comments that the evidential phase of a trial is ‘anything but a narrative’ and Harris (2005: 220) claims that witness examination follows a paradigmatic mode. Heffer (2005: 95–​102) provides empirical support for these claims. Defining a minimal narrative response, after Labov and Waletzky (1967), as one in which reversing the order of two narrative clauses will lead to a different interpretation (e.g. He fell in the pond so had a whisky v. He had a whisky so fell in the pond), he found that in examination-​in-​chief, where the story is meant to be elicited, only 15% of complainants’ turns, 14% of defendants’ turns, 12% of other lay witnesses’ turns, 6% of police officers’ turns and 3% of experts’ turns were minimally narrative (Heffer 2005: 116–​ 117). The figures justify a distinction between ‘narrative’ (complainant, defendant, other lay) and ‘support’ (police, expert) witnesses, but the narrative contributions of ‘narrative’ witnesses appear relatively few. These figures, though, do not tell the full story. In the first place, narrative turns tend to be longer than the mean witness turn length in examination-​in-​chief of approximately 13 words (Heffer 2005: 99), and they tend to be more salient. The following extract is from the examination-​in-​chief of the lead narrative witness in a dangerous driving and assault case (the turn numbers are from the beginning of the examination): 23

Q.

24

A.

… whilst you were riding along the road, both you and Miss Walters on your horses, what happened around about noon? We heard a car approaching from behind on this road. Because it was a very narrow road, we decided to trot up to get to the corner shown in photograph No.1 to let the vehicle get past. He was impatient. He came up behind us. He started honking his horn and shouting abuse at us.

In this simple exchange, we find the three central elements of narrative discourse in criminal trials as already found in the opening statements:  orientation summed up in the barrister’s question; a core narrative conveyed through a causally connected series of events relating to the crime –​(we) heard … decided, (he) came up … started (honking); and a set of evaluative clauses (Point) and clausal elements (evaluation) which together allocate blame to the defendant: it was a very narrow road … he was impatient … honking his horn and shouting abuse. This minimal witness story demonstrates another point about the degree of narrativity in witness examinations: while only 12–​15% of ‘narrative witness’ turns provide core narrative, as here, narrative turns are often followed by a long sequence of turns teasing out the orientation, evaluation and Point in more detail, before returning to the core narrative. When considered in this way, Heffer (2005), Harris (2005) and Gibbons (2003) have found that almost entire direct examinations can be seen as following a Labovian-​ style story structure. 200

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A third point which makes these figures deceptive is that at least some of the core narrative is provided by the lawyers themselves in their own turns. Coulthard et  al. (2017: 84–​85) note that of the first 19 questions put to the accused, Dr Shipman, by his defence counsel, 15 required only confirmation responses. Many of these provide core narrative of Shipman’s life: 5 6 7

Q. A. Q.

8 9

A. Q.

10

A.

Dr Shipman, you were born on the 14th January 1946 in Nottingham? That’s correct. You grew up in the area, went to school in the area and thereafter went to Leeds Medical School? That is also correct. From there you studied medicine and qualified, obtaining your primary medical qualification in 1970? That’s correct.

Similarly, trial lawyers often repeat or reformulate a core narrative element the witness has just related in order to mark it as salient for the jury and to encourage them to infer the probative Point: 95 96 97 98

Q. A. Q. A.

… Did he get past you? … he forced us into the hedge so he could get past. He forced you into the hedge so he could get past? Yes.

In terms of the turn-​by-​turn mechanics of narrative construction, early work on lawyers’ questions to witnesses tended to assume a direct relation between question form and degree of control over the answers given. Thus ‘Wh-​’ questions were assumed to be open-​ ended and thus invite narration; polar (Yes/​No) and either-​or questions were considered restricting; and pseudo-​declaratives and tag questions were judged to be coercive. Later work (e.g. Maley and Fahey 1991; Heffer 2005: 110–​117) showed that question form in itself is not particularly indicative of function. For example, polar questions, as in ‘Did he get past you?’ above, are often taken as requests for narration while pseudo-​declaratives, as in the Shipman examination, are not usually coercive when used in direct examination. Maley and Fahey (1991) distinguish instead between information-​seeking and confirmation-​seeking questions. Heffer (2005: 110–​114) distinguishes two different types of information-​seeking ‘requests’:  requests for narration and requests for specification. Requests for narration are linked to a set of grammatical and lexical ‘narrative cues’, such as Wh-​questions with the verbs ‘happen’, ‘do’ and ‘tell’ (e.g. ‘What happened then?’) and polar questions with the verbs ‘do’ and ‘say’ and indefinite pronouns like ‘anything’ (e.g. ‘Did he say anything to you?’). However, narrative cues are by no means always taken up since uptake depends considerably on individual witness style. Running against the tide of narrativity in witness examination are the rules of evidence, the mismatch between the witness and lawyer stories, the testimony style of some witnesses and the dialectic structure of witness examination itself. The rules of evidence mean that the witness is constrained in terms of telling her own story. In particular, hearsay and speculation, which are staples of everyday narrative, are (in principle at least) excluded from court (Keane and McKeown 2020). The rules are applied, though, at the discretion of the judge, whose primary concern is often to speed 201

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up proceedings. This explains why leading questions, which are technically excluded from examination-​in-​chief, are actually common in the initial phases of examination, as can be seen in the case of Harold Shipman above, when the events are not in dispute. The constraints on witness narration are more strategic than regulatory and derive in part from a mismatch between the stories the witness and lawyer want and need to tell. The forensic narrator of the crime story to the jury is the trial lawyer. Witness examinations are like passages of dialogue in novels, except that the lawyer has less control than the novelist over what their ‘characters’ will say. When examining their own witnesses, lawyers face a trade-​off between allowing them to narrate ‘naturally, spontaneously and conversationally’ to enhance trust (Stone 2009: 116) and taking them through their evidence ‘by tightly framed questions, in small steps’ to ensure that the story that emerges is legally adequate and effective in terms of the overall goal of securing guilt or innocence (Stone 2009: 115). While the question–​answer (Q/​A) format is generally considered to be the primary anti-​narrative element of witness examination (e.g. Stygall 1994, Cotterill 2003), it can also be seen as precisely the feature which permits the lawyer to construct their crime story by maintaining control over topic. The testimony style of some witnesses can also provide an obstacle to narration. The Duke Language and Law Programme in the 1970s identified both ‘powerless’ v. ‘powerful’ and ‘narrative’ v. ‘fragmented’ styles of testifying (O’Barr 1982). ‘Powerless’ witnesses, by contrast with ‘powerful’ ones, used such features as hedging, hesitation, intensification, mitigation and honorifics. A witness with a ‘narrative’ style, like the one from the driving case above, will take non-​narrative requests as an opportunity to provide further narrative detail such as an evaluative explanation: Q. A.

What speed were you going on the horses? We were trotting so we could get to the corner as quickly as we could to let the car come past.

A witness with a ‘fragmented’ style, on the other hand, would offer minimal responses and require several exchanges to convey the same information as that above: Q. A. Q. A. Q. A.

What speed were you going on the horses? We were trotting. Why were you trotting? So we could get to the corner as quickly as we could. Why did you want to do that? To let the car come past.

O’Barr’s team found that mock jurors rated powerless witnesses and those with a fragmented style as very significantly less convincing, truthful, competent, intelligent and trustworthy than ‘powerful’ and ‘narrative’ witnesses. However, the lawyer’s folk perception of powerlessness or enunciative weakness in a witness is also likely to influence the degree of control she exercises over that witness. Consequently, a perceived need to control the witness tightly will, in turn, tend to lead to a ‘fragmented’ style from the witness, who will tend to accommodate to the style of friendly counsel. Finally, the dialectic structure of witness examination can also disrupt the narrative flow in a number of ways. Objections by opposing counsel (for example for leading the witness or calling for speculation) can interrupt a line of narrative questioning. Such objections are fairly rare in English courts (Heffer 2005: 82–​84) but appear common in 202

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major US trials (Cotterill 2003:  95–​97). More importantly, lawyers questioning ‘their’ witnesses need to anticipate cross-​examination, as advocacy manuals constantly remind them (Stone 2009). Overall, then, examination-​in-​chief of ‘narrative’ witnesses can be seen as a type of witness-​mediated narration with distinctive forensic features.

Cross-​examination and character navigation Once the examination of the witness is complete, the opposing side will generally (but by no means always) cross-​examine that witness. From a narrative perspective, there are three objects to cross-​examination:  to dismantle the story co-​constructed during direct examination; to present alternative versions of the facts; and, perhaps most importantly, to navigate the identities of the key characters in the story. Lawyers are able to narrate against the witness because they wield power in the turn-​ taking process (e.g. Stygall 1994; Matoesian 2001; Cotterill 2003; Eades 2008). In the first place, they can control to some extent the nature of the witness’s answers through the question form. Although, as we have seen with regard to direct examination, there is no direct correlation between question form and coerciveness, a preponderance of confirmation-​seeking questions will clearly convey the message to the witness that this is no opportunity for free narration. Heffer (2005: 122) found that 44% of 24,000 ‘questions’ from 126 cross-​ examinations were confirmation-​ seeking declarative statements (‘You went there to have sexual intercourse’) or tag questions (‘You raped her that night, did you not?’), compared with 12% in examination-​in-​chief. A large proportion of the other questions were polar, which, in the general coercive context of cross-​examination, would also probably be interpreted as confirmation-​seeking. Given that cross-​examiners control the turn-​taking process, they can use silence and interruption strategically. Matoesian (1993) notes that a silence following the question, along with an emphatic restatement of the question, can suggest to the jury that the witness is unwilling to answer the question rather than just taking their time to do so: Q.

Then they’re not in substantially the same condition, are they? (2.5) ARE THEY?

(Matoesian 1993: 144)

Gibbons (2003:  112) describes attempts to dismantle the recently constructed witness narrative as ‘idea targeted’ pragmatic strategies that target the veracity of the tale itself. Cross-​examination is also a key site for character navigation. The cross-​examiner will directly target the witness’s identity and particularly their identity as a reliable narrator. The identity-​targeting techniques used are described by Gibbons as ‘person targeted’ pragmatic strategies and include: reducing the status of the (particularly expert) witness; using forms of address to depersonalise the witness; using personal pronouns to create distance or proximity; and identifying contradictory statements (Gibbons 2003: 113–​114). One identity-​targeting strategy is the evaluative use of deictic forms. Heffer (2005: 141–​ 150) notes the ‘evaluative pointing’ that can occur through strategic choices of tense, pronouns and demonstrative forms in counsel’s metadiscursive comments on the witness’s narration. For example, the form ‘you are telling the/​this jury’ is frequently found in the immediate context of words doubting or denying the truth of what the witness has been 203

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saying. The act of telling is put on stage through the use of the progressive aspect and the marked selection of ‘the/​this jury’ explicitly invokes the jurors’ decision-​making task (Heffer 2005: 145). Rosulek (2015) and Chaemsaithong (2019) also found that the way social actors are nominated (e.g. ‘Susie’, ‘Mrs Jones’, the defendant) and the way they are categorized (e.g. ‘good father’, ‘liar’) can be highly strategic in court. In addition to disrupting and destabilising, cross-​examiners can also narrate alternative stories despite, rather than through, the witness. Wagenaar et al. (1993: 58–​60) suggest this might be a more effective strategy than attacking the strength of the prosecution evidence even if, logically, all the defence need to do is prove reasonable doubt. In England and Wales, cross-​examiners can use the excuse that they need to put their case to the witness, if they want to claim that the witness is lying (Keane and McKeown 2020). Counsel often use the metalinguistic markers ‘I put to you’ and ‘I suggest’ to mark this formally, though this is not strictly necessary: Q.

Let me try again. I am suggesting that you knew perfectly well that King in October began to name Jacobs as one of his attackers. Do you follow what I am putting to you?

Heffer (2005: 141) suggests that with ‘put to’ counsel is primarily addressing and attempting to intimidate the witness, while with ‘suggest’ they are addressing primarily the jury with the intention of presenting an alternative account of events. Thus, we see the two main functions of cross-​examination coming together in these two eminently advocatory metalinguistic markers.

Closing arguments, the trial story and character navigation Once all the evidence has been elicited from witnesses and tested in cross-​examination, the trial lawyers put their overall argument to the jury. At one level, closing arguments, often considered by trial lawyers as their main performance event in the trial, provide an opportunity for a reiteration of the crime story in the opening statements. However, the crime story now tends to be viewed through the ‘story of the trial’ (Jackson 1988). In other words, the crime and investigation stories are viewed through the evidence of the witnesses that gave testimony during the trial. Both parties accept that the plausibility of their stories will depend on the perceived credibility of their witnesses, so paramount to winning their case is character navigation and particularly persuading the jury of the respective reliability and unreliability of the narrators. Hobbs (2003) points out that the jury’s impression of counsel, the protagonists in the story of the trial, is also crucially important and that managing that impression is a key rhetorical strategy in a US prosecutor’s rebuttal argument (one delivered after the defence closing in some US jurisdictions). No case can present an entirely coherent narrative since there will always be gaps of one sort or another in the evidence. Closing arguments are often, then, about those narrative gaps. Interestingly, lawyers frequently approach these verbal gaps with visual metaphors. They often emphasise through lexical repetition that another version of the crime story is merely a false ‘picture’ or ‘impression’ that the opposing party is trying to convey (Heffer 2005:  86). Cotterill (2003:  208–​217) shows how the prosecution and defence in the OJ Simpson trial both use the ‘jigsaw puzzle’ metaphor to argue their respective cases. While the jigsaw is visually effective, it does have the weakness that there are always missing 204

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pieces of evidence. Consequently, prosecutor Marcia Clark attempts to persuade the jury, in anticipation of the defence closings, that those pieces are peripheral to the central picture (2003: 216–​217): You miss a couple of pieces of the sky sometimes, you do lose those pieces, no big deal. You’ve got the picture … you’ve got all the necessary pieces of the puzzle … On the other hand, the defence note that ‘the prosecution took a photograph or picture of OJ Simpson first, then they took the pieces apart’ (2003: 218), essentially accusing the prosecution of finding the evidence to fit the picture. In many respects, though, the closing arguments are not centrally concerned with the construction and evaluation of narrative, but rather attempt to bridge the gap between storytelling and the legal categories to which the jury will soon have to fit the evidence.

Jury instruction and narrativization In their closing speeches, counsel for the prosecution and defence will show the jury how their evidence is linked with the legal charges, but they will do so in an overtly partisan fashion, giving weight only to those elements which support their own case and employing a full armoury of persuasive rhetoric (Cotterill 2003: 199–​219). The only chance the jury have, then, of receiving non-​partisan guidance on how to decide the case is through the judge during his final ‘charge’ or ‘summing-​up’ to the jury (Figure 13.1). In most US jurisdictions, the judge is allowed only to guide the jury on the law in a set of, usually prescribed and written, jury instructions. Generally, these are written in fairly technical and formal legal language and are poorly understood (see Tiersma, Chapter 17, this volume). But even if they are understood, no help is given on how to apply these abstract definitions of law to the particular facts of the case. In British Commonwealth jurisdictions, on the other hand, judges tend both to instruct the jury on the law with more discretion over wording and to review the evidence presented in the case in light of that law. This introduces several opportunities for the narrativization of an otherwise highly paradigmatic genre. In the first place, given considerable discretion over wording, judges are able to accommodate the language of their instructions to the narrative sensibilities of the jury. In other words, the narrative mode of discourse can become strategic input into this otherwise highly paradigmatic genre, as Heffer (2005: 166–​180) showed with regard to 100 English judges’ directions on the burden and standard of proof. Secondly, some English judges narrativize their legal instructions by providing narrative examples of legal distinctions (Heffer 2005: 177–​180), such as that between knowing and believing that goods are stolen: If for example you were standing in Marks and Spencer’s and you watched a shoplifter steal and then ten minutes later you took the goods from the shoplifter you would receive them knowing that they were stolen. If on the other hand … The third, and perhaps principal, way in which narrative can enter into the judge’s summing up is in the review of the evidence, which is included to a greater or lesser extent in most Commonwealth jurisdictions. The review is meant to be as impartial as possible, and judges must present the defence case, however weak. Nevertheless, judges are 205

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permitted to comment on both the weight of the evidence and the credibility and plausibility of witnesses. Henning (1999) analysed the summings-​up by different judges of the hung trial and retrial (resulting in conviction) of the same rape and assault case in Tasmania. She argues that the first trial judge’s attempt to provide a ‘neutral account’ simply results in confusion because it fails to flag up the truly salient issues in the case. The second judge provides much more assistance in ‘reading’ the case, and instead of a bare chronicle of the facts, provides something much more like an evaluated narrative. In the following extract, the defendant’s arrival at the house where the assault took place is, unlike in the first trial, described clearly from the complainant’s perspective. Well then the next question you might need to consider is why did he come down from Y on the 31st July. You might think, and I’ll read her evidence in detail later, you might think that she obviously thought that it was to harm her, having regard to the reaction she said (sic, had) when she saw him at the door unannounced, unexpected on a dark and wintry night, raining cats and dogs, holding a rifle and having shouted through the door before he came in. I’ll remind you of that evidence in detail, as I say, later. So, she obviously thought he was there for no good purpose. The text has a great deal of internal evaluation, including intensification and emphatic repetition (‘she obviously thought’), allusive clichés (‘on a dark and wintry night…’) and colloquialisms (‘there for no good purpose’). The judge’s comment on the complainant’s thought processes is formally attributed to the jurors through the standard judicial formula ‘you might think’ (Heffer 2005:  200–​201; Henning 1999:  209) but use of the comment adjunct obviously normalizes the comment, bringing it into conformity with a standard of expectation of normal behaviour (i.e. a standard plot or script) (Heffer 2005: 190). Henning (1999:  212–​213), though, argues that, rather than offering the ‘chimera of neutrality’, this narrative approach provides a ‘balanced’ review which reflects the relative strengths and weaknesses of the case and guides jurors towards the legally relevant issues. This might prevent them being swayed by the type of affective evaluation we saw in the prosecutor’s opening address in the Marv Albert trial, and which is the stock in trade of the advocate’s art in closing speeches. At the same time, there is a very fine line between active assistance and undue influence.

Jury deliberation, emplotment and narrative decision-​making Once the jury go out to deliberate, we have evidence in various forms that they reason in a narrative fashion. Firstly, experimental psychological evidence suggests that jurors do not weigh up the probability of each individual piece of evidence being true (as mathematical models suggest), but attempt to fit that evidence into narratives which they then judge as plausible or implausible. According to the Story Model (Pennington and Hastie 1991), jurors integrate the trial evidence with their pre-​existing scripts for event sequences similar to those in dispute and their generic expectations about what makes a coherent story. Generally, the adversarial nature of trial cases will ensure that more than one story is constructed and jurors might have different levels of confidence in those variants. The

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acceptability of a story is determined by its coverage and coherence, while its relative uniqueness contributes to a juror’s confidence in the story. Cotterill (2003:  223) provides an example of how jurors in the OJ Simpson trial integrated the trial evidence with their pre-​existing narrative scripts. One of the jurors re-​ enacts the version of the investigation story produced by one of the officers: you go into the house and you spotted blood prior to going into the house. So you scaled the wall and now you get into the backyard and get Arnelle to let you into the house. No one ever goes upstairs. No one ever searches the house. … It doesn’t make sense. Cotterill notes how the use of the historic present, reminiscent of the prosecution opening in the Marv Albert trial, both brings the audience closer to the crime events and evaluates the officer’s actions as a potential habitual action, thus measuring ‘the typicality and by implication the plausibility of the officer’s behaviour against a media-​created schema of what police officers are meant to do at crime scenes’ (2003: 223–​224). Hastie and Pennington (1996) apply their Story Model to jury decision-​making in the OJ Simpson trial. They note that while the prosecution always presented a single, linear crime story, the defence presented a number of alternate stories. Two of these stories –​the police ‘rush to judgment’ story and the ‘bungling criminal investigators’ story (1996: 966–​ 967) –​undermined central elements (and thus the uniqueness) of the prosecution story, thereby reducing juror confidence. The defence also successfully flagged up inconsistencies in the prosecution evidence, thereby further undermining the coherence of the prosecution story. Thus, contrary to the ‘popular view’ that jurors’ decisions in the OJ case were merely ‘reflexive reactions evoked by “prejudice triggers” in the evidence’ (e.g. ‘Simpson is a black man who beat his white wife’, or, ‘Simpson overcame a disadvantaged background to become successful in a racist society’), Hastie and Pennington (1996: 969) hypothesize on the basis of the jurors’ own remarks that ‘most of the jurors’ decisions were arrived at primarily through their inferences from the evidence (mediated by the construction of a “story summary”)’.

Sentencing and beyond: a moral coda The verdict, like the original plea, is mostly delivered as a purely paradigmatic choice between ‘guilty’ and ‘not guilty’. However, once the verdict is in and guilt (or innocence) has been established, the constraints imposed by the ‘law of narrative’ on emplotment, narrative scope and narration are loosened. Firstly, counsels’ submissions on aggravating and mitigating circumstances broaden the scope of the narrative to include elements previously excluded such as the defendant’s criminal record and family circumstances. Then the judge, in their sentencing remarks, broadens the scope of the story further by fitting the defendant’s individual conduct within a more general moral sanction against certain behaviour in society. Thus, the behaviour of the defendant in the dangerous driving case cited several times in this overview is, for the first time, described in lay terms as ‘road rage’, which in turn is described as a general negative trend in society. Finally, the constraints on the evaluative dimension of narrative are lifted and the verbal intensity of judgement appears to be calibrated with the severity of the crime and the length of

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the sentence handed down. The sentencing of Dr Harold Shipman, for example, is quite unlike any other form of legal text in terms of its evaluative intensity: The time has now come for me to pass sentence upon you for these wicked, wicked crimes. Each of your victims was your patient. You murdered each and every one of your victims by a calculated and cold blooded perversion of your medical skills. For your own evil and wicked purposes you took advantage of and grossly abused the trust that each of your victims reposed in you. … The sheer wickedness of what you have done defies description and is shocking beyond belief. (Shipman Trial, Day 58) In short, the violence of punishment that the words of sentencing represent needs to be motivated with more than a purely referential factual account of the crime events.

Conclusion This chapter has aimed to provide a taste of some of the complex issues involved in the construction of stories in court. In particular, it has stressed the multitude of ways in which narrativity of one form or another can emerge in the trial context through its various hybrid genres. I have focused in this overview on describing how and why narrative is constructed in the trial, since I believe it is important to understand the ordinary mechanics of trial communication before going on to critique it. Much work in this area has suffered from a merely partial understanding of the trial context, and new readers need to be wary. At the same time, there is now a rich body of sociocritical work on the various forms of narrative inequality that can emerge in the trial. I would point readers, for example, to Ehrlich (2001, 2013) and Matoesian (1993, 2001) on the suppression of rape complainants’ narratives and to Eades (2008) on the narrative disadvantage of Aboriginal witnesses. I have no more than hinted here at the major cross-​trial and cross-​jurisdictional differences in the degree that narrative is allowed to emerge in the various trial genres. I have also ignored for the most part the historical emergence of those genres. However, both diachronic and diatypic variation can tell us a great deal about the tension between narrativity and anti-​narrativity, and this is an area ripe for study. Narrative, in all its manifestations, remains ‘in issue’ throughout the trial, since there is a constant tension between the narrative propensity of the crime events and the legal desire to subject those narratives to scientific verification. Or, as Gewirtz (1996) simply puts it, ‘Law is all about human life, yet struggles to keep life at bay’.

Note 1 Not all jurisdictions follow this structure. For example, some US jurisdictions have final jury instructions before the closing arguments. I  have tried to incorporate many jurisdictional differences by giving my own labels to the genres rather than the extremely diverse legal-​ professional labels.

Further reading Full details of all items are in the References.

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Cotterill 2003 and Heffer 2005 still remain the most detailed accounts of language, including the construction of narrative, in jury trial. Heffer 2012 explains how narrative can be central to the trial despite the comparative lack of narrative discourse. Ehrlich 2013 shows the insidious effect of rape scripts on the outcome of non-​stereotypical rape trials. Chaemsaithong 2019 is an example of a strongly empirical approach to courtroom narrative. Eades 2008 demonstrates how voices can be silenced in the construction of courtroom narrative. See also Chaemsaithong, Chapter 14, in this volume.

References Bamberg, M. (2011) ‘Narrative practice and identity navigation’, in J.A. Holstein and J.F. Gubrium (eds), Varieties of Narrative Analysis, London: Sage, 99–​124. Blommaert, J. (2008) Grassroots Literacy:  Writing, Identity and Voice in Central Africa, London: Routledge. Brooks, P. (1996) ‘The law as narrative and rhetoric’, in P. Brooks and P. Gewirtz (eds), Law’s Stories: Narrative and Rhetoric in the Law, New Haven: Yale University Press, 14–​22. Bruner, J. (1990) Acts of Meaning, Harvard: Harvard University Press. Chaemsaithong, K. (2019) ‘Deconstructing competing courtroom narratives:  Representation of social actors’, Social Semiotics, 29(2): 240–​260. Conley, J.M. and O’Barr, W.M. (1990) Rules versus Relationships:  The Ethnography of Legal Discourse, Chicago: University of Chicago Press. Cotterill, J. (2003) Language and Power in Court: A Linguistic Analysis of the O.J. Simpson Trial, Basingstoke: Palgrave. Coulthard, M., Johnson, A. and Wright, D. (2017) An Introduction to Forensic Linguistics: Language in Evidence, 2nd edn, Oxford: Routledge. Eades, D. (2008) Courtroom Talk and Neocolonial Control, New York: Mouton de Gruyter. Ehrlich, S. (2001) Representing Rape: Language and Sexual Consent, London: Routledge. —​ —​ —​(2013) ‘Post-​ penetration rape and the decontextualization of witness testimony’, in C. Heffer, F. Rock and J.M. Conley (eds), Legal-​Lay Communication: Textual Travels in the Law, New York: Oxford University Press, 189–​205. Gewirtz, P. (1996) ‘Victims and voyeurs: Two narrative problems at the criminal trial’, in P. Brooks and P. Gewirtz (eds), Law’s Stories:  Narrative and Rhetoric in the Law, New Haven:  Yale University Press, 135–​161. Gibbons, J. (2003) Forensic Linguistics: An Introduction to Language in the Justice System, Malden, Mass.; Oxford: Blackwell. Griffin, L.K. (2013) ‘Narrative, truth, and trial’, Georgetown Law Journal, 101: 281–​335. Harris, S. (2005) ‘Telling stories and giving evidence:  The hybridisation of narrative and non-​ narrative modes of discourse in a sexual assault trial’, in J. Thornborrow and J. Coates (eds), The Sociolinguistics of Narrative, Amsterdam: Benjamins, 215–​237. Hastie, R. and Pennington, N. (1996) ‘The O.J. Simpson stories: Behavioral scientists’ reflections on The People of the State of California v. Orenthal James Simpson’, University of Colorado Law Review, 67: 957–​976. Heffer, C. (2005) The Language of Jury Trial, Basingstoke: Palgrave Macmillan. —​—​—​(2012) ‘Narrative navigation: Narrative practices in forensic discourse’, Narrative Inquiry, 22(2): 267–​286. —​—​—​(2017) ‘When voices fail to carry: Voice Projection and the case of the “dumb” jury’, in J. Leung and A. Durant (eds), Meaning and Power in the Language of Law, Cambridge: Cambridge University Press, 207–​235. Henning, T. (1999) ‘Judicial summation: The trial judge’s version of the facts or the chimera of neutrality’, International Journal for the Semiotics of Law, 12: 171–​213. Hobbs, P. (2003) ‘“Is that what we’re here about?”: A lawyer’s use of impression management in a closing argument at trial’, Discourse & Society, 14(3): 273–​290. Jackson, B.S. (1988) Law, Fact and Narrative Coherence, Liverpool: Deborah Charles Publications.

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Keane, A. and McKeown, P. (2020) The Modern Law of Evidence, 13th edn, Oxford:  Oxford University Press. Labov, W. and Waletzky, J. (1967) ‘Narrative analysis:  Oral versions of personal experience’, in J.  Helms (ed.), Essays on the Verbal and Visual Arts:  Proceedings of the 1996 Annual Spring Meeting of the American Ethnological Society, Seattle: University of Washington Press, 12–​44. Maley, Y. and Fahey, R. (1991) ‘Presenting the evidence:  Constructions of reality in court’, International Journal for the Semiotics of Law, 4(10): 3–​17. Matoesian, G. (1993) Reproducing Rape: Domination through Talk in the Courtroom, Cambridge: Polity Press. —​—​—​ (2001) Law and the Language of Identity:  Discourse in the William Kennedy Smith Rape Trial, Oxford: Oxford University Press. O’Barr, W.M. (1982) Linguistic Evidence:  Language, Power and Strategy in the Courtroom, New York: Academic Press. Pennington, N. and Hastie, R. (1991) ‘A cognitive theory of juror decision making: The story model’, Cardozo Law Review, 13: 519–​557. Rosulek, L. (2015) Dueling Discourses:  The Construction of Reality in Closing Arguments, Oxford: Oxford University Press. Smith, V.L. (1991) ‘Prototypes in the courtroom: Lay representations of legal concepts’, Journal of Personality and Social Psychology, 61: 857–​872. Snedaker, K. (1991) ‘Storytelling in opening statements: Framing the argumentation of the trial’, in D. Papke (ed.), Narrative and the Legal Discourse, Liverpool: Deborah Charles: 132–​157. Stone, M. (2009) Cross-​Examination in Criminal Trials, 3rd edn, London: Butterworths. Stygall, G. (1994) Trial Language:  Differential Discourse Processing and Discourse Formations, Amsterdam: John Benjamins. Wagenaar, W.A., van Koppen, P.J. and Crombag, H.F.M. (1993) Anchored Narratives:  The Psychology of Criminal Evidence, Hemel Hempstead: Harvester Wheatsheaf.

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14 Advances in studies of the historical courtroom (Con)Textual, ideational and interpersonal dimensions Krisda Chaemsaithong

Introduction Viewing language use as functional, social and dynamic with preceding and succeeding bodies of discourse, this chapter takes a historical approach to courtroom interaction and explores recent advances in the linguistic analysis of the discursive practices in early courtrooms. Specifically, three major dimensions of the historical courtroom are discussed: (con)textual, ideational and interactional. The (con)textual dimension situates the field of historical courtroom studies and provides a brief introduction to the data and resources available as well as promising analytical approaches. The ideational dimension captures how the propositional content of trial talk is created through different ways of representation of social actors, actions and events, whereas the interactional dimension deals with relational management and interpersonal negotiation between courtroom participants. These aspects are subsequently scrutinized with respect to early opening statements, a currently undertheorized sub-​genre of legal talk that is particularly suitable for diachronic investigation not only because of its potential impact on the outcome of a trial (Pyszczynski et al. 1981; Spiecker and Worthington 2003) but, first and foremost, because it constitutes a major change in trial procedures that came with the rise of public prosecution and the use of defense counsel during the 18th century. Rather than attempting to cover all the linguistic studies on historical courtroom discourse, this chapter mostly includes relatively recent scholarship dating from 2010, when the first edition of this Handbook was compiled, although earlier studies will be referred to where relevant as well.

(Con)Textual dimension While, from a synchronic perspective, the notion of ‘courtroom’ (along with, what counts as courtroom discourse or trial talk) appears straightforward, this very notion 211

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varies greatly across cultures and time. It is debatable, for instance, whether the currently-​used terms ‘trial’ and ‘courtroom’ can describe the proceedings of the Salem witchcraft examinations held in taverns or in the meeting house used for Puritan church services. To name but a few reasons, all the judges in these examinations were linked by their offices, business connections and kinship. Extant records also show that the proceedings were carefully stage-​managed by the judges to gain the guilty verdicts they fully expected, examinations were designed to gain confessions and the judges intervened directly, acting like prosecuting attorneys (Archer 2007: 190), when in fact an essential characteristic of a trial in the modern sense is the principle that independence must be maintained; that is, there must be no bias in the tribunal which decides the issue (Jaconelli 2003: 28). Adopting more fluid notions of courtroom and trial, research into courtroom practices of the past prioritizes functional aspects of language use and the legal consequences of the discursive events, and conceptualizes courtroom discourse or trial talk as public, face-​ to-​face verbal interaction between individuals in a forensic setting, aimed to adjudicate a particular dispute and arrive at a determination by the application of the law to the facts, be it a criminal, civil, military or ecclesiastical matter. One issue that presents a challenge to the study of the historical courtroom concerns the nature of the data and data sources. Records of courtroom interactions exist in various formats, including manuscripts, early and later imprints, facsimiles, reprints, text editions and electronic corpora, such as the Old Bailey Corpus. Available sources as well as their strengths and weaknesses are discussed in Archer (2007, 2010, 2012, 2013). Note that such historical records are all written sources, and this means that analysts need to rely on written data as legitimate representations of past courtroom discursive practices. As scholars have pointed out (e.g. Kyto and Walker 2003; Archer 2007; Grund 2007), it must be borne in mind that these texts are subject to interference in their production process, whether intended or not. Courtroom interactions were recorded in shorthand or as written notes by scribes, and these notes would then be expanded into texts at the printer’s office, before proofreading and typesetting by the publisher. At any of these stages, alterations to the original spoken texts could be introduced into the texts. What the above issues mean to analysts is the need for careful text selection and the importance of taking into account the context as well as the production process of the texts under study. If possible, comparison between different formats should be performed, as Grund (2007) does. An example of a well-​designed corpus is Cecconi (2012). Based on 33 English trials dating from 1616 to 1693, the corpus features 18 trials from the Corpus of English Dialogues, nine from the State Trials, and six from the Old Bailey Proceedings, with the purpose of balancing the sources and the quality and quantity of the data. Another possible approach is to first pin down the sociocultural factors or linguistic features to be investigated and then select a data set that meets such criteria. For example, as speech reporting constitutes a critical feature when the medical insanity defense was at its peak during the Victorian era, Johnson (2015) compiles the Monomania Corpus and examines the functions of speech reporting therein. In some cases, analysts may need to be more open and think of the language of the courtroom as the language of the recorders, rather than of the trial participants. Having discussed the (con)textual aspects of the historical courtroom, I move on to provide a survey of recent research into the historical courtroom.

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Recent discoveries in historical courtroom discourse Recent research into the historical courtroom falls under two main foci. One strand of studies examines the ideational content of the discursive practices, that is, strategies that participants use to create and shape versions of reality, ranging from questions, questioning and answers (Archer 2005; Kahlas-​ Tarkka 2012; Kryk-​ Kastovsky 2018; Johnson 2018); stance-​taking and evaluation (Chaemsaithong 2014; Claridge 2019); and discourse markers (Cecconi 2012; Claridge 2018) to speech reporting practices (Cecconi 2012; Johnson 2015). The other strand devotes more attention to interpersonal aspects, regarding interpersonal negotiation as important as what is included in the propositional content. Issues have been investigated that are concerned with (im)politeness (Kryk-​Kastovsky 2010; Cecconi 2012; Archer 2014), identity construction/​ ascription and impression management (Chaemsaithong 2011, 2012a, 2012b; Archer 2018) and dialogic features (Chaemsaithong 2018). Each of the strands above will be discussed in detail with illustrative examples below.

Ideational dimension Several studies seek to reveal what information is included in trial talk to construct persuasive courtroom narratives. At the word level, Claridge (2019) examines the construction of drunkenness as a cause, aggravation or mitigating factor in the Victorian courtroom, when intoxication was heavily intertwined with responsibility and culpability in criminal proceedings. The researcher shows that judges, lawyers and witnesses use expressions for drunkenness, often with amplification or down-​toning, for second and third person targets, whereas victims and defendants use such linguistic strategies most in their self-​ descriptions to diminish their responsibility and mitigate the offence charge. This is exemplified in (1), where the victim takes over the word choice of the questioner but lessens the degree of the charge. (1) Court: Ford [victim]:

You say you was drunk, are you sure you dropp’d none of it in the street? Yes, I was drunk, that’s true; but not so drunk as that comes to neither. (Claridge 2019: 279)

From a pragmatic perspective, Leitner (2017) compares the speech acts of cursing and threatening in 17th century Scottish witchcraft trials. Threats are found to be key witchcraft speech acts with different degrees of performativity, ranging from venting anger to harm-​causing. The most interesting finding is that prosecutors tend to readily accept alleged witches’ threats and the ensuing misfortune as sufficient proof of witchcraft, while defense lawyers emphasize that threats need to have a substantial motive to count as an act of malevolence. At the discourse level, scholars reveal power asymmetry and struggles between the powerful (examiners and lawyers) and powerless (e.g. defendants, witnesses, children and women) in terms of their discursive rights, at a time when the presumption of innocence and legal representation, whether for free or not, were not available (see Archer (2010) for legal legislation and roles of courtroom participants from the 17th to 19th century).

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Examiners, although not necessarily legal professionals, were in the position of deciding where to lead the discourse, and did exert considerable power by specific interrogative and other discursive patterns and strategies. One manifestation of power in language is the use of discourse markers, such as now. Examining users and functions of now in the Corpus of English Dialogues and the Old Bailey Corpus, Claridge (2018) finds that this discourse marker is overwhelmingly used by powerful speakers, including judges and lawyers. While lay persons use now to structure their answers and in direct-​speech reporting, lawyers and judges most prominently use now in the interaction with witnesses and defendants to introduce utterances that dominate and restrict the response of the addressee. This discourse marker can also highlight lawyers’ or judges’ dissatisfaction with and disalignment from what has been previously said. In (2), for example, now, along with the performative ‘warn,’ implies that the witness may be planning to produce inadequate statements, thereby wielding an accusatory force. (2)

Now, I warn you that you have sworn already that this girl was never out of your sight that evening from seven to eleven, above a quarter of an hour. (Claridge 2018: 236)

Perhaps the power to shape reality is most vividly manifested in relation to questioning strategies. Scholars have continued to explore strategic interrogation techniques, including coercive polar questions, questions with a restrictive focus, questions with presuppositions and implicatures, and overtly accusatory questions (Kryk-​Kastovsky 2010; Kahlas-​Tarkka and Rissanen 2011). Johnson (2018) studies the functions of a specific type of question, the negative grammatical wh-​question, which functions to wield higher control power for a preferred response than negative yes-​no questions and, interestingly, to construct victim identities in a biased and stereotypical way. Based on a group of 18th century child rape trials, collected from the Old Bailey Proceedings, it is found that the most frequent questions appear to be ‘How came you not to cry out?,’ ‘Why did you not complain/​cry out?,’ and ‘Why did not you tell your mother?’ When put to a complainant, these negative wh-​questions contain an accusatory presupposition that the victim could or should have shouted for help, while asking for an explanation of the reason for not doing so. They can additionally signal a speaker’s surprise or conflict with the presupposition lodged therein. As a result, instead of being about what the defendant did, the trials become more about what the victims did not do and about constructing the victims as passive and acquiescent. In a more critical vein, these negative questions, when put to or asked of child complainants, reflect and perpetuate normative ideologies about what constitutes a rape: if there are no cries for help, then there is no rape, thereby transforming the alleged rape into a mutual or consensual act. Beyond questioning strategies, scholars have also explored the intertextual practice of speech reporting, where different voices are incorporated into a single stretch of discourse. It has been observed that the most prominent function of quoting is to establish and increase credibility by alignment and support, or by distancing. Johnson (2015) selects two Victorian trials from the Old Bailey Proceedings and explicates how speech reporting is instrumental in portraying the defendants as rational and sane individuals for the prosecution, but as mentally incapacitated persons who cannot distinguish right from wrong for the defense. Featuring insanity defenses, these cases employ extensive quotation and recontextualization of the original questioning of witnesses. As in (3), the prosecution re-​presents direct and indirect quotations from witnesses, culled from a series of events 214

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leading up to and after arrest and while in custody, to incriminate the defendant and evaluate him as culpable. In contrast, the defense in (4) uses a hypothetical voice to ask an expert witness to confirm and argue for the defendant’s inability to commit the offense due to his state of mind. (3)  Witness: [Defendant] presented a pistol at me, and said, ‘Your money, or your life’-​-​-​I told him I had got very little. (Johnson 2015: 379) (4)  Defense lawyer: Supposing an individual in apparent health exhibited great sleepiness... said he was converted and a child of God, called himself Dick Turpin...would you be prepared to say he was in a sound state of mind? (Johnson 2015: 384) Cecconi (2012) investigates the intrusion of the reporters into the trial materials with regard to the ways in which defendants are represented in high treason state trials. The researcher reveals that the accounts were all propaganda texts of a Royalist stance ‘intended to construct and promote consensus over the defendants through different forms of ventriloquy’ (Cecconi 2012:  217). The reporters’ presence can be seen in the use of evaluative lexis (e.g. ‘modestly,’ ‘boldly,’ and ‘learnedly’) to describe the defendants’ behaviors, thereby subtly guiding the reader how to think of the defendants, as in ‘The Lieutenant modestly answered, that if he stood in his place, he would perhaps crave the like favour…’ (Trial of Thomas Wentworth 1641 in Hargrave 1730: 16). To sum up, research with an ideational focus confirms that power asymmetry and struggle in the historical courtroom were embedded and manifested at different levels of discursive practices, which can be mobilized to negotiate the innocence or guilt of the defendant.

Interpersonal dimension In addition to the content of what is said, it has become quite firmly established that language use in the courtroom is not simply informative, argumentative or factual, but every successful case presentation must also display the examiner’s awareness of his audience and their needs. Locating trial participant relationships at the heart of a trial, this line of scholarship advocates that interpersonal negotiations and relational management between courtroom participants are as important as strategic presentation of arguments and evidence. For lawyers and judges as well as witnesses, the courtroom is the site where their professionalism is displayed before colleagues, clients and the public at large. Who the participants are to each other is not only an issue of social status and titles (such as judges, prosecutors, etc.) but also an outcome of the dynamics and negotiation of the interaction in the courtroom that entitles them to be treated as belonging to a particular social category and bestows upon them authority and credibility, while simultaneously positioning and ascribing specific identities to others. One group of studies uses pragmatic approaches to examine how (im)politeness functioned in the courtroom of the past. Based on two treason trials, Titus Oates in 1685 and Lady Alice Lisle in 1685, Kryk-​Kastovsky (2010) argues that in 17th century English courts, the use of direct speech acts or invectives were more explicitly marked, as compared to that in the present-​day court. This explicit power play can be seen to 215

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operate on different levels, including terms of address that range from deferential to downright offensive, depending on the social status of the addressees. It is argued that the two cases exhibit instances of impoliteness, threatening the face of the less powerful participants. However, viewing the courtroom as a site where aggressive facework is contextually legitimate and desirable without causing face attack, Cecconi (2012) and Archer (2014), making use of the Old Bailey Proceedings and other trials, contend that while cross-​examining lawyers exhibit what they call ‘linguistically aggressive behavior,’ such verbal aggression should not be viewed as impolite, as it is neither intentional nor incidental, involving no overt intent to harm. That is, their utterances fall into the strategic ambivalence zone when the lawyers expect to cause offense, but the primary purpose is by no means to threaten the face of the hearer, but rather to undermine counter narratives as part of their role. At the other extreme of verbal aggression is face enhancement or ‘impression management’ between different courtroom participants. Archer (2018) finds that judges use intimidation strategies to control the actions of the defendants or witness, or even resort to verbal aggression upon perceiving a threat to their own professional identity or as a means of rebuilding an external impression of strength. In contrast, those who lack power were observed to resort to ingratiation (enhancing the face of others) and supplication to maintain their own face, thereby convincing the judge that they were telling the truth. Studies have also shown evidence that courtroom participants in the past consistently framed their interaction as they spoke and, simultaneously, positioned others to achieve communicative goals. Underpinned by the assumption that arguments have to be presented in ways that judges or jurors find both credible and persuasive, these studies have examined the moment-by-​moment construction and ascription of self-​and other-​ identities, explicating the ways in which courtroom participants orchestrate and weave together a composite of projected selves and multiple alignments. Analyzing a homosexual rape trial in 18th century England, involving Captain Robert Jones who was indicted for feloniously making an assault on a 13-​year-​old minor ‘against the order of nature’ (i.e. sodomy), Chaemsaithong (2012a) explicates how, through sequential turns of questions and answers, participants strategically contextualize and frame the context of the rape and who they are in order to substantiate their legal arguments or offset oppositional arguments that otherwise would render the testimony inconsistent and invalid. The fact-​ findings in this trial center upon 1) whether or not the victim was consensual, 2) whether the defendant was homosexual, which was illegal at the time, and 3) whether the victim lied about the penetration. Different frames allow the participants to speak from certain perspectives (logical, moral and psychological) that are in line with their arguments. To illustrate, compare two polarized identities of the same defendant invoked during direct and cross-​examination in (5) and (6). (5) Direct examination Q: Was any body in the house besides? Victim: Yes. Q: How came you not to cry out? Victim: I was ashamed. [text omitted] Q: How came you to tell it now, when you kept it a secret so long. Victim: I thought I would tell of it all the while, but I was ashamed. 216

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In this portion of direct examination, the prosecutor anticipates and attempts to preempt the potential doubt that the alleged victim may have been coached to offer false testimony, and this issue is dealt with by framing the complainant as a psychologically traumatized victim. The first question is a topic-​bearing turn that lays the ground for the following questions. Upon obtaining a positive answer, the prosecutor is quick to ask for the reason why the witness does not cry for help, which would otherwise be a normative, rational move. Here the prosecutor judiciously addresses the logical-​ inferential parameters which govern the jurors’ interpretation of sodomy and, therefore, compensates for the absence of such a rational move through the child’s emotional response indicating shame. Subsequently, the prosecutor reformulates the claims so that the complainant repeats the fact that he experiences the feeling of shame and that he takes the right action by revealing the truth. This identity framing is in contrast to what we see in cross-​examination: (6) Cross-​examination Q: The mistress of the house saw you come in? Victim: Yes. Q: You said nothing I suppose to her? Victim: No. Q: Nor had no marks of having been crying or anything of that? Victim: No. Q: You did not callout, or cry out, did you? Victim: No. Q: You knew the woman of the house was below stairs, and if you did call, it would be heard? Victim: Yes. Unlike (5), the cross-​examining lawyer’s mode of operation is to put forward propositions for the witness to confirm or deny, instead of seeking informational responses from the victim. More interestingly, the lawyer develops the following logic:  1) if the victim knew there was someone downstairs from whom he could seek help, he should not have submitted to it quietly; 2) if the witness made a call, the woman would have heard it. As a result, when the questions are answered in the negative, the lawyer can call the victim’s character into question, creating an image of an irrational and illogical victim. Victims and witnesses are not the only group to engage in identity management and self/​other positioning. Expert witnesses, albeit equipped with such a social label, are also found to consistently negotiate professional identities so as to have their voices heard. Although expert witnesses have been present in the courtroom since the late medieval period, the growth and proliferation of the use of experts in areas such as medicine, law and engineering is a relatively recent phenomenon, dating back to about the end of 19th century as a result of two major factors: faith in science and the rise of universities and mass education system, both of which helped to legitimize the expert’s social prestige (Larson 1984). In the mid-​18th century there were no standards of training or competence, nor any means of controlling the numbers of those claiming to be physicians (e.g. board-​certification process or license granting bodies). As a result, a medical expert’s status was roughly at same level as that of druggists, folk-​practitioners, midwives or outright quacks, all of whom also provided healing to the sick (Hall 1984). Experts in 217

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the historical courtroom were consequently subject to skepticism and immense criticism from the public: ‘expert status was something which had to be tested and earned before cynicism could be overcome’ (Jones 1994: 55). What this means is that experts in the past could not rely on the fact that they had acquired certain training or apprenticeship or possessed special experience; instead, they needed to be involved in extensive discursive processes to construct and negotiate their expert identity with regard to who they were, what they knew and what they were capable of, so that they could make their opinions accepted in the eyes of skeptical trial participants. Chaemsaithong (2011, 2012b) reveals how expert witnesses in the historical courtroom call upon a range of interactional devices to appropriate the desired identities and social categories. It is found that when giving opinions and testimony, experts were involved in extensive conversation floor control. To appreciate the process of a medical identity construction, consider an excerpt from a case tried at the Court of Oyer and Terminer in Philadelphia in 1787, in which a 16-​year-​old African-​American slave, who, after being repeatedly raped, became pregnant and was tried for allegedly murdering her illegitimate child at birth. The defendant denied the charge and claimed that the baby was born dead. The pre-​natal state of the baby was of major significance in this trial, for which reason medical experts were summoned to testify. If the baby was already dead, it would be consistent with the claim that the defendant had been injured during work and that she did not kill it. On the other hand, if it could be established that the baby was not stillborn, the defendant would be guilty. (7) Cross-​examination Attorney General: Doctor, pray when did you see the child first? Dr Jones: The day after the inquest. Attorney General: If that is the case, it can have little to do with the subject. Dr Jones:  Why, Sir, an opinion is as well to be formed from the size of the child then, as at the first minute—​And I am convinced it was not a full grown child; for it was too small, and there was little hair on its head, not near so much as when an infant has come to its full time of birth. Attorney General:  But is not the mother a very little woman? Dr Jones:  No: she is not very little; she is about the middling size. Attorney General:  She is very young tho’? Dr Jones:  Her age, Mr Milne who brought her up said was seventeen, wanting 2 months. Attorney General: Is this a subject on which you can form an opinion perfectly satisfactory to yourself? Dr Jones:  Yes, Sir; and of which I have no doubt. In this cross-​examination, the expert’s attempts to explain the situation and give opinions are met with dispreferred responses from the prosecutor in every turn. To start with, after receiving Dr Jones’ straightforward answer on the time of his first encounter with the case, the prosecutor disqualifies Dr Jones’ testimony from the very outset. Although not raising a specific issue in the testimony itself, the prosecutor seeks to limit the overall validity of Dr Jones’s testimony by casting doubt on the time frame within which Dr Jones forms his opinion, implying that the surrounding evidentiary context may have already changed at that point. Resisting this impeachment, Dr Jones offers an extended response indicating

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professional disagreement, first by resorting to the rhetorical question ‘why,’ which carries an illocutionary force of dispute, and then presenting a direct counterargument, contending that his opinion is valid, regardless of when it is made, as it is based on the size of the child. To further substantiate his counterargument, Dr Jones goes so far as to expand his response to highlight his confidence in his opinion with the epistemic booster ‘I am convinced’ and to give an additional supporting reason regarding the amount of hair a full term baby should naturally have. This expanded response, however, meets with the prosecutor’s disagreeing move in the next turn in the form of a negative question, prefaced with the contrastive ‘but,’ which is aimed to imply that Dr Jones’ observation about the child’s small size, although accurate, could not be used as evidence of its pre-​natal death, for such a size would be expected of a mother who herself is also small. Again, Dr Jones answers with an expanded response, not only objecting to the question but also specifying the size of the mother. The prosecutor then proceeds to ask an (uninverted) declarative question, using a turn-​final contrastive ‘though’ to suggest a possible inconsistency in Dr Jones’ observation. In response, Dr Jones precisely informs him of her age with confidence. The attorney’s last attempt to damage Dr Jones’ testimony is quite direct, performed through a question that addresses the very reason of Dr Jones’s presence as an expert. In a situation where it is already known that Dr Jones is there because of his special knowledge, this question can be seen as marked, and thus the message therein becomes marked. In asking such a question, the attorney is in fact suggesting to the jury that Dr Jones’ expertise and credibility are questionable, instead of seeking specific information about Dr Jones’ qualification. As could be expected, Dr Jones stands resolute and unyielding, providing not only the confirmation but also modifying it with the highest degree of truth commitment: ‘of which I have no doubt.’ In sum, interpersonal management appears to be an integral part of the historical courtroom, and what happens in the courtroom is not simply legal reasoning. What is clear is that different ways of interacting between participants can exert influence on judicial outcome, as they can shape the way in which factual realities and legal reasoning are formulated and rendered consequential. The studies that have been thus far reviewed are all concerned with the testimony phase, and this seems to be the area that has received most scholarly attention. However, to develop a more comprehensive picture of the historical courtroom, there is a need to go beyond the testimony to explore discursive practices in other phases as well. Among the most important but least studied genres of courtroom discourse is the opening statement, to which I will now turn.

Analysis of ideational and interpersonal aspects in early opening statements The opening statement, which, from a legal point of view, is intended to give a ‘roadmap’ of the evidence to be presented subsequently, appears to have been introduced in the late 18th century. In the Anglo-​American tradition, Archer (2010) notes that in the previous century, there was a brief introduction of the case, but the prosecution evidence tended to be presented directly by the victims or witnesses telling their own stories to the jury. These ‘citizen prosecutors’ (Langbein 2003) were then asked questions by the judge who acted as both the examiner and the cross-​examiner. The process was followed

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by the witnesses of the Crown, often including a constable who might testify about the circumstances of the defendant’s apprehension. Based on the Old Bailey records, there was an increase in professional prosecuting counsel, who assumed the task of what the judge had always done and soon came to take the center stage. However, because these individuals worked for monetary reward, such a system inadvertently encouraged false prosecution and false witnessing in many cases, as those who were reward seekers had little interest in distinguishing the guilty from the innocent (Ma 2008: 194). This prompted the introduction in the 18th century of a defense counsel to raise points of law on behalf of the accused (Langbein 2003), although defense lawyers were rarely used until the late 18th century. With this came an important shift from the defendant having to prove his innocence to the defense counsel seeking to expose the weaknesses of the prosecution. Analyzing early opening statements from 1750 to 1789, collected from the Old Bailey Proceedings, Chaemsaithong (2014) examines the stance-​signaling resources that lawyers employ, including self-​reference, attitude markers and reported speech. First-​ person singular pronouns and attitude markers are found to constitute major stance-​ taking moves in the opening statements. As a ‘sender-​oriented’ resource, first-​person singular pronouns help the presenter to project an authoritative and credible persona by serving to announce the presenter’s discursive move and planning (8), present his personal view and his creation of the argument (9), and make relevant his professional identity (10): (8) Gentlemen, I think it necessary, and I hope I shall not exceed the bounds of my duty (but if I do, I hope I shall be interrupted) by going back to the origin of that unfortunate quarrel, which terminated with the loss of a valuable life; valuable to the public; and more so to his private connections … (murder; t17840917-​1) (9) gentlemen, it sometimes happens, and the law indeed, always attentive to the nature of our being, admits, that circumstances may be of a kind to raise a sudden natural gust of passion where there has been no predetermined malice, nothing before harboured in the mind, and under the impulse of that passion a person even inflicting death on another, that by possibility may only amount to the crime of manslaughter; but, gentlemen, in the present case, under the circumstances I am instructed to state to you, that it appears to me the present case will preclude the prisoner at the bar from all such considerations … (murder; t1791091401) (10) I lay a great stress always upon what men do; I am not very old in the profession, but I have had a great deal of painful experience on that head; I have always thought that men taking different turns of mind … are all very material to be noticed. (deception; t17860111-​2) Also notable are attitudinal expressions, which help lawyers mediate the utterances, convey their evaluation and guide the jurors’ interpretation. Firstly, lawyers indicate their affect toward actions or events in their narratives, thereby evaluating the event and the perpetrator as violent and cruel.

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(11) Gentlemen, in this situation, it is stated to me that the prisoner committed the offence of rape; and after that, he is stated to me to have taken her into another room, and there to have again attempted indecencies of a gross and abominable nature to this young woman; and that on her resisting he behaved in a very shocking manner (rape; t17891209-​91) Second, lawyers also mark certain pieces of information as worthy of consideration and highlight the uniqueness and relationships to their argument. (12) Gentlemen in all doubtful cases, it is of material consequence for the attention of a Jury, that a man has absconded; but if he disguises himself, and assumes a name that he has never used before, the circumstance of absconding becomes infinitely stronger than it was before. (murder; t17861215-​1) Third, lawyers can explicitly indicate their agreement or disalignment with a specific point, as in (13). (13) it seems to me there is a chain of circumstances to be laid before you, that will leave no doubt of the guilt of all the prisoners at the bar. (murder; t17861215-​1) Another consistent feature that shapes the discourse of the opening statement is reported discourse. By incorporating the voices of others, lawyers can present their narrative from other points of view and speaking positions. In this way, the opening speech exhibits intertextuality. Lawyers quote other people’s voices for narrative purposes, that is, when they reanimate the verbal actions that happened at some climactic points during the crime, as in (14). However, it is more often the case that lawyers present external voices for argumentative functions, such as evidentiary (15) and supportive of arguments (16). The lawyers are observed to make use of the following voices: the voice of characters in the recounted narrative (14), the voice of personal authority, such as that of witnesses (15), and finally, an impersonal voice, such as that of the law (16). (14) they ordered the servant to alight and hold his horse, then they took their two handkerchiefs and tied them tolerably loose, and pulled them up at the bottom of their faces, then they went to the carriage, the short man to the right side, where lady Davenport sat, and the short man called out to the tall one, damn you, if you flinch I will blow your brains out, he seemed to be the commanding officer, he ordered the coachman to stop, the tall one put in his pistol and asked Sir Thomas for his money … (attack on a highway; 17841208-​2) (15) The surgeon will inform you that he has not the least doubt but the wounds occasioned his death. (murder; t17861215-​1) (16) you will hear the law much more accurately delivered from the learned Judge after you are possessed of the evidence, and therefore can with more correctness apply

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it; it is however my duty just to observe, that it is not necessary to constitute the crime of murder that there should be a malignity directed against an individual; if a man commits an act from which death may ensue, which from the nature of it marks a wanton disregard of the safety of others, that is equally immoral, and the public safety requires it should be classed in an equal degree of guilt with the premeditated destruction of an individual (murder; t17841020-​1) The heteroglossic and intertextual nature of the opening statement is also demonstrated in Archer (2013). Based on a notorious Victorian-​era trial of Dr William Palmer, which was probably the first trial to introduce forensic chemistry as a means of conviction, the researcher contrasts how the prosecutor, through the voices of lay actors and pretrial documentation, weaves a comprehensive narrative that accounts for the motive of the defendant, the activities of the alleged accomplices, the suffering of the victim and the perspective of the people who care for him. In contrast, the defense lawyer draws upon a number of letters and the voices of different players in the unfolding drama, in the first person. The lawyer also embeds the defendant’s own response to the charge in his own opinion, as in ‘I believe that there never was a truer word pronounced than the words which he [the defendant] pronounced when he said “Not guilty” to the charge’ (Archer 2013: 193). In addition to the propositional content, early opening statements also witness dialogic features in the service of interpersonal management. This is the focus of Chaemsaithong (2018). The researcher traces the extent to which early lawyers endeavored to solicit solidarity and in-​groupness with the jurors. Viewing jurors as the most powerful group, who need to be convinced and for whom ‘display talk’ in the courtroom takes place, the study explicates addressee features that allow lawyers to attend to jurors by linguistically acknowledging their presence and positioning them to accept what is being presented, stimulating a sense of emotional involvement and establishing a personal connection with them. Based on 81 opening statements from 1750 to 1799, it is found that first-​person plural pronouns are mostly utilized to bind the jurors and the presenting lawyer into a homogeneous unit who share the same experience and knowledge when, in fact, this was not a mutually recognized position beyond the level of discourse, as in (17). (17) Then, I say, we have now again conspirators ignorant of the machine they were to use; conspirators going to the shop of an artist not to learn the principle upon which the machine was to be constructed but going at the invitation of the person as a matter of curiosity. (royal treason; t17960511-​1) In addition, the domain of first-​person plural pronouns can be extended to include members outside the courtroom, such as fellow citizens and their cultural values, thereby aligning the jurors with the value system of that group, as (18) shows. (18) Gentlemen of the Jury. This is an indictment against the defendant Richard Candeline, which charges him with the crime of wilful and corrupt perjury; and it is certainly not necessary for me at this time of day, to make to you any observations on the nature of this offence, we all know and feel it; the observation has been often made,

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and as often assented to, that unless this crime is suppressed by severe punishment, it is impossible any thing we enjoy can be sacred. (deception; t17900113-​108) Like first-​person plural pronouns, second-​person pronouns tend to serve argumentative purposes: they can anticipate and respond to doubts the jurors may have (19), construct the jurors as being in agreement with the lawyer’s arguments (20), and draw the jury’s attention to the fact that they are on their second deception trial of the session which shares an important characteristic with the first trial, that is, the bank should take security measures to prevent unauthorized transactions (21). (19) it was impossible that the socket should receive the bolt being so filled up; that again is a very strong circumstance to impute guilt to the prisoner! No other person had access to it unless you suppose that somebody had concealed themselves there in the course of the day, that they had found access to this old lady’s room, and had left. (petty treason; t-​17870711-​1) (20) Gentlemen, you know perfectly well whatever may be the inconvenience of this, upon general principles of law, the wisdom of which is very apparent, it is, and always has been uniformly held, that if the possession of property is delivered to a man, and he misapplies that property, or embezzles it, or makes away with it, he does not commit a felony on it. (theft; t17841020-​39) (21) Gentlemen, I am sorry to call back to your recollection, that this is the second trial which you have had this session for an attempt to defraud the bank, but it shews [sic] how necessary it is that the bank should be vigilant to protect that property which is so open to the inroads of the public. (deception; t17870115-​1) Also frequent are appeals to shared knowledge. Lawyers can mark a statement as familiar, assumed or accepted, thereby maneuvering the audience into agreement and cooperation. A notable mutual awareness marker in the corpus is ‘of course,’ which contributes to enforcing the lawyer’s argument by referring to the store of shared knowledge established in the preceding phase of the interaction, thereby assigning to the jurors the role of partner in approving such a statement, as in (22). (22) it was not till some time after this that the prisoner was apprehended by the boy, in company with a friend; seeing him afterwards, he said, that was the man that had desired him to take up the instrument; of course he was taken into custody; you will see therefore that the publishing this instrument was first to the boy [sic], that the boy carried it up stairs to Simmonds, and you of course should watch that boy’s testimony, and examine into it (deception: t-​17900815-​78)

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Lawyers are also found to frequently interrupt the ongoing opening speech through asides, thereby briefly breaking off from an argument to offer a metacomment on a previous part of the speech. This mid-​flow pause creates a mini dialog displaying sensitivity to the audience, and is often an opportunity to offer clarification or comments to the jurors: (23) There are a family of Evans’s (not the prisoner) George Evans and his son, (the same name as the prisoner) they have three hundred pounds given to them. (deception; t-​17860111-​2) (24) The sum for which he arrested him, he said, was twelve pounds-​-​-o​ dd; but he, out of great generosity (the generosity of a sheriff’s officer is very remarkable) said he would remit all but ten pounds, ten shillings. (deception; t-​17900113-​108) Finally, the opening statements also exhibit consistent use of rhetorical questions. In this monologic discursive event, lawyers are well aware that no response will be received and that questions are not intended for obtaining information in display talk. Rather, they are used for the purposes of managing topics, including topic initiation (25), focusing the addressees’ attention (26), and enacting a negative implicature to what is asked in the question (27): (25) This letter, Gentlemen, was prepared, as I told you, by Richardson, but who, do you think, prepared the draught of the postscript? It was Scrimshaw. (theft; t-​17590717-​1)

(26) There was nobody else to call her; there was no person present but themselves; Who then struck the blows? Who stabbed this poor woman when she was laying in bed, it is for you to decide? (petty treason; t17870711-​1) (27) Now, from their own state of the case, how is that made out? Is it not clear that he must have had some sort of connection sufficiently to use his endeavours to solicit that which was the object of the person who employed him? The Duke of Portland, nobody could doubt it if he had not been here. (deception; t17970111-​4) In conclusion, early opening statements involve both skillful manipulation of the content and constant interpersonal management. Such relational practice does not serve to merely ‘oil the wheels’ of courtroom communication, thereby cementing relationships of the participants, but also –​and perhaps more importantly if we consider the outcome of the talk –​constitutes a key way for the users to accomplish the transactional goals in this institutional discourse.

Conclusion and future directions This chapter has provided a survey of state-​ of-​ the-​ art research that advances our understanding of discursive practices in the historical courtroom. In the last decades, the 224

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field of forensic linguistics has further blossomed with the rise of carefully contextualized use of historical data, many of them specifically compiled, such as child rape trials or the ones that document the presence of opening statements. While the above studies have done much to shed light on the communicative norms and characteristics of the early courtroom, much has been left to be studied. As evident here, the majority of scholarly research available in English concerns the Anglo-​ American traditions, and these studies tend to focus on the testimony phase. A project by the author is currently underway that examines the development of the closing statement, which started off as self-​defense by the defendant before starting to be delivered by professional lawyers in 1856. In addition, comparative studies of historical legal contexts can be undertaken with those of the present-​day, so as to examine different roles for attorneys and judges diachronically. After all, whatever discursive practice is adopted at the present time has antecedents in the past, and will become historical discursive practice as time passes.

Further reading Beattie, J. (1986) Crime and the Courts in England 1660–​1800, Oxford: Clarendon Press. Hostettler, J. (2006) Fighting for Justice: The History and Origins of Adversary Trial, Hampshire, UK: Waterside Press. Jaconelli, J. (2003) ‘What is a trial?’, in M. Mulholland and B. Pullan (eds), Judicial Tribunals in England and Europe 1200–​1700:  The Trial in History, Vol. I, Manchester:  University of Manchester Press, 18–​36. Langbein, J. (1999) ‘The prosecutorial origins of defence counsel in the eighteenth century:  The appearance of solicitors’, Cambridge Law Journal, 58: 314–​365. Stygall, G. (2001) ‘A different class of witnesses:  Experts in the courtroom’, Discourse Studies, 3: 327–​349.

Legal sources An Impartial Account of the Arraignment Trial & Condemnation of Thomas Late Earl of Strafford, London: Joseph Hindmarsh, 1679. The Proceedings of the Old Bailey Online, 1674–​1913 www.oldbaileyonline.org (accessed 10 October 2019). The Trial of Alice Clifton, for the Murder of Her Bastard-​Child, at the Court of Oyer and Terminer and General Gaol Delivery, held at Philadelphia, on Wednesday the 18th day of April 1987.

References Archer, D. (2005) Questions and Answers in the English Courtroom (1640–​1760): A Sociopragmatic Analysis, Amsterdam: John Benjamins. —​—​—​(2007) ‘Developing a more detailed picture of the English courtroom (1640–​1760): Data and methodological issues facing historical pragmatics’, in S. Fitzmaurice and I. Taavitsainen (eds), Methods in Historical Pragmatics, Berlin: Mouton de Gruyter, 185–​218. —​—​—​(2010) ‘The historical courtroom: A diachronic investigation of English courtroom practice’, in M. Coulthard and A. Johnson (eds), The Routledge Handbook of Forensic Linguistics, 1st edn, New York: Routledge, 185–​198. —​—​—​(2012) ‘Data retrieval in a diachronic context:  The case of the historical English courtroom’, in T. Nevalainen and E. Traugott (eds), The Oxford Handbook of the History of English, Oxford: Oxford University Press, 145–​154. —​—​—​(2013) ‘Tracing crime narratives in the Palmer trial (1856):  From the lawyer’s opening speeches to the judge’s summing up’, in C. Heffer, F. Rock and J. Conley (eds), Legal-​Lay Communication: Textual Travels in the Law, Oxford: Oxford University Press, 168–​186. 225

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—​—​—​(2014) ‘Exploring verbal aggression in English historical texts using USAS: The possibilities the problems and potential solutions’, in I. Taavitsainen, A. Jucker and J. Tuominen (eds), Diachronic Corpus Pragmatics, Amsterdam: John Benjamins, 277–​301. —​ —​ —​(2018) ‘Impression management in the Early Modern English courtroom’, Journal of Historical Pragmatics, 19: 205–​222. Cecconi, E. (2012) The Language of Defendants in the 17th-​Century English Courtroom: A Socio-​ Pragmatic Analysis of the Prisoners’ Interactional Role and Representation, Bern: Peter Lang. Chaemsaithong, K. (2011) ‘In pursuit of an expert identity: A case study of experts in the historical courtroom’, International Journal for the Semiotics of Law, 24: 471–​490. —​—​—​(2012a) ‘Beyond questions and answers:  Strategic use of multiple identities in the historical courtroom’, in I. Hegedus and A. Fodor (eds), English Historical Linguistics 2010, Amsterdam: John Benjamins, 349–​368. —​—​—​(2012b) ‘Performing self on the witness stand: Stance and relational work in expert witness testimony’, Discourse & Society, 23: 465–​486. —​—​—​(2014) ‘Interactive patterns of the opening statement in criminal trials: A historical perspective’, Discourse Studies, 16: 347–​364. —​—​—​(2018) ‘Dialogic features and interpersonal management in the early courtroom action game: The case of the opening statement’, Language & Dialogue, 8: 341–​362. Claridge, C. (2018) ‘Now in the historical courtroom: Users and functions’, Journal of Historical Pragmatics, 19: 223–​242. —​—​—​(2019) ‘Drinking and crime: Negotiating intoxication in courtroom discourse, 1720 to 1913’, in T. Fanego and P. Rodríguez-​Puente (ed.), Corpus-​Based Research on Variation in English Legal Discourse, Amsterdam: John Benjamins, 261–​285. Grund, P. (2007) ‘From tongue to text:  The transmission of witchcraft examination records’, American Speech, 82: 119–​150. Hall, P. (1984) ‘The social foundation of professional credibility:  Linking the medical profession to higher education in Connecticut and Massachusetts, 1700–​1830’, in T. Haskell (ed.), The Authority of Experts:  Studies in History and Theory, Bloomington:  Indiana University Press, 107–​141. Hargrave, F. (ed.) (1730) A Complete Collection of State Trials and Proceedings for High Treason and other Crimes and Misdemeanors from the Reign of King Richard II to the End of the Reign of King George I, London: J. Walthoe Sen. Jaconelli, J. (2003) ‘What is a trial?’, in M. Mulholland and B. Pullan (eds), Judicial Tribunals in England and Europe 1200–​1700: The Trial in History, vol I, Manchester: University of Manchester Press,  18–​36. Johnson, A. (2015) ‘Haunting evidence:  Quoting the prisoner in 19th century Old Bailey Trial Discourse: The defences of Cooper (1842) and McNaugten (1843)’, in J. Arendholz, W. Bublitz and M. Kirner-​Ludwig (eds), The Pragmatics of Quoting Now and Then, Berlin:  Gruyter, 369–​400. —​—​—​(2018) ‘ “How came you not to cry out?”: Pragmatic effects of negative questioning in child rape trials in the Old Bailey Proceedings 1730–​1798’, in D. Kurzon and B. Kryk-​Kastovsky (eds), Legal Pragmatics, Amsterdam: John Benjamins, 41–​64. Jones, C. (1994) Expert Witnesses: Science, Medicine, and the Practice of Law, Oxford: Clarendon Press. Kahlas-​Tarkka, L. (2012) ‘“I am a Gospel Woman”: On language in the courtroom discourse during the Salem witch trials, with special reference to female examinees’, Neophilologica, 84: 55–​69. Kahlas-​Tarkka, L. and Rissanen, M. (2011) ‘Attitudes of the accused in the Salem witchcraft trials’, in P. Pahta and A. Jucker (eds), Communicating Early English Manuscripts, Cambridge: Cambridge University Press, 241–​258. Kryk-​Kastovsky, B. (2010) ‘Power in Early Modern English courtroom discourse’, in S. Tanskanen, M. Helasvuo, M. Johansson and M. Raitaniemi (eds), Discourses in Interaction, Amsterdam: John Benjamins, 153–​172. —​—​—​(2018) ‘Implicatures in Early Modern English courtroom records’, in D. Kurzon and B. Kryk-​Kastovsky (eds), Legal Pragmatics, Amsterdam: John Benjamins, 65–​80. Kyto, M. and Walker, T. (2003) ‘The linguistic study of Early Modern English speech-​related texts: How “bad” can “bad” data be?’, Journal of English Linguistics, 31: 221–​248. Langbein, J. (2003) The Origins of the Adversary Criminal Trial, Oxford: Oxford University Press. 226

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Larson, M. (1984) ‘The production of expertise and the constitution of expert power’, in T. Haskell (ed.), The Authority of Experts: Studies in History and Theory, Bloomington: Indiana University Press,  28–​80. Leitner, M. (2017) ‘Curses or threats?: Debating the power of witches’ words in 17th-​century Scottish courtrooms’, Nordic Journal of English Studies, 16: 145–​170. Ma, Y. (2008) ‘Exploring the origins of public prosecution’, International Criminal Justice Review, 18: 190–​211. Pyszczynski, T., Greenberg, J., Mack, D. and Wrightsman, L. (1981) ‘Opening statements in a jury trial: The effect of promising more than the evidence can show’, Journal of Applied Social Psychology, 11: 434–​444. Spiecker, S. and Worthington, D. (2003) ‘The influence of opening statement/​closing statement argument organizational strategy on juror verdict and damage awards’, Law and Human Behavior, 27: 437–​456.

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15 Capitally speaking Language and bias in capital trials Mel Greenlee

Introduction During the last two decades, forensic linguists’ examinations of legal language have provided an overview of how distinct the form of courtroom discourse and judicial opinions is from ordinary speech (See, e.g., Tiersma 1999: 203; Shuy 2014: 17). Pragmatic analysis of lay-​legal communication has also highlighted crucial points at which laypersons’ mistaken assumptions, confusion over instructional terms and attempts to make sense of arcane legal expressions may tarnish the ideal of due process (Davis & Leo 2012: 358; Stygall 2014: 99; Conley 2016: 53–​55). Nowhere are these linguistic divisions more evident than in a capital trial. During these proceedings, in California and other death penalty states of the USA, a lay jury first makes a decision about guilt or innocence of homicide, and, in the case of a guilty verdict, then decides on the penalty. Jury decisions must be unanimous. The final act of a capital trial, for the least fortunate defendants, is a judge’s oral reading of the formal sentencing pronouncement. An example is shown in (1). The judgment is a fearsome bit of abstract legal language, a single sentence composed of well over 100 words. It includes passive verbs and multiple embedding, as well as both second and third person reference to the person being sentenced. Binomial expressions, such as ‘judgment and sentence’ and common words (‘information,’ as in (1) below) used in a specialized legal sense (where ‘information’ refers to a criminal charging document) add even further complexity (See Mellinkoff 1963: 349; Tiersma 1999: 61; Stygall 2014: 101). (1) Sentencing [Defendant’s name here], it is the judgment and sentence of this Court that for the Penal Code § 187(a) offense of murder as charged in … the information of which you were found guilty on DATE, the jury having found the offense of murder to be of the first degree and the jury having returned a finding that the special circumstances as alleged were true, and the jury having found on DATE, that the penalty shall be death … it is the order of this Court that the defendant, [Defendant’s name here], shall suffer the death penalty, the penalty to be inflicted within the walls of the state prison … in 228

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the manner and means prescribed by law and at the time to be fixed by this Court in the warrant of execution. Its very vagueness and abstraction serve to obscure the performative nature of the paragraph, which orders the defendant’s execution. The performative core (‘the defendant shall suffer the death penalty’) is preceded, followed and interrupted by a web of modifying clauses. The jury’s verdicts, for example, are buried in three non-​finite subordinate clauses beginning with the auxiliary ‘having.’ The circumstances under which the execution will take place (the manner, means and time) are expressed in an appositive phrase containing its own series of non-​finite subordinate modifying clauses. Given the syntactic complexity of this pronouncement, it seems very likely that many prisoners so sentenced would not have fully comprehended its details. The linguistic gulf between sentenced prisoner and judicial officer is merely the culmination of what I have called ‘language shading’ during a capital trial. Language shading, a term of my own invention, is similar to what linguists have identified as ‘linguistic ideology’ –​the legal system’s unspoken, normative view of how language should work, but in fact, does not (See, e.g., Ainsworth 2008: 16). However, as I am using it, language shading is broader. It encompasses not only erroneous notions of how language works, but also instances in which language both serves as a marker and as a proxy for social division, interacting and playing on barriers in the larger society. From the very outset of a capital trial, language shading, like a curtain through which the trial and its participants are viewed, colors and shapes the proceeding, contributing crucially to its outcome. This chapter particularly focuses on such proceedings in California, the state with the largest number of death-​sentenced prisoners in the United States. California’s Death Row houses 739 prisoners as of February 2019 (CDCR 2019). While the Governor of California issued a moratorium on executions in March 2019 for the duration of his term of office, individual California counties have continued to issue death sentences. Capital case data discussed below are drawn from the transcripts and pleadings of individual capital trials and informed by nationwide surveys of actual capital jurors by the Capital Jury Project (CJP), as well as social science research on both actual and mock jurors’ decision-​making. The analysis will proceed chronologically, examining three portions of capital procedure in particular:  jury selection, evidentiary presentation and jury deliberation. This exposition shows how strong a social role language serves at trial and how crucial misconceptions about language serve to reinforce social prejudices. As will be seen, these linguistic findings are in tune with a wealth of social and psychological research on factors which tend to skew decision-​making in capital cases.

Jury selection Under U.S. Constitutional law, juries in criminal cases are to be drawn from a ‘fair cross-​ section’ of the community. Elimination of candidate jurors based on race, religion or gender violates the principle of Equal Protection (Batson v. Kentucky (1986) 476 U.S. 79; People v. Wheeler (1978) 22 Cal. 3d 258, fn. 17). Prospective jurors may be eliminated from the candidate pool for cause because of obvious biasing factors. For example, jurors may be excused if they are employees of one of the advocates, or if they have formed an opinion on defendants’ guilt based on publicity. 229

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Both the prosecution and the defense in a capital case are also allowed to eliminate a certain number of prospective jurors via ‘peremptory’ challenge for any reason as long as the basis of excusal does not violate Equal Protection.

Death qualification In addition, prospective capital jurors must satisfy the trial court that they can consider either a life sentence or imposition of the death penalty at the second, penalty phase of the trial should the trial reach this stage. In California, at this phase, jurors choose solely between a sentence of life in prison without possibility of parole (LWOPP) or the death penalty. To expedite the process of jury selection, judges usually ask prospective jurors to fill out questionnaires, followed by oral questioning in open court. Example (2) shows excerpts from the central and typical (written) questions aimed at ‘death qualification’ of jurors. (2) Death Qualification Questions Q1. Would you, because of any views that you may have concerning capital punishment, automatically refuse to vote in favor of the penalty of death and automatically vote for a penalty of life … without considering any of the evidence …? Q2. Would you, because of any views that you may have concerning capital punishment, automatically refuse to vote in favor of life … and automatically vote for a penalty of death … without considering any of the evidence …? Q3: If your answer to either Q1 or Q2 was yes, would you change your answer if you are instructed and ordered by the court that you must consider and weigh the evidence … before voting on the issue of penalty? Q4: Could you set aside your own feelings about what the law ought to be and follow the law as the court explains it to you? Prospective jurors who are unalterably in favor of either penalty, based on their answers to these questions, are rejected from jury service. Given the complexity of the questions and the gravity of the subject, it is perhaps unsurprising that prospective jurors may provide hedged or ambiguous answers, such as ‘quite possibly,’ or ‘probably’ which require follow-​ up query (Greenlee 2018). Language shading in the questioning process affects not only who is selected to serve, but their attitude and expectations about the upcoming trial. Psychological research has established that mere repeated exposure to death qualification questioning produces conviction-​prone juries (See Lynch & Haney 2018: 148 for a summary). The Gricean principle of relevance would also suggest that reiterated questions about the penalty phase should only be asked if the jury were actually going to reach that second stage, i.e., find the defendant guilty of a death-​eligible crime (Grice 1975: 46). Interviews of actual capital jurors in several states by the CJP reveal that many jurors exposed to judges’ queries about ‘following the law’ come to equate this phrase with rendering a death verdict; a significant percentage (28.6%) of capital jurors in their survey decided on the death penalty before hearing any evidence at penalty phase. (Bowers, Sandys and Steiner 1998: 1488, 1497). Recent judicial review has also acknowledged the priming effect of repeated questions. In U.S. v. Fell ((D. Vt. 2016) 224 F.Supp 327, 335), after an extensive review of the research, the court concluded that ‘the process of death qualification … produces juries which are biased in favor of imposing the death penalty.’ 230

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Racial imbalance The tilt toward a death verdict is accompanied by a further imbalance, from the beginning of jury selection:  advocates, usually the prosecutor, may seek to eliminate members of minority groups from the jury pool through peremptory strikes. Prosecutors may reason that individual minority jurors follow larger demographic patterns in which African-​ Americans favor the death penalty less than whites. In a 2018 poll, support for the death penalty was 59% among whites, 47% among Latinos and 36% among African-​Americans (Pew Research Center 2018). However, prosecutors’ intentional exclusion of jurors based on race, or group bias, violates the Constitution and is subject to defense challenge (Batson v. Kentucky (1986) 476 U.S. 79). After defense objection, the prosecutor will be asked to justify the exclusions, and must provide legitimate, non-​racial reasons. The trial court then makes a ‘sincere and reasoned’ assessment of the reasons’ legitimacy. In practice, challenges to a prosecutor’s pattern of strikes are very seldom successful (Melilli 1996: 459). Among California capital cases, a recent survey identified only one case, out of 102 over the past two decades, in which the prosecution’s ‘justifications’ were found to be a pretext for intentional group bias (People v. Harris (2013) 57 Cal. 4th 804, 863 (Liu, J., concurring); see also Graham 2013). Courts have accepted as legitimate reasons ‘body language,’ hair style, failure to make eye contact, unfriendly demeanor, mustache type and even directly contradictory assessments such as ‘too aggressive’ or ‘too timid’ (Melilli 1996: 488, 495). Jurors’ hesitancy in answering death qualification questions is also used as justification. Close linguistic analysis of death qualification questioning, however, may highlight selective exclusion through discourse framing, serving to eliminate minority jurors. A Texas case which reached the United States Supreme Court provides a clear illustration of such strategic questioning. The defendant in Miller-​El v. Dretke ((2005) 545 U.S. 231, 256)  was an African-​American man. During the process of selecting his jury, the prosecutor eliminated 10/​11 African-​American prospective jurors. The high court’s review of jury selection showed that the prosecutor prefaced questions regarding the death penalty with distinct scripts depending on the race of the prospective juror. African-​American jurors were subjected to a graphic description of the penalty while white jurors heard an abstract and ‘distanced’ account. (3) Prosecutor Scripts in Miller-​El v. Dretke Graphic Script When the death penalty is assessed … At some point … the man sitting right down there—​will be taken to Huntsville and will be put on death row … taken to the death house and placed on a gurney and injected with a lethal substance until he is dead as a result of the proceedings that we have in this court on this case. Distanced Script The State … is actively seeking the death penalty for Thomas J. Miller-​El … We anticipate that we will be able to present to a jury the quantity and type of evidence necessary to convict him of capital murder and the quantity and type of evidence sufficient to allow a jury to answer these three questions … in the affirmative. A yes answer to each of those questions results in an automatic death penalty from Judge McDowell. 231

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As intended, the graphic script produced more hesitation in discussion of a possible death sentence, which the prosecutor then cited as justification for the ‘race-​neutral’ strike of nearly all African-​American jurors. This tactic’s clear relationship to race, plus the same prosecutorial office’s long history of excluding African-​American jurors, led the high court to rule that its justifications were in fact a pretext for intentional discrimination, in violation of Equal Protection, requiring reversal of the judgment. In a California capital trial of another African-​ American young man, the court accepted these justifications for excusing an African-​American juror, Mr B: 1) His hairstyle was shared with the defendant, and 2) Mr B’s answers to questions, according to the prosecutor, suggested he was not qualified. (4) Prosecutor’s Reasons for Excusing Juror B ‘B … has extremely poor grammar. He … led me to believe he might be illiterate because of the syntax in which [sic] he was using.’ ‘[W]‌hen B first referred to the police, he cut the syllable at po-​lice with “P-​O” being emphasized … PO-​lice is not used in a particularly friendly manner.’ When the prosecutor’s reasons are examined closely, it is clear that these are based on improper racial bias. The juror’s manner of speaking, according to linguistic research dating to the 1960s, does not reflect ‘bad grammar’ or, even remotely, illiteracy, but aspects of community vernacular (AAVE) among African-​Americans (Rickford and Rickford 2000: 111, 123–​126; Thomas 2007: 467). Juror B’s speech contained phonological, syntactic and morphological features of AAVE. In addition to initial stress on the word police, which the prosecutor proffered as a sign of hostility, the juror used existential ‘It’s,’ double negation, and the morphological variant, ‘hisself.’ Nevertheless, in answering the advocates’ questions, he insisted that he could evaluate witness testimony fairly, regardless of the nature of the witness. (5) Juror B’s Responses B: It’s all kind of people in the neighborhood where I grew up at. So it doesn’t make no difference who would come in. Q: And you would be able to evaluate the evidence? B: Yes, I will evaluate the evidence instead of the police officer hisself or herself. The prosecutor’s rationale for excluding Juror B, based on his manner of speaking and the trial court’s acceptance of this as valid and race-​neutral, improperly used language as a proxy for race, invoking group stereotype by subterfuge. Enduring stigmatization of AAVE and misconceptions about its speakers played a strong role in Juror B’s exclusion. A  recent linguistic study shows it also may crucially erode the accuracy with which testimony is recorded (Jones, et al. 2019). Just as Juror B’s excusal reflects ignorance about community language norms and would serve to illegitimately bar African-​Americans from jury service, legal scholars have pointed out that courts’ mischaracterization of bilingual communities serves as an illegitimate rationale for exclusion of other minority jurors (See, e.g., Mirande 1996: 138; Hsieh 2001:  1194). In Hernandez v.  New  York (1991) 500 U.S. 352, the U.S. Supreme Court determined that Latino jurors could be legitimately excluded if they failed to affirm they would disregard witness testimony in Spanish and use only the official, interpreted English version. As ignoring a language one understands may well prove impossible, hesitancy to 232

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make such an affirmation is understandable, yet quite often used to justify barring Latino jurors from service (Mirande 1996: 148). Public hearings and reports on the California justice system have acknowledged for decades that such exclusionary policies undermine confidence in the fairness of the courts (California Judicial Council 1997:  39; Commission on the Future of the California Courts (1993): 83–​84). The result of such broadly accepted justifications in jury selection is that too often a capital defendant has been the only person of color in the courtroom and tried by a largely, if not wholly, European-​American jury whose view of the defendant’s social group, culture and language is limited and perhaps distorted in a similar way to the ‘rationale’ offered by the prosecutor for her excusal of Juror B (see Levinson, Smith and Young 2014: 567). Such skewing surely contributes to over-​ representation in the justice system. While African-​Americans constitute about 6% of the population of California, this group makes up over 36% of prisoners sentenced to death. Recent examination of California capital jury selection practices found that as support for the death penalty has declined generally among all sectors of the population, California’s continued exclusion of minority jurors tends to distort the jury selection process even further, leading to death qualified juries which are even less representative of the larger society (Lynch and Haney 2018: 171). As these examples show, language shading –​in the form of unacknowledged pragmatic and priming effects, as well as legal actors’ too-​readily accepted yet erroneous ideas about minority communities and speakers  –​contributes to a capital jury pool unrepresentative of the public at large and of diverse views on the justice system, including capital punishment.

Evidentiary phase Once the jury is selected and opening arguments have framed each side’s view of the case, the evidentiary phase begins. At this phase, witness testimony provides a prime opportunity for the expression of cultural and linguistic stereotypes, along with frank misrepresentations of language, to taint the proceeding. This next section concentrates on some of the factors which affect witness testimony in California capital trials. One of the most important is the sheer range of linguistic diversity among the population.

California’s language diversity & capital trials U.S. census data show that over 200 languages are currently spoken in California. About 80 languages are in use in California courtrooms on a daily basis. Among California residents over the age of 5, 44% of the population speaks a language other than English at home. Census data also estimate the Limited English-​speaking population (approximately 19% of California residents). For most, the first language of the household is Spanish or one of several Asian languages, as shown in Figure 15.1 (California Judicial Council 2018). These demographic data establish a strong need for court interpreters, and bilingual state certification examinations have been developed for 14 languages. Court records show that while Spanish is by far the most commonly interpreted, nine other languages are also frequent:  Mandarin, Korean, Vietnamese, Russian, Cantonese, Farsi, Arabic, Tagalog and Punjabi. 233

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Figure 15.1  L1 of Californians who speak English less than ‘very well’

In a first survey of language diversity among California capital trials, I searched our capital database of transcripts and pleadings, identifying 114 cases in which witness testimony was rendered by oral language interpretation, along with six in which sign language interpreters participated. Spanish was the most common, representing 97/​114 cases, with Vietnamese, Mandarin and Korean next. In a few capital trials, speakers of several different languages testified, necessitating multiple interpreters. In one case, 18 witnesses testified in four different languages (Korean, Mandarin, Cantonese and Spanish). During the time period of the trials located in our database, not all source languages in these cases had a California bilingual court interpreter certification examination, and even in 2019, such examinations remain to be developed for many California languages (see Judicial Council of California 2018). Nor was the existence of a certification process a guarantee of accurate interpretation, as will be seen in examples below. Language errors mar the proceedings A review of the English transcripts –​the only official record of testimony at these capital trials  –​details many problematic exchanges and errors where a witness testified in another language and the testimony was rendered into English by an interpreter. Some of the changes and mistranslations are similar to those identified in other contexts (see, e.g., Berk-​Seligson 2002: 73–​74, 116–​117; Hale 2002: 34). False cognates, or ‘falsos amigos,’ were a frequent sign of interpreter error (Gonzalez, Vasquez & Mikkelson 1991: 281–​282; Hewitt & Lee 1996). Example (6) shows a number of these in testimony interpreted from Spanish into English. (6) False Cognates & Too-​Literal Interpretations Spanish Interpretation Fábrica Fabric Ponchar Punch Casquillo Casket Se detuvo. He detained. 234

Correct Factory Flatten (tire) Shell/​Casing He stopped.

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Spanish No se distinguía nada. Hicieron unas preguntas. Se quejaba.

Interpretation You could not distinguish anything. They made some questions. He was complaining.

Disparamos a lo loco. Asesinato

We shot like crazy. Assassination

Correct You could not make out anything. They asked some questions. He was groaning. (he=dying victim) We shot wildly (haphazardly). Murder

Use of false cognates is related to inadequate command of the target language, resulting in reliance on erroneous, similar-​sounding words. Too-​literal renditions, ignoring context, such as ‘complaining’ for groaning in (6)  can alter the testimony significantly. Mistranslation of the Spanish idiom ‘a lo loco’ adds emphasis and intentionality in English not present in the original. Interpreters also made errors in temporal or locative expressions and in rendering negatives; non sequiturs between the questions and answers in other passages suggested poor interpretation was to blame. In each of the examples below, the person asking the questions (Q)  is one of the attorneys; the answers (A) are those of the witness as rendered into English by the court interpreter. (7) Grammatical Errors in Interpretation 1.  Temporal Errors [1]‌  A: Before that night, did I know that he lived there? Q: Yes. A: Well, yes, I already knew that he lived there from since before. [2]‌  Q: I imagine this was happening rather quickly. A: It was not much quick. [3]‌  A: He said that ‘don’t do anything in fifteen minutes.’ [intended: for fifteen minutes] 2.  Locatives Q: You never looked at his face? A: No, because I had my back against him. [intended: I had my back to him] 3. Negatives Q: Did she have boyfriends? A: Hardly not. 4.  Non-​sequiturs & Unresponsive Answers Q: Is he related to you? A: My mother’s. In addition to these interpretation problems, the politicization of attitudes in California, and the U.S. in general, about the use of Spanish in public life means that Latino witnesses and defendants who are native speakers of Spanish are likely to confront negative attitudes and bias from non-​minorities in the courtroom (see, e.g., California Judicial Council 1997: 39, 62; Espinoza and Willis-​Esqueda 2015: 294–​295; Stack 2019). 235

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A case study The case of Vicente Benavides Figueroa, who was released from California’s Death Row in 2018, serves as a cautionary tale of the multiple contributions of inaccurate and incompetent interpretation, along with egregious prosecutorial error, to a tainted death sentence. Mr Benavides, a former farmworker from Mexico, was arrested in Kern County, an area with a long history of racial bias, after his girlfriend’s 2-​year-​old child was found seriously injured while in his care. The child was given emergency treatment and eventually died after a series of medical interventions. While she was being treated, Mr Benavides, a Spanish speaker, was accused of sexually assaulting the child, thus causing her death. Law enforcement officers interrogated him using an officer whose lack of both training and Spanish proficiency caused great confusion. Nevertheless, the trial court allowed the prosecution to present the interrogation and its English transcript as evidence of guilt and as aggravating evidence favoring a death sentence. The language data that follow here are drawn from the Petition for Writ of Habeas Corpus filed on Mr Benavides’ behalf in the California Supreme Court. Via a petition for habeas corpus, a prisoner may challenge the validity of the evidence on which the criminal conviction and sentence is based and even present new evidence. As part of his habeas pleading, defense counsel presented an affidavit from expert witness Haydée Claus who reviewed the tape and translation of Mr Benavides’ interrogation. Mr Benavides was represented by Cristina Bordé and her colleagues of the California Habeas Corpus Resource Center. Both the initial interpretation and the translation contained numerous prejudicial errors and distortions. Claus’ review showed the police officer ‘interpreter’ made basic errors in Spanish vocabulary, syntax and even pronunciation. As in (6), the officer’s ‘interpretation’ was marred by false cognates. He also made errors in verb conjugation, over-​ regularizing the past participle of verbs such as escribir, ‘to write,’ (‘escribido’ for ‘escrito’) in a manner typical of children or L2 learners of Spanish. The English translation of this session both masked the initial interpretation problems and added further inaccuracies. Examples are shown in (8). (8) Spanish Errors in Benavides’ Interrogation [1]‌ Intended: ‘It looks like she was RAPED (Sp. violada) from behind.’ Police ‘interpreter’ version: … parece que fue rapada por atrás, por el rectal. Correct translation of police interpreter version: … it looks like she was shaved clean from behind, from the ‘rectal.’ [2]‌ Benavides’ Spanish statement: No me acuerdo haberle dicho yo a ella nada. Prosecution’s translation: I don’t remember me tell her that. [sic] Correct translation: I do not remember having said anything to her. [3]‌ Benavides’ description: … al interior de la puerta Prosecution translation: next to the door Correct translation: inside the door 236

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In addition, during Mr Benavides’ trial testimony, there were many non sequiturs in the English transcript, reflecting interpretation problems. (9) Errors in Interpreting Testimony [1]‌ Q: And what time do you normally leave when you go to work? A: Well, like that day—​well, like another day, Estella was going to take me. [2]‌ Q: Have you ever told anybody that you know what happened to this girl? A: With nobody. [3]‌ Q: And how did you get there? A: Estella went for me at the apartment from my work. These interpretation problems lent improper credence to the prosecutor’s argument that Benavides’s answers were evasive and not truthful. The prosecutor argued in closing, ‘Did you believe him, his demeanor on the stand? Did he look like he was telling the truth? What about the quality of his answers, avoiding answering the questions. His inconsistent statements previously made. … He is unbelievable on his testimony alone as he took the stand, ladies and gentlemen, would be sufficient to convict him’ [sic]. Mr Benavides was convicted and sentenced to death. During the next two decades, his attorneys fought to establish his innocence. As the Los Angeles Times reported, he was finally ‘released after all but one of the medical experts who testified against him [at his trial] recanted their conclusions that the girl had, in effect, been raped to death  –​conclusions they had reached after reviewing incomplete medical records. In fact, the first nurses and doctors who examined the … girl in 1991 observed no injuries suggesting she had been raped or sodomized, but those details were not passed along to the medical expert witnesses who testified in court. Injuries later observed at two other hospitals were likely caused by that first effort to save her life, which included attempts to insert an adult-​sized catheter’ (Los Angeles Times, 2018). Concluding that ‘[t]‌he evidence now shown to be false was extensive, pervasive, and impactful’ the California Supreme Court reversed Mr Benavides’ conviction and sentence (In re Figueroa (2018) 4 Cal. 5th 576, 591). While Mr Benavides’ case may seem extreme, it is very likely that among the numerous capital cases in which interrogations were extracted with the help of untrained (often police) interpreters and the over one-​hundred cases in which witnesses’ testimony was interpreted in court, other egregious and prejudicial interpretation errors have tainted the proceedings, contributing to erroneous convictions. This seems even more probable in those cases where L1 is a language without a certification examination and where no one in the courtroom, except perhaps the defendant, speaks the L1 being interpreted. While these circumstances are less likely when L1 is Spanish, other languages, such as Samoan, Mam or Mixteco may fit them precisely. In fact, it is relatively rare for interpreter errors to be the sole source of a reversal on appeal (Benmaman 2000: 8; Hovland 1993: 492). Even when errors are noted, judges tend to treat them as a nuisance, but not very important. Appellate courts may reason that interpretation errors could not have caused prejudice because they occurred on only a few pages of the transcript, ignoring the egregious content of those errors. At trial, judges’ 237

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dismissive treatment may reflect the backdrop against which the interpretation takes place, where most of the trial participants –​judge, jury and attorneys –​may be monolingual members of the majority culture. Nevertheless, interpreter errors can crucially affect jurors’ assessment of witness credibility and, where jurors must weigh interpreted evidence in making a sentencing decision, mistranslations can tip the balance. The next example shows the interpreter’s English rendition of a family member’s testimony at the sentencing phase of a capital case. The numerous non-​sequiturs eroded this crucial testimony at the very least. (10) Blunting & Garbling Important Testimony [1]  Q: Now at some point in time, your husband was no longer there? A: He was always concerning to the needs of him and the family. [2]  Q: You wanted them [the children] to be responsible? A: Not much but to be able to buy their clothes for school, because they were many. [3]  Q: (concerning the roles of fathers and sons in Mexican family) A: … My husband has been dead for 16 years. I have never been married. Interviews of actual capital jurors by the CJP note how problematic such renditions may be when jurors are trying to decide on a sentence. One juror was asked, ‘Did any of the defendant’s witnesses “backfire”?’ The juror remarked, ‘I’d say the mother’s testimony. I think because we had to go through an interpreter it lost a lot of its emotional impact that it might have had.’ (Sundby 1997: 1161). In fact, witnesses with limited English may be in a double-​bind, based on popular (yet erroneous) notions about language competence; these mistaken notions may be exploited to impugn an interpreted witness’s credibility. Consider the prosecutor’s examination of a Spanish-​speaking witness in a capital case in (11). (11) Credibility and Limited English Speakers; Prosecutor’s Examination & Argument Initially, the witness explains he is using an interpreter because he does not feel that his English abilities are up to the task of understanding court language and responding appropriately. Q: (re English ability) A: [I]‌n cases like this, I don’t feel confident in myself about knowing all the meanings of the words. Yet the prosecutor aggressively attacks this limitation, noting the witness’s lengthy residence in the United States and the fact that he can ‘understand’ some of the questions before they are interpreted. Prosecutor: Q: How long have you been in the United States? A: I was born in Texas. … Q: And you don’t speak English? … A: I understand some.

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Q: Sir, you’ve lived in the United States for 58 years … and you are telling this jury you cannot speak English. [Defense counsel objection] Q: How is it that you’re able to understand it but not speak it? [Defense counsel objection] Q: Sir, do you realize what it means to be under oath here in court? Q: The truth is you understand everything I’m saying to you; isn’t that true, Mr V? A: Well, some. Finally, the prosecutor explicitly invites the jury to discount the witness’s testimony based on the witness’s assessment of his own language abilities. Prosecutor’s closing argument to the jury re witness: ‘… his entire life he’s been in the United States … and he wants you to believe he can’t understand what’s going on. You just have to decide whether or not you want to put trust in what he tells you.’ This reasoning views language ability as ‘all or nothing’ –​like a faucet one can turn on or off, equating comprehension and production abilities in a second language with length of residence and any hesitation to embrace competence in legal terms as a claim that ‘he can’t understand what’s going on …’ Such misconceptions about second language speakers of English continue to influence jurors despite much contrary research by linguists examining second language proficiency (and the relevance of domains for such proficiency) as well as actual language use in minority communities (see, for example, English, Chapter  29, this volume). Length of residence does not predict proficiency in English, particularly when it comes to court language (van Naerssen 2015, noting ‘myths’). As one Latino defendant commented in Florida, ‘The truth is, in a courtroom, nobody knows English, only [the courtroom officials] because they got a different language … I did not understand none of that stuff’ (Vollen & Eggers 2005: 53). Given these pervasive yet misguided notions about proficiency, a limited English-​speaking witness (or defendant who takes the witness stand) may find himself in a ‘damned if you do/​ damned if you don’t’ position. If the witness testifies with an interpreter, there is a risk of errors and the message not getting across; moreover, it may be argued that the witness’s misrepresentation of his English competence is a reason to doubt the reliability of his testimony. If the witness testifies without an interpreter, it’s possible that there will be distortions due to the witness’s lack of English proficiency, the witness’s limited range of styles in English, and difficulties with the nuances of courtroom language in responding to cross-​ examination questions. In fact, despite contrary arguments, the real reason for the proffered doubts about minority-​language witnesses’ credibility may be their group status, for which language is merely serving as a proxy. The majority’s negative view encompasses both minority communities and their language. Although more subtle, this same phenomenon may be operating when it is not a bilingual speaker, but one who uses an accent or particular style associated with marginalized groups. Jurors’ lack of comprehension, plus attitudes toward the group, tend to erode the witness’s credibility. For example, youths who may be identified as gang members based on their language suffer significant disadvantage when confronted with culturally and linguistically naïve decision-​makers. When gang-​identified youth are defendants, the usual ‘interpreter’ for 239

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their language is a police officer, who urges the most sinister meaning for even ordinary terms (Greenlee 2010:  291–​292). Thus, the association between linguistic features and criminality may sweep more broadly than is warranted by actual usage in the wider sociolinguistic community. To summarize language shading at the evidentiary phase, the viability of evidence is artificially affected, not to say distorted, by notions of legitimacy in the courtroom, garbling of important testimony via poor interpretation, and artificial erosion of witness credibility via mythology about bilingual or limited English-​speaking witnesses, as well as those who use a different style of speech. All of these factors may serve to render a witness whose language is different from that of the majority (i.e., from that of most if not all of the jurors) at a great disadvantage in court.

Juror deliberations: questions and confusion At the end of the evidentiary presentation, after closing arguments by the parties and the court’s instructions, jurors retire for deliberations. Jurors are cautioned to base their decisions not on the arguments of counsel, however ‘colorful,’ but on the basis of evidence and instructions proffered by the court. Prosecution closing arguments may include figurative references to defendants, metaphorically seeking to depict them as less than human. These allusions tap subtle and pervasive associations with racist stereotypes (Prasad 2018: 3105–​3106). Linguists have shown repeatedly that jurors do not understand their instructions (Dumas 2000; Stygall 2014; Gibbons 2017). Further insight on their confusion may be gained by reviewing terms mentioned in questions to the judge during the deliberation process. Jurors may send a note to the judge, asking for further clarification of instructional terms; however, such requests are usually met with mere re-​reading of the offending instruction. Example (12) shows some of the terms on which California capital jurors asked for more explanation. (12) Capital Jurors’ Requests for Clarification felony murder major participant malice overt act (where conspiracy was the charge) reckless indifference sadistic purpose such time assault (and asking judge, ‘now could you give that back with punctuation?’) extenuating circumstance accomplished by (where the instructions defined robbery as taking of property that was ‘accomplished by’ force, violence, fear or intimidation) Clarification of these terms was not forthcoming, as judges were concerned that by attempting to explain, they risked a reversal of the case on appeal. The trial judge in the case of Donald Beardslee, a California prisoner who was eventually executed, probably expressed the shared sentiments of many jurists in telling counsel:  ‘Every time a judge opens his big mouth and tries to explain what an instruction means, he puts his foot in it and the Appellate Court promptly bites it off’ (People v. Beardslee (1992) 53 Cal. 3d 68). 240

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At the penalty phase, the central instruction for jurors in the cases discussed here was a version of the following: (13)  California penalty instruction (CALJIC 8.88) To return a judgment of death, each of you must be persuaded that the aggravating circumstances are so substantial in comparison with the mitigating circumstances that it warrants death instead of life without parole. This pattern instruction was modified in 2006 by a court committee in which linguist Peter Tiersma participated. The new criminal instruction (CALCRIM) 766 includes more explicit explanation of terms and the weighing process: ‘To return a judgment of death, each of you must be persuaded that the aggravating circumstances both outweigh the mitigating circumstances and are also so substantial in comparison to the mitigating circumstances that a sentence of death is appropriate and justified.’ A wealth of research by linguists and psychologists has established that jurors in fact do not understand the basic terms in this instruction  –​that is, aggravating and mitigating –​or the manner in which these concepts should be applied. In addition, psychological research indicates that unguided jurors are likely to fall back on stereotypes and may render a death verdict on the basis of implicit racial bias (see, e.g., Levinson, Smith and Young 2014: 54). In the capital case database I surveyed, jurors asked for definitions of both terms, with one note requesting explanation of the terms ‘aggreavating’ [sic] and mitigating. Jurors were also concerned about two other issues: 1) unanimity and what would happen if they could not agree; 2)  whether an LWOP sentence ensured that the accused would die in prison, without parole. For the terms, judges re-​read the instruction and on the other two issues, judges usually responded by admonishing jurors not to speculate. Interviews of actual jurors show that they struggle with how to weigh penalty evidence in mitigation and aggravation. A central problem in making this decision is what Craig Haney, a social psychologist, has called the empathic divide:  the less the defendant is perceived to be similar to the jurors, the harder time the jurors have in viewing his or her behavior as other than fully intentional, or self-​initiated, and therefore they are likely to find it highly blameworthy. This is the ‘attribution error,’ a familiar source of bias in psychological studies (Haney 2005: 201). On the other hand, mock-​juror studies have shown that where juries are diverse, they tend to discuss facts and evidence in more depth, explicitly comment on the possibility of racial profiling and take more care in decision-​ making (Sommers and Ellsworth 2003:  1030). The Lester Wilson case provides an illustration of how complex these decisions can be, and the importance of diverse views. In the Wilson case, evidence at the penalty phase favoring an LWOP sentence centered on the defendant’s history as a victim of cruel child abuse. He was born to a preteen mother as the product of a rape, his stepfather beat the young Wilson to the point of convulsions, and, throughout his childhood, he was subjected to ‘shockingly frequent physical abuse.’ In weighing the impact of this history in deciding his sentence, it became clear that Wilson’s jurors were deeply divided. The California Supreme Court’s decision had to do with other jurors’ contention that ‘Juror 5,’ the sole African-​American juror in this trial of an African-​American man, was refusing to deliberate and was not following the trial court’s instructions. While Juror 5 was in obvious disagreement with the others, he specifically denied any misconduct, and affirmed that he was fully engaged 241

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in deliberations. Nevertheless, the trial judge replaced him with an alternate, and a death verdict promptly followed. The California Supreme Court reversed, underscoring the importance of a diversity of perspectives in juries evaluating penalty evidence. The higher court determined that the perspective of Juror 5, who held out for an LWOP verdict, was not misconduct. Rather, his ‘view of the [penalty phase] evidence, refracted through the prism of his own experience … showed neither a refusal to deliberate nor an inability to perform as a juror ….¶ Jurors cannot be expected to shed their backgrounds and experiences at the door of the deliberation room’ (People v. Wilson (2008) 44 Cal. 4th 758, 831–​2). As allowed under California law, the penalty phase of Mr Wilson’s case was retried in a subsequent proceeding, S189373, which resulted in a (second) death sentence on 17 December 2010. The second sentence is still on appeal.

Conclusion In capital litigation, language shades the proceedings from start to finish: it provides the framework for selecting jurors with particular views and excluding others; it may camouflage selection practices based on prohibited racial and ethnic bias. In evidentiary presentation, inadequate interpretation, as well as erroneous notions of language proficiency and community norms may serve to weaken important testimony and to inappropriately erode witness credibility. In the final and crucial phase of the trial, jurors perplexed and confused by the arcane language of instructions may render decisions in which a priming toward death and the implicit biases of the larger society work to the detriment of defendants whose culture and language are distinct from those of decision-​makers. Recognizing the role of language in these proceedings and illuminating the manner in which it reinforces social division should serve as an initial step toward a more diverse and inclusive justice process, an especially important goal where life hangs in the balance.

Further reading California Commission on the Fair Administration of Justice Final Report (2008) https://​ digitalcommons.law.scu.edu/​cgi/​viewcontent.cgi?article=1000&context=ncippubs (accessed 21 July 2020) [detailing flaws in trial and post-​conviction stages of California’s death penalty]. Conley, Robin (2016) Confronting the Death Penalty:  How Language Influences Jurors in Capital Cases, New York: Oxford University Press. Eberhardt, Jennifer L. (2019) Biased: Uncovering the Hidden Prejudice that Shapes What We See, Think, & Do, New York: Viking. Haney, Craig (2005) Death by Design, New York: Oxford University Press. Levinson, Justin D., Smith, Robert J. and Young, Danielle M. (2014) ‘Devaluing death: An empirical study of implicit racial bias on jury-​eligible citizens in six death penalty states’, New York University Law Review, 89: 513–​581.

Legal sources Batson v. Kentucky (1986) 476 U.S. 79. Hernandez v. New York (1991) 500 U.S. 352. In re Figueroa (2018) 4 Cal. 5th 576, 591. Miller-​El v. Dretke (2005) 545 U.S. 231, 256. 242

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People v. Beardslee (1992) 53 Cal. 3d 68. People v. Harris (2013) 57 Cal. 4th 804, 863 (Liu, J. concurring). People v. Wheeler (1978) 22 Cal. 3d 258. People v. Wilson (2008) 44 Cal. 4th 758, 831–​832. U.S. v. Fell (D. Vt. 2016) 224 F.Supp 327, 335.

References Ainsworth, Janet (2008) ‘“You have the right to remain silent… but only if you ask for it just so”: The role of linguistic ideology in American police interrogation law’, International J. Speech, Language & the Law, 15(1): 1–​21. Berk-​Seligson, Susan (2002) The Bilingual Courtroom, 2nd edn, Chicago: U. Chicago Press. Benmaman, Virginia (2000) ‘Interpreter issues on appeal’, Proteus, 9(4): 1–​13. Bowers, William J., Sandys, Marla and Steiner, Benjamin D. (1998) ‘Foreclosed impartiality in capital sentencing:  jurors’ predispositions, guilt-​trial experience and premature decision-​making’, Cornell Law Review, 83: 1476–​1556. California Department of Corrections & Rehabilitation (CDCR) (2019) Condemned inmate summary list www.cdcr.ca.gov/​Capital_​Punishment/​docs/​CondemnedInmateSummary.pdf (accessed 28 February 2019). California Judicial Council Advisory Committee on Racial and Ethnic Bias in the Courts (1997) Fairness in the California State Courts:  A survey of the Public, Attorneys and Court Personnel [available from the National Center for State Courts]. Commission on the Future of the California Courts (1993) Justice in the Balance 2020 (a report to the California Supreme Court) courts/​ca.gov/​documents/​2020.pdf (accessed 15 July 2020). Conley, Robin (2016) Confronting the Death Penalty:  How Language Influences Jurors in Capital Cases, New York: Oxford University Press. Davis, Deborah and Leo, Richard A. (2012) ‘Interrogation through pragmatic implication: Sticking to the letter of the law while violating its intent’, in Peter M. Tiersma and Lawrence M. Solan (eds), The Oxford Handbook of Language and Law, New York: Oxford University Press, 354–​366. Dumas, Bethany (2000) ‘U.S. pattern jury instructions: Problems and proposals’, Forensic Linguistics, 7(1): 49–​71. Editorial (2018) ‘The latest California exoneration shows why we need to end the death penalty’, Los Angeles Times, 27 April. Espinoza, Russ K.E. and Willis-​Esqueda, Cynthia (2015) ‘The influence of mitigation evidence, ethnicity and SES on death penalty decisions by European American and Latino venire persons’, Cultural Diversity and Ethnic Minority Psychology, 21(2): 288–​299. Gibbons, John (2017) ‘Toward clearer jury instructions’, Language & Law/​Linguagem & Direito, 4(2): 142–​160. Gonzalez, Roseann D., Vasquez, Victoria F. and Mikkelson, Holly (1991) Fundamentals of Court Interpretation, Durham, NC: Carolina Academic Press. Graham, S. (2013) ‘Liu lambasts colleagues’ approach to ‘Batson’ challenges’, The Recorder, 26 August www.law.com/​jsp/​ca/​PubArticleCA.jsp?id=1202617112283&slreturn=20130727095523 (accessed 13 September 2019). Greenlee, Mel (2010) ‘Sociolinguistic issues in gang-​related prosecutions:  Homies, hearsay and expert standards’, in Malcolm Coulthard and Alison Johnson (eds), The Routledge Handbook of Forensic Linguistics, London: Routledge, 281–​295. —​—​—​(2018) ‘Deadly ambiguity in lay-​legal communication’, paper presented to Sociolinguistics Symposium 22, Auckland, NZ, 30 June 2018. Grice, H.P. (1975) ‘Logic and conversation’, in Peter Cole and Jerry L. Morgan (eds), Syntax and Semantics 3: Speech Acts, New York: Academic Press, 41–​58. Hale, Sandra (2002) ‘How faithfully do court interpreters render the style of non-​English speaking witnesses’ testimonies? A data-​based study of Spanish-​English bilingual proceedings’, Discourse Studies, 4(1): 25–​44. Haney, Craig (2005) Death by Design, New York: Oxford University Press. Hewitt, William E. and Lee, Robert J. (1996) ‘Behind the language barrier, or “You say you were eating an orange?”’, State Court Journal, 20(1): 23–​31.

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Hovland, Debra L. (1993) ‘Errors in interpretation: Why plain error is not plain’, Law and Inequality, 11: 473–​503. Hsieh, Marina (2001) ‘“Language-​qualifying” juries to exclude bilingual speakers’, Brooklyn Law Review, 66(4): 1181–​1206. Jones, Taylor, Kalbfeld, Jessica, Clark, Robin and Hancock, Ryan (2019) ‘Testifying while Black: An experimental study of court reporter accuracy in transcription of African American English’, Language, 95(2): 216–​252. Judicial Council of California (2018) Language Access Metric Report www.courts.ca.gov/​documents/​ LAP-​Language-​Access-​Metric-​Report-​2018-​07.pdf (accessed 13 July 2020). Levinson, Justin D., Smith, Robert J. and Young, Danielle M. (2014) ‘Devaluing death: An empirical study of implicit racial bias on jury-​eligible citizens in six death penalty states’, New York University Law Review, 89: 513–​581. Lynch, Mona and Haney, Craig (2018) ‘Death qualification in black and white: Racialized decision making and death-​qualified juries’, Law & Policy, 40(2): 148–​171. Melilli, Kenneth J. (1996) ‘Batson in practice: What we have learned about Batson and peremptory challenges’, Notre Dame Law Review, 71: 447–​503. Mellinkoff, David. (1963) The Language of the Law, New York: Little, Brown & Co. Mirande, Alfredo (1996) ‘“Now that I  speak English, no me dejan hablar” [“I’m not allowed to speak”]: The implications of Hernandez v. New York’, Chicano-​Latino Law Review, 18: 115–​149. Pew Research Center (2018) ‘Public support for the death penalty ticks up’, 11 June www. pewresearch.org/​fact-​tank/​2018/​06/​11/​us-​support-​for-​death-​penalty-​ticks-​up-​2018 (accessed 13 July 2020). Prasad, Praatika (2018) ‘Implicit racial biases in prosecutorial summations: Proposing an integrated response’, Fordham Law Review, 86: 3092–​3126. Rickford, Russell J. and Rickford, John R. (2000) Spoken Soul:  The Story of Black English, New York: John Wiley. Shuy, Roger W. (2014) The Language of Murder Cases:  Intentionality, Predisposition and Voluntariness, New York: Oxford University Press. Sommers, Samuel and Ellsworth, Phoebe C. (2003) ‘How much do we really know about race and juries? A review of social science theory and research’, Chicago-​Kent Law Review, 78: 997–​1031. Stack, Liam (2019) ‘2 stopped for speaking Spanish sue U.S.’, New York Times, 17 February: 25. Stygall, Gail (2014) ‘Death penalty instructions to jurors: Still not comprehensible after all these years’, Language & Law/​Linguagem & Direito, 1(1): 95–​108. Sundby, Scott E. (1997) ‘The jury as critic: An empirical look at how capital juries perceive expert and lay testimony’, Virginia Law Review, 83: 1109–​1188. Thomas, Erik R. (2007) ‘Phonological and phonetic characteristics of African American Vernacular English’, Language & Linguistics Compass, 1: 450–​475. Tiersma, Peter M. (1999) Legal Language, Chicago: U. Chicago Press. van Naerssen, Margaret (2015) ‘Language proficiency and its relation to language evidence’, in Ama N. Apiah (ed.), Cultural Issues in Criminal Defense, 4th edn, Huntington, NY: Juris Publishing inc., 31–​100. Vollen, Lola and Eggers, David (2005) Surviving Justice:  America’s Wrongfully Convicted And Exonerated, San Francisco: McSweeney’s Books.

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16 Multimodality in legal interaction Beyond written and verbal modalities Gregory M. Matoesian and Kristin Enola Gilbert

Introduction The historical association between gesture and legal oratory goes back centuries. According to Kendon (2004: 20, 2017: 160) the scholarly study of gesture began during classical antiquity as a significant component of legal rhetoric designed to persuade the audience. Yet despite the relevance of gesture and other modal resources like gaze, posture and material objects (like exhibits) for legal discourse, contemporary research in forensic linguistics has focused primarily on legal language and speech. By the same token, despite the importance of the law for organizing social life, researchers in the field of gesture studies rarely, if ever, mention the role of multimodal conduct –​the integration of gesture, material objects and language –​in legal contexts. In this chapter, we provide an overview of multimodal conduct and demonstrate how erasing this crucial aspect of legal discourse leaves researchers with an incomplete understanding of language and law. We also demonstrate how examining these understudied resources may yield new avenues of inquiry not only for the study of legal interaction but also for gesture and multimodal studies more generally. The chapter is organized as follows. We begin with an overview of contemporary research on modal resources such as gesture, gaze and materiality, using examples from the legal context. Next we cover methodological/​data issues in the courtroom. Finally, we explore the role of multimodality with empirical illustrations from a criminal trial, one from closing argument, the other from cross-​examination. Our overall goal is to show how a multimodal analysis of courtroom talk provides a richer and more comprehensive understanding of legal discourse than analyzing speech alone.

Multimodality The study of multimodality has developed at an amazing pace since the first edition of this Handbook, and different terms are employed across the various disciplines concerned with the study of communicative practice. Nevile (2015: 129) found over 200 different forms of wording for the study of embodied conduct in one journal (Research on Language 245

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and Social Interaction). Our terminology follows ‘loosely’ from Depperman and Streeck (2018: 9) who use the term ‘multimodality’ to refer to the coordination of speech, gesture, objects, gaze and posture in communicative performance, and ‘modal resource’ to refer to a ‘single modality.’ Limitations of space preclude a more comprehensive examination of broader issues and debates in the field, and thus our brief overview will be selective and cover multimodality with an eye toward its relevance for the study of legal performance.

Gesture The scholarly study of gesture goes back to Rome in the first century AD. Writing on legal and forensic oratory or ‘delivery’, Quintilian discussed how movements of the hands synchronized with speech to convey powerful meanings –​emotions that ‘move’ or persuade the judge (Quintilian 2001). Centuries later, Bulwer (1644/​2003) examined the ‘dialects of the fingers’ and their role in rhetorical eloquence, for instance how lawyers use the fingers of one hand to count off arguments on the other hand. Writing in the early 19th century on Neapolitan gestures, de Jorio (1832/​2000: 59) advocated conducting detailed analysis of gestures prior to conceptualization and theorizing: being ‘exact in recognizing and describing the physical part of the gesture.’ Of methodological relevance, he argued that the meaning of gestures could be understood only through close inspection of their communicative function in interactional context. In contemporary scholarship, Kendon (2004) and McNeill (1992, 2005) define gestures (or gesticulations for Kendon) as idiosyncratic hand movements that co-​occur with speech in the production of meaning and utterance construction, a definition that omits emblems or quotable gestures that can be understood without speech, such as the ‘OK’ sign, as well as ASL and homesign.1 That is, the meaning of gesture is context-​sensitive and emerges at the moment of speaking, encoding co-​expressive, not redundant, information in the visual-​spatial modality. According to McNeill (2005: 22), ‘gesture and speech express the same underlying idea unit but express it in their own ways  –​their own aspects of it.’ In the semiotic division of labor, gesture employs a visual or imagistic representational format that works together with the vocal-​auditory modality to convey a composite signal, encoding additional aspects of meaning not expressed as effectively or as economically in language. To illustrate, Goldin-​Meadow (2003: 3) notes, ‘… when a child utters “chair” while pointing at the chair, the word labels and thus classifies (but doesn’t locate) the object. Pointing, in contrast, illustrates where the object is but not what it is.’ In contrast to the segmented, conventional and analytic properties of speech (where meaning emerges as lower-​level constituents combine to form higher-​level constructions), spontaneous speech-​synchronized gestures impart information in global, synthetic and idiosyncratic representations, where the meaning of the part emerges globally from the whole –​where a single instantaneous image captures a particular idea across the entire sentence. Together, the verbal and visual –​language and imagery –​exist in a reciprocal and co-​temporal dialectic to produce a richer tapestry of meaning than either could convey alone. More precisely, gesture and speech constitute a single integrated system or two sides of the same language coin (which is why terms like ‘nonverbal’ are inaccurate). Co-​speech manual gestures are not tangential ornaments to speech but part of language itself. Speech and gesture synchronize, for communicative effectiveness, a co-​temporal relationship that operates in and through the gesture phrase, consisting of several phases, one obligatory, the others optional:  preparation, obligatory stroke or meaning-​bearing moment of the gesture (that accompanies its lexical counterpart), retraction and 246

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post-​stroke hold (often for emphasis). Kendon (2004) refers to this synchronicity as the ‘speech-​gesture ensemble,’ in which both modalities continuously adjust-​readjust their timing so that the gesture coordinates with its speech counterpart to achieve discursive balance and semantic coherence –​coherent courses of improvisational action (as we will see in (1), line 5). What types of gesture co-​occur with speech? The gesture classification system devised by McNeill (2006) is the most influential and most widely adopted by researchers. He sorts out gestures in what he calls the iconic, metaphoric, deictic and beat quartet. Iconic gestures present images of concrete entities that resemble their referent, or as he states (2006: 61), ‘appearing to grasp and bend back something while saying: and he bends it way back.’ Metaphoric gestures present an abstract image in which a concrete source domain is mapped onto an abstract target. For example, tossing the hand to the side or behind the shoulder signals a ‘brush-​off’ or ‘brushing aside’ metaphor in which ‘small, annoying objects’ (like flies or lint) get brushed aside in order to remove them from ones proximal environment, a source domain mapped onto the target of chasing away annoying people or insignificant ideas (Tebendorf 2014: 1549). For example, during a hearing on precedent in a rape trial, the prosecution attempts to admit testimony from three other women who had been assaulted by the defendant (in addition to the victim). The prosecutor states how one victim trusted the defendant because he was a fellow medical student. No reason not to trust him compared to some stranger on the street that would come up and ask you out. On some stranger the prosecutor executes a backward hand toss (or flip) over the shoulder to enact how the woman would have ‘brushed off’ an advance by a stranger (see Figure 16.1). Unlike iconic and metaphoric gestures that represent images of some object or action, deictic and beat gestures are, according to McNeill, non-​imagistic. Deictic gestures locate referents through pointing, while beats orchestrate the rhythms of speech and highlight significant information, landing on stressed syllables to visually parse speech into prominent segments to increase the persuasiveness of the message.2 As we will see, however, such discrete taxonomies may fail to capture the multifunctionality of gestures in real-​ time interactional performance. As Kendon (2004:  103) mentions:  ‘Although McNeill seems content with his categories, it is not hard to see … the different types proposed are not nearly as easily differentiated from one another as they seem … it is sometimes quite

Figure 16.1  (some stranger) 247

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difficult to decide whether a given unit of hand action should be considered a “beat” or a gesture with some imagistic features. Often it must be considered to be both.’

Gaze, facial expression, posture and movement Gaze, posture, movement and facial expression represent less extensively studied semiotic forms but still constitute crucial modal resources for the construction and co-​construction of legal realities. Gaze and gaze shifts –​the direction of the head and eyes –​co-​occur with gesture, speech and posture –​the positioning and orientation of the body –​to select the recipient of an utterance (regulate interaction), create a focus of joint attention (stance), display engagement with or disengagement from select participants and courses of action, and contextualize emergent forms of participation in the unfolding rhythms of situated activity. For example, a ‘thinking face’ display may signal a deliberate stance, while gazing at hand gestures may draw the addressee’s attention to significant points of information. In a more significant example, Conley (2013: 506) found that jurors in death penalty sentencing deliberations used the defendant’s gaze to rationalize their decisions to let the defendant live or die. Facial expressions like the eyebrow flash, frowns and ‘disgust’ face (sometimes called ‘stank face’ in which the upper eyelids and cheeks are raised, the nose is wrinkled and lines show up above and below the lower eyelid) may encode affect (semiotic expression of emotions or emotional displays) and function as stance markers and even embody certain types of speech act. Most importantly, facial expressions (and indeed gestures) may manage meanings impermissible in the verbal modality (at least in the courtroom). In the Menéndez murder trial in 1993 (a famous case in the U.S. where two brothers were accused of murdering their parents for a multimillion dollar inheritance), for example, the key witness claimed to have suffered from ‘disassociation’: where I somehow separated myself and I was there and I answered questions from some element of my consciousness but (.) u::mm. After a 1.5 second pause, the prosecuting attorney finishes her utterance with: But you really weren’t there. Although the prosecutor appears to merely complete the witness’s utterance she does much more than that. Her response is accompanied by a micro-​expression of disgust or disbelief (‘stank face’) that works as a stance marker and speech act. While overt comments on the witness’s responses are prohibited in the adversarial system, the prosecuting attorney nevertheless smuggles in an evaluation multimodally (see Figure 16.2). Finally, movement of the body and bodies to and from a given locale may convey divergent meanings from the content of talk, a significant feature of indirection in certain contexts (as we will see shortly).

Materiality Any overview of multimodality would be incomplete without considering the role of materiality –​or in more active terms material conduct –​and how it is injected into the multimodal environment: what Heath and Hindmarsh (2002: 117) refer to as the ‘local ecology of objects and artifacts.’ As they mention, although material objects appear in much research as passive features of the environment, their semiotic function emerges only in the moment as it actively contextualizes the environment in which it is embedded. They emphasize that when research conceptualizes material objects as mere stable and passive props of the physical environment, it ignores their dynamic role in constructing coherent 248

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Figure 16.2  (micro-​expression of disbelief But you weren’t really there?)

courses of action and how participants utilize them to accomplish distinct interactional tasks. In a similar vein, Goodwin (2007: 196) refers to ‘environmentally coupled gestures … that encompass not only talk and gesture but also objects in the world.’ The question relevant here is this: how are material objects like exhibits, transcripts and tape recordings in the legal institution made meaningful at specific moments in particular contexts? As an illustration, transforming investigative interviews with witnesses into a written transcript represents the interdiscursive infrastructure of the legal order (Komter 2006). As Komter (2006: 196) states: ‘records of police interrogations are inspected by prosecutors to decide on whether to prosecute or not and by legal counsel to map out a line of defense.’ Yet, Johnson (2020) found that the final transcript omits the multimodal responses of the witness to the officer’s interview questions. She demonstrates (2020) in vivid detail how the suspect appears ‘disengaged’ (by not responding verbally) in the written transcript. However, when looked at multimodally via video, the suspect rejects blame attributions quite vigorously through ‘lateral head shakes, shrugs, gaze-​avoidance, and head-​hanging.’ Here we see the applied relevance of multimodality when looking at the interrogation of suspects and the construction of police records. In sum, by multimodality we mean the semiotic heterogeneity of communicative action with all modal cylinders firing in the production of legal meaning: a mosaic-​like effect built on the strength of different components feeding an integrated whole. After the ensuing section we turn to the production of legal realities through multimodal practice. We illustrate how the modal resources discussed in the overview feature in the construction and co-​construction of legal discourse, identities and evidence.

Data in legal contexts Audio-​visual recordings provide researchers with unprecedented access to visual data. However, audio-​visual data, like all data, is far from perfect, and while indeed valuable for enhancing the precision of empirical research, there are practical and logistical considerations that figure in the use of multimodal data in legal settings like courtrooms. In their informative overview, Jones and LeBaron (2002) recommend that: ‘future studies of face-​ to-​face interaction be grounded in visual records.’ While this would be an optimal scenario for studying courtroom interaction it is often not feasible. Frequently, audio-​visual 249

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recordings of the proceedings are not permitted (at least not in the United States or the United Kingdom) and even in those cases where they are, it is quite different from audio-​ visually recording everyday conversation, where researchers can position the camera angle or even deploy multiple cameras to include the entire set of participants. Instead, researchers have to rely on third parties (like various news sources), which means that the available visual record will be selective in what is recorded and, occasionally, all engaged participants and relevant interactive contours of multimodal conduct may not be captured on the screen. Even so, such possible limitations or deficiencies (for that depends on what communicative practices are relevant to the analysis), are more than compensated by affording a naturalistic rather than artificial environment for studying the integration of gesture and other modal resources. Rather than rely on elicitation interviews or single speaker narratives in experimental settings, researchers can examine the mutual interplay of multiple modal resources and how the interactive contributions of participants mutually elaborate one another. In so doing, research, as we shall see, may uncover creative functions of inter-​modal synchronicity often erased in artificial settings and single speaker (non-​ interactive) narratives. Most importantly, naturalistic data in audio-​visual recording is replicable and verifiable –​the hallmark of science.

Multimodal conduct in the courtroom In this section, we apply concepts from the overview to trial practice and demonstrate the significance and relevance of multimodality for analyzing legal discourse. More specifically, we use three excerpts to illustrate multimodal conduct in the closing argument and cross-​examination stages of a rape trial (very condensed and abridged illustrations with defense attorney, Roy Black; prosecuting attorney, Moira Lasch; alleged victim, Patricia Bowman; defendant, William Kennedy Smith; and witness, Ann Mercer).

Closing argument Closing argument represents the most dramatic moment in the adversarial system. It takes disparate strands of testimony and weaves them together in a persuasive and coherent narrative, summarizing previous points of evidence and evaluating the position of both prosecution and defense. It is the attorney’s final chance to convince the jury that his or her account is the most plausible. And, most importantly, it provides the attorney an opportunity to showcase persuasive oratorical skills through the full range of modal resources at his or her disposal. In the following excerpt from the William Kennedy Smith rape trial, the defense attorney argues that, if the large, athletic defendant had tackled the small, petite victim on the lawn there should be evidence of the collision on her clothing. (1) See transcription conventions on p. 264. In addition we use bold where a word is louder than surrounding talk and bold italics for loudness plus stress. The following conventions are used for gestures. *vc parallel vertical chop ig interdigital gesture (tip of right index finger lands on and ascends up the fingers of the left hand) 250

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^ig intradigital gesture (right hand index finger latched onto the little finger of the left hand where rhythm is beat out with latching motion) fh horizontal fist-​hitting gesture where the right hand hits the grasping palm of left hand rh residual hitting gesture where the form of the last hitting gesture is maintained to form two up-​down vertical gestures in the hitting gesture position 01 02 03 04 05 06 07 08 09 10 11 12 13 14 15 16 17 18

She’s running across the lawn at full tilt (0.6) [((vc*)) [((vc)) She’s being chased by a man (0.5) [((vc)) [((two open palms in front of body)) who is six foot two and uh half (0.8) [((ig on little finger)) a hundred and ninety-​  five   pounds (0.9) [((^ig)) [((^ig)) [((^ig)) [((^ig)) ((^IG on index finger still latched on little finger)) who has-​ [((downstroke to unfurled ring finger abort)) as Miss Lasch      brought out [((right hand lateral gesture))    [((ig onset on ring finger)) size eleven and a half shoe (0.9) [((ig downstroke on ring finger)) who tackles her (0.6) [((ig on middle finger)) and hits the ground. (0.8)   [((two-​handed vc)) She is on the   bottom (.) and absorbs [((hitch))  [((vc))   [((vc)) ((the ‘hitch’ or perturbation above is a resynchronizing gesture)) all the  force (1.0) of that event. (1.1) [((vc)) [((vc)) ((post-​stroke hold)) Now there’s not uh    freeze frame here    [((vc* upstroke))    [((vc downstroke)) You don’t    just stop (1.1)    [((vc upstroke))    [((vc downstroke)) You’re going to   sli::de along the ground   [((vc upstroke)) [((vc downstroke)) You’re going to   hit that ground with great force   [((vc upstroke)) [((vc downstroke)) There’s gonna be force from both sides (1.4)    [((vc upstroke)) [((vc downstroke)) Now you’ve heard (1.8) from numerous people (1.7) [((vc* upstroke)) [((vc)) [((vc))    [((vc downstroke)) [((vc)) ((in the 1.8 pause the upstroke for the next gesture is suspended at the elevation peak)) this (.8) principle in science of transfer theory (.5) [((vc upstroke)) [((vc downstroke)) [((vc) [((vc)) ((in the .8 pause the upstroke is suspended at the elevation peak))

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19 20 21

What  happens when bodies collide (1.3) [((vc)) [((vc)) [((fh)) or when a body collides with  other items (1.7) [((fh))     [((rh)) [((rh)) There has to be some evidence of that. [((open left hand to the side; open palm supine))

In lines 03–​09 above, the defense attorney launches a parallelistic series of stressed wh-​ relatives, listing the size, weight and actions of the defendant: who is, who has and who tackles. Each relative co-​occurs with an ascending progression of finger movements or listing beats in which the tip of the index finger on the right hand lands on the tips of the unfurling digits of the left hand to accompany the verbal listing of facts (little finger to ring finger, and then middle finger). The gesture upstroke occurs on the relative; the down stroke hits the finger on the verb. What is interesting in terms of legal evidence is this. The interdigital beats make each piece of evidence stand out, just like each individual digit stands out from the others. They count off and expand inconsistencies in the prosecution’s case as they work their way through a ‘more of form is more of content metaphor’ (Lakoff and Johnson 1980). At a finer level of granularity, this example also highlights our previous discussion of the close synchronization in the speech-​gesture ensemble. In line 05, the second wh-​relative co-​occurs with a finger movement ascending from the little to ring finger. However, as this second finger movement reaches its elevation peak prior to onset of the down stroke, the defense attorney aborts descent and produces a cut-​off on the wh-​relative who has-​, leaving both the just unfurled ring finger and relative momentarily stranded to accommodate the off-​kilter parenthetical in line 06. Notice the delicate online adjustments to forge speech-​gesture coordination and how both modalities calibrate and recalibrate pace to manage precise synchronization. While progression of the speech-​gesture litany is momentarily suspended, it is not abandoned. On the parenthetical, as Miss Lasch brought out, the defense attorney produces a lateral open palm motion to the side with the right hand: a side comment and gesture that sweeps it to the side. Simultaneously, the unfurled ring finger on the left hand waits to receive its beat from the right index finger post the parenthetical (which it receives in line 07) (see Figures 16.3–16.6​ below). With each increment of verbal and gestural listing the attorney escalates the magnitude of force directed at the small, petite victim who hits the ground, force that culminates in line 09 as his virtuosic finger work evolves into two-​handed vertical chopping gestures. In essence, the digital finger beats cumulate facts of evidence that contextualize forthcoming evaluative inferences, in this instance orchestrated by the two-arm vertical gestures superimposed upon hits the ground and She is on the bottom and absorbs all the force of that event. The mutual interplay between speech and gesture operates at just this level of microcosmic detail, so that the audience not only hears but also visualizes the expanding inconsistencies in the prosecution’s case. And those inconsistencies unfold through a polyrthymic poetics of metricalized beats and speech that calibrate interpretation and guide evaluation.

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Figure 16.3  who interdigital upstroke

Figure 16.5  a hundred and ninety-​ five pounds intradigital x4

Figure 16.4  is interdigital downstroke

Figure 16.6  as Miss Lasch parenthetical or PP

In lines 12–​16, the attorney elaborates the dynamics of absorbing forces from line 11 (with two-​handed chopping beats). In so doing, we can see how the dialect of the fingers (lines 03–​ 08) up the ladder of the hand foreshadows the folk-​physics of collision. More specifically, in line 13 the gesture down stroke that lands on just stop reaches the high mid-​torso level (the upper limit of the mid-​torso region), and there is a halting motion or marked recoil, as it hits this level, followed by a lengthy pause to convey a quick stopping imagery. Together, multimodal signal streams –​halting at the mid-​torso, recoil at the bottom of the down stroke and lengthy pause –​represent an iconic imagery of stopping, lending rhythmic semanticity to the gesture in addition to and simultaneous with its orthodox rhythmic function. The two-​handed chopping beats continue, and something interesting happens in line 15 with the beat gesture synchronized with hit. The two-​handed chopping beat possesses higher elevation on the upstroke, and much greater acceleration on the down stroke, as it reaches depth at the lower torso level. Moreover, there is greater intensity of gestural movement with not only the hands and arms, but also head and upper torso moving forward. The attorney leans forward to convey another instance of rhythmic semanticity, that is, to visualize hitting with great force. Although words describe hitting the ground with great force, they fail to visualize what that force looks like. In this sense, the motion of hitting is not conveyed as vividly in speech via the contact verb as in gesture. To put this another way, while it is one thing to describe an event occurring with great force, it is

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quite another for recipients to see it visualized at the same time as it is expressed verbally, demonstrating our prior point that speech and gesture convey meaning in different ways. Turning to lines 19–​20 the attorney’s two-​handed vertical gestures evolve into horizontal fist or beating rhythmic gestures where the gesture stroke lands on collide in both lines. In these two gestures, the fist on the right hand collides with, and cradles in, the open grasping palm of the left hand, with the thumb of each hand in an upwards-​touching position. This demonstrates that beat gestures may not only have upstrokes, but sidestrokes as well. Just as the fist-​hitting gesture demonstrates the collision, so too must there be an embodied consequence of the collision between the defendant and victim: some embodied proof –​on her body or clothing or both –​absorbed from the impact. The increase in intensity, velocity and force in the rhythmic gestures provides kinesically an image of the force and collision that should have occurred in the sexual assault:  what happens when one body collides with another (see Figures 16.7 and 16.8). More theoretically, while collide describes the action, it does not show the magnitude of reaction in the same manner as the fist-​hitting beats. The motion verb describes the manner of contact; beats visualize the intensity, shape and consequence (and direction) of objects coming into contact. Together, they yield a rich unity of meaning to visualize the folk-​physics of collision. This demonstrates the point in the overview section that gestures are co-​expressive, not redundant, with speech, and they encode additional –​imagistic –​ aspects of meaning along with their propositional counterpart. In these cases, we see a clear example of Kendon’s argument against gesture taxonomies and how rhythmic gestures may, at specific moments, operate multifunctionally to accentuate rhythm and emphasis on the one hand, and capture imagistic content on the other, demonstrating the relevance of fine-​grained analysis of naturally occurring data for the study of rhythmic beat gestures in particular and gesture in general. That is to say,

Figure 16.7  (bodies collide) 254

Figure 16.8  (when a body collides)

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one type of gesture may integrate not only with speech, but also with another gesture and thereby fuse into emergent –​multifunctional –​gestural forms to manage the interactional task at hand. As mentioned previously, legal context may offer insight into rather novel forms of multimodal semiosis. And, in our final example from closing, we consider what we refer to as material-​mediated gestures (‘mmg’ in the transcript) in which the attorney beats with and on a transcript of the rape victim’s testimony from a police interview. (2) 01 Look at what she sa::ys (.) about men (4.3) [((gets transcript during pause)) 02 In trying to understand her motivation (1.2) you have to take a look at-​(0.5) [((thumbing through transcript)) 03 some of the things that she said (.) [((thumbing through transcript continued)) 04 On April first (1.5) she was asked questions (.) about that (1.2) [((thumbing through transcript continued)) 05 And she sai:d (3.0) that her last relationship (.) [((holds transcript in right hand/​rests left hand on podium)) [((gaze to transcript)) [((gaze to jury)) 06 she felt abandoned (.) [((gaze to transcript)) 07 that it was a pretty harrowing experience (2.1) 08 that-​ anger built up [((hand off podium/​grips transcript with two hands)) 09 I [((gaze to jury)) [((material-​mediated gesture or mmg with 2 hands)) 10 didn’t   feel    I     could   trust   men [((mmg)) [((mmg))   [((mmg))   [((mmg)) [((mmg)) ((mmg)) (1.5) [((gaze to transcript)) 11 and that I was pretty a::ngry at them (1.0) [((turns page on transcript)) 12 I actually didn’t see     what   wo::rth (.) that    they [((gaze to jury))  [((mmg))  [((mmg))  [((mmg))  [((mmg)) 13 had (1.4) [((mmg)) [((gaze to transcript)) 14 They really didn’t do::: that much (1.1) [((removes left hand from transcript/​places it on podium)) 15 I don’t trust men [((mmg with right hand only)) [((lowers transcript in right hand to his side/​redirects gaze to jury)) (2.1) [((brings transcript up to mid torso, gripped with both hands)) 16 Look to see (0.9) [((dg*=deictic gesture))

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17 what-​(.)  [((dg))  18 See   [((dg))

what  [((dg)) what’s  [((dg))

he::r  (0.8)  mental status is (.) [((dg))    [((dg)) in her mind (8 second pause) [((dg))

((each gesture in 16–​18 is a left hand deictic gesture with fingers spread and tensed that lands on the top of the transcript. Transcript is held flat and facing upwards in the right hand palm up)) The attorney constructs ulterior motives through an interdiscursive balance of speech, gaze and material-​ mediated gestures and encodes the relevance of putative mental predicates in and through multimodal conduct. More specifically, he uses transcript beats to display how evidence of assault must be inscribed not only on the body but also in the mind of the victim. In line 08, the attorney grips the transcript with two hands and in line 09 changes from indirect to direct quotes of Bowman’s speech, a transition accompanied by gaze to the jury and a noticeably marked shift in pitch register superimposed over the quote:  I didn’t feel I could trust men. And there’s something else that accompanies the transition. In lines 09–​10 Black synchronizes a series of two-​handed beats, while holding the transcript, over each word in the direct quote. These material-​mediated gestures consist of low elevation peaks, increased acceleration and micro-​distance between elevation peak on the upstroke and nadir of the down stroke to animate the sense and punctuate the significance of each word in the quote. Put more prosaically, he beats out the importance of her words with her words. In lines 12, 14 and 15 the moving litany of direct quotes continues with the epistemic stance adverbs (actually and really) and do-​copula plus contracted negative (didn’t see, didn’t do::: and don’t trust) that ground Bowman’s emotional state. On the perception verb (see) in line 12 Black returns gaze to the jury and begins the second series of object-​ mediated gestures synchronized over the wh-​clause. The materia1-​mediated gestures here as well as lines 09–​10 synchronize with distribution of gaze and prosodic stress over the quote to mark affectively charged passages of evidential significance. In both instances, the gestural incorporation of material objects synchronizes with distribution of gaze, prosody and direct quotes in an arrangement of emphatic rhythm. At the 1.4-​second pause he returns gaze to the transcript, while in line 14 he removes the left hand from the transcript. In line 15 he concludes with the final element of the repetitive arrangement (I don’t trust men), with a single right hand material-​mediated gesture (on trust), and then lowers the transcript in the right hand to his side and redirects gaze to the jury. After the flurry of direct quotes, Black pauses for 2.1 seconds and then moves the transcript to mid-​torso level in front of the body to contextualize an evaluative summary. The summation materializes in lines 16–​18 with two directives that implore the jury to inspect Bowman’s mental status and mind. The first directive mobilizes two perception verbs, look to see, the second repeats see in clause initial position. While gazing at the jury, Black’s left hand points to and beats on the transcript (held flat on the right hand palm) during both directives (Look to see (0.9) what-​(.) what he::r (0.8) mental status is (.) and See what’s in her mind). Each hand-​hitting-​the-​transcript gesture consists of accelerated movement (once again consisting of micro-​spacing between elevation peak at the upstroke and nadir of the down stroke) repeating over both lines. What is most interesting, however, is not just the repeating movement but also the repeating shape of the hand in the movement. The palm faces downward with the fingers spread slightly in a tensed shape 256

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for hyper-​emphasis. The rhythmically organized ‘stressed’ fingers emphasize the ‘stressed’ point, demonstrating how the form of the hand signifies the function (see Figures 16.9–​ 16.12 below).

Figure 16.9  mental deictic gesture

Figure 16.10  see upstroke

Figure 16.11  see downstroke

Figure 16.12  mind

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In so doing, Black integrates pointing with rhythmic gestures to simultaneously locate and emphasize Bowman’s mental state. Pointing to and beating on the transcript displaces Bowman’s mind as the focus of the discourse and recalibrates the transcript as the emphatic object of deictic reference, that is, as the locus of Bowman’s mental status. This demonstrates in multifunctional detail how gestures can be embedded in and fused with improvisational forms of the discursive use of objects. As deictic rhythms converge and merge at point of contact with the transcript they ground Bowman’s psychological state –​her mind in the transcript –​and Black’s speech in the material world. Relating this to imagistic gestures, Lakoff and Johnson (1980) argue that ontological metaphors like ‘the mind is an entity’ afford us a way of viewing or conceptualizing experiences, emotions, events, as entities or substances, transforming the abstract into the concrete. Similarly, Müller (2008: 75) refers to ‘in the mind’ as a metaphor in which ‘non-​ physical or abstract objects are containers.’ In this regard, ontological metaphors locate or ground abstract entities in the physical domain through the imposition of spatialized boundaries. Here, the mind is bounded by a surface and located in the transcript. Viewing her mind as an entity that can be seen, identified and referenced enables Black to assign an artificial location to an abstract concept. That her mind exists in the transcript allows him to refer to her mind as a tangible and enduring object, one that provides visual structure to the jury’s experience. His gestures point to and beat out displacement of her mind to transcript, giving it a corporeal quality that he can reference as an object. As the mind materializes in transcript and gesture, the victim’s motivation to fabricate the charge emerges as a multimodally organized and emergent phenomenon rather than some inner springboard of action.

Cross-​examination The goal of cross-​examination is to test the credibility of witnesses and evidence from direct examination. Attorneys impeach the credibility of witnesses by constructing inconsistencies in their testimony. In the ensuing example from the same rape trial, defense attorney (DA) and witness (AM) mutually elaborate one another’s contributions; in particular, the attorney’s metapragmatic utterance prospectively shapes the witness’s multimodal narrative as her narrative retrospectively recalibrates the attorney’s utterance. (3) 01 02 03 04 05 06 07 08 09 10 11 12 13 258

DA: You knew that you were going to be asked questions only twelve hours ago. It was only twelve hours isn’t that right? (1.1) AM: Yes (7.3) AM: ((slight head tilt forward and back at 7.0)) AM: ((lip smack/​alveolar click and head movement forward toward microphone with thinking face display at 7.3)) AM: I would like to complete my answer on uh:: the question (.) about (.) saying that Senat[or Kennedy was watching   [((gaze moves to DA)) (0.9) AM: ((raised and sustained eyebrow flash with mouth open-​close co-​occurring with three micro vertical head nods)) (3.3) DA: Uh::: (.) which question are you answering now:: miss::

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14 15 16

AM:

17 18 19 20 21 22 23

DA: AM:

24 25 26

AM:

DA:

27 28 29 30 31 32 33 34 35 36 37 38 39 40 41 42 43 44 45 46 47 48 49

DA:

AM:

[ You had asked me uh::: (.) yesterday (0.5) n’you also asked me this morning (0.5) about my statement to the police= [       ] You want to-​ =saying that she told me that Senator Kennedy was watching I would like to complete that answer for the jury please (0.9) You mean this is an answer that I asked you yesterday you now after thinking about it overnight want to complete the ah::: answer [    ] Ah::: No. I didn’t have the opportunity to answer your question yesterday ((staccato delivery)) I [believe= [((slight gaze movement from DA to Judge and back)) =we had stopped [at that point    [((45 degree turn to Judge and back to DA)) (1.2) I’m sorry I thought you had uh:: completed your answer If you want to say something to the jury that you’ve had time to think about (.) please go ahead ((lower volume over entire turn)) [ No-​ it-​ >I haven’t had time to think about it. I would have said the same thing yesterday when you asked me.< ((Sped up)) (1.4) [((torques upper body, tilts head and shoulders, and shifts gaze to a thinking face/​middle-​distance display at 35-​41)) [When Patty:: (1.6) came over to my house (.) when she was at my house (0.4) she was sitting on my couch (.) in a state in a state of hysteria (1.6) a::::nd I had asked her (.) uh few questions (1.7) Uh::: she repeated (2.5) th-​that he was watching, he was watching (2.8) I (.) then in return asked her (.) who was watching. (0.8) [Was Senator Kennedy watching? [((eyebrow flash)) [        (2.0) [((realigns body and gaze to Black)) [A::nd at that point (.) she became [more hysterical (.)=     [((slight lateral head shake)) = [more shaky (.) and I assum::ed (1.2) that Senator= [((marked lateral head shake)) =Kennedy was watching. But she never (0.8) told me that he was watching. I made that assumption by her affirmative (0.8) display of hysteria ((Move to an upright position and juts chin)) 259

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In the above case, the witness makes a request to ‘continue’ her testimony from the previous day in an effort to clear up a serious inconsistency, an intertextual continuity between prior and current utterances. In response, the DA evokes a linguistic ideology that shapes the epistemological criteria for gauging legal authenticity and truth: utterances that are planned or rehearsed (perhaps even coached by someone else) beforehand represent inferior forms of evidential knowledge. Only spontaneous talk in the here-​and-​now contains legal truth and authenticity. By invoking this ideology, the attorney can imply that her projected utterance is not a continuity with prior discourse but an intertextual discontinuity, in which her animated words incorporate voices of some other projected author and principal (perhaps either her attorney or the victim or both). Notice the contrast between the DA’s almost perversely restrained (or tauntingly composed) if-​conditional metapragmatic frame (‘If you want to say something …’) as it interacts with the witness’s body torque (her postural positioning), middle-​distance or thinking face gaze (line 30), embedded parenthetical in return (line 33), eyebrow flash (line 42), and sonorous defensive stance in lines 32–​34 (the increased loudness, stress, cut-​off, and sped-​up speech draw attention to the utterance). In more detail, after the rejection in lines 32–​34 Mercer torques her upper torso from the attorney to the right, tilts her upper torso and head to one side, and shifts her gaze downward in a thinking face display, appearing deeply engaged in thinking while speaking. Retrospectively, Black’s pre-​framing conditional imparts an iconic alignment and reflexive sense of coherence to Mercer’s bodily conduct and reported speech  –​to her contemplative activity while speaking. Her body shift and gaze foreground a state of mental activity –​thinking or remembering –​and foster the impression that she is in the process of enacting the rehearsed object of the prior evening (see Figures 16.13 and 16.14 below).

Figure 16.13  (pre-​body torque) 260

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Figure 16.14  (body torque and thinking face)

In sum, the contrast frames the witness’s forthcoming speech, undermining its epistemological status, and making it appear rehearsed (thus subtly invoking the negative inferences associated with rehearsed testimony). Put another way, her multimodal conduct in lines 32–​49 interacts with the attorney’s metapragmatic frame to draw disparaging attention to the authenticity of her speech (especially the quotes in lines 32–​34). This in turn confirms the DA’s interpretation that she is speaking from a prepared script. Here we see in concrete detail a crucial point from the overview:  how the interactive and multimodal contributions of participants mutually elaborate one another, and such sociolegal meanings are typically bleached from single speaker narratives in experimental settings.

Conclusion Legal language involves more than verbal and written modalities. Research in forensic linguistics needs to revisit the voices from classical antiquity and the Middle Ages on gesture’s role in oratorical delivery and beyond to provide a more comprehensive analysis of legal practice. Lest we forget, forensic linguistics was forged by an interest in oratorical delivery. As Quintilian, Bulwer and de Jorio emphasized centuries ago, gesture and other modal resources inject an imagistic spark that lubricates the legal order. If legal realities are built through the rhythmic interplay of densely layered forms of multimodality then investigation of sociolegal action should include this as part of the communicative equation. As we saw previously, even written forms of law and formal legal rationality such as precedent involve an interpretive process encoded through multimodal conduct. Our brief and very truncated illustrations of the manual modality point to a rich vein of unexplored territory in the so-​called ‘verbal’ institution of the law, one that promises considerable payoff for further analysis of the rhetorical practices trial participants bring 261

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to bear on the construction of evidential significance and production of persuasive oratory. We have shown not only how we ‘do things with words,’ but how we construct legal context through multimodal conduct –​through the dynamic integration of modal resources.

Acknowledgement Parts of the chapter are based on materials that were previously published. Thanks to John Benjamins, Wiley, Oxford, Cambridge and Walter de Gruyter for permission to use these materials for inclusion in the chapter.

Notes 1 This is not the occasion for a more nuanced discussion of the differences between Kendon and McNeill on the nature of gesture. Suffice it to say that for McNeill (1992, 2005) gesture and speech consist of an underlying unity of thought that is called ‘language’ and present a window to the mind. McNeill finds a sharp discontinuity between spontaneous gestures and gestures with more fixed form-​meaning relationships. Only imagistic spontaneous gestures reflect inner thoughts/​representation (in other words, gestures represent thoughts embodied). For Kendon (2004) gesture and speech represent different yet compatible modalities that interact in utterance production and constitute sociocultural resources in the conduct of social interaction or ‘utterance as visible action.’ In contrast to McNeill, Kendon finds no categorical difference between ad hoc co-​speech gestures and conventional signs like ASL, emblems etc. (an issue relevant to gesture change from ad hoc to recurrent (or hybrid) to conventional, see Muller 2018). 2 Other classification systems include pragmatic gestures that signal stance and specific speech acts, and interactional gestures that regulate turn taking and encode conversational moves. For example, in her study of focus group evaluations of community policing training, Gilbert (2017: 16) discovered an officer use what she refers to as an acoustic gesture, a finger snap designed to intensify an emphatic stance toward the information imparted. The acoustic gesture is novel in the sense that it conveys sound and imagery simultaneously. 3 By locating her mind in the transcript, the attorney portrays the mind –​a fluid, nebulous concept –​as a fixed and permanent object rather than a snapshot of an emotional response. In terms of legal strategy, the mind in the transcript precludes any possible shift in the mind set, such that a change of mind would contradict the witness’s thoughts. In more critical terms, the transcript functions as a multimodal ideology that constructs a more accurate and concrete facsimile of a fluid and nondescript abstraction. According to Komter (2006), transcripts are ‘considered as objective, factual accounts’ of what happened, and here we see the process of material persuasion in motion:  the process of fetishizing material objects as objective entities rather than constructed products.

Further reading Conley, John, O’Barr, William and Riner, Robin Conley (2019) Just Words, 3rd edn, Chicago: University of Chicago Press. Goodwin, Charles (2019) Co-​Operative Action, Cambridge: Cambridge University Press. Johnson, Alison (2020) ‘“Are you saying you were stabbed…?” Multimodality, embodied action, and dramatised formulations in “fixing” the facts in police interviews with suspects’, in M Mason and F Rock (eds), The Discourse of Police Interviews, Chicago: University of Chicago Press, 355–​393. Matoesian, Gregory M. (2018) ‘This is not a course in trial practice: Multimodal participation in objections’ Journal of Pragmatics, 129: 199–​219. Matoesian, Gregory M. and Gilbert, Kristin (2018) Multimodal Conduct in the Law, Cambridge: Cambridge University Press.

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References Bulwer, J. (2003 [1644]) Chirologia or the Natural Language of the Hand, Whitefish, Montana: Kessinger Publishing. Conley, R. (2013) ‘Living with the decision that someone will die: Linguistic distance and empathy in jurors’ death penalty decisions’, Language and Society, 42(5): 503–​526. de Jorio, A. (2000) Gesture in Naples and Gesture in Classical Antiquity. A Translation of La Mimica Degli Antichi Investigata Nel Gestire Napoletano (1832), and with an Introduction and Notes, by Adam Kendon, Bloomington: Indiana University Press. Deppermann, A. and Streeck, J. (2018) ‘The body in interaction:  Its multiple modalities and temporalities’, in A. Depperman and J. Streeck (eds), Time in Interaction, Amsterdam:  John Benjamins,  1–​29. Gilbert, K. (2017) ‘Policing evaluation:  Focus group evaluation as an embodied speech Event’, Discourse and Communication, 11(4): 341–​361. Goldin-​Meadow, S. (2003) Hearing Gesture, Cambridge MA: Harvard University Press. Goodwin, C. (2007) ‘Environmentally coupled gestures’, in S. Duncan, J. Cassell, and E. Levy (eds), Gesture and the Dynamic Dimension of Language:  Essays in Honor of David McNeill, Amsterdam: John Benjamins, 195–​212. Heath, C. and Hindmarsh, J. (2002) ‘Analyzing interaction’, in T. May (ed.), Qualitative Research in Action, London: Sage, 99–​121. Johnson, A. (2020) ‘“Are you saying you were stabbed…?” Multimodality, embodied action, and dramatised formulations in “fixing” the facts in police interviews with suspects’, in M Mason and F Rock (eds), The Discourse of Police Interviews, Chicago: University of Chicago Press, 355–​393. Jones, S. and LeBaron, C. (2002) ‘Research on the relationship between verbal and nonverbal communication: Emerging integrations’, Journal of Communication, 52(3): 499–​521. Kendon, A. (2004) Gesture: Visible Action as Utterance, Cambridge: Cambridge University Press. —​—​—​(2017) ‘Pragmatic functions of gesture: Some observations on the history of their study and their nature’, Gesture, 16(2): 157–​175. Komter, M. (2006) ‘From talk to text: The interactional construction of a police Record’, Research on Language and Social Interaction, 39: 201–​228. Lakoff, G. and Johnson, M. (1980) Metaphors We Live By, Chicago: University of Chicago Press. McNeill, D. (1992) Hand and Mind: What Gestures Reveal About Thought, Chicago: University of Chicago Press. —​—​—​ (2005) Gesture and Thought, Chicago: University of Chicago Press. —​—​—​(2006) ‘Gesture and communication’, in K. Brown (ed.), Encyclopedia of Linguistics, 2nd edn, New York: Elsevier, 58–​67. Müller, C. (2008) ‘What gestures reveal about the nature of metaphor’, in A. Cienki and C. Müller (eds), Metaphor and Gesture, Amsterdam: John Benjamins, 219–​245. —​—​—​(2018) ‘Gesture and sign: Cataclysmic break or dynamic relations?’, Frontiers in Psychology, 9: 1–​20. Nevile, M. (2015) ‘The embodied turn in research on language and social Interaction’, Research on Language and Social Interaction, 48(2): 121–​151. Quintilian (2001 [95 AD]) The Orator’s Education, trans. D.A. Russell, Cambridge, MA: Harvard University Press. Tebendorf, S. (2014) ‘Pragmatic and metaphoric –​combining functional with cognitive approaches in the analysis of the “brushing aside gesture”’, in C. Müller, A. Cienki, E. Fricke, S. Ladewig, D. McNeill and J. Bressem (eds), Body –​ Language –​ Communication, vol. 2, Berlin: De Gruyter Mouton, 1540–​1558.

Transcription conventions used Symbol

Meaning

(.) (1.5) ((head nod))

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Symbol

Meaning

[((gesture)) word lo:::ng bold bold italics = look-​ [((extends open palm)) (B)

left bracket double parentheses for embodied action italicizing for stress colon(s) for vowel lengthening louder than surrounding talk loudness+stress equal sign for latched utterances with no pause dash for cut-​off utterances below brackets for overlapping speech/​gesture (B) in parentheses for beat underneath its accompanying word or phrase

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Lay participants in the judicial process

17 Instructions to jurors Redrafting California’s jury instructions Peter M. Tiersma

Background The function of a trial is to resolve disputes. Although some conflicts can be resolved purely by the application of legal principles, most trials involve disputes about a state of affairs or an occurrence that took place in the past. Thus, a court must typically decide factual issues. Once it has done so, it can apply legal principles to the facts in order to arrive at a judgment. During the Middle Ages there were differing methods of ascertaining the facts, or determining which party was telling the truth. Sometimes the parties were allowed to decide the matter by swearing an oath. Knights might decide a case by engaging in trial by battle. Perhaps the most interesting procedure was trial by ordeal. The ordeal by water, for instance, involved being thrown into a pond or other body of water. If the party sank, she had told the truth and was quickly rescued. If she floated, the water (being pure) had rejected her, exposing her claims as lies. All these methods of proof relied on divine intervention and hence required the cooperation of the church. Ordeals ended when a church council in 1215 declared that priests could no longer participate and because God no longer spoke through these rituals, they became meaningless (Baker 1990: 5–​6). Without divine intervention, how can courts know which party is telling the truth? Medieval English judges began to call 12 juratores (‘persons who have been sworn’) to court. They were summoned from the place where the dispute had taken place. The jurors were expected to have personal knowledge of the truth. Eventually, jurors began to decide what happened based upon evidence presented to them in court. In fact, today jurors are required to determine the facts solely on the basis of admissible evidence; they are generally disqualified if they have any prior knowledge of the facts or conduct an independent investigation (Baker 1990: 88–​89; Levy 1999). For many centuries, judges would give no instructions to jurors, although they might answer questions. Because the jurors were expected to reach a verdict, they would have to decide whether a party was guilty or liable based largely on their own sense of justice. This was true also in the English colonies of North America, which later became the United States. The American revolutionaries trusted the common sense of citizens and held that 267

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jurors should be able to decide not only the facts of a case, but also the rules of law that ought to be applied to reach a verdict (Levy 1999: 69–​76). This state of affairs began to change as the United States industrialized. Predictable legal principles were important for the growth of commerce and industry. By the end of the 19th century, the Supreme Court held that ‘it is the duty of juries in criminal cases to take the law from the court and apply that law to the facts’ (Sparf v. United States: 102). This principle, which was later extended to civil cases, meant that judges had to instruct jurors on the relevant legal principles. Creating a set of instructions for every case took a great deal of time and effort. Moreover, each judge’s instructions would necessarily be somewhat different from those used by other judges. Soon cases began to be reversed because of errors in wording. Such problems led to the establishment of a committee of judges and lawyers in California, who in the 1930s and 1940s began to draft standard (also called pattern) instructions. The idea spread. Most American state and federal courts currently use standardized jury instructions (Nieland 1979). Pattern instructions have indeed saved judges and lawyers time and money. Because they are usually drafted by committees of judges and lawyers, rather than a single judge, they tend to be accurate statements of the law, which has reduced the number of appeals for instructional error (Schwarzer 1981). Yet for the most part, they have not proven to be particularly comprehensible to the ordinary citizens who comprise the jury.

Developments in California As mentioned, the state of California was a pioneer in the development of standardized instructions. The initiative was implemented by committees of the Superior Court of Los Angeles County, who created two sets of instructions. The civil version was originally called the Book of Approved Jury Instructions (or BAJI) (Committee on Standard Jury Instructions, Civil 2004). The criminal instructions were known as California Jury Instructions: Criminal (or CALJIC) (Committee on Standard Jury Instructions, Criminal 2003). Although not drafted by an official statewide body, they were commonly used throughout the state and generally regarded as accurate statements of the law. They were sometimes criticized as not being easy for jurors to understand, but the BAJI and CALJIC committees stoutly resisted any efforts to make them more comprehensible, fearing that use of ordinary English would make them legally less accurate: It has been bruited that our instructions are written in English that is ‘too good’, ‘too highbrow’; that they ought to be written in the ‘language of the street’ … In respect of this criticism, we ourselves have run into two difficulties: (1) the law has not been written in ‘the language of the street’, and the one thing an instruction must do above all else is to correctly state the law. This is true regardless of who is capable of understanding it. (2)  Jurors do not appreciate condescension … They want to look up to the judge, respect him as a learned man, and hear him speak in refined English. (Committee on Standard Jury Instructions, Civil, 1956: 44) The problem of comprehension was addressed in a study undertaken by Robert and Veda Charrow in the late 1970s. The Charrows recorded a set of 14 BAJI instructions on audio tape (instructions, especially at that time, were often delivered orally by the judge). They 268

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played the tape twice to 35 subjects, who consisted of people called to jury duty but who had not yet served. Participants were then asked to paraphrase the instructions; these paraphrases were recorded and analyzed. Roughly speaking, only about one-​third of the information contained in the instructions found its way into the paraphrases. Even when the Charrows conducted a further analysis that concentrated on the legally most important information, only about half of that information appeared in the participants’ paraphrases. Next, the Charrows tried to isolate some of the linguistic features of the BAJI instructions that appeared to make them more difficult to process. They identified a number of such features, including the use of technical terminology, convoluted word order, excessive embedding, multiple negation and the use of passive verbs in subordinate clauses. They then rewrote the instructions to eliminate some of these troublesome linguistic features and repeated their experiment. For example, the Charrows replaced difficult lexical items with more ordinary English. Where BAJI told jurors that the actions of an agent ‘would be imputed’ to the employer or principal, the Charrows’ revision stated that actions of the agent ‘would transfer’ to the employer or principal. Cumulatively, this type of revision led to a 47% increase in comprehension. Another illustration is that several passive constructions were converted to their active equivalents. This produced an increased comprehension rate of over 48%. Overall, redrafting the instructions increased comprehension by around 35–​40% (Charrow and Charrow 1979). Several studies since then have confirmed the Charrows’ findings. The most recent substantial research was conducted by Bradley Saxton (1998). Saxton gave questionnaires to Wyoming jurors immediately after they were discharged from service in actual trials. Ninety-​seven percent of these former jurors believed that they understood the instructions either very well or completely. In reality, when participants were asked true/​false questions about specific legal rules on which they had been instructed, only about 70% of their responses were correct. For example, around 40% of the participants who had already served in criminal cases believed that the fact that the state brought a charge against the defendant was evidence that he or she had committed the crime, which is directly contrary to their instructions. And some 30% wrongly believed that once the state produced evidence that the defendant had committed the crime, the burden shifted to the defendant to prove his innocence. The committee that drafted and updated the BAJI instructions ignored the Charrows’ research, even though it appeared in a prominent legal journal. This was true even after the California Supreme Court cited the Charrows’ study approvingly and suggested that the committee use its conclusions to improve the language of an ‘admittedly confusing instruction’ on causation (Tiersma 1993: 54). The situation changed only after the state lost a famous murder case against former football player OJ Simpson. Many people came to the conclusion that California’s criminal justice system, and the jury in particular, was not working properly. The California Judicial Council asked a special commission to study the matter. One of its recommendations was that the Council should appoint a task force to draft new instructions ‘that accurately state the law using language that will be understandable to jurors.’ They should be submitted to the Judicial Council and the California Supreme Court for approval (Kelso 1996). The task force was divided into two subcommittees, one civil and the other criminal. They started work in 1997. The committees consisted of judges and lawyers, two members of the public, and a law professor (the author of this chapter) whom they 269

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sometimes called their ‘linguistic consultant.’ Each committee had the services of a staff attorney, who conducted research and did much of the preliminary drafting. Members met in person several times a year to discuss proposed instructions. Typically, the proposed instructions would be projected onto a screen from a laptop computer and would be edited on the computer in real time during the course of the meeting. Some were quickly approved, while others required extensive debate until satisfactory language was hammered out. All of the new instructions were circulated to the state’s legal institutions (mostly courts and bar groups) for public comment. The committees received a large amount of feedback, which often led to improvements. In 2003, a full set of new civil instructions (given the name CACI) was approved by the California Judicial Council for use in the courts (Judicial Council 2003). The new criminal instructions, CALCRIM, were approved some three years later (Judicial Council 2006).

Old v. new: some civil instructions To better understand the linguistic difficulties posed by the old instructions, and to see to what extent the new ones have improved the situation, it is useful to compare the two. We will first examine some civil instructions, beginning with the old (BAJI) instruction and then comparing it with the closest equivalent in CACI. As printed, the instructions typically have a great deal of material in square brackets, indicating that the given portion is optional or that the judge must choose between two or more alternatives. When they are read to jurors, who these days generally also receive a written copy, the judge will have decided which language to include and the brackets will have been eliminated. In the following, I  have chosen what appears to be the most common formulation and have deleted the brackets. Also, in some cases I have provided only part of the instruction in order to facilitate comparison between old and new. A final preliminary comment is that in speaking of the ‘old’ instructions I do not wish to suggest that they are no longer used. Some judges, mostly in Los Angeles, continue to use them, either because they have been using those instructions for many years, or because they are philosophically opposed to explaining the language of statutes and judicial opinions in ordinary English. BAJI 1.00. Respective Duties of Judge and Jury Ladies and Gentlemen of the Jury: It is now my duty to instruct you on the law that applies to this case. It is your duty to follow that law. As jurors it is your duty to determine the effect and value of the evidence and to decide all questions of fact. You must not be influenced by sympathy, prejudice or passion. BAJI 1.00 is obviously an introductory instruction and is not bad in terms of language. It is, however, phrased in relatively formal terms, which was typical of the BAJI committee’s approach. Informing jurors to ‘determine the effect and value of the evidence’ is hardly ordinary English, although jurors probably know what it means. There is no new instruction that parallels BAJI 1.00 exactly, but there is one which is given at the end of trial and which covers the same ground: 270

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CACI 5000. Duties of the Judge and Jury Members of the jury, you have now heard all the evidence. It is my duty to instruct you on the law that applies to this case. You will have a copy of my instructions with you when you go to the jury room to deliberate. You, and only you, must decide what the facts are. You must consider all the evidence and then decide what you think really happened. You must decide the facts based on the evidence admitted in this trial. You must not let bias, sympathy, prejudice, or public opinion influence your decision. Notice that instead of telling jurors to ‘determine the effect’ of the evidence, CACI 5000 advises them to ‘decide what you think really happened,’ which is a far more fluent way of saying it. The following old instruction is more problematic: BAJI 1.01. Instructions to Be Considered as a Whole If any matter is repeated or stated in different ways in my instructions, no emphasis is intended. Do not draw any inference because of a repetition. Do not single out any individual rule or instruction and ignore the others. Consider all the instructions as a whole and each in the light of the others. The order in which the instructions are given has no significance as to their relative importance. Although it is the judge who repeats an instruction and does not thereby intend to emphasize it over the other instructions, BAJI has a strong aversion to the use of the first person. Instead, it prefers impersonal (often passive) constructions, such as ‘is repeated’ and ‘is intended.’ Overuse of passives is a common feature of legalese (Tiersma 1999). In the first paragraph, the statement that jurors should not ‘draw any inference because of a repetition’ is a very awkward way of saying that just because the judge repeats something, jurors should not assume that it’s more important than the other things the judge may have said only once. The second paragraph is not too bad, but the third is again horribly stilted. The equivalent language in the new instruction (also part of CACI 5000) is much more ordinary and understandable: Pay careful attention to all the instructions that I give you. All the instructions are important because together they state the law that you will use in this case. You must consider all of the instructions together. … If I repeat any ideas or rules of law during my instructions, that does not mean that these ideas or rules are more important than the others are. In addition, the order of the instructions does not make any difference. American jury instructions typically address the question of what is, or is not, evidence that jurors can consider in reaching a verdict, as in the following: BAJI 1.02. Statements of Counsel—​Stipulation to a Fact—​Evidence Stricken Out—​ Insinuations of Questions Statements of counsel are not evidence; however, if counsel have stipulated to a fact, accept that fact as having been conclusively proved. 271

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Do not speculate as to the answers to questions to which objections were sustained or the reasons for the objections. Do not consider any evidence that was stricken; stricken evidence must be treated as though you had never known of it. A suggestion in a question is not evidence unless it is adopted by the answer. A question by itself is not evidence. Consider it only to the extent it is adopted by the answer. One of the problems that legal language can pose for members of the public is its use of technical vocabulary. The word ‘stipulate’ in the first paragraph has a specific legal meaning (to conclusively admit or agree that something is the case), which BAJI does not explain to jurors. The second paragraph not only contains several levels of embedding, but also adds another legal phrase (to ‘sustain an objection’) that may not be familiar to many jurors. The word ‘stricken’ is also odd –​usually it means that someone got an awful disease (as in ‘he was stricken with malaria’). Finally, the notion that answers ‘adopt’ questions must seem very strange to most people. Below is the equivalent language from the new instructions: CACI 106. Evidence The attorneys’ questions are not evidence. Only the witnesses’ answers are evidence. You should not think that something is true just because an attorney’s question suggests that it is true. However, the attorneys for both sides can agree that certain facts are true. This agreement is called a stipulation. No other proof is needed and you must accept those facts as true in this trial. Each side has the right to object to evidence offered by the other side. If I do not agree with the objection, I  will say it is overruled. If I  overrule an objection, the witness will answer and you may consider that evidence. If I agree with the objection, I will say it is sustained. If I sustain an objection, you must ignore the question. If the witness did not answer, you must not guess what he or she might have said or why I sustained the objection. If the witness has already answered, you must ignore the answer. Sometimes an attorney may make a motion to strike testimony that you have heard. If I grant the motion, you must totally disregard that testimony. You must treat it as though it did not exist. CACI 106 contains almost exactly twice as many words as the BAJI instruction. Often the old instructions were simply too terse and cryptic. Plain language need not necessarily be longer than traditional legalese, but in some cases a clear explanation inevitably requires more words. I daresay that jurors who hear or read CACI 106 have a far better understanding of what is happening during trial than would those who are confronted with the BAJI equivalent. One of the most important issues in any trial is the burden of proof. The standard required in California civil cases was formerly expressed in BAJI 2.60: BAJI 2.60. Burden of Proof and Preponderance of Evidence ‘Preponderance of the evidence’ means evidence that has more convincing force than that opposed to it. If the evidence is so evenly balanced that you are unable to say that

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the evidence on either side of an issue preponderates, your finding on that issue must be against the party who had the burden of proving it. You should consider all of the evidence bearing upon every issue regardless of who produced it. After explaining that the plaintiff has the burden of proving their case by a ‘preponderance of the evidence’ (which was omitted in the above), the instruction proceeds to define the term. It begins well enough when it states that the plaintiff’s evidence must have more convincing force than the opposing evidence. But the next sentence is very problematic, especially the use of the arcane verb ‘preponderate.’ The new instruction defines the burden of proof more clearly: CACI 200. Obligation to Prove—​More Likely True Than Not True When I tell you that a party must prove something, I mean that the party must persuade you, by the evidence presented in court, that what he or she is trying to prove is more likely to be true than not true. This is sometimes referred to as ‘the burden of proof.’ After weighing all of the evidence, if you cannot decide whether a party has satisfied the burden of proof, you must conclude that the party did not prove that fact. You should consider all the evidence that applies to that fact, no matter which party produced the evidence. In criminal trials, the prosecution must prove facts showing that the defendant is guilty beyond a reasonable doubt. But in civil trials, such as this one, the party who is required to prove a fact need only prove that the fact is more likely to be true than not true. The new instruction avoids ‘preponderate’ and instead explains the burden in very ordinary terms: whether something is more likely to be true than not true. The instruction also confronts a possible area of confusion head-​on by distinguishing the civil standard from the criminal burden of proof. This is particularly important in modern times, when criminal trials –​and the reasonable doubt burden of proof –​are commonly depicted on television and in film. Many civil disputes involve vehicle accidents. This may produce a claim by the injured party for negligence, a type of tort or delict. To win a negligence claim, the plaintiff must prove that the defendant violated a duty that he or she owed to the plaintiff. This duty is the subject of BAJI 5.50: BAJI 5.50. Duty of Motorists and Pedestrians Using Public Highway Every person using a public street or highway, whether as a pedestrian or as a driver of a vehicle, has a duty to exercise ordinary care at all times to avoid placing himself or others in danger and to use like care to avoid an accident from which an injury might result. A ‘vehicle’ is a device by which any person or property may be propelled, moved, or drawn upon a highway. A ‘pedestrian’ is any person who is afoot or who is using a means of conveyance propelled by human power other than a bicycle. The word ‘pedestrian’ also includes any person who is operating a self-​propelled wheelchair, invalid tricycle, or motorized quadrangle and, by reason of physical disability, is otherwise unable to move about as a pedestrian, as earlier defined.

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The first two paragraphs are not too bad, although the phrase ‘to use like care’ is quite formal. The definition of ‘pedestrian’ in the third paragraph is a good idea, since it is an ordinary word that is used here in an unusual way to include people in wheelchairs and ‘motorized quadrangles’ (whatever they may be!). The CACI equivalent is far more straightforward: CACI 700. Basic Standard of Care A person must use reasonable care in driving a vehicle. Drivers must keep a lookout for pedestrians, obstacles, and other vehicles. They must also control the speed and movement of their vehicles. The failure to use reasonable care in driving a vehicle is negligence. A closely related instruction lays out in more detail the duties of both drivers and pedestrians: BAJI 5.51. Amount of Caution Required in Ordinary Care—​Driver and Pedestrian While it is the duty of both the driver of a motor vehicle and a pedestrian, using a public roadway, to exercise ordinary care, that duty does not necessarily require the same amount of caution from each. The driver of a motor vehicle, when ordinarily careful, will be alert to and conscious of the fact that in the driver’s charge is a machine capable of causing serious consequences if the driver is negligent. Thus the driver’s caution must be adequate to that responsibility as related to all the surrounding circumstances. A pedestrian, on the other hand, has only his or her own physical body to manage to set in motion a cause of injury. Usually that fact limits the capacity of a pedestrian to cause injury, as compared with that of a vehicle driver. However, in exercising ordinary care, the pedestrian, too, will be alert to and conscious of the mechanical power acting on the public roadway, and of the possible serious consequences from any conflict between a pedestrian and such forces. The caution required of the pedestrian is measured by the danger or safety apparent to the pedestrian in the conditions at hand, or that would be apparent to a person of ordinary prudence in the same position. This instruction is an elaboration on, or explanation of, the general standard of care relating to motor vehicles. The style is again formal and almost pedantic. It sounds like a university physics lecture delivered in the days when professors read their notes to the students. It is usually a good idea for instructions to tell jurors why a particular rule applies. People are more likely to comply with an order if they understand its purpose, as opposed to obeying what seem to be arbitrary commands. Yet here the explanation for the rule does not seem all that important. It’s perfectly obvious to anyone who has ever ridden in one that a car is a far greater potential danger than a pedestrian. The new instruction assumes that the jurors have a certain amount of experience and common sense. It is therefore much shorter than the BAJI equivalent: CACI 710. Duties of Care for Pedestrians and Drivers The duty to use reasonable care does not require the same amount of caution from drivers and pedestrians. While both drivers and pedestrians must be aware that motor vehicles can cause serious injuries, drivers must use more care than pedestrians. 274

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Criminal instructions As noted above, the original California instructions had a separate set devoted to criminal law, called CALJIC, or California Jury Instructions: Criminal. The project to create new instructions therefore also created a separate criminal set, which is referred to as CALCRIM. The introductory instructions for both sets of criminal instructions (dealing with evidence and trial procedure) are similar to the corresponding civil instructions, so we will turn to what is often considered the most critical issue in a criminal trial, the burden of proof. We once again compare the old instruction with the new one. CALJIC 2.90. Presumption of Innocence—​Reasonable Doubt—​Burden of Proof A defendant in a criminal action is presumed to be innocent until the contrary is proved, and in case of a reasonable doubt whether his guilt is satisfactorily shown, he is entitled to a verdict of not guilty. This presumption places upon the People the burden of proving him guilty beyond a reasonable doubt. Reasonable doubt is defined as follows: It is not a mere possible doubt; because everything relating to human affairs is open to some possible or imaginary doubt. It is that state of the case which, after the entire comparison and consideration of all the evidence, leaves the minds of the jurors in that condition that they cannot say they feel an abiding conviction of the truth of the charge. There are numerous problems with the old instruction. The language was copied verbatim from an 1850 Massachusetts case. Note that it never defines what a reasonable doubt is; it merely defines what it is not. It addresses the jurors in the third person. And ‘abiding conviction’ is not very ordinary language (Tiersma 1999: 194–​196). As a member of the CALCRIM committee, I advocated that we adopt language used by many jurisdictions, simply telling jurors that their decision must be based on the evidence and that they must be ‘firmly convinced’ of the truth of the charge. It is elegant in its simplicity and, in my view, says it all. California, however, long ago adopted a statutory definition of reasonable doubt in Penal Code section 1096, which formed the basis for the old instruction. The CALCRIM committee likewise felt compelled to use the statutory language, although it did rearrange the wording to make it more comprehensible: CALCRIM 220. Reasonable Doubt The fact that a criminal charge has been filed against the defendant is not evidence that the charge is true. You must not be biased against the defendant just because he has been arrested, charged with a crime, or brought to trial. A defendant in a criminal case is presumed to be innocent. This presumption requires that the People prove each element of a crime beyond a reasonable doubt. Whenever I  tell you the People must prove something, I  mean they must prove it beyond a reasonable doubt. Proof beyond a reasonable doubt is proof that leaves you with an abiding conviction that the charge is true. The evidence need not eliminate all possible doubt because everything in life is open to some possible or imaginary doubt. In deciding whether the People have proved their case beyond a reasonable doubt, you must impartially compare and consider all the evidence that was received throughout the entire trial. Unless the evidence proves the defendant guilty beyond a reasonable doubt, he is entitled to an acquittal and you must find him not guilty. 275

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Besides some improvements in organization, the main change was to rephrase the standard into a positive statement. Recall that the old instruction defines the phrase ‘reasonable doubt,’ in isolation and negatively. By contrast, the new instruction defines the whole phrase ‘proof beyond a reasonable doubt,’ a seemingly minor change, but one that allows the standard to be stated positively: ‘proof that leaves you with an abiding conviction that the charge is true.’ The definitions of crimes are also critical in a criminal case. The following is the previous instruction on murder. Alternatives relating to felony murder and killing of a fetus have been omitted for clarity of presentation. The instruction begins by laying out the basic elements of the crime: CALJIC 8.10. Murder—​Defined Defendant is accused of having committed the crime of murder, a violation of Penal Code section 187. Every person who unlawfully kills a human being with malice aforethought is guilty of the crime of murder in violation of section 187 of the Penal Code. A killing is unlawful, if it is neither justifiable nor excusable. In order to prove this crime, each of the following elements must be proved: 1. A human being was killed; 2. The killing was unlawful; and 3. The killing was done with malice aforethought. The organization of this instruction is bizarre. First it lays out the basic requirements for murder, then it explains what ‘unlawful’ means in the context of murder, then it repeats the requirements of murder in virtually the same words, but arranged as elements in a numbered list. There is no reason to repeat the requirements for the crime, and doing so in slightly different words has the potential to confuse. Jury instructions are traditionally highly impersonal and abstract statements of the law that avoid naming the parties, referring instead to ‘a person’ or ‘a human being.’ Yet if prosecutors accuse someone of murder, surely they must know in almost all cases who the victim was. And the state is accusing a specific person or group of persons of having committed the murder, so why set forth the elements in the passive voice? Perhaps the reason is that the instruction was also intended for use with felony murder, where the defendant did not himself kill the victim. It would be more sensible to have a separate instruction in such cases. On the positive side, the CALJIC committee did realize that ‘malice aforethought’ is not a phrase that jurors are likely to understand, so they defined it: CALJIC 8.11. ‘Malice Aforethought’—​Defined ‘Malice’ may be either express or implied. Malice is express when there is manifested an intention unlawfully to kill a human being. Malice is implied when: 1. The killing resulted from an intentional act, 2. The natural consequences of the act are dangerous to human life, and 3. The act was deliberately performed with knowledge of the danger to, and with conscious disregard for, human life. 276

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The mental state constituting malice aforethought does not necessarily require any ill will or hatred of the person killed. The word ‘aforethought’ does not imply deliberation or the lapse of considerable time. It only means that the required mental state must precede rather than follow the act. It’s not evident why the jury needs to master the distinction between express and implied malice. Notice also that express malice in particular is defined in abstract and impersonal terms. Adding the last two paragraphs was a good idea, because both ‘malice’ and ‘aforethought’ are used here in unusual ways. Misunderstanding is especially likely when instructions contain words which seem to be ordinary, but which have a specific legal meaning that differs from normal usage. The CALJIC committee was apparently aware of this problem, but its definitions are not exactly paragons of clarity. The new language on murder incorporates the concept of malice aforethought, resulting in a single instruction: CALCRIM 520. Murder With Malice Aforethought The defendant is charged with murder. To prove that the defendant is guilty of this crime, the People must prove that: 1. The defendant committed an act that caused the death of another person; AND 2. When the defendant acted, she had a state of mind called malice aforethought; AND 3. She killed without lawful excuse or justification. There are two kinds of malice aforethought, express malice and implied malice. Proof of either is sufficient to establish the state of mind required for murder. The defendant acted with express malice if she unlawfully intended to kill. The defendant acted with implied malice if: 1. 2. 3. 4.

She intentionally committed an act; The natural consequences of the act were dangerous to human life; At the time she acted, she knew her act was dangerous to human life; AND She deliberately acted with conscious disregard for human life.

Malice aforethought does not require hatred or ill will toward the victim. It is a mental state that must be formed before the act that causes death is committed. It does not require deliberation or the passage of any particular period of time. The new instruction is an improvement in several ways. It is less abstract in that it states that the People (i.e. the prosecution) must prove the elements. The CALJIC version simply stated that the elements ‘must be proved.’ And CALCRIM also makes it clear that the defendant (not some unnamed person) must have committed the acts in question. The same is true of the victim, who is referred to as ‘another person.’ I would have preferred inserting the defendant’s and victim’s names, but admittedly it should be obvious to the jury who the defendant is and who the victim was. Finally, the new instruction, like CALJIC, continues to refer to express and implied malice.

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The instruction is much improved, but there clearly are limits to what can be achieved, even by a committee of lawyers and judges committed to explaining the law in ordinary English. Sometimes lawyers and judges are so accustomed to using a term that it is unthinkable to use a plainer substitute (as was the case with ‘malice aforethought’). On other occasions a word or phrase is in the penal code. In such cases, retaining and then defining the technical word or phrase may be the only option.

The problem of death penalty instructions California, like the majority of American states, still has the death penalty, although it has seldom been carried out during the past three or four decades. Nonetheless, people are still sentenced to death in California. It is a jury’s responsibility to decide whether there are ‘special circumstances’ that make a person convicted of first-​degree murder ‘eligible’ for the death penalty. If the jury finds that at least one special circumstance is true, it must then decide whether the defendant should be sentenced to death, or, instead, to life in prison. The jury is told that it must make this decision by balancing the aggravating factors against any mitigating factors. If aggravation outweighs mitigation, it should return a verdict of death. As I  have shown elsewhere, jurors do not seem to understand the concept of mitigation very well (Tiersma 1995). It is therefore critical to explain the legal meaning of aggravation and mitigation in the clearest possible terms. Unfortunately, CALJIC did a poor job. Its definitions of the terms ‘aggravating factor’ and ‘mitigating factor’ are presented below: CALJIC 8.88. Penalty Trial—​Concluding Instruction An aggravating factor is any fact, condition or event attending the commission of a crime which increases its guilt or enormity, or adds to the injurious consequences which is above and beyond the elements of the crime itself. A mitigating circumstance is any fact, condition or event which does not constitute a justification or excuse for the crime in question, but may be considered as an extenuating circumstance in determining the appropriateness of the death penalty. The definition of ‘aggravating factor’ is turgid and borders on the ungrammatical. Do facts really ‘attend’ the commission of a crime? Moreover, does a crime have guilt? Perhaps most importantly, the definition does not tell jurors that an ‘aggravating factor’ is not merely something that aggravates them. The definition of ‘mitigating factor’ is even worse. Amazingly, it begins in the negative, solemnly intoning that a justification or excuse is not mitigation. This is an absurd statement. Obviously, a justification or excuse, even if the jurors believed that it did not forestall a conviction, could nonetheless function as a mitigating factor on the penalty. How the statement found its way into California’s capital jury instructions is a long story, but the language was copied virtually verbatim from a legal dictionary, which was concerned with distinguishing mitigation from similar concepts (Tiersma 2005: 388–​392). If this weren’t bad enough, the instruction proceeds to define a ‘mitigating circumstance’ as an ‘extenuating circumstance.’ This violates the basic lexicographic principle that a word should be defined using words that are more  –​not less  –​common than the item being defined. Although not perfect, the new instruction is substantially more understandable: 278

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CALCRIM 763. Death Penalty: Factors to Consider An aggravating circumstance or factor is any fact, condition, or event relating to the commission of a crime, above and beyond the elements of the crime itself, that increases the wrongfulness of the defendant’s conduct, the enormity of the offense, or the harmful impact of the crime. An aggravating circumstance may support a decision to impose the death penalty. A mitigating circumstance or factor is any fact, condition, or event that makes the death penalty less appropriate as a punishment, even though it does not legally justify or excuse the crime. A mitigating circumstance is something that reduces the defendant’s blameworthiness or otherwise supports a less severe punishment. A mitigating circumstance may support a decision not to impose the death penalty. Because of the highly politicized nature of the death penalty, the CALCRIM committee was extremely reluctant to make changes to these definitions. Thus, the word ‘enormity’ remains. The same is true for the statement about justification and excuse, although it has been reworded to avoid the false impression that just because something might be a justification or excuse, it cannot constitute mitigation. In addition, language has been inserted in the definitions of both words to clarify their meaning. The average citizen may not know what an ‘extenuating circumstance’ is, but should have little trouble understanding that mitigation ‘is something that reduces the defendant’s blameworthiness or otherwise supports a less severe punishment.’

Conclusion The reason for instructing jurors is to promote the rule of law. All parties to a lawsuit, particularly criminal defendants, have a right to have their cases decided by consistent legal principles that are accessible to the public. With respect to jury instructions, the rule of law has often been an empty promise. California’s revision of its instructions has brought the promise closer to reality. One hopes that its experience will inspire other jurisdictions to do the same.

Further reading Heffer, Chris (2005) The Language of Jury Trial: A Corpus-​Aided Analysis of Legal-​Lay Discourse, Basingstoke: Palgrave. Marder, Nancy S. (2006) ‘Bringing jury instructions into the twenty-​first century’, Notre Dame L. Rev., 81: 449. Tiersma, Peter M. (2006) Communicating with Juries:  How to Draft More Understandable Jury Instructions, Williamsburg, VA: National Center for State Courts. Vidmar, Neil and Hans, Valerie P. (2007) American Juries:  The Verdict, Amherst, NY: Prometheus Books.

References Baker, J.H. (1990) An Introduction to English Legal History, 3rd edn, London: Butterworths. Charrow, R. and Charrow, V. (1979) ‘Making legal language understandable:  A psycholinguistic study of jury instructions’, Columbia Law Review, 79: 1306–​1374. Committee on Standard Jury Instructions, Civil, of the Superior Court of Los Angeles County, California (1956) California Jury Instructions: Civil, St. Paul, MN: West Group Publishing Co. —​—​—​(2004) California Jury Instructions: Civil, St. Paul, MN: West Group. 279

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Committee on Standard Jury Instructions, Criminal, of the Superior Court of Los Angeles County, California (2003) California Jury Instructions: Criminal, St. Paul, MN: West Group. Judicial Council of California (2003) Civil Jury Instructions, Newark, NJ:  LexisNexis Matthew Bender. —​—​—​ (2006) Civil Jury Instructions, Newark, NJ: LexisNexis Matthew Bender. Kelso, J.C. (1996) ‘Final report of the blue ribbon commission on jury system improvement’, Hastings L.J., 47: 1433. Levy, L.W. (1999) The Palladium of Justice: Origins of Trial by Jury, Chicago: Ivan R. Dee. Nieland, R.G. (1979) Pattern Jury Instructions: A Critical Look at a Modern Movement to Improve the Jury System, Chicago: American Judicature Society. Saxton, B. (1998) ‘How well do jurors understand jury instructions? A field test using real juries and real trials in Wyoming’, Land and Water Literary Review, 33: 59. Schwarzer, W.W. (1981) ‘Communicating with juries:  Problems and remedies’, California Law Review, 69: 731. Tiersma, P. (1993) ‘Reforming the language of jury instructions’, Hofstra Law Review, 22: 37. —​—​—​(1995) ‘Dictionaries and death: Do jurors understand mitigation?’, Utah Law Review, 1. —​—​—​ (1999) Legal Language, Chicago: University of Chicago Press. —​—​—​(2005) ‘The new Black’s’, Journal of Legal Education, 55: 386.

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18 Vulnerable witnesses Vulnerable witnesses in police investigative interviews in England and Wales Michelle Aldridge-​Waddon

Introduction Access to justice is fundamental in a civil society and so it is important that equal opportunity systems are in place to enable witnesses (and defendants) to provide evidence to the best of their ability as ‘a critical component of effective law enforcement is the ability of police officers to obtain accurate and detailed information from witnesses’ (cf. Kohnken et al. 1999: 3). With this in mind, we review here the linguistic experiences of vulnerable witnesses within the criminal justice system, in England and Wales, with a focus on children and vulnerable adults, in the police interview. These populations often find it difficult to express their experiences in words, which puts them at a potential disadvantage in our justice system which typically depends on spoken evidence. As Marchant (2013: 435) says, ‘the communicative competence of very young child witnesses depends heavily on the competence of interviewing teams, intermediaries, advocates and the judiciary’. We, thus, review measures that have been put in place to support vulnerable witnesses through the legal process and reflect on their linguistic experiences in real video-​recorded investigative police interviews to determine if they can cope with the demands of the adversarial process. All data have been anonymised and cleared for research purposes by the University of Cardiff Ethics Committee and local police ethics committees. The witness can request a male or female interviewer but for ease, in this text, unless otherwise stated, we will refer to the interviewer as ‘she’ and to the witness as ‘he’. (It is acknowledged fully, of course, that child witnesses and interviewing officers can be any gender.)

Vulnerable witnesses in the legal system in England and Wales Our focus here is on vulnerable witnesses because vulnerable defendants are still generally excluded from the changes that have been made in policy and practice to support vulnerable witnesses through the criminal justice system in England and Wales. The explanations for their exclusion are described by Birch (2002) as unconvincing (in Fairclough 2016: 4) but, as such, vulnerable defendants are outside the scope of our discussion here, while 281

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Fairclough (2016) offers a comprehensive review and consideration of the commitment to equality for all users of the law in England and Wales. Vulnerable witnesses in England and Wales are interviewed under the legislation introduced by the Youth Justice and Criminal Evidence Act (YJCEA) 1999 and recommendations in Achieving Best Evidence (ABE) (Home Office 2011), which replaced the guidelines in the ‘Memorandum of Good Practice on Video Recorded Interviews for Child Witnesses in Criminal Proceedings’ (1992), earlier versions of ABE (Home Office 2002/​2007) and ‘Speaking Up For Justice’ 1998. Following YJCEA 1999, s.16, the following groups are defined as ‘vulnerable’: All child witnesses (under 18) and any witness whose quality of evidence is likely to be diminished because they are suffering from a mental disorder (as defined by the Mental Health Act 1983), have a significant impairment of intelligence and social functioning and/​or have a physical disability/​disorder. (ABE, Home Office 2007: 2) As such, they are eligible to apply for Special Measures (ABE, Home Office 2011: 19) that aim to facilitate the gathering and giving of evidence. These include: • s.23: Screening the witness from the accused • s.24: Giving evidence by live link • s.25: Giving evidence in private • s.26: The removal of wigs and gowns • s.27: Video recording of evidence-​in-​chief • s.28: Video recording of cross-​examination and re-​examination • s.29: Examination through intermediary • s.30: Provision of aids to communicate. They are also protected from cross-​examination by the accused in person and there should be no mention of their sexual history in court. These measures are designed to preserve the essentials of a proper challenge to a witness’s evidence and should not alter the defendant’s position; only those deemed necessary, by the Crown Prosecution Service (CPS), will be used. There has been a presumption (the primary rule) that all vulnerable witnesses of serious crimes prefer to give their evidence-​in-​chief (the police interview) through the Special Measures of s.27:  video recording and s.24:  cross-​examination via live link. However, this visual recording, while improving opportunities for many, is not without its problems. Plotnikoff and Woolfson (2009: 85) for e­ xample note: Recordings were not used, in some instances, because of equipment failure but they were also rejected on the day of trial due to poor technical quality or failure to review content which was ruled inadmissible after the recording began to be played in court. Furthermore, while most children appreciate giving evidence by live link, describing it as ‘helpful’ (Plotnikoff and Woolfson 2009: 9), some said that they found ‘the live-​link room cramped’ and/​or were ‘upset that they could not see the defendant –​as they wanted to look him in the eye’ (Plotnikoff and Woolfson 2009: 90). Moreover, Aldridge and Luchjenbroers (2008) questioned the validity of the visually recorded evidence-​in-​chief suggesting that it may be detrimental to the witness’s evidence as the police officer’s dual role of being the 282

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investigator of the crime and the prosecution lawyer are not, necessarily, compatible. By the mid-​2000s, there were recommendations for change and, in 2009, s.100 of the Coroners and Justice Act (2009: 61) made amendments to the ‘primary rule’ and, in so doing, eradicated the assumption that evidence from vulnerable witnesses would automatically be visually recorded and/​or that cross-​examination would take place via live link. Thus, prior to the investigative interview taking place, it is now part of the police investigating officer’s role to elicit how the vulnerable witness wishes to give evidence and to gain informed consent. This is known as the opt-​out procedure which has two choice components. In the first, the child decides whether their evidence will be video-​recorded by the investigating officer and, subject to authorisation by the CPS, the recording will be presented to the court, meaning that the witness does not have to give evidence again or, alternatively, whether the evidence is presented in the standard adult way as an audio recording made by the police investigating officer, which is then typed up as a written statement. In court, the witness re-​ tells this account in person. The second component is concerned with the child’s location during cross-​examination. There are three options: speak from a separate room via video link; sit in the courtroom behind a screen that shields the witness from the defendant and public gallery; or sit in the courtroom with no screen, which is how adults typically present their evidence. For both components, the Special Measures provisions are the default, and opting out refers to deliberately choosing to waive this provision and present the evidence as an adult would (see Aldridge 2019 for a discussion). We will now reflect on how children and vulnerable adults cope linguistically with the police interview and evaluate whether ‘current government reforms and related initiatives enable them to give their best evidence and safeguard them within the criminal justice process’ (Plotnikoff and Woolfson 2019: 8).

Vulnerable witnesses: children As noted by Agnew and Powell (2004), irrespective of the child’s developmental level, an investigative interview that adheres to best practice interview guidelines minimises the likelihood of errors and misunderstandings between the interviewer and the vulnerable witness and thus, accordingly, while investigative officers are trained to be flexible, it is typical for vulnerable witnesses to be interviewed under the recommendations of Achieving Best Evidence in Criminal Proceedings (ABE, Home Office 2011)  and as children (i.e. under 18  years), unless they choose to opt-​out, they automatically qualify for Special Measures under the sole criterion of age. Typically, the interview will follow four main phases (ABE, Home Office 2011:  69) of rapport building, the free narrative account, questioning and closure, and will be conducted by a specially trained police officer who has the challenge to translate ABE, and other guidance for interviewing witnesses, into practice (Richardson et al. 2018). It is likely that the interview will take place in a purpose-​ built interview suite. These phases will now be discussed in turn.

The phased interview –​building rapport The rapport phase, which must occur prior to the substantive phase of the interview, should not, ideally, form part of the video-​recorded interview. It should serve to set the tone for the style of questions to be used (Brubacher et  al. 2011) as well as giving an opportunity for the interviewer to assess the witness’s cognitive and linguistic abilities. Through a supportive style (Almerigogna et al. 2007) the police officer should empower 283

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the witness to relax and talk. Several preliminaries must be achieved in this phase, including an explanation of the interview’s purpose and setting, the importance of telling the truth and covering the ground rules, in order to shift social distance and empower the child to interact. Although seemingly straightforward, getting a conversation going, in this phase, can be a challenge, because the witness has likely been socialised not to talk to strangers and certainly not about sex and, furthermore, he may well have a fear of telling anyone ‘their secret’. Thus, it is recommended that ground rules, such as the following, are introduced (ABE, Home Office 2011: 71): • ‘If I ask a question you do not understand or if I ask a question that you do not know the answer to, then you should say …’ • ‘If I misunderstand what you have said or incorrectly summarise what you have said, you should point this out.’ • ‘Please tell me all you can remember about what happened. Don’t make anything up or leave anything out. It is very important to tell the truth.’ This enables the interviewee to gain some control over the process and content of his disclosure (Shepherd and Milne 2006: 132). Here, of course, the police officer needs to be mindful of the phrasing and impact of such guidelines. For example, when first introduced they tended to be read, in the rapport phase, as a list, which simply couldn’t be processed by the witness and, thus, they lost their purpose; similarly they tended to be read verbatim and, thus, the vulnerable witness was potentially confused with idioms like ‘point this out’ when nothing was pointed out and lines such as ‘don’t make anything up, don’t leave anything out’ were potentially disempowering as the witness sensed the implication that they might be being perceived as unreliable. Fortunately. the gist of these rules is now better imparted and tends to be used as necessary throughout the interview. In rapport, the witness is advised that he may request a break if necessary and a touch card may be introduced (ABE, Home Office 2011: 71), which can be pointed at to avoid the need for a verbal request (see a later section for a discussion on the use of visual aids). It is also important that the interviewer (PO) signals that the same point may be repeated otherwise the child (C) may start to get irritated by the reiteration as in (1): (1)

PO:  C:  PO:  C: 

Do you understand, cause it’s hard to explain Nods (aged 11 years) You sure I’ve said yes, can we talk about guides now?

Or, indeed, interpret the repetition as a criticism of their original response (Home Office and Department of Health 1992: 18) leading them to change their answer to something they believe the interviewer wants to hear. Such inconsistency may well lead the jury to question the witness’s credibility (Quas et al. 2007). Eliciting the child’s understanding of truth and lie can also be challenging for both parties, for example interviewers are ill advised to ask a child for a definition as (2) illustrates: (2)

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PO:  C:  PO:  C:

Do you know what a lie is? Yes (aged 5 years) What is a lie? Tigers

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where the child possibly didn’t understand the question and/​or replied elliptically, perhaps, as if the interviewer was asking about lions (Professor John Gibbons (pc)). It is now recommended (cf. ABE, Home Office 2011:  Appendix G:  18524) that rather than seeking a definition, the child should be asked to judge from scenario examples such as in (3) and, most importantly, the child should respond to show that there is intent to deceive in response to the question ‘what should he have said’: (3)

PO: Let me tell you a story about John. John was playing with his ball in the kitchen and he kicked the ball against the window. The window broke and John ran upstairs into his bedroom. John’s mummy saw the broken window and asked John if he had broken the window. John said ‘no mummy’ PO: Was John telling the truth or a lie? C: A lie PO: What should John have said? C: He should have said he did it

In the event of the child saying ‘the truth’ here, the PO will need to return to a neutral topic and ask another scenario example later. While assessing the witness’s cognitive and linguistic abilities, POs must reflect on the vocabulary used and their possible associated frames (Aldridge and Luchjenbroers 2007) to make sure that ‘everyone is on the same page’ (Ness, Kiesling and Lidz 2009: 351). I had a stark reminder of this when my son, looking at his laptop, exclaimed: (4a) Wow that’s porn (aged 12 years) I was very relieved to see that he was looking at some innocuous live streaming and I was interested by his explanation that ‘porn’ meant ‘good’. Similarly, I was reassured to see him leaving the sailing club, all smiles, with a medal around his neck, when a friend had said moments before: (4b) Henry was really sick at sailing today (aged 10 years) I, of course, was fearing sea illness while his friend was praising Henry’s sailing prowess and using ‘sick’ as slang for ‘awesome’. In both instances, the generation gap had resulted in very different meanings for these lexical items which reminds us that any lack of shared meaning may lead to miscommunications and a lessening willingness and conviction from the child to talk with the interviewing adult. Communication breakdown can also occur when children do not understand the institutional talk they encounter during the investigation and where interviewers take for granted their understanding. For example, Aldridge et  al. (1997) asked presumed non-​ abused children to describe roles and labels that they could hear in the legal setting and (5) lists typical definitions given: (5)

A police lady gets people in prison (aged 6 years). When you’re arrested, a policeman will come along and put you in chains (aged 8 years). A court is a sort of jail (aged 5 years). Witnesses whip people when they’re naughty (aged 7 years). 285

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Witnesses are people who have done something naughty (aged 7 years). Prosecution is when you die, you get hanged or something like that (aged 7 years). Judges get money at pet shows (aged 7 years). A judge judges people like when you go to jail and have to tell the judge what you’ve done (aged 7 years). We can but imagine how frightening it could be, with these understandings, when told a policewoman wants to talk with you or you need to go to court. It is crucial, then, that the rapport phase facilitates a meaningful and reassuring understanding of words in general and of institutional roles and terms in particular. Best practice would advise that the officer uses a concrete, everyday example to explain something to the child, as illustrated in (6), where the officer compares using the live link to the courtroom to using Skype, a facility children often use at home and in school: (6)

PO: Some people like to do it on the video so you can sit in this room and they show the film and you talk to them like on skype (looking at a picture of a court room).

But even everyday comparisons need to be used with care as we see in (7) with the inappropriate comparison of the courtroom screen to a shower curtain in a sexual abuse case already fraught with potential associations of over-​exposure (cf. Aldridge 2019 for further discussion). (7)

PO: If you are nervous about all these people looking at you (pointing to the public gallery) we can put screens around you like …. you know like when you’re in the shower and you pull the shower curtain across and nobody can see in, it’s like having screens around you and then you can’t see the people and they can’t see you.

As well as potential miscommunication occurring through differences in vocabulary comprehension, the quality of the evidence may also be impacted by the vulnerable witness’s limited productive vocabulary. For example, compare (8a) with (8b). (8a)

C: He touched my leg (aged 4 years) C: Phil put his finger in my private (aged 4 years)

(8b)

C: He rubbed my leg (aged 9 years) C: He pushed his fingers into my private parts (aged 9 years)

Bell and Loftus (1985) report (amongst others) that juries are more influenced by vivid and powerful language than by powerless language, so we might anticipate statements such as those in (8b) having a greater impact on a listener than those in (8a) even though they are describing similar events. The interviewer will, therefore, have to work harder to elicit the account from the first witness (8a) and may well consider supporting the verbal account with other Special Measures, namely s.30: the use of visual aids and/​or s.29: the support of a Registered Intermediary (discussed later).

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The phased interview –​free narrative account phase The free narrative account phase should only take place once the witness is prepared for the interview and therefore only after planning and rapport is complete. In the free narrative account phase, the witness should be encouraged to provide in his own words ‘an account of the incident that is the subject of the investigation’ (ABE, Home Office 2011: 74) with a focus on People, Location, Action and Time (PLAT). Priority should be given to eliciting the evidential detail (A) followed by investigative detail (PLT) (Marlow and Hilbourne 2013). The PO has two tasks here (i)  initiation of the account and (ii) supporting the account until the witness has finished. Historically, the interviewing officer has found initiating the account difficult as reflected in their typically opening with questions such as: (9)

Do you know why you’re here?

despite the officer being trained not to use yes/​no questions in the questioning phase and being advised not to use ‘why’ as it can attribute blame. Not surprisingly, such a question is non-​effective and generates responses such as ‘no’ or ‘because your car brought me here’. Thus, more recently, officers have been trained to initiate the free narrative account by simply asking the witness to concentrate on the subject of the investigation:  what happened. (10)

You know what you’ve come here to talk about …. Please tell me ….

To support the account, the interviewer should act as a facilitator, not an interrogator, and should use TED (Tell, Explain, Describe) questions of the form ‘please tell me what happened’, ‘please explain what happened’, ‘please describe what happened. Many (e.g. De Jong and Rose 1991) claim that this phase is crucial since the jury is more likely to believe a witness’s free narrative account elicited from open questions than short responses to PO’s questions. In this phase, the interviewer should adopt the ‘active listening’ approach (ABE, Home Office 2011: 74) and avoid interruptions. Best practice would suggest providing a framework for the child to build his own account around, with lines such as ‘I want you to start at the beginning, take your time and tell me what happened’ so that the account is constructed in a way that is easy for the listener to follow. If the interviewer feels that terms such as ‘beginning’ are too abstract, then concrete points of reference should be used like ‘please start when you were getting ready for bed’ or ‘when you were having tea’. It is also useful to echo and expand on what the witness said, as in (11), so that the witness knows that the interviewer is listening (ABE, Home Office 2011: 74). (11)

You said that your dad came up, please tell me more about when your dad came up

This phase, though, is again not without difficulty because young children can find account-giving difficult. We know (e.g. Goodman and Melinder 2007: 12) that ‘open-​ended questions typically elicit the most accurate, albeit often the most skeletal’, reports from children, as illustrated in (12) and (13) where quantity and quality of information is lacking:

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(12) PO:  It’s OK to tell me C:  He said lie down for a minute and I said no and then I lied down and he got it in and he put it in here and he turned me over and licked my bum and that’s all of it (aged 10 years) An adult witness would be most unlikely to answer in this way; a lot of information is missing, contradictory statements are made and the pronouns lack clear references; without doubt, the interviewer would need to ask questions to bulk up this account if it is to hold credibility in court as will the PO in (13) as the jury won’t know, amongst other details, how the blood got on the towel: (13) PO:  Can you tell me what happened? Can you do that? C:  I came home, my dad sent me up to go in the bath. I got out the bath, my dad gave me the towel and said, ‘go downstairs and get dry’. I dried underneath and there was all blood on the towel (aged 6 years) A more mature witness would not give his narrative this way. While the accuracy of what is reported does not typically vary with age, the omission of detail does and thus the importance of scaffolding with prompts and reassurance such as ‘take your time’ cannot be underestimated, as in (14), which cues the child to slow down and give the narrative again. In so doing, new relevant information is given: (14) PO:  Please tell us as much as you can remember. C:  Well, I was in the bath. I was getting out of the bath. No, I had a quick bath, I was getting out then my dad come up and he had a sweet wrapper and, em, I dried myself and then, no, he squeezed, no sorry (child aged 9 years) PO:  Take your time. C:  I stayed in the bath for half an hour, I came out, had a quick bath, dried myself, he squeezed my willy very tight and he smacked me for no reason. Sometimes to help the witness recreate the event and access more information during the free narrative account phase, POs will adopt some of the (enhanced) cognitive interview techniques (Fisher and Geiselman 1992) listed in (15) with the aim of improving the witness’s memory performance: (15) (i)  (ii)  (iii)  (iv) 

Report everything; Mentally reinstate the context; Recall events in a variety of different temporal orders; and Change perspective.

In laboratory settings (see Kohnken et al. 1999 for a review) these techniques have been generally shown to increase the information that children and those with a mild learning disability recall without a significant drop in accuracy, but in real interviews their use is more controversial as aside from ‘report everything’, which is triggered by appropriate use of TED questions, the other techniques may be too cognitively demanding and/​or too emotive for vulnerable witnesses and, thus, need to be used with care by highly trained POs on a case-​by-​case basis.

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At some point, the child’s narrative will dry up and the interviewer then needs to complete the interview with more specific questions.

The phased interview –​questioning In this phase, the PO will probe each relevant topic not adequately covered in the witness’s account, one by one, by using a range of open to specific closed questions (cf. ABE, Home Office 2011 c­ hapter  3) The danger in this phase, of course, is that as soon as specific questions are used, there is an increased risk of error in the child’s account either because the story deviates towards the police agenda, as in (16), or because the child cannot answer the question, as in (17): (16) PO: C: PO: C: PO: C: PO:

Do you think you can tell me what happened? Silence. (aged 8 years) It’s ok to tell me about the things that happened. Yesterday night. Yesterday night? Nods. Where were you?

Here the child is cornered into answering a where-​question, after a silent response to the initial what happened question, meaning that the PO has now skewed a response towards location which may not have been what the child wanted to say about ‘yesterday night’. Best practice would suggest that the PO should have prompted again with a ‘please tell me what happened yesterday night?’ Interviewers are advised to ask wh-​questions in the order they are acquired by children, namely:  what, where, who, when, how, but with consideration of whether all wh-​forms should be used. We have already mentioned that ‘why’ should be avoided but ‘how’ too can be difficult, as illustrated in (17): (17)

PO: C: PO: C:

How did you feel when he did that? [penetration] I felt, em, hurt and er terrible (aged 14 years) How did it feel inside? I don’t know, it’s sort of hard to say

Children have problems in understanding how-​questions, because ‘how’ is ambiguous between a physical and a mental state. So, for example, was the PO trying to elicit a mental state such as ‘frightened’ in (17) or a physical state such as ‘sore/​in pain’? In any event, neither interpretation would have added to the evidence and, thus, the PO should be mindful to think about the function and purpose of any question asked. More specifically, in addition to reflecting on the form of the wh-​word, the interviewer must also think about the function and context of any utterance, as illustrated in (18). (18)

PO: C:

You said he was kneeling down and one hand was doing what you described, what was his other hand doing? Don’t know. (aged 9 years)

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Syntactically, the interviewer’s style is appropriate (it is a straightforward initial what question), but we assume she is basing her question on the adult script of masturbation. The child, who is most likely unaware of this, cannot understand the relevance of the hand not touching her and falls silent following a previous fulsome disclosure. Here, then, failing to consider the child’s likely perspective and world knowledge leads to trouble in talk and we are reminded of the importance of training POs in language awareness (cf. Aldridge 2019) so that they think beyond the linguistic form and reflect on what the interviewee might think and say in response to any question. Similarly, interviewers need to be wary of using yes/​no questions, tag questions and other closed forms as children tend to have a response bias with younger children typically answering yes and older ones showing a bias toward no (Hayes et al. 2017) indicating that such questions can be answered without processing or evidence of response. The following exchange from the police interview data is a nice reminder of this: (19)

PO: C: PO:

Is there anything you don’t understand? I understand everything (aged 10 years) Excellent

Likewise, alternative questions need to be asked with care as, adopting a recency strategy, many young children will respond with the last option heard (Sumner et al. 2019). Other question types to avoid include passives (Were you hurt by him?); negative questions (Did you not see him in the room?) and multiple questions (Was it yesterday you went to the house and was he there?) (see Walker 1999 for more on these aspects of questioning children). Once detailed information has been gathered, the interviewer will move into closure.

The phased interview –​closure Here the interviewer might recap the key points of the interview and should take time to ask whether the child has any questions and to answer them honestly and as accurately as possible. The child should also be thanked for his contribution and will be told about what will happen next (see ABE, Home Office 2011: 202 for more detail). There will likely then be a return to neutral topics to give the child some recovery time before they leave the room. The video-​interview then becomes the child’s evidence-​in-​chief. It will be submitted to the CPS who will decide whether to take the case forward.

Adult witnesses with intellectual disability (ID) and/​or communication disorders Vulnerable adult witnesses (VA), particularly those with an intellectual impairment or disability (ID), are more likely to be sexually abused or assaulted than those without and they are over-​represented in the criminal justice system (Mercier and Crocker 2011). When these truths are combined with society’s (potentially false) perceptions that witnesses with ID give less reliable accounts to police and less credible testimony in court (Gudjonsson, Murphy and Clare 2000), the importance of establishing how best to interview them becomes paramount. For adult witnesses, eligibility for Special Measures is not automatic but rather depends on the court considering that the quality of their evidence is likely to be diminished without them. Some of what we have said about interviewing children will apply to adult witnesses with ID and/​or communication disabilities as the interview will 290

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follow the same four-​phase approach but when planning to interview a witness with a disability, a range of other issues needs to be considered so that we don’t simply infantilise their experience and overlook their life know-​how. Typically, a witness with an ID and/​or communication disorder can have one or several of the following general characteristics (e.g. Mercier and Crocker 2011): • limited cognitive skills • problems in understanding the nature of the events and the ensuing procedures • poor adaptation which might manifest as increased stress and diminished performance • poor memory • limited language production (phonological, lexical, semantic, syntactic and pragmatic) • limited language comprehension • Susceptible to suggestion and acquiescence These may need to be accommodated throughout the legal process. Again, the VA has a choice of how to give evidence but it is typical that they will apply for s.27: pre-​recorded evidence-​in-​chief and s.24: live link cross-​examination, but they will also typically employ s.29: a Registered Intermediary (RI) to facilitate their communication along the legal path and some will apply to use s.30: communication aids.

The role of the registered intermediary VAs and child witnesses have been able to give their evidence with the support of an RI since 2007. RIs are communication specialists trained by the UK’s Ministry of Justice to facilitate two-​ way communication between the vulnerable witness and the other participants in the legal process. Their role is impartial, they are officers of the Court rather than working for either the prosecution or the defence and they can assist at all stages of the criminal investigation from the police interview through to court. Their aim is to ensure that communication with vulnerable witnesses is as ‘complete, accurate and coherent as possible’ (Cooper 2012: 2). More specifically, their remit is: to communicate (a) to the witness, questions put to the witness, and (b) to any person asking such questions, the answers given by the witness in reply to them, and to explain such questions or answers so far as necessary to enable them to be understood by the witness or person in question (s.29(2) of the 1999 Act) A recent report (Plotnikoff and Wilson 2019:  72) highlighted the successes of the RI scheme, concluding that RIs ‘delivered an important and high quality service, without which many vulnerable victims and witnesses would not be able to give their best evidence’; it is also reported (Crane et al. 2015) that the presence of an intermediary does not hinder jurors’ perceptions of the vulnerable witness but actually improves perceptions of the interview as a whole. The RI will assess the witness before interview and make recommendations as to appropriate ways to communicate with them. It is hoped that the same RI will accompany and neutrally support the witness through all stages of the legal process from police interview to court appearance and advise all legal professionals how best to time and phrase their questions. So, as required, the RI will verbally rephrase 291

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what the witness and/​or police officer/​legal professional has said or use another Special Measure, namely communication aids to facilitate the asking and answering of questions: The use of communication aids … can be authorised to overcome physical difficulties with understanding or answering questions (ABE, Home Office 2011: 168)

The role of communication aids Some vulnerable witnesses find it easier to ‘show rather than tell’ (Lamb et al. 2008: 90) and, for some, aids are a primary means of communication. Accordingly, visual timelines, picture symbols, writing, drawing, cut-​outs of the human body and ‘high tech’ devices such as computer boards and apps etc. can be employed. These aids are typically selected, introduced and managed by the RI working with the case (Pereira, thesis, in preparation) so that they are used appropriately and effectively and do not lead the witness nor contaminate evidence. The aids scaffold two-​way communication between the witness and the legal professional and are typically used to either repair a miscommunication where speech has failed or in episodes where the RI and PO have planned their use prior to introducing a topic in the interview, because in the RI’s pre-​interview assessment it is recorded that the witness does not have the verbal competence to give sufficient detail on that topic (Pereira, thesis, in preparation). Communication aids serve two purposes as they can be an alternative means of communication thereby replacing a spoken word and they can augment spoken communication to offer more information, as illustrated in (20): (20)

PO: VA: VA: VA: VA:

Can you show us how he dragged you? Puts 2nd puppet behind 1st puppet (Figure 18.1 picture A) Moves right arm of 2nd puppet forward I was here He was coming around like that Puts right arm of 2nd puppet over and down to the front of 1st puppet, the hand in the groin area (Figure 18.1 picture B) He’s come around like that Moves left hand of 2nd puppet around front of 1st puppet (Figure 18.1 picture C) (Pereira, thesis, in preparation)

Here the VA answered the ‘how’ question using the wooden puppets to explain the concepts of ‘position’ (of the suspect in relation to himself) as well as ‘what happened’ during the allegation. Using speech alone would have been problematic for the witness; however, aids enabled him to communicate more of his account adding to the quantity and likely quality of his evidence. As further illustration of the use of communication aids, in a different interview (Pereira, thesis, in preparation) where the witness was struggling to put events into chronological order, key investigation-relevant words were said and then written on Post-​it notes by the RI so that, in response to questions, the VA could move the words around to sequentially show what happened. Without the assistance of these aids, it is unlikely that the witness would have been able to sequence the events within which the allegation took place, which indicates that aids are 292

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Figure 18.1  Positioning of wooden puppets

Figure 18.2  Sequencing Post-​it notes

giving some witnesses opportunities to give their account in ways not previously achieved in our adversarial system. Finally, we should note that witnesses should always be interviewed in the language of their choice (ABE, Home Office 2011: 58) and, thus, may require the support of a trained interpreter who can work impartially on the case in addition to the application of any Special Measure. We think here particularly of a Deaf witness who may communicate with British Sign Language and communicate through a sign language interpreter but to support a protected characteristic may also apply for Special Measures.

Vulnerable witnesses in the courtroom ‘How the courts treat those who are exposed and weak is a barometer of our moral worth as a society’ (Honourable Justice Green, in Fairclough 2016: 2). When a case goes to court, with the CPS authorisation, the edited pre-​recorded police interview can be played in Court as the witness’s evidence-​in-​chief. Unfortunately, however, another Special Measure, namely pre-​recorded cross-​examination, has yet to be established throughout England and Wales (see Plotnikoff and Woolfson 2019 for a review) and, thus, the vulnerable witness still has to go to court for cross-​examination, although, as has been described above, this will typically happen in a link room or behind a screen. It has been suggested that this unique court experience may, in fact, be worse for witnesses than giving their entire evidence live because, under this system, ‘witnesses are plunged directly into hostile cross-​examination at trial without the “warm up” that examination-​in-​chief arguably provides’ (Ellison 2001:  57) and as a consequence, in a 293

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survey (Cooper 2014: 17) one RI described the cross-​examination as ‘very traumatic and dehumanizing’ for vulnerable people. In court, despite the legal professionals having more and better diversity awareness and training about vulnerable witnesses’ communication needs (see Plotnikoff and Woolfson 2019 for a review), many witnesses are still subjected to the ‘obfuscation, obstruction and suggestion’ that are all legitimate and indeed deemed integral aspects of cross-​examination (see Hendersen 2012), and so not surprisingly many struggle with the well-​known linguistic strategies used by defence lawyers such as coercive questioning and intimidation tactics. In brief, many still argue that court language is not appropriate for children and vulnerable adults (see Keanne 2012 for a review).

Conclusion Examples of Special Measures can be found in Australia, Canada, Hong Kong, Ireland, Israel, New Zealand, Scotland, South Africa and the USA as well as in England and Wales. But all reports suggest that the adversarial system is still problematic for vulnerable witnesses. A quote from one of our officers still summarises the current position: The criminal justice system struggles to provide an adequate stage on which vulnerable witnesses can perform. The court doesn’t accept [that] the young child or the disabled witness can be reliable. I’ve no confidence in barristers –​they’re not trained in the needs of vulnerable witnesses. CJS cannot cater for everyone. Special measures do not provide an equal footing for such witnesses. The burden of proof is beyond most witnesses. (Aldridge and Williams 2006) In a recent report by Plotnikoff and Woolfson (2019) progress was reported in several areas of the legal process for vulnerable witnesses, but it seems that there is still a long way to go as failure to implement commitments inevitably undermines children’s (and we assume VA’s) ability to give their ‘best evidence’ (Plotnikoff and Woolfson 2019: 6). It was noted, amongst many other findings, that while ABE 2011 was an improvement on earlier guidelines, it is now outdated, and the authors regretted that the revised 2016 version hadn’t been launched. They also reported that there are insufficient RIs to meet demand so that only a small proportion of young witnesses actually benefit from their assistance (Plotnikoff and Woolfson 2019:  19) and in 2018, a decade after national roll-​out, the Victims’ Commissioner highlighted ‘a lack of awareness by the police and CPS of the existence of registered intermediaries, their role and how to work effectively with them’. There was also deep regret that the promised roll-​out of pre-​recorded cross-​examination had yet to occur. Thus, despite important progress, they and this chapter conclude that vulnerable witnesses are still unable to access justice within the adversarial system, which can and often does increase any existing damage to their psychological and emotional well-​being (Plotnikoff and Woolfson 2019: 115).

Further reading Aldridge, M. and Wood, J. (1998) Interviewing Children:  A Guide for Child Care and Forensic Practitioners, Chichester: John Wiley & Sons. Lamb, M., Hershkowitz, I., Orbach, Y. and Esplin, P. (2008) Tell Me What Happened, New York: Wiley.

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Lamb, M., La Rooy, E., Malloy, D., Katz, L. and Hershkowitz, C. (2011) (eds), Children’s Testimony: A Handbook of Psychological Research and Forensic Practice, Chichester: John Wiley & Sons. Sanders, A., Creaton, J., Bird, S. and Weber, L. (1997) Victims with Learning Disabilities: Negotiating the Criminal Justice System, Oxford: University of Oxford Occasional Papers. Spencer, J. and Lamb, M. (eds), (2012) Children and Cross-​Examination: Time to Change the Rules?, London: Bloomsbury. Walker, A. and Kenniston, J. (1999) Handbook on Questioning Children: A Linguistic Perspective, 2nd edn, Washington, DC: ABA Center on Children and the Law.

References Agnew, S.E. and Powell, M.B. (2004) ‘The effect of intellectual disability on children’s recall of an event across different question types’, Law and Human Behavior, 28: 273–​294. Aldridge, M. (2019) ‘Police delivery of the opt-​out procedure for children’s court evidence: Evidence of inadequate language awareness’, Journal of Language Awareness: Special Edition, 166–​185. Aldridge, M. and Luchjenbroers, J. (2007) ‘Linguistic manipulations in legal discourse:  Framing questions and “smuggling” information’, International Journal of Speech, Language and the Law, 14(1): 85–​107. —​—​—​(2008) ‘Vulnerable witnesses and problems of portrayal:  A consideration of videotaped interviews in child rape cases’, Journal of English Linguistics, 36(3): 266–​284. Aldridge, M. and Williams, C. (2006) ‘A survey of police officers’ attitudes of interviewing with special measures’, unpublished ms. Aldridge, M., Timmins, K. and Wood, J. (1997) ‘Children’s understanding of legal terminology: Judges get money at pet shows, don’t they?’, Child Abuse Review, 6: 141–​146. Almerigogna, J., Ost, J., Bull, R. and Akehurst, L. (2007) ‘A state of high anxiety:  How non-​ supportive interviewers can increase the suggestibility of child witnesses’, Applied Cognitive Psychology, 21: 963–​974. Bell, B. and Loftus, A. (1985) ‘Vivid persuasion in the courtroom’, Journal of Personality Assessment, 49: 659–​664. Birch, D. (2000) ‘A better deal for vulnerable witnesses?’ Criminal Law Review, 223–249. Brubacher, S.P., Roberts, K.P. and Powell, M. (2011) ‘Effects of practicing episodic versus scripted recall on children’s subsequent narratives of a repeated event’, Psychology, Public Policy, and Law, 17(2): 286–​314. Cooper, P. (2012) Tell Me What’s Happening: Registered Intermediary Survey 2011, London: City University. —​—​—​ (2014) Highs and Lows: The 4th Intermediary Survey, London: Kingston University. Crane, L., Henry, L., Maras, K. and Wilcock, R. (2015) ‘Police interviewing of witnesses and defendants with autism:  What is best practice?’, Network Autism, London:  National Autistic Society. De Jong, A.R. and Rose, M. (1991) ‘Legal proof of child sexual abuse in the absence of physical evidence’, Paediatrics, 88: 506–​511. Ellison, L. (2001) The Adversarial Process and the Vulnerable Witness, Oxford: Oxford University Press. Fairclough, S. (2016) The Role of Equality in the Provision of Special Measures to Vulnerable and/​ or Intimidated Court Users Giving Evidence in Crown Court Trials, PhD thesis, University of Birmingham. Fisher, R.P. and Geiselman, R.E. (1992) Memory Enhancing Techniques for Investigative Interviewing: The Cognitive Interview, Springfield, IL: Charles C. Thomas. Goodman, G. and Melinder, A. (2007) ‘Child witness research and forensic interviews with young children: A review’, Legal and Criminal Psychology, 12: 1–​19. Gudjonsson, G., Murphy, G. and Clare, I. (2000) ‘Assessing the capacity of people with intellectual disabilities to be witnesses in court’, Psychological Medicine 30(2): 307–​314. Hayes, J., Stewart, I. and McElwee, J. (2017) ‘Children’s answering of yes-​no questions: A review of research including particular consideration of the relational evaluation procedure’, Behavioral Development Bulletin, 22(1): 173–​182. 295

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Henderson, E. (2012) ‘Alternative routes: Other accusatorial jurisdictions on the slow road to best evidence’, in J. Spencer and M. Lamb (eds), Children and Cross-​Examination: Time to Change the Rules?, London: Bloomsbury. Home Office (1998) Speaking up for Justice Report of the Interdepartmental Working Group on the Treatment of Vulnerable or Intimidated Witnesses in the Criminal Justice System, London: HMSO. —​—​—​ (1999) Youth Justice and Criminal Evidence Act 1999, London: HMSO. —​—​—​ (2002/​2007/​2011) Achieving Best Evidence in Criminal Proceedings: Guidance on Interviewing Victims and Witnesses, and Guidance on Using Special Measures, London: HMSO. —​—​—​ (2009) Coroners and Justice Act 2009, London: HMSO. Home Office and Department of Health (1992) Memorandum of Good Practice on Video-​recorded Interviews with Child Witnesses for Criminal Proceedings, London: HMSO. Keane, A. (2012) ‘Cross-​ examination of vulnerable witnesses—​ towards a blueprint for re-​ professionalisation’, International Journal of Evidence and Proof, 175–​198. Kohnken, G., Milne, R., Memon, A. and Bull, R. (1999) ‘The cognitive interview: A meta-​analysis’, Psychology, Crime & Law, 5: 3–​27. Lamb, M., Hershkowitz, I., Orbach, Y. and Esplin, P. (2008) Tell Me What Happened, New York: Wiley. Marchant, M. (2013) ‘How young is too young? The evidence of children under five in the English criminal justice system’, Child Abuse Review, 22(6): 432–​445. Marlow, K. and Hilbourne, M. (2013) ‘Notetaker: A tool for taking notes, briefing and analysing investigative interviews’, Investigative Interviewing: Research and Practice iLL-​RG, 5(2): 99–​112. Mercier, C. and Crocker, A. (2011) ‘The first critical steps through the criminal justice system for persons with intellectual disabilities’, British Journal of Learning Disabilities, 39(2): 130–​138. Ness, D., Kiesling, S. and Lidz, L. (2009) ‘Why does informed consent fail? A discourse analytical approach’, Journal of the American Academy of Psychiatry and the Law, 37(3): 349–​362. Pereira, T. (in preparation) A Critical Evaluation of the Role of Communication Aids in Police Investigative Interviews with Witnesses with a Learning Disability, Cardiff University. Plotnikoff, J. and Woolfson, R. (2009) Measuring Up? Evaluating Implementation of Government Commitments to Young Witnesses in Criminal Proceedings, London: NSPCC. —​—​—​ (2019) Falling Short:  A Snapshot of Young Witness Practice and Policy. A  Report for the NSPCC, Revisiting ‘Measuring Up? Evaluating Implementation of Government Commitments to Young Witnesses in Criminal Proceedings 2009’, London: NSPCC. Quas, J., Davis, E., Goodman, G. and Myers, J. (2007) ‘Repeated questions, deception, and children’s true and false reports of body touch’, Child Maltreatment, 12(1): 60–​7. Richardson, E., Stokoe, E. and Antaki, C. (2018) ‘Establishing intellectually impaired victims’ understanding about “truth” and “lies”: Police interview guidance and practice in cases of sexual assault’, Applied Linguistics, 40(5): 773–​792. Shepherd, E. and Milne, R. (2006) ‘“Have you told management about this?” Bringing witness interviewing into the 21st century’, in A. Heaton-​Armstrong, E. Shepherd, G. Gudjonsson and D. Wolchover (eds), Witness Testimony: Psychological, Investigative and Evidential Perspectives, Oxford: Oxford University Press, 131–​152. Sumner, E., DeAngelis, E., Hyatt, M., Goodman, N. and Kidd C. (2019) ‘Cake or broccoli? Recency biases children’s verbal responses’, PLoS ONE 14(6): e0217207 https://​doi.org/​10.1371/​journal. pone.0217207. Walker, A. and Kenniston, J. (1999) Handbook on Questioning Children: A Linguistic Perspective, 2nd edn, Washington, DC: ABA Center on Children and the Law.

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19 Rape victims The discourse of rape trials Susan Ehrlich

Introduction Feminist critiques of the law have often cited the rape trial as exemplifying much of what is problematic about the legal system for women. Smart (1989: 161), for example, argues that the rape trial is illustrative of the law’s juridogenic potential: that is, frequently the harms produced by the so-​called remedy are as negative as the original abuse. Other legal theorists have created terms for the rape trial –​‘judicial rape’ (Lees 1996: 36) and ‘rape of the second kind’ (Matoesian 1995: 676) –​in order to make visible the re-​victimization that women can undergo once their complaints of rape enter the legal system. What is perhaps surprising about these kinds of claim is the fact that sexual assault and rape statutes in Canada and the United States have undergone widespread reform over the last four decades. For example, legislation in the 1970s through the 1990s in Canada and the United States abolished, among other things, marital exemption rules, which had made it impossible for husbands to be charged with raping their wives; corroboration rules, which required that complainants’ testimony be supported by independent evidence; resistance rules, which required that complainants show evidence that they physically resisted their attackers; and recent complaint rules, which obligated complainants to make prompt complaints in order that their testimony be deemed credible. In addition, rape shield provisions were introduced, restricting the conditions under which complainants’ sexual history could be admissible as evidence. So, given this kind of reform, why do rape trials continue to defy the law’s statutory objectives? In the version of this chapter published in the first edition of the Handbook, I  argued, following Conley and O’Barr (1998:  3), that the rape trial’s failure to deliver justice to rape victims lies not in the details of rape and sexual assault statutes but rather ‘in the details of everyday legal practices—​details that consist almost entirely of language.’ While the importance of language to everyday legal practices, such as trials, is undeniable, recent work in language and law has pointed to the important role that other kinds of semiotic resources also have in legal practice (e.g. Matoesian and Gilbert 2018; Matoesian and Gilbert, Chapter  16, this volume; Ehrlich 2019). Thus, this chapter not only focuses on the way that linguistic analysis can

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reveal some of the discriminatory qualities of rape trials –​and their contestation –​it also references some recent work that has investigated multimodality in rape trials.

The adjudication of rape cases In her book-​length study of well-​known American acquaintance rape trials, Sanday (1996) comments on the discrepancy that often exists between ‘law-​as-​legislation’ and ‘law-​as-​practice’ (Smart 1989). On the one hand, Sanday praised recent rape statutes in the states of New Jersey, Illinois, Washington and Wisconsin that deemed sexual aggression as illegal in the absence of what she termed the ‘affirmative consent’ of complainants. On the other hand, Sanday (1996: 285) points to the failure of such statutory reform in the context of sexist and androcentric cultural stereotypes: ‘although our rape laws define the line [between sex and rape] …, these laws are useless if juror attitudes are affected by ancient sexual stereotypes.’ Within the Canadian context, Comack makes similar observations about judges’ attitudes: despite the widespread reform to Canadian sexual assault law in the 1980s and 1990s, Comack (1999: 234) argues that ‘judicial decisions continue to reflect traditional cultural mythologies about rape.’ Comack’s claims are supported by research on the language of sexual assault trial judgments (e.g. Coates et  al. 1994; Coates and Wade 2004). For example, in investigating judges’ decisions in Canadian sexual assault trial cases between 1986 and 1992, Coates et al. (1994) found judges to have extremely limited ‘interpretive repertoires’ in the language they deployed in describing sexual assault. In describing ‘stranger rapes,’ judges employed a language of assault and violence; however, in describing cases where perpetrators were familiar to their victims and often trusted by them, the language that judges used was often that of consensual sex. For example, the unwanted touching of a young girl’s vagina was described as ‘fondling’ in one trial judgment; in another, a judge described a defendant as ‘offering’ his penis to his victim’s mouth. Thus, in spite of the fact that the 1983 statutory reforms in Canada explicitly reconceptualized sexual assault as a crime of violence, many of the judges adopted the language of erotic, affectionate and consensual sex when describing non-​stranger rape. These kinds of result give empirical substance to Sanday’s and Comack’s claims about the ‘ancient sexual stereotypes’ and ‘traditional cultural mythologies’ that inform the adjudication of rape cases. They are also illustrative of the legal system’s differential treatment of stranger rape vs. acquaintance rape –​a phenomenon also documented within the American legal system by legal scholar, Susan Estrich. Estrich (1987), in her book Real Rape, makes the argument that the legal system takes the crime of rape seriously in cases where the perpetrator is a stranger, and in particular, an armed stranger ‘jumping from the bushes’ and attacking an unsuspecting woman. By contrast, when a woman is forced to engage in sex with a date or an acquaintance, when no weapon is involved and when there is no overt evidence of physical injury, the legal system is much less likely to arrest, prosecute and convict the perpetrator. One could argue that in these latter kinds of case, when there is no physical evidence and/​or corroboration that rape has occurred, it is much easier for judges and juries to invoke their own (potentially problematic) ideas about male and female sexuality. As Tiersma (2007) points out, consent can be communicated indirectly (e.g. through silence), with the result that, in situations where a man has not physically hurt or overtly threatened a woman, judges and juries must infer whether a woman has consented to sex or not. And, in line with Sanday’s and Comack’s comments above, Tiersma (2007:  93) acknowledges that ‘these inferences may rest on 298

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questionable or offensive … assumptions.’ For instance, Tiersma cites a case ‘in which a Texas judge determined that a woman’s request that a man use a condom was evidence of consent, despite the fact that he had threatened her with violence.’ In the words of da Luz and Weckerly (1993: 95), ‘caution [was] construed as consent’ by this particular judge. The remainder of this chapter reports on linguistic and multimodal analyses of rape trials to achieve two goals. First, I  consider research that has investigated acquaintance rape trials and demonstrated that the kinds of questionable cultural assumptions discussed by Sanday, Comack and Tiersma (among others) are not only evident in the attitudes of some juries and judges, they also circulate within trials. In particular, defense lawyers in criminal rape trials have been shown to strategically draw upon cultural mythologies surrounding rape as a way of impeaching the credibility of complainants. Second, I  consider research that explores the possibility that the kinds of cultural mythologies drawn upon by judges, juries and defense lawyers in rape trials can be contested. In fact, I suggest that, because of its adversarial nature, the rape trial provides a unique forum for investigating ways that dominant notions of sexual violence are reproduced as well as ways they might be resisted and challenged.

Questions in trial discourse Adversarial dispute resolution, of which trials are a notable example, requires that two parties come together formally, usually with representation (e.g. lawyers), to present their (probably different) versions of the dispute to a third party (e.g. judge, jury, tribunal) who hears the evidence, applies the appropriate laws or regulations, and determines the guilt or innocence of the parties. Lawyers have as their task, then, convincing the adjudicating body that their (i.e. their client’s) version of events is the most credible. Apart from making opening and closing arguments, however, lawyers do not themselves testify. Rather, it is through the posing of questions that lawyers must elicit testimony from witnesses that will build a credible version of events in support of their own clients’ interests, in addition to testimony that will challenge, weaken and/​or cast doubt on the opposing parties’ version of events. Atkinson and Drew (1979: 70) note that while trial discourse is conducted predominantly through a series of question–​answer sequences, other actions are accomplished in the form of such questions and answers. For example, questions may be designed to accuse witnesses, to challenge or undermine the truth of what they are saying or, in direct examination, to presuppose the truth and adequacy of what they are saying. To the extent that witnesses recognize these actions are being performed by questions, they may design their answers as rebuttals, denials, justifications etc. Atkinson and Drew (1979) have called the question–​answer turn-​taking system characteristic of the courtroom, turn-​type pre-​allocation, to indicate that the types of turns participants can take are predetermined by their institutional roles. In courtrooms, for example, lawyers have the right to initiate and allocate turns by asking questions of witnesses but the reverse is not generally true; witnesses are obligated to answer questions or run the risk of being sanctioned by the court. An important dimension of this type of asymmetrical turn-​taking, according to Drew and Heritage (1992: 49), is the fact that it provides little opportunity for the answerer (typically a lay person) to initiate talk and thus allows the institutional representative ‘to gain a measure of control over the introduction of topics and hence of the “agenda” for the occasion.’ Within the context of the courtroom, researchers (e.g. Conley and O’Barr 1998) have argued that the interactional control by questioners (i.e. lawyers) is most pronounced during cross-​examination when 299

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the use of leading questions allows cross-​examining lawyers to impose their (i.e. their clients’) version of events on evidence. As Gibbons (2003: 98) points out, one way that cross-​examining lawyers manage to construct during questioning a version of events that serves the interests of their own clients is by ‘[including] elements of this desired version … in the questions.’ While a number of researchers have developed taxonomies of questions used in the courtroom (e.g. Danet et  al. 1980; Harris 1984; Walker 1987), for the purposes of this chapter I  elaborate on Woodbury’s (1984) taxonomy of question ‘control,’ because it categorizes questions according to the questioner’s ability to ‘control’ information, or in Gibbons’ words above, according to the questioner’s ability to include ‘elements of the[ir] desired version of events’ in their questions. Indeed, for Woodbury (1984: 199), control refers ‘to the degree to which the questioner can impose his [sic] own interpretations on the evidence.’ Thus, within Woodbury’s continuum of control, broad wh-​questions, such as And then what happened?, display little control because they do not impose the questioner’s interpretation on the testimony:  there is no proposition communicated to a judge and/​or jury other than the notion that ‘something happened.’ By contrast, yes-​ no questions display more control than wh-​questions within Woodbury’s taxonomy. For example, what Woodbury calls a ‘prosodic’ yes-​no question (e.g., You had intercourse with her?) contains a substantive proposition –​i.e. ‘the addressee had intercourse with a woman’ –​that is made available to the judge and/​or jury, irrespective of the addressee’s (i.e. witness’s) answer, and thus it is more controlling than a wh-​question. Even more controlling than a prosodic yes-​no question, according to Woodbury, is a declarative with a tag (You had intercourse with her, didn’t you?) as the tag explicitly elicits confirmation of the proposition from the addressee. Indeed, for Conley and O’Barr (1998: 26), controlling questions, in Woodbury’s sense, have the effect of transforming cross-​examination ‘from dialogue into self-​serving monologue.’ That is, even if a controlling question with damaging content is answered in the negative, Conley and O’Barr argue that ‘the denial may be lost in the flow of the lawyer’s polemic.’ In my own work (Ehrlich 2001), I have expanded Woodbury’s taxonomy of ‘control’ to include questions with presuppositions –​questions that I argue are even more controlling than the kinds of yes-​no questions exemplified above. That is, on one analysis, a question always contains a variable or unknown quantity, which the addressee is being asked to supply (Lyons 1977). For example, the addressee of the yes-​no question with a tag exemplified above, You had intercourse with her, didn’t you?, has the ability to disconfirm the proposition (i.e. ‘the addressee had intercourse with some woman’) contained within the declarative part of the question. By contrast, presuppositions cannot be denied with the same effectiveness or success. Consider, for example, the question in (1), adapted from Atkinson and Drew (1979: 211). (1)

Lawyer:

When you were having intercourse with her the first time (3.5) did you say anything to her then?

In uttering this question, the lawyer takes for granted (i.e. assumes) that the witness has had intercourse with some woman and is asking about speech events that might have taken place during the intercourse. What is important for my purposes is that this presupposition continues to be taken for granted (i.e. remains in evidence) even if the addressee answers the question in the negative. Thus, in contexts where cross-​examining lawyers attempt to include elements of their own client’s version of events in their questions, 300

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presuppositions are even more powerful than the declaratives of prosodic and tag yes-​no questions in controlling evidence. The contrast among the kinds of propositions made available and/​or presupposed by the question types discussed here can be seen in (2) and (3). The question types are ordered from less ‘controlling’ to more ‘controlling.’ (2)

Yes-​No Tag Questions without Presuppositions, e.g. You had intercourse with her, didn’t you? Proposition made available (but denied if question answered in the negative): the addressee had intercourse with the ‘woman under consideration’.

(3)

Yes-​No Tag Questions with Presuppositions, e.g. When you had intercourse with her, you said something to her, didn’t you? Proposition made available (but denied if question answered in the negative): the addressee said something to the ‘woman under consideration’ when having intercourse with her. Proposition still presupposed: the addressee had intercourse with the ‘woman under consideration’.

The power of questions to control information in acquaintance rape trials A central argument of this chapter is that problematic cultural assumptions about rape are not only evident in the attitudes of judges and juries but also within rape trials themselves; in particular, cross-​examining lawyers have been shown to invoke cultural mythologies surrounding rape as a way of undermining the credibility of complainants. In this section, I  demonstrate how these kinds of cultural myths are encoded within the ‘controlling’ questions of defense lawyers when cross-​examining complainants, in particular, within the presuppositions and declaratives of their yes-​no questions. The specific kinds of cultural assumption discussed in this section (Ehrlich 2001; 2003) involve what Sanday might call ‘an ancient sexual stereotype’ –​an outdated statutory rule within sexual assault and rape law called the utmost resistance standard. Until the 1950s and 1960s in the United States, the statutory requirement of utmost resistance was a necessary criterion for the crime of rape (Estrich 1987); that is, if a woman did not resist a man’s sexual advances to the utmost, then rape did not occur. While, as noted above, this standard is no longer encoded in rape statutes in the United States, it does circulate within rape trials. The following examples come from a Canadian acquaintance rape trial in which the accused, Matt (a pseudonym), was charged with sexually assaulting two different women, Connie and Marg (pseudonyms), in their university residences three nights apart. (Matt was convicted of sexual assault in the case involving Marg, on the basis of corroboration from witnesses, and acquitted in the case involving Connie.) Although both complainants described their experiences as sexual assault, in the examples that follow the defense lawyer represents the women’s behavior as lacking in forceful and direct resistance. Because the complainants’ actions do not seem to meet the standard of resistance deemed appropriate by the defense lawyers, I suggest that these types of representation have the effect of calling into question the complainants’ allegations of sexual assault. Many of the questions (shown in italics below) asked by the defense lawyer identified options that the complainants could have pursued in their attempts to resist the accused; moreover, these options were consistently presented as reasonable options for 301

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the complainants to have pursued. Examples (4)  and (5), for instance, show the cross-​ examiner suggesting that ‘seeking help’ was a reasonable option for Connie. (4)

L:

CD: L: CD: L: CD:

L:

(5)

CD: L:

CD: L:

CD:

And I take it part of your involvement then on the evening of January 27th and having Mr A. come back to your residence that you felt that you were in this comfort zone because you were going to a place that you were, very familiar; correct? It was my home, yes. And you knew you had a way out if there was any difficulty? I didn’t really take into account any difficulty. I never expected there to be any. I appreciate that. Nonetheless, you knew that there were other people around who knew you and obviously would come to your assistance, I take it, if you had some problems, or do you know? Maybe you can’t answer that. No, I can’t answer that. I can’t answer that. I was inviting him to my home, not my home that I share with other people, not, you know, a communal area. I was taking him to my home and I really didn’t take into account anybody else around, anybody that I lived near. It was like inviting somebody to your home. Fair enough. And I take it from what you told us in your evidence this morning that it never ever crossed your mind when this whole situation reached the point where you couldn’t handle it, or were no longer in control, to merely go outside your door to summon someone? No. What I am suggesting to you, ma’am, is that as a result of that situation with someone other than Mr A., you knew what to do in the sense that if you were in a compromising position or you were being, I won’t use the word harass, but being pressured by someone you knew what to do, didn’t you? No, I didn’t. Somebody had suggested that, I mean, I could get this man who wasn’t a student not be permitted on campus and that’s what I did. What—​but I am suggesting that you knew that there was someone or a source or a facility within the university that might be able to assist you if you were involved in a difficult situation, isn’t that correct, because you went to the student security already about this other person? Yeah, okay. If you are asking if I knew about the existence of student security, yes, I did.

The italicized sentences in examples (4) and (5) are ‘controlling’ questions in Woodbury’s (1984) sense. That is, in producing such questions the defense attorney communicates certain propositions to the judge and jury in the declarative portion of the yes-​no questions, specifically, that Connie knew there were university resources available to women who found themselves in difficult situations. The italicized questions in (4) and (5) also contain presuppositions. The predicate, know, is a factive predicate, which means that it presupposes the truth of its complement. Thus, in uttering the three italicized questions above, the defense lawyer presupposes that ‘there was a way out,’ ‘there were other people around who knew Connie’ and ‘there were resources at the university to help those in difficult situations.’ Indeed, due to the presupposed nature of these propositions, even if Connie had denied her knowledge of the availability of help, what is communicated by the lawyer’s questions is the fact that help was available within the university. Note that the final question of example (4)  not only identifies an option that Connie could have pursued, it also represents this 302

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option as an unproblematic one, given the presence of the word, merely  –​ It never ever crossed your mind … to merely go outside your door to summon someone? So, what are the inferences that a judge and jury might draw from the information communicated by the defense lawyer’s questions? If help was available, and if Connie admits at certain points in the questioning that she was aware of its availability, as we see in the last turn of example (5), then her failure to seek help suggests that she was not in ‘a difficult situation’ and that she did not require assistance. Put somewhat differently, Connie’s failure to seek help casts doubt on her credibility, specifically, it calls into question her allegations of sexual assault. Examples (6)  and (7)  show both the judge and the cross-​examining lawyer asking Connie and Marg, respectively, why they didn’t utter other words in their various attempts to resist Matt’s sexual aggression. Again, we see an emphasis on the seemingly reasonable options that were not pursued by the complainants. (6)

(7)

L:

And in fact just raising another issue that I would like you to help us with if you can, this business of you realizing when the line was getting blurred when you said ‘Look, I don’t want to sleep with you,’ or words to that effect, yes, you remember that? CD: Yes. L: Well, when you said that, what did that mean or what did you want that to mean, not to have intercourse with him? CD: Yeah, I mean, ultimately, that’s what it meant. It also, I mean —​ The Court: You didn’t want to sleep with him but why not, ‘Don’t undue [sic] my bra’ and ‘Why don’t you knock it off’? CD: Actually, ‘I don’t want’ —​‘I don’t want to sleep with you’ is very cryptic, and certainly as he got his hands under my shirt, as he took off my shirt, as he undid my bra, as he opened my belt and my pants and pulled them down and I said, ‘Please don’t, please stop. Don’t do that. I don’t want you to do that, please don’t’, that’s pretty direct as well. MB: And then we got back into bed and Matt immediately started again and then I said to Bob, ‘Bob where do you get these persistent friends?’ L: Why did you even say that? You wanted to get Bob’s attention? MB: I assumed that Bob talked to Matt in the hallway and told him to knock it off L: You assumed? MB: He was talking to him and came back in and said everything was all right. L: Bob said that? MB: Yes. L: But when you made that comment, you wanted someone to know, you wanted Bob to know that this was a signal that Matt was doing it again? MB: Yes. L: A mixed signal, ma’am, I suggest? MB: To whom? L: What would you have meant by, ‘Where do you get these persistent friends?’ MB: Meaning Bob he’s doing it again, please help me. L: Why didn’t you say, ‘Bob, he was doing it again, please help me?’ MB: Because I was afraid Matt would get mad.

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L: MB:

You weren’t so afraid because you told Bob, ‘Where do you get these persistent friends?’ Did you think Matt would be pleased with that comment because it was so general? I didn’t think about it but I thought that was my way of letting Bob know what was going on.

Connie reports saying Look, I don’t want to sleep with you at a certain point in the evening and Marg recounts one of several incidents when she attempts to elicit Bob’s help (Bob is the pseudonym for a friend of the accused) by saying Bob where do you get these persistent friends. Yet, in the italicized questions above, these expressions of resistance are problematized by the judge and the defense lawyer, respectively. In example (6) the judge asks Connie why she hasn’t said Don’t undue [sic] my bra and Why don’t you knock it off and in example (7) the defense lawyer asks Marg why she didn’t say Bob, he was [is] doing it again, please help me. It is significant that both of the questions that preface the words not produced by the complainants are negative interrogatives (i.e. why not and why didn’t you say) –​ interrogatives that Heritage (2002: 1432) argues are often used to ‘frame negative or critical propositions.’ This means that when the judge and the defense lawyer produce questions of the form ‘Why didn’t you say X,’ not only are they calling attention to utterances that were not produced by the complainants, they are also communicating a negative and/​or critical attitude towards the fact that such utterances were not produced. Once again, then, the inferences generated by these questions serve to call into question the complainants’ allegations of sexual assault: because they did not express their resistance directly and forcefully, the judge and/​or jury might wonder whether they had really been threatened by the accused. The examples above are illustrative of the way cross-​examining lawyers (and, in one case, a judge) use ‘controlling’ questions to create a version of events that supports their own clients’ case and undermines the credibility of the opposing side’s case. My argument is that the information contained within the declarative portions and the presuppositions of the defense lawyer’s questions created a powerful ideological lens through which the events in question came to be understood. More specifically, by repeatedly posing questions that represented the complainants as not pursuing ‘obvious’ and ‘easily-​executed’ strategies of resistance, the defense lawyer suggested that the complainants’ behavior did not meet the ‘utmost resistance’ standard, thereby undermining the complainants’ allegations of sexual assault. From my point of view, what is problematic about the resistance standard invoked by the defense lawyer is the fact that it downplays and obscures the unequal power dynamics that often characterize male/​female sexual relations. In excerpt (6), for example, Marg reports enlisting Bob’s help in order to end Matt’s sexual aggression, because she feared that a more direct approach would provoke Matt’s anger. The defense lawyer, however, suggests that Marg should have employed more direct words in resisting Matt’s violence and characterizes her strategic act of resistance as nothing more than a mixed signal. Thus, Marg’s act of resistance, which could have been framed as an intelligent and thoughtful response to a man’s escalating sexual violence, was instead characterized by the defense lawyer as an inadequate act of resistance.

Syntactic repetition: intensifying the control of questions in acquaintance rape trials Like Ehrlich’s (2001) work described above, Matoesian’s (2001) analysis of the William Kennedy Smith rape trial also focuses on the role of defense lawyers’ ‘controlling’ 304

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questions in undermining the credibility of complainants. Matoesian, however, not only demonstrates how the referential content of ‘controlling’ questions is involved in this task, he also shows how such referential content is intensified and exaggerated through ‘creative and improvisational poetic structures’ (Matoesian 2001: 33 and Matoesian and Gilbert Chapter 16 this volume) such as structural repetition and parallelism. The interactional means by which inconsistency is created in witness testimony is a major theme of Matoesian’s (2001) analysis. William Kennedy Smith (the nephew of the late President John Kennedy and the late Senators Robert and Edward Kennedy) was charged with, and subsequently acquitted of, simple battery (unwanted touching) and second-​degree sexual battery (rape without the use of a weapon) in the state of Florida in 1991. In Part I of his book, Matoesian focuses on some of the inconsistencies in ‘logic’ imputed to the testimonies of the complainant, Patricia Bowman, and her primary witness, Ann Mercer, during their cross-​examination by the defense attorney, Roy Black. While Matoesian notes that the exposing of inconsistencies in witness testimony is a generic trial practice designed to undermine the credibility of witnesses, in this particular case he argues that the ‘logical’ standard against which the two women’s testimonies were measured –​and rendered inconsistent –​was not a gender-​neutral standard, but rather a male standard of sexuality, what he terms ‘the patriarchal logic of sexual rationality.’ In Matoesian’s words, ‘there is an inconsistency between the victim’s version of events and the expectations of patriarchal ideology governing victim identity’ (2001: 40; emphasis in original). In example (8)  below, Matoesian (2001:  46) argues that Roy Black’s (RB) questions to Patricia Bowman (PB) functioned to create an inconsistency ‘between the victim’s claim of having been raped and her actions with the defendant before the alleged incident’ (emphasis mine). (8) 1 2 3 4 5 6 7 8 9 10 11 12 13

RB: And you were interested in him as a person.  (0.9) PB: He seemed like a nice person.  (0.5) RB: Interested enough that tuh-​(0.5) to give him a ride home. (0.9) PB: I saw no-​(.) no problem with giving him a ride home as I stated because it was up the street it wasn’t out of my way (.) he hadn’t tou:ched me (.) I felt no threats from him and I assumed that there would be security at the home. (0.5) RB: You were interested enough (.) that you were ho:ping that he would ask for your pho:ne number. (0.7) PB: That was later. (0.7) RB: Interested enough (.) tha:t when he said to come into the hou:se you went into the hou:se with him. (1.6) PB: I (woul-​) it wasn’t necessarily an interest with William (.) it was an interest in the house.

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14 15 16

(0.6) RB: Interested enough that uh: at sometime during that period of time you took off your panty hose? (1.2) PB: I still don’t know how my panty hose came off

In this excerpt, Roy Black’s ‘controlling’ questions (in Woodbury’s sense) make available to third-​party recipients (i.e. the jury in this case) a number of propositions that are confirmed by Patricia Bowman: that she gave the defendant a ride home, that she went into the house with him and that she hoped he would ask for her telephone number. (Note that while Bowman acknowledges that her panty hose came off, she doesn’t confirm the proposition that she was the one to take them off.) And, as Matoesian (2001: 47) points out, when these propositions are brought together, Patricia Bowman’s actions begin to look more like precursors to a consensual sexual interaction than to the crime of rape. For Matoesian, then, it was not just the propositional content of a series of questions like the ones above that functioned to construct Patricia Bowman’s testimony as inconsistent; it was also the coherence created by their juxtaposition. The defense attorney, Roy Black, had impressive oratorical skills and, according to Matoesian, employed these skills to amplify and intensify the ‘inconsistencies’ in the complainant’s testimony. More specifically, Black foregrounded the referential content of his questions (and his talk, more generally) by using ‘creative and improvisational poetic structures’ (Matoesian 2001: 33), such as structural repetition and parallelism. In excerpt (8), for example, an element of the main clause of line 1 –​interested –​is incorporated into the syntactic frame, interested enough plus complementizer, and then this syntactic frame is repeated four times (in lines 3, 7–​8, 10–​11 and 14–​15), each time with a different complement clause. In this way, a semantic link is created between the referential content of the complement clauses that are embedded within the syntactic frame, interested enough plus complementizer. As Matoesian says, ‘incremental repetition … unifies and organizes otherwise disparate particulars of evidence into a coherent, gestalt-​like pattern of persuasive parallelism’ (Matoesian 2001: 57). That is, the syntactic repetition in example (8) functions to create a link among a series of events that might not otherwise appear connected; and, the fact that these events are more compatible with consensual sex than with the crime of rape intensifies the inconsistency in Patricia Bowman’s testimony.

Integration of gesture and speech In a subsequent study of the William Kennedy Smith trial, Matoesian and Gilbert (2018: 1–​ 2) show that legal discourse involves more than ‘just words,’ turning their attention to the ways in which ‘both language and other modal resources mutually contextualize one another’ in the creation of meaning in trials. Still focused on how Roy Black managed to create inconsistencies in the prosecution’s case, Matoesian and Gilbert analyze Black’s closing argument and, in particular, his representation of the prosecution’s claim that Patricia Bowman had been tackled to the ground by William Kennedy Smith before he raped her. Black calls into question the claim that this ‘collision of bodies’ had actually occurred by noting that there was no evidence of the ‘tremendous impact’ on Bowman’s body. Forensic evidence showed no grass stains, abrasions, cuts, mud, dirt or soil on Bowman’s body or on her clothes and this, for Black, constituted ‘a serious inconsistency

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in the prosecution’s case’ and a concomitant undermining of Bowman’s accusation of rape (Matoesian and Gilbert 2018: 232). According to Matoesian and Gilbert, the creation of this inconsistency on Black’s part was not only achieved through the language of his closing argument but through his language in conjunction with gestures. The verbal listing of the missing pieces of evidence (as indicated above), for example, was accompanied by what the authors call ‘interdigital gestures’ where ‘the tip of the index finger on [Black’s] right hand land[ed] on the tips of the unfurling (from a closed fist) digits of the left hand’ (Matoesian and Gilbert 2018: 225). With each interdigital gesture, there was a listing of another missing piece of evidence. For Matoesian and Gilbert, not only do these kinds of gestures foreground semantic content of evidential significance, they also, like language, convey semantic content –​the colliding of Black’s fingers mirrors the colliding of bodies, thereby drawing attention to the effects on Bowman’s body that should be present. Following Ehrlich (2001), Matoesian and Gilbert say that Black here invoked the ‘embodied resistance ideology’ (in addition to the utmost resistance ideology) as a way of discrediting the prosecution’s case: not only must rape victims be seen as resisting to the utmost, this resistance must have ‘embodied proof’ without which there is no evidence of rape (Matoesian and Gilbert 2018: 225).

Contesting cultural mythologies surrounding rape The power of questions to control evidence in cross-​examination is a recurring theme in the literature on courtroom discourse and, in keeping with this literature, I have shown above how ‘controlling’ questions can be used to communicate cultural mythologies surrounding rape, thereby undermining the credibility of complainants in rape trials. But, to what extent can these discriminatory ideologies be contested in courtroom settings? Matoesian (2005:  621) has questioned the assumption that ‘questions … are more powerful than answers,’ suggesting that ‘a more detailed consideration of answers and how they function … may demonstrate just how powerful they are.’ Drew (1992) provides precisely this kind of ‘detailed consideration of answers’ in his analysis of a rape victim’s cross-​examination. In particular, Drew shows how the complainant (i.e. the rape victim) in this particular trial often produced ‘alternative descriptions’ in her answers –​descriptions that contested the cross-​examining lawyer’s version of events. That is, rather than providing ‘yes’ or ‘no’ answers to the cross-​examining lawyer’s yes-​ no questions (what Raymond (2003) calls type-​conforming answers to questions), the complainant provided competing descriptions that transformed the lawyer’s damaging characterizations into more benign ones. In (9)  below, for example, (taken from Drew 1992: 486) the cross-​examining lawyer, through the use of ‘controlling’ questions, attempts to represent the events that preceded the alleged rape as precursors to a consensual sexual interaction. (This is similar to the strategy adopted by Roy Black in (8).) (9) 16 17 18 19 20 21

A: A: W:

Well yuh had some uh (p) (.) uh fairly lengthy conversations with the defendant uh: did’n you? (0.7) On that evening uv February fourteenth? (1.0) We:ll we were all talkin. 307

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22 23 24 25 26 27 28 29

A:

W: W:

(0.8) Well you kne:w, at that ti:me. that the defendant was. in:terested (.) in you (.) did’n you? (1.3) He: asked me how I’(d) bin: en (1.1) J-​just stuff like that

While the lawyer’s questions in lines 16–​17 and 23–​25 suggest that there was a closeness or intimacy developing between the defendant and the complainant, Drew argues that the complainant’s answers, although not containing any ‘overt correction markers’ (Drew 1992: 487), do not support this version of events. Rather, the complainant provides answers that depict a lack of intimacy between the complainant and the defendant, that is, a scene in which there were a number of people who were all talkin and in which the defendant issued a greeting that was more friendly than intimate. What is significant about Drew’s analysis for the present discussion is the fact that the answerer is shown to ‘control’ evidence (in Woodbury’s sense) by resisting and transforming the propositions contained in the declarative portions of the lawyer’s yes-​no questions. In fact, Drew comments explicitly on the need to be attentive to the way that competing descriptions from witnesses may influence juries: ‘the complainant’s attempts to counter the lawyer’s descriptive strategies, and hence herself control the information which is available to the jury, should not be overlooked’ (Drew 1992: 517). In the same way that answers may contest the version of events put forward by the questions of cross-​examining lawyers, other analyses of rape trials have shown how the question–​answer sequences of direct examination can convey an alternative narrative to the one provided by cross-​examining lawyers. Indeed, in what follows, I provide examples from a Canadian rape trial (Ehrlich 2006, 2007) where the prosecuting lawyer seemed to anticipate, and preemptively counter, a defense strategy seen in examples (4)  to (7) above: the complainant is represented as not resisting her perpetrator sufficiently and therefore as engaging in consensual sex. This particular case involved a sexual assault that took place during a job interview; the accused interviewed the complainant for a job and subsequently invited her to see his work in the trailer attached to his van. According to the complainant’s testimony, the accused sexually assaulted her in the trailer for a period of approximately two hours. The accused was acquitted by the trial judge and by the Alberta Court of Appeal (a provincial court). Upon appeal to the Supreme Court of Canada, the acquittal was overturned and a conviction was entered for the accused. Atkinson and Drew (1979:  136), in their investigation of courtroom discourse, have noted that witnesses often display their recognition that a series of questions is leading to a ‘blame allocation’ by producing ‘justification/​excuse components in answers.’ In other words, witnesses will provide defenses and justifications in their answers even though the questions asked of them ‘do not actually contain any blame-​relevant assessments of witnesses’ actions’ (Atkinson and Drew 1979:  138). Such defenses and justifications will thus appear prematurely within the course of a trial, that is, before they are actually elicited by a cross-​examining lawyer. In the same way that witnesses may provide justifications for their actions prematurely, I am suggesting that examples (10) and (11) show that lawyers may also anticipate critical assessments of their witnesses’ actions from opposing lawyers and will thus design their questions to elicit premature or preemptive defenses and justifications for such actions. 308

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In contrast to the adversarial, combative nature of cross-​examination, direct examination has been characterized by both legal practitioners and by scholars as supportive and cooperative. In particular, open-​ended questions, or questions that display little ‘control’ in Woodbury’s sense, tend to be more frequent in direct examination than in cross-​examination. This can be seen in excerpts (10) and (11). In these two examples, the prosecuting attorney begins her turn by asking a broad wh-​question, such as What happened then?, to which the complainant responds by describing an event or a series of events. Immediately following such an answer, the lawyer asks a narrower wh-​question –​a why-​question that attempts to elicit the complainant’s motivation for performing a particular action that she has described. What is significant about these why-​questions, for the purposes of this chapter, is that they allow the complainant to represent herself as having actively pursued strategies of resistance, either strategies meant to discourage the defendant’s sexual advances or strategies meant to avoid more intense and/​or prolonged instances of violence from the defendant. (10) L: A: →

L: A: (11) L: A: L: A: L: A: L: A: →

L: A:

What happened then? He said, Why don’t we just talk inside the van here. And he sat into his driver’s seat, and I opened the door, and I left the door open of the passenger seat and I sat down there. And why did you leave the door open? Because I was still very hesitant about talking to him. And what happened then? He told me that he felt very tense and that he would like to have a massage, and he then leaned up against me with his back towards me and told me to rub his shoulders and I did that. And up to the time he told you he was tense and wanted a massage, had the two of you talked about you giving him a massage? I believe all he had said right before that is that he liked to have them, and he was tense feeling and that was all. Had you ever offered to give him a massage? No. Did you want to give him a massage? No. (some intervening turns) If you didn’t want to give him a massage at that point in time, why did you touch his shoulders? I was afraid that if I put up any more of a struggle that it would only egg him on even more, and his touching would be more forced.

In the italicized portion of (10), the complainant represents herself as attempting to create circumstances that will discourage the accused’s sexual aggression:  she leaves the door open to the van because she is hesitant about talking to him alone in a confined space. In the italicized portions of (11), the complainant represents herself as attempting to prevent more extreme acts of violence from the accused: she complies with his request that she give him a massage out of fear that not complying will egg him on even more. Indeed, such responses reflect strategies that many victims of sexual violence employ to prevent more prolonged and extreme instances of violence. As researchers on violence against women have asserted, submitting to coerced sex or physical abuse can be ‘a strategic mode 309

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of action undertaken in preservation of self (Lempert 1996:  281). That is, if physical resistance on the part of victims can escalate and intensify violence, as some research shows (e.g. Dobash and Dobash 1992) and many women (are instructed to) believe, then submission to coerced sex is undoubtedly the best strategy for survival. In a general way, then, what is important about the prosecuting attorney’s questioning in examples (10) and (11) is the fact that her why-​questions served to elicit responses that highlighted and emphasized the complainant’s active deployment of strategies meant to resist the accused’s escalating sexual violence. In this way, the lawyer can be viewed as anticipating, and attempting to preempt, a certain kind of ‘blame allocation’ from the defense –​that the complainant did not resist the accused ‘to the utmost’ and thus engaged in consensual sex. The preceding discussion is significant because it shows that the cultural rape mythologies often invoked by defense lawyers can be challenged in courtrooms by alternative kinds of narratives. More specifically, in the direct examination of the sexual assault trial just described, the complainant’s actions were contextualized within a sense-​making framework that acknowledged the structural inequalities that can characterize male–​ female sexual relations and the effects of such inequalities in shaping women’s strategies of resistance.

Conclusion and future directions I began this chapter by pointing to the cultural mythologies that often inform the adjudication of sexual assault and rape cases in Canada and the United States in spite of four decades of progressive statutory reform. What this chapter has demonstrated is the way that these same cultural mythologies can make their way into rape trial discourse, potentially reinforcing the problematic cultural assumptions held by judges and juries. As noted above, a primary reason that discriminatory ideologies of the type identified above can, arguably, influence the adjudication of judges and juries in rape trials is because the crime of rape typically occurs in private without corroboration or physical evidence. Thus, adjudicators must rely exclusively on discursive representations of competing ‘facts’  –​ ‘he said/​she said’ battles –​in ascertaining guilt and innocence. As Cameron and Kulick (2003: 34) say, adjudicators ‘are not privy to the disputed event itself’ but rather ‘must base their decisions on what parties to the case say about it after the fact.’ And, this may make them especially susceptible to the kinds of strategies defense lawyers use in their attempts to undermine the credibility of complainants. Particularly interesting in this regard are the increasing number of legal cases, including rape cases, where social media evidence plays a role. (See Hoffmeister 2014 for an account of the increasing importance of social media in the law.) In the Steubenville, Ohio (USA) rape trial, for example, the two defendants (along with many of their friends) had documented the events under investigation as these events were unfolding in ‘real time’ and much of this documentation became admissible as evidence in the trial. Moreover, this record of the events had been documented in a variety of semiotic modes, i.e., modes beyond the purely linguistic/​discursive. Indeed, Ehrlich (2019) argues that the defense’s argument in the Steubenville case –​that a passive young woman consented to sex because she didn’t say ‘no’ –​was unsuccessful because the prosecution was able to make use of social media evidence, in particular, photographic images of the disputed events that exposed just how passive and non-​responsive the young woman was. In other words, the photographic images of a comatose young woman made difficult a finding of consent in ways that linguistic descriptions of a woman’s passivity

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may not have. (And, of course, linguistic descriptions of such events are typically the only kind of evidence that exists in rape cases.) Matoesian and Gilbert (2018:  1) have made the argument that research in language and the law rarely addresses the role of multimodal resources and how it operates ‘in concert with the verbal modality in legal settings.’ Like Matoesian and Gilbert, I end this chapter by echoing their observation that ‘legal discourse involves much more than just words’ (emphasis in original) and, by extension, that multimodal analysis represents an important new direction in the field. With respect to rape trials in particular, the analysis of the Steubenville rape trial cited above shows the important role that modes beyond the purely discursive may have in challenging the problematic ideologies that defense lawyers strategically deploy in their questioning.

Further reading Conley, J. and O’Barr, W. (2005) Just Words: Law, Language and Power, 2nd edn, Chicago: University of Chicago Press. Cotterill, J. (ed.) (2007) The Language of Sexual Crime, Basingstoke, UK: Palgrave Macmillan. Ehrlich, S. (2001) Representing Rape: Language and Sexual Consent, London: Routledge. —​—​—​(2019) ‘“Well, I  saw the picture”:  Semiotic ideologies and the unsettling of normative conceptions of female sexuality in the Steubenville rape trial’, Gender and Language, 5: 251–​269. Matoesian, G. (1993) Reproducing Rape:  Domination through Talk in the Courtroom, Chicago: University of Chicago Press. —​—​—​ (2001) Law and the Language of Identity:  Discourse in the William Kennedy Smith Rape Trial, New York: Oxford University Press. Matoesian, G. and Gilbert, K.E. (2018) Multimodal Conduct in the Law:  Language, Gesture and Materiality in Legal Interaction, Cambridge: Cambridge University Press.

References Atkinson, J. and Drew, P. (1979) Order in Court: The Organisation of Verbal Interaction in Judicial Settings, London: Macmillan. Cameron, D. and Kulick, D. (2003) Language and Sexuality, Cambridge: Cambridge University  Press. Coates, L. and Wade, A. (2004) ‘Telling it like it isn’t: Obscuring perpetrator responsibility for violent crime’, Discourse and Society, 5: 189–​206. Coates, L., Bavelas, J. and Gibson, J. (1994) ‘Anomalous language in sexual assault trial judgements’, Discourse and Society, 5: 499–​526. Comack, E. (1999) ‘Theoretical excursions’, in E. Comack (ed.) Locating Law: Race/​Class/​Gender Connections, Halifax, Nova Scotia: Fernwood Publishing, 19–​68. Conley, J.M. and O’Barr, W.M. (1998/​2005) Just Words: Law, Language and Power, Chicago: University of Chicago Press. da Luz, C.M. and Weckerly, P.C. (1993) ‘The Texas “condom-​rape” case: Caution construed as consent’, UCLA Women’s Law Journal, 3: 95–​104. Danet, B., Hoffman, K.B., Kermish, N.C., Rafn, H.J. and Stayman, D. (1980) ‘An ethnography of questioning in the courtroom’, in R.W. Shuy and A. Shnukal (eds), Language Use and the Uses of Language, Washington, DC: Georgetown University Press, 222–​234. Dobash, R.E. and Dobash, R.P. (1992) Women, Violence and Social Change, London: Routledge. Drew, P. (1992) ‘Contested evidence in courtroom cross-​examination:  The case of a trial for rape’, in P. Drew and J.C. Heritage (eds), Talk at Work:  Interaction in Institutional Settings, Cambridge: Cambridge University Press, 470–​520. Drew, P. and Heritage, J. (1992) ‘Analyzing talk at work:  An introduction’, in P. Drew and J.C. Heritage (eds), Talk at Work: Interaction in Institutional Settings, Cambridge: Cambridge University Press, 3–​65. Ehrlich, S. (2001) Representing Rape: Language and Sexual Consent, London: Routledge.

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—​—​—​(2003) ‘Coercing gender: Language in sexual assault adjudication processes’, in J. Holmes and M. Meyerhoff (eds), The Handbook of Language and Gender, Oxford: Blackwell Publishers, 645–​670. —​ —​ —​(2006) ‘Constraining the boundaries of gendered identities:  Trial discourse and judicial decision-​making’, in J. Baxter (ed.), Speaking Out:  The Female Voice in Public Contexts, Basingstoke, UK: Palgrave Macmillan, 139–​158. —​—​—​(2007) ‘Legal discourse and the cultural intelligibility of gendered meanings’, Journal of Sociolinguistics, 11: 452–​477. —​—​—​(2019) ‘“Well, I  saw the picture”:  Semiotic ideologies and the unsettling of normative conceptions of female sexuality in the Steubenville rape trial’, Gender and Language, 13: 251–​269. Estrich, S. (1987) Real Rape, Cambridge, MA: Harvard University Press. Gibbons, J. (2003) Forensic Linguistics: An Introduction to Language in the Justice System, Oxford: Blackwell. Harris, S. (1984) ‘Questions as a mode of control in magistrates’ courts’, International Journal of the Sociology of Language, 49: 5–​28. Heritage, J. (2002) ‘The limits of questioning: Negative interrogatives and hostile question content’, Journal of Pragmatics, 34: 1427–​1446. Hoffmeister, T. (2014) Social Media in the Courtroom:  A New Era for Criminal Justice?, Santa Barbara, CA: Praeger. Lees, S. (1996) Carnal Knowledge: Rape on Trial, London: H. Hamilton. Lempert, L. (1996) ‘Women’s strategies for survival: Developing agency in abusive relationships’, Journal of Family Violence, 11: 269–​289. Lyons, J. (1977) Semantics, Cambridge: Cambridge University Press. Matoesian, G. (1993) Reproducing Rape:  Domination Through Talk in the Courtroom, Chicago: University of Chicago Press. —​—​—​ (2001) Law and the Language of Identity:  Discourse in the William Kennedy Smith Rape Trial, Oxford/​New York: Oxford University Press. —​—​—​(2005) Review of J. Cotterill, ‘Language and power in court: A linguistic analysis of the O.J. Simpson trial’, Journal of Sociolinguistics, 9: 619–​622. Matoesian, G. and Gilbert, K.E. (2018) Multimodal Conduct in the Law:  Language, Gesture and Materiality in Legal Interaction, Cambridge: Cambridge University Press. Raymond, G. (2003) ‘Grammar and social organization: Yes/​no interrogatives and the structure of responding’, American Sociological Review, 68: 939–​967. Sanday, P.R. (1996) A Woman Scorned: Acquaintance Rape on Trial, New York: Doubleday. Smart, C. (1989) Feminism and the Power of Law, London: Routledge. Tiersma, P. (2007) ‘The language of consent in rape law’, in J. Cotterill (ed.), The Language of Sexual Crime, Basingstoke, UK: Palgrave Macmillan, 83–​103. Walker, A.G. (1987) ‘Linguistic manipulation, power and the legal setting’, in L. Kedar (ed.), Power through Discourse, Norwood, NJ: Ablex, 57–​80. Woodbury, H. (1984) ‘The strategic use of questions in court’, Semiotica, 48: 197–​228.

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20 Defendants’ allocutions at sentencing Courtroom apologies M. Catherine Gruber

Introduction The procedures of U.S.  federal sentencing hearings require judges to ask defendants whether they have anything to say on their own behalf before sentence is imposed, as do many state courts (McGautha v. California (1971)). This speech event is called an allocution and defendants often use this opportunity to address the court to offer an apology to the judge, their families, the victim(s) and/​or the government. In fact, it appears that allocution at sentencing constitutes a ritual site in which an apology is expected, especially in cases where defendants have pleaded guilty. For example, in the journal of the National Association of Criminal Defense Lawyers, Sands writes, ‘the judge expects to hear remorse and regret’ (1999: 6) and recommends a short and sweet ‘I am sorry’ from the defendant. In support of this claim, Slovenko (2006) points to numerous cases as well as newspaper accounts of trials and sentencing that highlight the presence or absence of an apology or other displays of remorse by the defendant. The apologies produced by defendants in U.S. courtrooms are like other apologies in that defendants use words to try to repair a breach (Goffman 1971:  113). Making an effective apology can be difficult under normal circumstances because actions speak louder than words:  having committed an ill-​received action, the speaker now attempts to use words to make things right. Courtroom apologies are unlike other apologies, however, due to the way in which the context of the sentencing hearing frames a defendant’s apology as self-​serving and, as a result, insincere. This is hugely problematic because, as Austin (1962) observes, for an apology to be successful it is essential that the speaker be perceived as sincere. This chapter considers many of the ways in which the institutional role identity of the defendant and the context of the sentencing hearing function to limit the remedial potential of any defendant apology that is delivered there. The problem is magnified for defendants because the language ideologies surrounding allocution portray this speech event as a protection for defendants when in fact it presents at least as many risks as it does benefits. This is because defendants whose apologies are viewed as weak or insincere face 313

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longer sentences of imprisonment. Further, the American Bar Association’s Standards for Sentencing note that allocution maximizes ‘the perceived equity of the process’ (1994: 208) –​as opposed to the equity of the process. In this way the beliefs about allocution may function to mask the ways in which it serves the interests of the state at least as much as of the defendants it is said to protect. The conclusion of Rachlinski, Guthrie and Wistrich’s study of courtroom apologies appears apt: ‘[w]‌e find that a defendant’s apology in court is generally ineffective, sometimes counterproductive, and only occasionally beneficial’ (2013: 1194).

The context of the courtroom The setting of a sentencing hearing constitutes a non-​prototypical one for the production of an apology. Tavuchis observes that the fundamental structure of an apology is a binary interaction between the offender and the offended (1991: 46). Courtroom apologies are not binary interactions:  defendants address a third party  –​the sentencing judge  –​and the offended party (if there is one) is likely not there. Further, the judge usually does not explicitly respond to the apology produced by the defendant (other than, perhaps, with ‘Thank you.’). This makes allocution a monologic context instead of a dialogic one (Gruber 2014: 22). The sentence that the judge imposes is understood as responding to all of the preceding elements of the sentencing hearing –​and possibly other elements of the defendant’s conviction –​not just the defendant’s apology. Because the sentence constitutes the judge’s response to the defendant’s allocution, the allocution is framed as being directed at that response. This feature of the context positions an apologetic allocution as fundamentally sentence-​oriented –​and the defendant, therefore, as self-​interested –​rather than as oriented toward the offended party, as effective apologies are. Because sincerity is undermined by a speaker’s self-​interest, this contextual feature handicaps defendants’ apologies (Gruber 2014: 22).

Historical context of courtroom apologies Historically speaking allocution has long been understood as a protection for defendants. Barrett notes that under common law, the mandatory punishment for any felony except for mayhem and petty larceny was death (1944:  119). As a result, the point of asking a defendant whether he had ‘anything to offer why judgment should not be awarded against him’ was to give the defendant a formal opportunity to present one of the strictly defined legal reasons which required the avoidance or delay of sentencing: for example, during allocution a defendant could claim benefit of clergy which made him eligible to be sentenced in a court of the church (1944: 120). Over time, allocution was reinterpreted as a more open-​ended response by defendants, but the belief that it serves as a protection for defendants has endured. This can be seen in the language of Green v. United States, where the Court writes, ‘[t]‌he most persuasive counsel may not be able to speak for a defendant as the defendant might, with halting eloquence, speak for himself.’ Archer (2005) explores the history of legal representation and notes that Hawkins (1721) holds up a defendant’s speech on his own behalf as ‘more moving and convincing than the highest Eloquence of Person speaking in a cause not their own.’ (2005: 88). The ideologies surrounding allocution, especially long-​standing ones about the power of defendant speech revealed in Green and Hawkins are important to understand because when they frame this opportunity to address the court as a benefit, they not only mask the ways in which allocution subjects 314

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defendants to criticism –​and possibly a longer sentence –​but also, in the process, function to validate a criminal justice system in need of reform.

Allocution at sentencing today American Jurisprudence (1998) observes: ‘Allocution is a plea for mercy; it is not intended to advance or dispute facts. The purpose of allocution is two-​fold:  first, it reflects the belief that civilization should afford every defendant the opportunity to ask for mercy, and, second, it permits the defendant to impress the jury with his or her feelings of remorse’ (§811). The American Bar Association’s Standards for Sentencing note:  ‘[t]‌he policy behind the right of allocution has more to do with maximizing the perceived equity of the process than with conveying information on which courts may rely in making finds of fact’ (1994: 208). By maximizing the ‘perceived equity of the process,’ allocution advances the interests of the state at the same time as it is said to advance defendants’ interests. When the same procedure is viewed as serving the needs of parties who occupy diametrically different positions of power, history teaches that conditions are ripe for the practice to better serve the more powerful party (Gruber 2014: 34). There is much more to ‘impress[ing] the jury with … feelings of remorse,’ as well. Slovenko notes that ‘remorse’ derives from Latin remordere and means ‘to bite again’ (2006: 403). Remorse has long been viewed as a factor that could mitigate punishment because it is seen as an index of rehabilitative potential and good character (Hanan 2018: 310). In capital cases, Sarat observes that ‘remorseful defendants are significantly more likely to receive life sentences than to be sentenced to death’ (1999: 184). (See Gruber 2014: 34–​35 for ways in which some capital defendants are effectively denied the opportunity to impress the jury with their remorse before sentencing.) Remorse is communicated both through the words one says and through non-​referential, paralinguistic channels (e.g., rate of speech, facial expressions, prosody, hesitations, gestures)  –​which can be ‘bewildering[ly] multifunctional and index several affective experiences ambiguously, or different categories in different situations’ (Besnier 1990:  429). If the denotational and paralinguistic channels conflict, Besnier notes, the messages conveyed via the non-​ referential channels will be weighted more heavily (1990: 430). This means that judges and juries will give more weight to their interpretation of the meaning of defendants’ affective expressions than they give to what defendants say. Hanan observes that this makes ‘[t]‌he decision whether to believe a defendant’s expression of remorse … profoundly subjective’ (2018: 306). In the courtroom, these paralinguistic indexes are referred to as demeanor; case law has long supported judges’ individual assessments of defendants’ demeanor as a factor in sentencing (see, for example, U.S. v. Clemmons (1995) and U.S. v. Li (1997)) and the Sentencing Guidelines (18 U.S.C. §3661). This subjectivity involved in perceiving remorse is a problem for defendants because studies have shown that people are more likely to perceive remorse in others who look like them (Hanan 2018). My (2014) study of 52 courtroom apologies found that sentencing judge and defendant matched in race and gender only 25% of the time, while Hanan writes: ‘[t]‌he less the judge can identify with the defendant –​based on race, culture, or socioeconomic background –​the more difficult it will be for the judge to empathize with the defendant in a way that facilitates accurate assessment of remorseful sentiment.’ (2018: 342). And Rachlinski, Guthrie and Wistrich (2013) consider the additional factor of whether judges may be predisposed to not being moved by defendants’ apologies because they have heard so many of them. For these reasons, courtroom apologies 315

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appear to operate in a confirming capacity alone due to the way in which the many points of ambiguity offer judges the opportunity to confirm their attitudes and opinions about different defendants (Gruber 2014: 154–​155).

A study of 52 courtroom apologies Gruber (2014) presents the apologetic allocutions of 52 defendants (41 men, 11 women) collected in three U.S.  district courtrooms between November 2004 and March 2006. Forty-​eight of the defendants had pleaded guilty; four were found guilty by a trial. The apology narratives ranged from 4 to 186 seconds in the length of time that they occupied, with a median allocution of 29.5 seconds. (Forty-​three of the allocutions were delivered extemporaneously and nine were read aloud.) The defendants were not pre-​selected for the study and the crimes for which they were being sentenced were mostly non-​violent: drug-​ related crimes and illegal possession of a weapon were the most common charges; there were also a few cases involving bank robbery and financial crimes such as fraud and embezzlement. Defendants’ allocutory statements ranged across four main areas of content: statements on the topic of the offense (50 defendants; 196 tokens [with a token being an utterance consisting of an optional subject, a verb (or verbs if they are conjoined) and its object(s)]); statements that addressed the topic of future behavior and/​or lessons learned (36 defendants; 117 tokens); statements that focused on mitigation (29 defendants; 119 tokens); and statements on the topic of the sentence (23 defendants; 43 tokens). Each kind of statement advances –​and potentially hinders –​defendants’ communicative goals in different ways. In the following quotes from defendant allocutions, the letter X, Y or Z identifies which of three judges the defendant was addressing; the number following the letter identifies a specific defendant; and the number after the colon refers to the line number(s) of the allocution. Paralinguistic information has been simplified here: underlining signifies emphasis and a single period mid-​sentence represents a pause. The complete allocutions can be found in Gruber (2014).

60 50 40 1+ tokens

30

2+ tokens 20

3+ tokens

10 0

Allocutions with offense-topical statements

Allocutions with Allocutions with Allocutions with future-topical mitigation statements sentence-topical statements statements

Figure 20.1  Prevalence of major content codes across allocutions

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Patterns in the genre of allocution at sentencing The data set of 52 courtroom apologies exhibited patterns on multiple levels. Defendants tended to begin their allocutions with offense-​topical statements:  of the 47 allocutions that contained two or more different topics, 42 (or 89%) had an offense-​related utterance in the first content position. Thus, the majority of defendants began their allocutions by referring to their offense or how they felt about it (Gruber 2014: 139). Another pattern was the pairing of claims to have learned from the preceding, crime-​ related events with a statement on the topic of abstention from such activities in the future. Fewer than half of the defendants raised the topic of the sentence, but if the topic was broached in a non-​critical manner, it tended to occur at the end of the allocution. Of the 23 allocutions that contained one or more of these sentence-​topical utterances, 17 had a non-​critical sentence-​related statement in either the last content position of the allocution or in the penultimate content position. In contrast, statements that were critical of the sentence or the criminal justice system as a whole occurred in the first 70% of the allocution. This makes sense because that gave defendants some time to undo some of the potential damage of their criticism with statements that were more in line with an expected remorseful stance. Defendants also avoided ending their allocutions with mitigations, which involve similar kinds of risks. The homogeneity among allocutions suggests that there exists a cultural script for this speech event –​and it doesn’t take previous experience with the criminal justice system to have access to it. The constraints of the context are powerful and defendants share similar communicative goals in trying to present a remorseful stance in the face of numerous contextual factors that handicap the delivery of an effective apology.

Defendants talk about the offense Defendants developed the topic of their offense in six main ways –​three of which focused on the offense itself and three of which expressed a personal response to the offense. The statements focusing on the offense were critical assessments or they developed the topic of harm caused or defendants’ responsibility for their actions. The statements that expressed a personal response to the offense used the formulaic ‘I’m sorry’ or ‘I apologize’ constructions or they referred to other feelings, such as ‘regret.’ When defendants focused on the offense itself, they offered an assessment of their actions, often labeling them as ‘wrong’ or ‘a mistake’ (e.g., ‘Well,. Judge, I know what I did was wrong’ (Z15: 1)); they identified the harmful effects that their actions had on others (e.g., ‘and I hurt people that trusted me and were my friends’ (X16: 4)); and they went out of their way to claim that they had accepted responsibility for their actions (e.g., ‘I’d just like to say that uh I accept responsibility for what I’ve done’ (Z6: 1–​2)). Federal defendants are eligible for a deduction of 2–​3 levels to their total offense level if the government determines that they have accepted responsibility for their offense (U.S.S.C. Guidelines Manual 2018, §3E1.1). O’Hear (1997) argues that in most district courts this deduction is awarded in exchange for a defendant’s cooperation (i.e., a timely guilty plea). Those defendants who in their allocutions explicitly claimed to have accepted responsibility for their actions may have hoped that this would ensure the application of this deduction. Thirty-​five defendants (67%) produced at least one of these three offense-​focused statements in their allocutions.

317

Gruber 80 70 60 50 40 30 20 10 0

"I'm sorry"

Assessments

"I apologize" # of Defendants

Responsibility

Harm caused

Other feelings (e.g., regret)

# of Tokens

Figure 20.2  How defendants responded to the offense

By focusing on the offense, defendants align themselves with the other courtroom actors who are also focused on the offense –​in particular, the judge and the prosecutor. This discursive move enables defendants to lay claim to membership in the larger law-​abiding community, for by criticizing their own actions they demonstrate that they know what law-​abiding behavior is. Focusing on the offense in a critical manner, then, constitutes one way in which defendants perform the Goffmanian split of an apology: they ‘split [themselves] into two parts, the part that is guilty of an offense and the part that dissociates itself from the delict and affirms a belief in the offended rule’ (Goffman 1971: 113). While these offense-​oriented statements advance defendants’ presumed communicative goals in some respects, they undercut them in others. In many ways self-​critical assessments make a good fit for the expectations associated with allocution. However, one of the problems associated with assessments of one’s actions concerns the potential for minimization of what defendants say they did. For example, referring to the offense as a ‘mistake’ can be problematic if the judge views this as minimization of the offense. This was evident in the case of Y11, where the judge chastised the defendant for referring to his criminal actions as ‘mistakes’: But unfortunately, from the remarks of the defendant, he apparently fully believes in the contents of those letters [letters of support written by family and friends] and you will recall his statement to the court that he regrets the mistakes –​well, this is more than mistakes. It’s a violation of federal law. (Y11) In addition to focusing on the offense and criticizing it in some way, other offense-​topical utterances took the form of a personal response to the offense. Defendants did this by means of a conventional apology (i.e., ‘I’m sorry’ or ‘I apologize’) or they expressed ‘regret’ or other feelings such as being ‘ashamed.’ Thirty-​nine defendants (75%) produced at least one of these personal responses in their allocutions:  29 defendants produced a total of 44 tokens of ‘I’m sorry,’ 17 defendants produced 31 tokens of ‘I apologize,’ and seven defendants produced 12 tokens involving other feelings. Interestingly, women made up 21% of the defendants yet produced 41% of the ‘I’m sorry’ statements; men made up 79% of the defendants yet produced 93% of the ‘I apologize’ statements. 318

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As Austin (1962) explains, ‘I’m sorry’ and ‘I apologize’ are illocutionary force indicating devices for the speech act of apologizing. This means that these phrases are conventionally linked to the speech act of apologizing:  when an addressee hears these expressions (assuming other prerequisite conditions are met, such as that the speaker harmed/​inconvenienced the addressee in some way), she will understand the speaker as apologizing. Austin notes that the forms ‘I’m sorry’ and ‘I apologize’ differ, however, in where they fall on his performative–​constative continuum, with ‘I apologize’ falling on the performative end, and ‘I’m sorry’ falling in the middle (1962: 83) because it is performative in function but in form it has the truth/​falsity dimension of constative utterances, such as ‘The cat is on the mat.’ With more performative utterances defendants are heard as speaking in order to perform a desired action. The action associated with apologizing is remedying a breach. In the context of a sentencing hearing, however, the action defendants are understood as performing gets conflated with the presumption of their wanting a shorter sentence (Gruber 2014: 50–​51). This conflation undermines the remedial effect of any ritualized apology here. Constative utterances, in contrast, appear to give defendants a bit more distance from this contextual constraint. Constative utterances that offer defendants’ responses to their offense (e.g., ‘I’m very ashamed of myself’ (X4: 4)) are likely to be viewed as truthful (barring contradictory information) due to the tendency to treat speakers as authorities in the realm of their own emotions (Labov and Fanshel 1977: 34). The complements used for ‘I’m sorry’ and ‘I apologize’ statements differed: with the ‘I’m sorry’ constructions, ‘sorry for + offending action(s)’ was preferred by defendants; with ‘I apologize’ constructions, ‘apologize to + offended party/​ies’ was preferred by defendants. Whether defendants used ‘I’m sorry’ or ‘I apologize’ constructions, in the majority of the sentencing hearings observed in Gruber (2014), defendants referred to their crimes by means of semantically-​bleached referring expressions, such as ‘what I have done,’ e.g., ‘I would just like to say I am very sorry. for what I have done’ (Y6: 4). Like so many aspects of defendants’ allocutions, the practice of making indeterminate references to criminal activities can be understood in different ways. For example, judges could view it as a defensive strategy. Thus, when a defendant says ‘I just. would like to say that uh. I realize what hap-​occurred was wrong’ (Z5: 2), the judge has to select which of the possible relevant events constitutes the referent for ‘what hap-​occurred.’ If the judge co-​constructs what defendants are sorry for, defendants can’t be accused of not apologizing for the right thing. From this perspective, the use of broad referring constructions during allocution could be understood as a way in which defendants use the structural feature of monologicality to their advantage (Gruber 2014:  78). Another example of indeterminacy can be seen in a defendant’s bare ‘I’m sorry’:  As Judge X explained, an unelaborated ‘I’m sorry’ could mean that the defendant was sorry for what he did or sorry to have gotten caught (Gruber 2014: 80). Instead of being a defensive strategy, defendants’ semantically-​bleached references to their offenses could be the result of what Chafe (1994) refers to as the ‘one new idea’ constraint. Chafe observes that low-​content verbs such as MAKE and DO play an important role in framing new information and they abound in defendants’ talk on the subject of their offenses, e.g. ‘I’m sorry for what I’ve done’ (X9: 5). Due to the way in which sentencing hearings function as institutional responses to defendants’ crimes, we can understand the crimes themselves as being ‘activated’ in this context (via the plea hearing or trial) independent of whether they have been explicitly mentioned during the sentencing hearing itself. From this perspective, the choice of a low-​content construction, such as 319

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DO/​done, to refer to the crime makes sense because it is not ‘new’ information in this context. If the reference to the crime is accessible or ‘old’ information, then the ‘one new idea’ of the apologetic utterance can be found in the criticism of their actions or the apology that defendants make with regard to the offense. From this perspective, the use of semantically-​bleached constructions to refer to the offense is a natural consequence of putting the focus on the critical stance that the defendant takes toward the offense (Gruber 2014: 78–​79). Another possible reason for the use of vague references to the crime is that crimes vary with regard to their ease of representation: for example, ‘robbing a bank’ contrasts with ‘misrepresenting one’s financial situation on bank documents.’ From this perspective, ‘what I’ve done’ is an easier way to represent offenses that don’t employ neat transitive-​ verb-​with-​one-​object constructions. In addition, studies on apologies have found that there is a limit in terms of the severity of offense that can occur in a routinized apology frame such as ‘I’m sorry’ (cf. Trosborg 1987). As a result, ‘[o]‌ne way in which defendants could meet the conflicting constraints on producing an apology but not exceed the propositional content limit for a formulaic expression of one is to produce an “I’m sorry” or “I apologize” construction with a semantically bleached reference to the offense.’ (Gruber 2014: 78). ‘I’m sorry’ and/​or ‘I apologize’ constructions were used by 38 defendants (73%). I propose that both of these constructions carry pluses and minuses for a defendant’s stance. On the positive side, with both ‘I’m sorry’ and ‘I apologize’ defendants go on record as producing the ritual apology that is expected in this context. On the negative side, as noted above, the action that these conventionalized utterances are understood as performing gets conflated with their presumed goal of wanting a shorter sentence in addition to or instead of mending a breach. Another negative for formulaic apology expressions is that they are incomplete. As Coulmas (1981) and others have observed, apologies typically occur in a three-​part sequence: the misdeed, the apology and some kind of response by the addressee. Because allocution is typically a monologic speech event, the apologies produced during allocution lack the third part of the sequence. I proposed that an apology that is delivered by means of an incomplete form has reduced communicative potential, which in turn carries negative implications for the speaker who produced it. From this perspective, a conventional apology clashes with the constraint of monologicality that is imposed by the context. Not surprisingly, most defendants also made use of other strategies for responding to the offense. Thus, of the 38 defendants who used a variant of ‘I’m sorry’ or ‘I apologize’ in their allocutions, two-​thirds of them (26) also produced at least one other offense-​oriented statement, in essence, hedging their bets.

Defendants offer mitigating information Rule 32(i)(4)(A)(ii) of the Federal Rules of Criminal Procedure (2019) states:  ‘[b]‌efore imposing sentence, the court must address the defendant personally in order to permit the defendant to speak or present any information to mitigate the sentence.’ Consistent with this guideline, 29 defendants (56%) produced 119 statements (with a range of 1–​ 18 tokens per allocution) that appeared to be functioning primarily as attempts to mitigate the offense. Four basic types of mitigations were identified: explanations (e.g. ‘I was just thinkin about what I can gain at the time because I was about to lose my business, and I know I had borrowed money from other people, and owed them.’ (Y17: 22–​24)); mitigations of the offense (e.g., ‘but uh,. one thing I  did I-​I was.  –​regardless of what 320

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Allocutions with offense-topical statements that consisted of only conventionalized apologies, e.g., Sorry or Apologize Allocutions with offense-topical statements that consisted of only less conventionalized statements: Assessment, Responsibility, Harm, and/or Other feelings Allocutions with offense-topical statements that included at least 1 conventionalized apology and at least 1 less conventionalized apology

Figure 20.3  Allocutions with offense-​topical statements, n=50

I did out there, I was always careful not to dump any #methamphetamine #out #there #I #mean. I was always careful not to damage the environment –​that’s one thing I did try not to do (X14: 8–​12)); personal information (e.g., ‘I just. the crime that I am being charged for is not my character at all’ (Y12: 4)); and mitigations for family (e.g., ‘I jus–​I just need to be home there with my daughter, she needs me home to be with her’ (Y12: 12–​ 13)). The potential benefit of mitigation is that it could highlight defendants’ individual circumstances so as to portray them as different from the myriad individuals who appear before the judge in the same capacity of criminal defendant; this may improve their chances of receiving a more individualized, and presumably shorter sentence. In actuality, it appears that most mitigations subject defendants to character-​damaging implications. Apart from explanations that were grounded in medical problems viewed as legitimate, explanations for the offense were risky because they could be viewed as attempts to minimize defendants’ responsibility for the offense. Although explanations grounded in the circumstances of the crime may be intended to counter the accusation that defendants’ criminal behavior stems from some innate trait (cf. the correspondence bias, Gilbert and Malone 1995), they open the defendant to the charge that similar circumstances in the future will result in similar behavior. Attempts to mitigate the offense itself did not appear to be effective due to the way in which the defendant’s version of events differed from the prosecutor’s version of events. The problem is that, as Weisman has shown, in order to portray oneself as sincerely remorseful, defendants have to accept the government’s version of the events of the crime (2009: 60). Four of the six defendants who offered a mitigation of the offense were criticized by the sentencing judge during their closing remarks; and all six defendants received a sentence above the minimum for which they were eligible (Gruber 2014: 103). Defendants’ person-​ based mitigation statements consisted of positive claims about themselves and personal reactions to their situations. Whether the sentencing judge permitted defendants to lay claim to an identity which encompassed more than their law-​ breaking activities appeared to pattern with judging style (Gruber 2014: 93–​94). Lastly, a few defendants offered family responsibilities as a factor that they hoped could reduce their sentence. Unfortunately, family responsibilities do not qualify as pertinent offender characteristics which can impact the sentence that is imposed (U.S.S.G. §5H1.6); as a 321

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result, these statements were unlikely to help defendants’ standing. In sum, although the official instructions concerning allocution leave open the kind of mitigation that could be offered, thereby suggesting that any kind of mitigation is acceptable, a close look at the interaction between the context of allocution and the institutional role identity of criminal defendant reveals that offering mitigating information may very well increase the length of one’s sentence instead of shortening it.

Defendants talk about the future Thirty-​six defendants (69%) produced 117 future-​related statements, with a range of 1–​ 12 tokens. Defendants talked about the future in one of four ways (and 16 of the 36 defendants used at least two of these methods): 1) they spoke about aspects of their life in the future that they were looking forward to; 2) they indicated their intention to repay money that they had taken; 3) they promised to not repeat these criminal acts in the future; and 4) they made claims to have changed or learned a lesson. Further, in the 11 examples in which defendants claimed to have learned a lesson, they stated that they would not repeat their law-​breaking behavior within two sentences after that: e.g. ‘I just. would like to say that uh. I realize what hap-​occurred was wrong. and that uh. it’s not gonna happen again.’ (Z5: 2–​3). Here the defendant’s claim of new knowledge –​the lesson they learned –​ provides the evidential basis for the promise of better behavior in the future. All of the future-​related statements could be presumed to be valued by a judge. In contributing to a picture of a positive life for the defendant in the future, they have relevance for the moment of sentencing: defendants who see the future in a positive way can be understood as less likely to recidivate. However, a defendant’s previous criminal record (and the corresponding length of the sentence being faced) limits the degree to which these statements about the future appear sincere and/​or realistic. If the offense for which the defendant is being sentenced is a second –​or third –​offense (etc.), the evidential base that is needed to make convincing statements about the future has been undermined: if a previous conviction did not deter this criminal behavior, this conviction may not either (Gruber 2014: 112–​113). For this reason, allocution appears to offer the most potential benefit for first-​time offenders.

Defendants refer to their sentences In a sense, every component of a defendant’s allocution speaks to the topic of the sentence. Because allocutions are delivered before the sentence is imposed, and because they are understood as providing defendants with the opportunity to demonstrate that they are worthy of a sentence from the low end of the range that applies to them, responding to the offense, offering information in mitigation of the offense, and talking about how defendants have changed, all relate to the sentence. At times defendants addressed the topic of the sentence more directly. Twenty-​three defendants produced 43 tokens of relatively more specific references to the sentence with a range of 1–​12 tokens. The sentence-​topical statements differed significantly in terms of discourse function: one set consisted of sentence-​related requests, such as for leniency; another set consisted of acceptance-​of-​sentence statements; and a third set (the smallest of all) consisted of critical statements about the sentence or the criminal justice system as a whole. As a result of their different functions, these sentence-​topical statements had very different implications for a defendant’s stance. 322

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The largest subset of sentence-​topical statements consisted of requests for a shorter sentence of imprisonment or –​in a few cases –​probation and no sentence at all. Many of the 16 defendants who employed this strategy requested ‘leniency,’ ‘mercy,’ ‘forgiveness,’ or ‘another chance,’ all of which did not presuppose a sentence of imprisonment. The majority of defendant requests were phrased as I-​statements with verbs of volition: e.g. ‘I’d just like a chance to get home. Your Honor’ (Z6: 3–​4). Less common were requests in the ‘please give me’ form, which were only used at the end of an allocution and after defendants had employed a less direct request construction. Interestingly, defendants who read their statements were significantly more likely to make sentence requests than those who delivered extemporaneous allocutions (Gruber 2014: 113). Similar to the risks posed by mitigations, a request for a shorter sentence is potentially risky because of what is implied by such a request. Defendants who ask for a shorter sentence may be viewed as implying that they deserve a shorter sentence (unless they explicitly defuse this implicature, such as by saying ‘I know I  have no right to ask for this …’). Therefore, as a result of the link between length of sentence and severity of offense made explicit in the Federal Sentencing Guidelines, when defendants are understood as requesting a shorter sentence of imprisonment, they could be understood as implying that the offense is less severe than the government has claimed that it is. Nine defendants stated that they accepted their sentences. These defendants communicated their acceptance of their punishment in different ways: e.g. ‘And I accept what you give me, Sir’ (Y8: 10) (facing 46–​57 months); ‘but. you know, I know every action carries a reaction. And uh. that’s why I’m here now, know what I’m sayin’ (Z17: 22–​23) (facing 262–​327 months). In this data set, eight of nine defendants who claimed that they accepted their sentences had total offense levels above 21 (which was the average for the data set overall); in addition, eight of the nine defendants had criminal history categories of III or higher. U.S. Sentencing Guidelines (U.S.S.G.) require that defendants be assigned an offense level between 1 and 43, depending on the severity of the offense and a criminal history category ranging from I-​VI, depending on the number of criminal history points they have accrued. The intersection of these categories on the U.S.S.G. sentencing table identifies a range of months of imprisonment which are deemed to apply, barring special circumstances. I proposed that a defendant’s past experience with the criminal justice system –​and very possibly a prior prison sentence –​provides the frame for explicitly accepting one’s sentence (2014: 118–​119). Defendants who have already served a sentence of imprisonment would be uniquely qualified to express acceptance of another sentence because they would have a clear understanding of what that sentence entails. Goffman’s (1963) work on identity management offers insight on this point: the role identity of criminal defendant is stigmatizing, so defendants who embody that identity to a greater degree –​i.e., by being categorized as ‘career criminals’ –​face even greater stigmatization. One of the few avenues for socially-​approved behavior that is open to them, however, is to treat their sentences as just and fair responses to their offenses, even though the U.S. has the highest incarceration rate in the world (Lee 2015) and a 2017 report by the U. S. Sentencing Commission found that ‘Black male offenders continue to receive longer sentences than similarly situated white male offenders (2017: 2).’ By expressing their acceptance of the sentence, defendants align themselves (albeit briefly) with the institutional actors who determine and apply these sentences; perhaps in the process they diminish the taint of their own institutional role identity. One thing they also do when they say that they accept their long sentences is offer support for a criminal justice system in need of reform. 323

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There were three cases in which defendants made explicitly critical remarks during their allocutions. All three of the defendants were men, and all were facing long sentences (seven, ten and 15  years, respectively). The defendants criticized the length of their proposed sentences and/​or the criminal justice system as a whole: e.g. ‘I really feel that I don’t. really deserve this much time’ (Z15: 7) (facing a mandatory minimum sentence of 15 years). By criticizing the sentence or the system, defendants risk being perceived as not understanding the seriousness of their actions and hence, as less likely to follow society’s rules after they were released. In this way, criticism could function as the opposite of remorse: ‘where remorse is taken as an index of rehabilitative potential, criticism could mark a defendant as less amenable to rehabilitation’ (Gruber 2014: 120). Defendants’ critical statements about the sentence were either preceded or followed by utterances that communicated a message of acceptance of responsibility for their criminal action(s). In this way, defendants appeared to minimize the damaging effects of their criticism. Another way in which defendants did this was to position their critical remarks away from the ends of their allocutions. This ‘allowed for the possibility that other elements more consistent with the portrayal of a remorseful stance might ameliorate some of the negative effects of the criticism’ (Gruber 2014: 121). I proposed that the content of an allocution has less of an impact on longer sentences and in this data set it was only defendants facing long sentences who criticized the sentence, so it is possible that this factor limits the damaging effects of criticism, as well. Another important factor affecting the length of sentence imposed is the judge’s individual sentencing style. In this data set, the three judges exhibited differing patterns, with Judge Z tending to impose sentences at the low end of the guideline range and Judge Y imposing more sentences in the middle of the guideline range.

Conversational styles of defendants The speech of defendants’ allocutions was marked by the use of: 1) non-​standard features of American English; 2)  informal words and expressions; and 3)  limited use of politeness markers. Non-​standard verb forms and double negative constructions constituted the majority of defendants’ non-​standard language, e.g. ‘I believe that if I was on medication Judge X

Judge Y

Judge Z

16 14 12 10 8 6 4 2 0

Number of below- Number of low end Number of midguideline or belowor statutory range sentences statute sentences minimum sentences

Figure 20.4  Sentencing patterns of the judges 324

Number of high end or statutory maximum sentences

Defendants’ allocutions at sentencing

this crime would not have tooken place’ (X13: 7). O’Barr (1982) identified non-​standard language as constituting an element of what he called ‘powerless speech.’ From this perspective, defendants’ lack of production of ‘standard formal American English’ could be viewed as an index of their relative powerlessness in this context. Besnier’s (1990) observation that affective signs have multiple meanings, however, cautions us against taking any single feature as an indicator of powerlessness. Take the use of ‘ain’t,’ for example: if it is uttered by a speaker who is not viewed as (relatively) powerless to begin with, it would be understood as a deliberate choice, not as an index of powerlessness. Twenty-​seven defendants in this data set (52%) used a politeness marker  –​‘please,’ ‘thank you,’ or ‘thanks’ (13 defendants) –​and/​or a polite term of address for the judge –​ ‘Sir,’ ‘Ma’am,’ ‘Your Honor,’ ‘Judge’ or ‘Judge + Last Name’ (23 defendants)  –​during their allocutions. The overwhelming majority of the politeness markers occurred as part of the acceptance of the invitation to address the court, in the first or last line of allocution content, or in the ending (e.g. ‘That’s it, Your Honor’ (Y7: 9)). In contrast, some attorneys used ‘Your Honor’ every single time they addressed the judge. I observed that the less frequent use of polite terms of address by defendants is understandable in light of the way in which such terms indirectly index the speaker’s own institutional identity. Thus, when attorneys use polite terms of address for the judge, they indirectly index their own, positively-​valorized, institutional identity. In contrast, when used by defendants, the same terms index a stigmatized institutional identity and, concomitantly, the purpose of the hearing –​to impose a sentence. As a result, the use of a polite term of address by a defendant could suggest that the deference-​bestowing term might be employed to position the defendant in a more flattering light with regard to that sentence. This can explain why the majority of the polite terms of address used by defendants occurred at the beginnings and endings of their allocutions. Because beginnings and endings consist of relatively more formulaic utterances, politeness markers receive a ‘patina of formulaicity’ (Gruber 2014: 127); in other words, in these discursive positions polite terms are understood as more ceremonial than truly deferential.

Paralinguistic indexes: wavering voice and crying As Walker (1990) and others have noted, standard court transcription practices privilege denotational meaning  –​the words uttered by courtroom speakers  –​and exclude paralinguistic information. Because paralinguistic information is so important in conveying defendants’ emotional state, which is central to the communication of sincerity, Gruber (2014) represented in her transcripts some of the paralinguistic elements of communication employed by defendants. In this chapter, {} marks the beginning and ending, respectively, of talking with a wavering voice and {{}} marks the beginning and ending of crying-​while-​talking. In this data set seven defendants spoke in a wavering voice and/​or cried during their allocutions, e.g. ‘I jus–​I just need to be {home there with my daughter}. {{she needs me home to be with her. and I’m sorry, and I know what I did was wrong.’}} (Y12:  12–​15). All seven were women and the correlation between crying and feminine gender was highly significant (Gruber 2014: 134). Like so many other aspects of courtroom apologies, the meaning of crying is consistent with multiple interpretations:  although tears express strong feelings, they don’t specify what those feelings are. As Judge X noted above, for example, defendants could be sorry for what they did or sorry that they got caught. Warner and Shields note that ‘[t]‌he ambiguity of tears thus opens the possibility for the observer’s own biases –​such as 325

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his or her attitude toward the target –​to contribute to his or her evaluation of the tearful individual’ (2007: 94). Although much work remains to be done in this field, Warner and Shields observe that the acceptability of tears shed in response to a sad situation is based on whether the situation is viewed as under one’s direct control (2007: 104). This suggests that tears are not likely to be judged as appropriate and hence beneficial to a defendant’s stance in the context of sentencing hearings where defendants are viewed as being in control of their offense-​related actions. Further, following Gordon (1983), judges may wish to inhibit the expression of emotion that would require them to respond in a personal way. From this view, crying by women could be viewed as more problematic if crying by women is viewed as requiring a response more than crying by men is. In support of this hypothesis, Warner and Shields claim that women who cry are likely to be less positively evaluated than men who are behaving comparably (2007: 114). Two cases in the data set offered anecdotal support for the hypothesis that women defendants who do not cry are judged more positively than those who do (Gruber 2014: 137).

Conclusion Defendants’ courtroom apologies are subject to different interpretations depending on the interpretive lens that is applied. As a result, the same apology can be understood as either consistent with a remorseful stance or inconsistent with one  –​and if viewed as inconsistent, the defendant (and her/​his family) –​and the country, for that matter –​will pay the price of a harsher sentence. Nonetheless, this opportunity to address the judge before sentencing has been viewed as a hallowed protection for defendants for hundreds of years. Just as it worked for the Puritans (cf. Erikson 1966), defendants who apologize for their offenses acknowledge the justice of the sentence that is imposed (Gruber 2014:  159). What is more, work in the field of procedural justice has shown that participants value the act of having their voices heard even in situations in which they believe the outcome remained unchanged (Tyler 2004). If the mere exercise of allocution makes defendants feel better about their sentence, this would make the practice particularly harmful: instead of protecting defendants, it would make them feel that they had been protected when they had not (Gruber 2014: 160).

Further reading Barrett, P.W. (1944) ‘Allocution’, Missouri Law Review, IX(2): 115–​143. Gruber, M.C. (2014) ‘I’m sorry for what I’ve done’:  The Language of Courtroom Apologies, New York: Oxford University Press. Hanan, M.E. (2018) ‘Remorse bias’, Missouri Law Review, 83: 301–​357. Rachlinski, J.J., Guthrie, C. and Wistrich, A.J. (2013) ‘Contrition in the courtroom: Do apologies affect adjudication’, Cornell Law Review, 98(5): 1189–​1243. Weisman, R. (2009) ‘Being and doing: The judicial use of remorse to construct character and community’, Social and Legal Studies, 18: 47–​69.

Legal sources Federal Rules of Criminal Procedure (2019) www.federalrulesofcriminalprocedure.org (accessed 15 October 2019). Green v. United States, 365 U.S. 301 (1961). McGautha v. California, 402 U.S. 183 (1971).

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United States v. Clemmons, 48 F.3d 1020 (7th Cir. 1995). United States. v. Li, 115 F.3d 125 (2nd Cir. 1997).

References ‘Allocution’ (1998) American Jurisprudence 2d, Rochester, NY:  Lawyers Cooperative Publishing Company. American Bar Association (1994) Standards for Criminal Justice. Sentencing, 3rd edn, Washington, D.C. Archer, D. (2005) Questions and Answers in the English Courtroom (1640–​1760), Amsterdam: John Benjamins Publishing Company. Austin, J.L. (1962) How to Do Things with Words, Cambridge, MA: Harvard University Press. Barrett, P.W. (1944) ‘Allocution’, Missouri Law Review, IX(2): 115–​143. Besnier, N. (1990) ‘Language and affect’, Annual Review of Anthropology, 19: 419–​451. Chafe, W. (1994) Discourse, Consciousness, and Time:  The Flow and Displacement of Conscious Experience in Speaking and Writing, Chicago: University of Chicago Press. Coulmas, F. (1981) ‘Poison to your soul: Thanks and apologies contrastively viewed’, in F. Coulmas (ed.), Conversational Routine, The Hague: Mouton, 69–​92. Erikson, K.T. (1966) Wayward Puritans:  A Study in the Sociology of Deviance, New  York:  John Wiley & Sons, Inc. Gilbert, D.T. and Malone, P.S. (1995) ‘The correspondence bias’, Psychological Bulletin, 117(1): 21–​38. Goffman, E. (1963) Stigma:  Notes on the Management of Spoiled Identity, New  York:  Simon & Schuster Inc. —​—​—​ (1971) Relations in Public: Microstudies of the Public Order, New York: Basic Books, Inc. Gordon, D.P. (1983) ‘Hospital slang for patients: Crocks, gomers, gorks, and others’, Language in Society, 12(2): 173–​185. Gruber, M.C. (2014) ‘I’m Sorry for What I’ve Done’:  The Language of Courtroom Apologies, New York: Oxford University Press. Hanan, M.E. (2018) ‘Remorse bias’, Missouri Law Review, 83: 301–​357. Labov, W. and Fanshel, D. (1977) Therapeutic Discourse, New York: Academic Press. Lee, M.Y.H. (2015) ‘Yes, U.S.  locks people up at a higher rate than any other country’, The Washington Post, 7 July www.washingtonpost.com/​news/​fact-​checker/​wp/​2015/​07/​07/​yes-​u-​s-​ locks-​people-​up-​at-​a-​higher-​rate-​than-​any-​other-​country/​?utm_​term=.d105d4b965f8 (accessed 15 October 2019). O’Barr, W.M. (1982) Linguistic Evidence. Language, Power, and Strategy in the Courtroom, San Diego: Academic Press, Inc. O’Hear, M. (1997) ‘Remorse, cooperation, and “acceptance of responsibility”: The structure, implementation, and reform of Section 3E1.1 of the Federal Sentencing Guidelines’, Northwestern University Law Review, 91: 1507–​1573. Rachlinski, J.J., Guthrie, C. and Wistrich, A.J. (2013) ‘Contrition in the courtroom: Do apologies affect adjudication’, Cornell Law Review, 98(5): 1189–​1243. Sands, J.M. (1999) ‘Allocution in federal sentencing: The right of a rite’, The Champion (National Association of Criminal Defense Lawyers), 43(March): 1–​9. Sarat, A. (1999) ‘Remorse, responsibility, and criminal punishment: An analysis of popular culture’ in S.A. Bandes (ed.), The Passions of Law, New York: New York University Press, 168–​190. Slovenko, R. (2006) ‘Remorse’, Journal of Psychiatry and Law, 34: 397–​432. Tavuchis, N. (1991) Mea Culpa:  A Sociology of Apology and Reconciliation, Stanford:  Stanford University Press. Trosborg, A. (1987) ‘Apology strategies in natives/​non-​natives’, Journal of Pragmatics, 11(2): 147–​167. Tyler, T.R. (2004) ‘Procedural justice’, in A. Sarat (ed.) The Blackwell Companion to Law and Society, Malden, MA: Blackwell Publishing, 435–​452. United States Sentencing Commission (2017) ‘Demographic differences in sentencing: An update to the 2012 Booker Report’ www.ussc.gov/​sites/​default/​files/​pdf/​research-​and-​publications/​ research-​publications/​2017/​20171114_​Demographics.pdf (accessed 15 October 2019). —​—​—​ (2018) Guidelines Manual www.ussc.gov/​guidelines/​2018-​guidelines-​manual (accessed 15 October 2019).

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Walker, A.G. (1990) ‘Language at work in the law. The customs, conventions, and appellate consequences of court reporting’, in J.N. Levi and A.G. Walker (eds), Language and the Judicial Process, New York: Plenum Press, 203–​244. Warner, L.R. and Shields, S.A. (2007) ‘The perception of crying in women and men. Angry tears, sad tears, and the “right way” to cry’, in U. Hess and P. Philippot (eds). Group Dynamics and Emotional Expression, Cambridge: Cambridge University Press, 92–​117. Weisman, R. (2009) ‘Being and doing: The judicial use of remorse to construct character and community’, Social and Legal Studies, 18: 47–​69.

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21 Aboriginal claimants Adjusting legal procedures to accommodate linguistic and cultural issues in hearings in Aboriginal land rights claims in the Northern Territory of Australia Peter R.A. Gray

Introduction The Aboriginal Land Rights (Northern Territory) Act 1976 (Cth) was pioneering legislation in Australia, and possibly in the world. It established a scheme for the determination of land rights for Aboriginal people in the Northern Territory. Unlike the reserves and missions that had been established in various States and Territories of Australia previously, the Land Rights Act gave Aboriginal people control over land if they could establish their traditional rights to it. Central to the scheme of the Act was a process of administrative inquiry, conducted by the Aboriginal Land Commissioner. To be appointed as the Commissioner, a person had to be either a judge of the Federal Court of Australia or of the Supreme Court of the Northern Territory. The usual model of an administrative inquiry conducted by a judge involves sitting in a courtroom and summoning witnesses. Each witness would be questioned by lawyers acting for the various interested parties. Each witness would give all his or her evidence in one continuous process and would then be free to leave. The first Commissioner, Justice John Toohey, realised very early that the traditional model of administrative inquiry would need to be modified, if the most important participants in the process, the Aboriginal claimants, were to receive justice. This chapter deals with the changes that were made to the procedures in order to accommodate the culture of the Aboriginal claimants. It also discusses the ways in which linguistic and cultural issues made the conduct of hearings difficult.

The Land Rights Act The main aim of the Land Rights Act is for land to become Aboriginal land. Aboriginal land is held by a land trust, usually constituted by a few senior Aboriginal people whose 329

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traditional country includes the relevant land or part of it. The land trust holds the land as inalienable freehold land in perpetuity for the benefit of Aboriginal people with traditional rights and interests in it. Anyone who does not have such rights must obtain a permit from the relevant land council to enter the land lawfully. In managing the land, the land trust must act on the instructions of the land council. When the Act came into operation, all lands designated as reserves or missions for Aboriginal people automatically became Aboriginal land. The Act also provided for the making, hearing and determination of claims to land. Land councils could lodge with the Commissioner claims to specific areas of land. Two types of land were claimable: unalienated Crown land; and alienated Crown land in which all estates and interests not held by the Crown were held by or on behalf of Aboriginal people. Land in a town could not be claimed. Thus, the scheme of the Act made it clear that titles to land not held by or on behalf of Aboriginal people would not be overridden. Under an amendment to the Act, no new claims have been possible since 1995, but claims were lodged to all the available land in the Northern Territory before that date. The Aboriginal Land Commissioner is required to conduct an inquiry into each claim made under the Land Rights Act. The main purpose of the inquiry is to establish who, if anybody, comes within the definition of traditional Aboriginal owners of the land claimed. That definition, in section 3(1) of the Act, is as follows: traditional Aboriginal owners, in relation to land, means a local descent group of Aboriginals who: (a) have common spiritual affiliations to a site on the land, being affiliations that place the group under a primary spiritual responsibility for that site and for the land; and (b)  are entitled by Aboriginal tradition to forage as of right over that land. The Commissioner is required to report the results of the inquiry to the Governor-​General of the Commonwealth of Australia and to the Administrator of the Northern Territory. The report must also contain the Commissioner’s comments on some specified matters, notably the benefits and detriments of converting the land to Aboriginal land under the Act. If the Commissioner identifies traditional Aboriginal owners of the land claimed (or part of it), the Commissioner must recommend to the government that the land become Aboriginal land, unless there is good reason not to make such a recommendation. The final decision is for the relevant Minister in the Commonwealth Government. If the Minister decides to give effect to the recommendation, a grant of title to the land trust follows. The Act protects Aboriginal land from incursions and developments, by means of a permit system, administered by the land councils. There are also detailed provisions for the negotiation of rights to conduct mining operations on Aboriginal land. Traditional Aboriginal owners have the right to refuse proposals to mine. If they consent, there is a scheme for the payment of royalties on whatever is mined, which the Commonwealth Government passes on to the land councils. This ensures that the land councils are well funded to conduct their operations and can pay money to Aboriginal people in their respective areas or spend money for the benefit of those people. Since it came into operation, the Act has led to roughly half of the Northern Territory becoming Aboriginal land. Before the Act, and before the Mabo judgment (High Court of Australia 1992) introduced native title to our law, Aboriginal people had no recognised title to any land at all. 330

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Aboriginal law In Aboriginal traditions, the law is totally bound up with spiritual life. Aboriginal spirituality is populated by creator beings, who inhabited a featureless world and endowed that world with all that exists now. They manifested in human form with arms and legs, before changing into the creatures (animals, reptiles, birds, fish or people) or other phenomena (rain, fire, heavenly bodies etc.) that represent them in the present. Thus, it is possible to hear a story about two travelling snakes, walking through rocky country, which caused their feet to become cracked, so that each had to take it in turn to carry the other on their shoulders (Gray 1997a: 39). The word dreaming was chosen by Stanner (1979: 23–​24) to refer to these creator beings. The period of creation is often called the dreamtime. These names can mislead, because the creation process is not a matter of what happens in the minds of people when they are asleep. The creator beings moved about the landscape, endowing different parts of it with features that are now present. They created mountains, rivers and other landforms. In desert areas, they created springs or waterholes, to sustain life. They passed on to the ancestors of the people who are now alive languages, as well as songs, dances and designs that are used in ceremonies. The stories of the travels of these beings and of their activities at different places or sites are vital to the law that binds people. A dreaming may be associated with only one site. Others travelled from site to site, some crossing the entire continent. Affiliation of people to land is through identification with particular dreamings associated with specific sites. In general, these spiritual affiliations are inherited. A person inherits from his or her father a set of rights and obligations in relation to one or more dreamings at one or more sites. Those rights and obligations have to do with the physical management and care of the sites and the land around them. They also involve the spiritual care of the sites by wearing the correct designs on their bodies and dancing in appropriate ceremonies. The same person will inherit from his or her mother another set of rights and obligations in relation to another or other dreamings at another or other sites. Those rites and obligations involve ensuring that that the right people undertake the care and management of the sites. They also involve facilitating the ceremonies by painting the appropriate designs on the bodies of the dancers, providing the necessary sacred objects (of which they have the custody) and performing the music (song and percussion) for the ceremonies. Thus, each person has affiliations to two areas of land, one through his or her father and the other through his or her mother. In relation to each area of land, there will be one set of rights and obligations inherited from fathers and another set of rights and obligations inherited from mothers. Those two sets of obligations will be complementary, so that many tasks of managing and taking care of sites and land can only be carried out if the appropriate representatives of those for whom it is father’s country and those for whom it is mother’s country are both present. In the case of long-​distance travelling dreamings, these complementary groupings will change at different points along the dreaming track. People are able to say that they take responsibility for the dreaming from another group at a particular site and then hand it on to yet another group further along the track. A good deal of the evidence in an inquiry into a claim under the Land Rights Act is necessarily devoted to explaining these affiliations. They are the ‘common spiritual affiliations’ that members of the group must have to come within that part of the definition

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of traditional Aboriginal owners. Justice Toohey recognised at an early stage that this kind of evidence was most effective if it was heard at the relevant sites. Aboriginal people speak with greater confidence, speak more freely and provide more information about a site if they are speaking at the site. What they say about the site’s relationship to a particular dreaming and the responsibilities that are borne by those who have inherited affiliations to that site, by way of that dreaming, from their fathers or their mothers, will be more informative and reliable. Asking claimants to find a site on a map, or to talk about a site at a location remote from it, is likely to be unproductive. On the other hand, asking claimants to take you to a site can mean you will be guided straight across country and arrive right at the site. A major modification of the normal pattern of conducting a hearing in an administrative inquiry was to make the hearing mobile. Fairness to the claimants means not insisting that they come to a courtroom, or another place convenient for the inquirer, to give their evidence. Instead, the practice became for the inquirer to travel to the sites to hear the evidence. This practice has a considerable effect on the logistics of the hearing. Sites sacred to the claimants are not linked by roads. Off-​road vehicles are necessary, to negotiate rough tracks or even, on occasions, to go where no tracks exist. Sometimes the entire party must camp along the way. The vehicles have to carry adequate supplies of food and water, and swags (portable bedding for sleeping on the ground). A column of large, four-​wheel-​drive vehicles, making its way across the landscape from site to site, was dubbed by one wag ‘Toyota dreaming’. Occasionally, the only practical access to a site is by helicopter. Sometimes this required chartering of up to three helicopters, shuttling back and forth to carry the required number of claimants, lawyers and anthropologists, as well as the Commissioner and the person who recorded the evidence so that a transcript could be produced. One of my claims was to islands in the Gulf of Carpentaria. The sites were accessible only by boat. Sometimes, getting ashore was difficult because of lack of depth. I have vivid memories of wading through knee-​deep mud, anxious that those who were carrying the recording equipment would not drop it and that the local crocodiles would be well enough fed not to bother us. A mobile hearing of this kind was essential to do justice to the claimants and their need to explain their spiritual affiliations to relevant sites. Of course, it also meant that the practice of each witness having one opportunity to give all of his or her evidence had to be abandoned. A witness would have to give evidence at several different sites, perhaps on different days of the hearing. Any cross-​examination would also be fragmented in the same way. The evidence became site-​specific, rather than witness-​specific.

Knowledge In non-​Aboriginal Australian society, we are used to sharing knowledge. With a few exceptions (national security, trade secrets, private lives), secrecy is regarded as undesirable. Knowledge should be available for us to read, listen to or investigate on the Internet. The same is true of most societies. It is not true of Aboriginal societies in the Northern Territory. In those societies, knowledge is often evidence of entitlement. This is particularly so in relation to land tenure. Those who can ‘speak for’ country can do so because the country is theirs. The question, ‘Whose country is that on the other side of the river?’ is often met with the answer, ‘Don’t know’. If the questioner asks instead, ‘Who do I have to speak to about that country on the other side of the river?’, the answer will often be to name an appropriate person or to identify the appropriate people. The 332

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difference may appear inconsequential, but it is important. To answer the first question, the answerer would have to ‘speak for’ the country. This might be taken as a claim to rights in the country itself. To identify the people to whom the questioner should speak is altogether different. It involves no offence against the principle of speaking for your own country. I  have even seen a quite sophisticated audience at a conference on native title heckle an Aboriginal politician, inviting him to, ‘Speak for your own country and let us speak for ours’. Spiritual knowledge (and therefore knowledge about things like land tenure and ceremonial rights and obligations) can be seen as layered. When children are almost at puberty, they are ready to be taught the surface layer of knowledge. This knowledge will be imparted in the context of ceremonies. At the earliest stage, the ceremonies and the accompanying knowledge are designed to prepare the children for adulthood. At various stages as they grow up and progress through adult life, Aboriginal people will learn more and more in the context of ceremonial activity. They will proceed deeper and deeper into the layers of knowledge. Only those who become old enough, and are respected enough, to be regarded as elders will have access to the deepest layer of knowledge. The major problem with such a system is that, if the holders of the most secret knowledge die before they can pass on that knowledge to suitable people, the knowledge will be lost. Perhaps for this reason, every so often there will be a very senior person, entrusted with knowledge covering a whole region. Such people are very few in number. They are given the most secret knowledge because they can be trusted not to pass it on to the wrong people and not to misuse it for their own gain. The few people I have met in this category have been most impressive, universally known and loved. A further complication in relation to the secrecy of knowledge is that much of it is secret on a gender-​specific basis. That is, there is knowledge secret to men and knowledge secret to women. Even if an Aboriginal person were to learn (accidently or otherwise) of something secret to the opposite sex, he or she would be very unlikely to admit to having that knowledge. In one claim hearing, at the invitation of the male claimants, I attended a secret men’s ceremony. Two ceremony grounds had been prepared approximately 100 metres apart. The ground painting at the women’s ceremony ground was not secret, but the men’s ceremony was definitely not for women or girls. The problem was that what the men were wearing and doing was visible from where the women were sitting. This did not seem to trouble either the men or the women. I am confident that none of the women would have been prepared to admit to having looked at what the men were doing (they would not have been able to hear anything of it). Indeed, if they did look, they probably did so surreptitiously, so that they could deny having looked at all if that became necessary. These protocols about knowledge have a considerable effect on the way in which Aboriginal Land Commissioners have conducted their hearings. The sharing of knowledge among those who have a right to know ensured that there would be a group of people able to ‘speak for’ the country at each site. The older members of the group would be likely to have deeper knowledge than the younger ones. The elders can also make decisions about which aspects of knowledge should be made available publicly as part of the claim hearing. Because the elders are the only ones to know the innermost layers of knowledge, they can ensure that nothing that should not be public will surface in the evidence. Very often, a story about the interaction of the dreaming with the site would seem banal. It would be a story without a punch line. Such stories cannot be dismissed as trivial. 333

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The hearer must realise that he or she is being given only the public version of the story. The deeper layers cannot be made public. The presence of other members of the group as evidence is given can be beneficial. It reinforces the point that the knowledge belongs to the group and helps to establish the common nature of the relevant spiritual affiliations to the site. The common nature of the spiritual affiliations is an important aspect of the definition of traditional Aboriginal owners in the Land Rights Act. It also happens that the older claimants are usually the least fluent in either Standard Australian English (SAE) or Aboriginal English (AE), as well as being the most reticent about speaking in public and to several non-​Aboriginal people. Their ability to sit with other members of their group while giving evidence provides them with moral support. It helps to share responsibility for the evidence and the giving of it. Sometimes, the person actually giving the answers to questions will consult with other members of the group before answering, to ensure that the answer is correct and is owned by the group. The practice that a group of people could give evidence as a group became well established in the procedures of Aboriginal Land Commissioners. On arrival at a site, the person operating the recording equipment would set up. The principal witness in a group would have a lapel microphone fastened to his or her clothing. This microphone might be moved from one person to another during the session at the site. Whichever lawyer was asking questions at any time would have a hand-​held cordless microphone, which would be passed to the Commissioner, or to any other lawyer who wanted to say anything. Everybody would sit on the ground. I would usually try to sit as near as I could to the principal witness of a group, mainly because the reticence of older witnesses made them harder to hear and their relative unfamiliarity with English made them harder to understand. The biggest problem for hearings of land claims was posed by the practical difficulty of secret knowledge. By the time that I  became Commissioner, the practice of hearing secret men’s evidence had become well established. Throughout the history of the Land Rights Act, all of the Commissioners have been men. So have most of the barristers who have represented the claimants and the Northern Territory, even if the in-​house lawyers for the land councils and the government have often been women. The Commissioner can give directions about the conduct of the hearing. This power has been used often to conduct sessions that are restricted to men. No women may attend while the secret evidence is given. The Commissioner gives directions prohibiting the communication of the content of the evidence, and the transcript of it, to anyone other than adult males. The transcript is not to be made available publicly without the approval of the Commissioner, after consultation with the relevant land council. Obviously, secret women’s evidence creates a much bigger problem. I understand that, on one or two occasions, women claimants had given Justice Toohey a dispensation to hear secret women’s evidence. I was given similar dispensations in two of the claims that I heard (Gray 1998a: 2–​3, Gray 1999b: 26–​27). This meant conducting sessions at which I was the only man present. On one of those occasions, counsel for the Northern Territory challenged my right to give the necessary directions, on the basis that he could not represent his client if he could not hear all the evidence. Fortunately, one of the in-​ house lawyers instructing him could be present to represent the Northern Territory at the secret session. Equally fortunately, the land council had a female lawyer who could stand in for the barrister representing the claimants. The remaining problem was the recording monitor. Fortunately, I had a female associate (who would be called a clerk by American 334

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judges). She received a crash course in the recording process and was able to ensure that the sessions were recorded. It seemed to me that the capacity to hear both secret men’s and secret women’s evidence is an important aspect of fairness in the conduct of the hearings.

Kinship systems Von Sturmer (1989:  13) provides a transcribed conversation he overheard between his Aboriginal friend Mickey from Edward River on Cape York and an Aboriginal man they encountered in Mareeba, further south in Queensland: Mareeba man: ‘Where you from?’ Mickey: ‘I’m Edward River man. Where you from?’ Mareeba man: ‘I’m Lama Lama man … do you know X?’ Mickey: ‘No. Do you know Y?’ Mareeba man: ‘No. Do you know Z?’ Mickey: ‘Yes, she’s my aunty.’ Mareeba man: ‘That old lady’s my granny. I must call you daddy.’ Mickey: ‘I must call you boy. You give me cigarette.’ A listener with no knowledge of northern Australian Aboriginal cultures would understand this conversation only on a very basic level. The participants inquire as to each other’s origin, and then try to ascertain whether there is a common acquaintance. Once that is done, the conversation becomes obscure to the ordinary Australian. This is because it is directed to establishing the proper relationship between the participants, according to the complex kinship systems, often called ‘skin’ systems, that prevail in traditional Aboriginal societies in the north of Australia. An example is described by Rose (1992: 74–​ 81). I  documented such systems in several areas of the Northern Territory in:  Gray (1997a: 15–​16); Gray (1997b: 29–​31); Gray (1998b: 6–​7); Gray (1999a: 16–​18); and Gray (2007: 20–​23). Kinship systems are about classification:  they establish relationships that are not necessarily biological. The systems are usually moiety-​based. That is, they see people (and indeed the whole universe) as made up of complementary halves. Each moiety is divided into sections and subsections. The most common systems have four subsections on each side of the moiety line. A person’s ‘skin’ name is usually determined by descent. Relationships between subsections are predetermined, so each person knows to which subsections his or her brothers and sisters, fathers and aunts, mothers and uncles, potential marriage partners and in-​laws belong. A person steeped in the system knows how he or she is related to people in each of the subsections. Once the appropriate relationship is established, he or she can behave in the appropriate fashion towards each of those people. This solves the mystery of the Mareeba conversation. Once the parties could establish that each knew the old woman referred to as Z, each knew immediately his relationship to her. To one, she was ‘aunty’ (father’s sister) and to the other ‘granny’ (father’s mother). From this information, the parties knew that they were father (‘daddy’) and son (‘boy’), even though not related through a common ancestor. A small gift of a cigarette from the son to the father acknowledged their relationship. Kinship systems have been remarkably resilient in the Northern Territory, despite dramatic post-​colonial social upheaval. Part of the resilience is due to the capacity of the 335

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system to allocate people to subsections in accordance with the law, rather than the reality. The subsection from which a person may choose a marriage partner is determined by the system. If the father of a child is not from the subsection appropriate for the mother to marry (as often happened if the father was not Aboriginal), the child may nonetheless be allocated to the subsection that would have been appropriate if the mother had married ‘straight’. It is also common for non-​Aboriginal people to be allocated subsection identities, if they become part of the social pattern. This is sometimes misinterpreted as adoption into a ‘tribe’, or as a gesture of affection or respect. In fact, it recognises the universality of the kinship system. Everyone has to have a subsection identity, or the system ceases to be universal. If someone is unfamiliar with the law, he or she must be fitted in somewhere. On this basis, I was given a subsection identity during a claim hearing. The problem was that, while the men were giving me my subsection name, the women were giving my female associate her subsection name. They made us brother and sister, which meant we had to avoid sitting together. This was difficult, because my associate was driving the vehicle in which I was travelling. I could not ride in the front seat of the vehicle while she was driving.

Names Each of the subsections in such a kinship system has a name. The names vary from language to language, but it is usually possible to establish equivalents between languages. For instance, the subsection name conferred on me would be Japata in the Mudbura language, Jakamarra in the Warlpiri language and Kamara in the Western Arrente language. Often, but not always, there are female versions of those names, so that my sisters (females of the same generation in the same subsection as me, including my associate) would be Nimarra, Nakamarra and Kamara respectively. These names are conferred on children born into the appropriate subsection as a matter of routine. People are often addressed, and referred to, by their subsection names. It is common for an Aboriginal person in the Northern Territory to have up to four names. There will generally be a given name, often one that we would find in any non-​ Aboriginal family, but sometimes an Aboriginal name. This may be followed by a family surname, which might be the same as a non-​Aboriginal surname. A surname might be the name of a cattle station with which an ancestor of the person became associated, or of a non-​Aboriginal man who was the manager, or a worker on, such a station. The surname might be a name conferred on an ancestor by non-​Aboriginal people. For instance, the Timothy family is descended from a man who was simply known as Timothy years ago. The Toprail family presumably takes its name from the place where the ancestor sat on the fence around the cattle yard. After the surname, there will sometimes be a name drawn from Aboriginal tradition, which might be referred to as a ‘bush’ name. This could be the Aboriginal name for a place with which the person bearing it, or an ancestor of that person, is associated. Finally, there will be a subsection name. A woman therefore might be called Jane Smith [bush name] Nakamarra. Non-​Aboriginal people often assume wrongly that the subsection name is the surname of the person. In Aboriginal traditions in the Northern Territory, there is a period after the death of a person during which the name of the deceased should not be spoken. This ban seems to apply to the given name of the person, and perhaps to the bush name, but not to the family surname or the subsection name. The duration of the period is difficult to determine. If 336

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in doubt, it is better to refrain from using the name of a deceased person. Strategies to avoid this can include the adoption of another name by any person whose name is the same as that of the deceased. In one of my hearings, a witness was introduced as bearing the given name ‘Bigtruck’. I surmised that someone with his original given name had died recently and he had decided to adopt a name that would be unlikely to resemble that of any recently deceased person. A more common strategy is that the deceased, and anyone or anything bearing the name of the deceased, is referred to as kumantjayi. This word has been borrowed by a number of Central Australian languages because it avoids giving offence. Its literal meaning is ‘no name’. As I write this, there have been a lot of media articles about the death of a young Aboriginal man in police custody in the community known as Yuendemu. The deceased is referred to as ‘Kumantjayi Walker’. Almost certainly, we will never know his original given name. His case will have disappeared from media attention before it is permissible to mention his name again. The need to respect the prohibition on mentioning the name of a deceased person can cause significant problems for land claim hearings. Almost inevitably, there will be names that cannot be mentioned. They may be names also borne by claimants or other participants in the hearing. If someone called Peter had died recently, I could not introduce myself as Peter Gray. A  claimant called Peter would be renamed or referred to as kumantjayi. If the names of deceased persons are also geographical names, confusion is bound to occur. When witnesses are talking about Kumantjayi Creek or Mount Kumantjayi, it can be impossible to know which creek or mountain they are referring to.

Languages Linguists estimate that, at the onset of European colonisation in Australia, there were about 250 Aboriginal languages (Dixon 2019: 4). Within those languages, there were many dialects (Dixon 2019: 11–​12). At present, fewer than 20 of those languages are still used on a daily basis in remote communities (Dixon 2019: 161). The Northern Territory was occupied later than most of the States. It still has a lot of remote Aboriginal communities. Its population is much smaller than those of the States and has a much higher percentage of Aboriginal people. A consequence is that Aboriginal people in the Northern Territory have been less overwhelmed by colonisation than their counterparts in the States. As a result, I suspect that the majority of the extant Aboriginal languages would be spoken in Northern Territory communities. Even in the Northern Territory, Aboriginal history has been very much involved with English-​speaking people in the last century and a half. One result of this is that a pidgin English developed as a means of communication between the colonisers and the Aboriginal people. That pidgin English has become a creole language, named Kriol, which is now the lingua franca of a swathe of northern Australia, including the ‘top end’ of the Northern Territory. Kriol is largely incomprehensible to most speakers of SAE. To the extent to which many Northern Territory Aboriginal people speak English, often they do not speak SAE, especially the older people. They are likely to speak AE, a variety of English. It is unlikely to be the first language of older Aboriginal people and could easily be their third or fourth language, behind one of more Aboriginal languages and possibly Kriol. Despite this linguistic diversity, it was rare to see an interpreter in my land claim hearings. This was because of the unavailability of qualified interpreters. When I was Aboriginal 337

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Land Commissioner, there was no provision for training and accrediting interpreters in Aboriginal languages. The situation is much improved now, due to the agitation of linguists like Michael Cooke and of the then Anti-​Discrimination Commissioner of the Northern Territory, Dawn Lawrie (Lawrie 1999). There are now trained and accredited interpreters in at least some of the extant languages. When I  was conducting hearings, there was the occasional linguist who had studied the relevant Aboriginal language and Aboriginal people who spoke that and either AE or SAE. Because of the smallness of the language communities, those linguists and bilingual Aboriginal people could not be described as independent of the witnesses. Of course, they were not trained as interpreters. On rare occasions, they were allowed to act as interpreters, of necessity (e.g. Gray 2007: 7). Usually, we muddled through with what English the witnesses could muster. A major factor in our success was the diligence of the person who recorded the evidence in most of my hearings for the purposes of producing a transcript. At the end of each day of hearing, he would gather all the anthropologists and linguists involved in the hearing and play through all his recordings taken on that day. The anthropologists and linguists would help him make notes of the appropriate spellings and assist him to clarify what was said by the witnesses where that was necessary. When it came to writing reports on the land claims, I found his work very helpful. Consistent spellings enabled me to use software to search large databases of transcript. The names of languages are crucially important to Aboriginal people. The names used for what were called ‘tribes’ in colonial days are the names of languages spoken by the relevant people. Throughout Australia, Aboriginal people often identify themselves by reference to language names. A number of the land claims I heard bore language names when the claims were lodged. Others were the subject of applications to amend the name at the outset of the hearing, so that the claim could be identified by the language name or language names with which the claimants were affiliated.

Aboriginal English Most of the witnesses in most of the claims I heard spoke AE. This variety of English has been studied extensively by linguists, including Diana Eades and Michael Cooke. It forms a spectrum, with one end being close to Kriol and the other close to SAE, so generalisations are difficult (Eades 1992: 21, Eades 2010: 89). Often, there are features that make AE difficult for speakers of SAE to understand. Pronunciation can be a major issue. For many speakers of AE, the unvoiced and voiced labiodentals (/​f/​and /​v/​) and the unvoiced and voiced bilabials (/​p/​and/​b/​) are interchangeable. Eades (1992: 60) records a speaker in Queensland saying, ‘We had a bight’, meaning, ‘We had a fight’. During one of my early hearings, a claimant came to me, saying what sounded to me like ‘PRD’. It turned out that he was in dispute with the manager of Victoria River Downs, a large cattle station which is known by its initials ‘VRD’. In the example given by Eades, the unvoiced labiodental became the voiced bilabial. In my example, the voiced labiodental became the unvoiced bilabial. There appears to be no pattern that would make the adoption of any one of these four phonemes in place of any other predictable. Similarly, the voiced and unvoiced velar stops (/​g/​and/​k/​) are interchangeable. During my first land claim hearing, I was told that we would be conducting part of the hearing at a community called Gilwi. No matter how much I scanned the map, I could not find a community in the claim area with a name beginning with the letter g. It turned out that the 338

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name is spelt Kilwi. In another hearing, an old man was pointing a bent, arthritic finger in the direction of a distant range of hills and saying what sounded like ‘that cap’. Everyone was scanning the range, trying to make out something that could be said to resemble a cap. The gap to which the old man was pointing was clearly visible. A basic area of possible misunderstanding between speakers of AE and of SAE is vocabulary. There are some words commonly used in AE that are entirely unfamiliar to SAE speakers. An example is gammon, which connotes falsity, lies and deceit. It can be an adjective, a noun or a verb (either transitive or intransitive) (Macquarie Dictionary 2017: 623). The word was used in this sense in early 19th century English (New Shorter Oxford English Dictionary 1993: 1058). It was brought to Australia during that period, but its use continues only in AE and in colloquial use in parts of northern Australia (Macquarie Dictionary 2017: 623). Another word unfamiliar to SAE speakers is la. This word functions as a kind of universal spatial preposition, meaning at, to, towards, in, into, on or onto (Eades 1992: 69). It is a little like the French à. Misunderstanding is even more likely in the case of words used in AE that sound familiar to SAE speakers but are used with completely different meanings. The verb kill is often used to encompass various kinds of assaults that do not result in the death of the victim. It is used to mean ‘hit’. If death results, the meaning is made clear by the phrase kill ‘im dead. Similarly, walk can mean to travel by all sorts of means. Fish walk by swimming and birds walk by flying. People walk by motor vehicle, or other forms of mechanised transport. If the intention is to say that a person has walked on two legs, the verb footwalk is used (Macquarie Dictionary 2017: 591). Speakers of AE may use cheeky to mean ‘violent’ or ‘dangerous’, possibly ‘lethal’, in relation to a person or an animal, ‘venomous’ in the case of a snake and ‘toxic’ in the case of food, particularly a yam. The antonym of cheeky for a person, animal or snake is quiet, and for food sweet. Quiet in this sense has nothing to do with noise and sweet nothing to do with flavour. Cooke (2002: 6–​7) and Eades (2010: 167–​170) document a case of a witness in a court saying, ‘I don’t have to watch my brother’. What the witness was trying to convey was that, because his brother was older, the witness was not allowed to watch what his brother was doing. That is, he was constrained from supervising his older brother. The witness was using don’t have to as meaning ‘must not’. There is a logic to this: ‘have to’ means ‘must’ in its deontic sense, so that the addition of the negative ‘don’t’ should result in the opposite meaning. This is an example of how an understanding of the social norms of Aboriginal society can help in understanding what Aboriginal people say. Aboriginal witnesses are also likely to use what could be regarded as imprecise expressions for things like times, distances and quantities (Cooke 2002:  12–​13; Eades 1992: 29–​30). Cooke (2002: 17–​18) recounts the story of a witness in court, who was likely to be disbelieved because he persisted in describing the moon on the occasion in question as a ‘half-​moon’. When he was asked to draw the moon instead of describing it, he drew a very small crescent moon, which was consistent with the reality on the date in question. Estimates of numbers can emerge as big mob, or even biggest mob. It is often difficult to work out how far long way might be, or when long time might have begun and ended. This may be because the concepts of time, distance and numbers or quantities are not important enough to justify having precise words for them in Aboriginal languages. Teachers on Croker Island were mystified by the way in which their students seemed to understand where they should be if they were asked to be in front of or behind some specified object. They set up an experiment that revealed that these understandings 339

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were derived from the Aboriginal language predominantly spoken in the community (Edmonds-​Wathen 2014). Standing facing a tree means that the tree is in front of me, so I must be behind the tree. Standing with my back to the tree means that the tree is behind me, so I must be in front of the tree. The perspective of the viewer does not matter, only the juxtaposition of the speaker and the object. AE also has a simplified grammar, when compared with SAE. There is a tendency to use he and him as the only third person singular pronouns, even when the entity referred to is female or gender-​neutral. Further questions might be needed if the identity or gender of the person or entity in question is important. Verbs are not always conjugated, so that the third person singular form of ‘he goes’ is he go. Verbs are also not inflected for tense and aspect; the present tense form of the verb is used, although the auxiliary verb bin may be used as a past tense marker. Further inquiry may also be required if the detail is important. The land claim process benefited greatly from the involvement of lawyers who were experienced in dealing with Aboriginal people. They understood these differences of language. Often, the lawyers were able to frame their questions in ways that would be easily understood by the witnesses. They were also able to train me in my early days in the field. Occasionally, a lawyer without the necessary experience would appear and would struggle to understand what was going on, as I did in my early hearings.

Cultural considerations As well as language differences, Aboriginal witnesses can have cultural differences that impede communication with non-​Aboriginal people. A major issue is the question and answer process, which is the standard way of eliciting evidence in legal proceedings in the common law world. Direct questions, or requests for information, can be used to establish relationships, as in the conversation recorded by von Sturmer quoted above. Otherwise indirect forms of communication are the norm in Aboriginal discourse (Eades 1992: 27–​ 28, 33–​34). Direct questions or requests for information can be regarded as confrontational. I  have conducted hearings in which the lawyer acting for the claimants simply invited a witness to talk about the site in question. This process reveals some information about the site but rarely information that will bear upon the technical definition of traditional Aboriginal owners to which I have referred. Unless the witness is asked questions directed to encouraging him or her to provide information relevant to the elements of the definition, there is a risk that the claim will not be proved. It is hard to imagine how any sort of legal factual inquiry could be conducted in Australia without asking questions of witnesses. A question will generally be followed by a silence longer than those that normally occur in non-​Aboriginal discourse in Australia. The lawyer who asked the question may be tempted to ask it again, or to ask another in the belief that the witness did not understand or cannot answer the first one. As Eades (2010, 90, 2013, 87) has pointed out, failure to recognise the role that silence plays in Aboriginal discourse is a major barrier to communication with Aboriginal people. Coupled with this is a tendency for Aboriginal people to express themselves tentatively, even when they are certain of the answer. I have often seen an old person asked a question like, ‘Who has to take over when you pass away?’ indicate a younger person nearby and say, ‘Might be him (or her)’. Such a response might be taken as merely a guess, or a desperate resort to the fact that the young person is nearby, to answer a question that the witness really cannot answer. Such a reaction would be a 340

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mistake. Might be is an indication of politeness, not of uncertainty. It is part of the indirectness of communication common in Aboriginal societies. It is also dangerous to assume that the answer don’t know means that the witness is unable to answer the question. As I have said above, answering a question can be inappropriate if it relates to country that is someone else’s, so that the witness has no authority to speak about that country. Alternatively, there might be a more senior person present to whom it would be more appropriate to direct the question. The witness is merely deferring to that senior person. To answer the question might be to incur shame, even though there would be no such risk in non-​Aboriginal culture. A common issue is the reluctance of Aboriginal people to look an authority figure in the eye while communicating with that figure (Eades 2013:  102, 183). This can lead to Aboriginal witnesses and defendants being disbelieved, because of the cultural understanding in our Anglo-​Irish system that a willingness to look the interlocutor in the eye is associated with honesty. There is also the phenomenon of gratuitous concurrence. This involves Aboriginal people agreeing with whatever is put to them in questioning by an authority figure, to appease that figure, or in the hope of bringing an end to a process which is difficult for the Aboriginal person (Eades 2013:  198). Aboriginal people have undoubtedly been convicted of offences they did not commit because of their strategies to deal with police and courts. As was the case with language, so did experience of Aboriginal culture help lawyers to participate efficiently in the land claim process.

Conclusion The adoption of site-​focused evidence, at which witnesses give different parts of their evidence at different sites, was a relatively easy choice. So also was the adoption of group evidence, allowing for a number people to contribute to the evidence and to share it. These pioneering choices by Aboriginal Land Commissioners have subsequently influenced mainstream court processes. The Federal Court of Australia has adopted both these practices in trials of applications for the determination of native title. Decisions to restrict publication of evidence of a secret nature, especially of knowledge considered secret to men and women respectively, were more difficult. So also was the observance of the custom of not mentioning the names of deceased persons. This is because the principle of open justice is fundamental to the Australian legal system. Nevertheless, those decisions were made, because the importance of accommodating Aboriginal beliefs in this respect was seen as more important than the public’s right to know what is said in a hearing. The practice of consulting with the anthropologists and linguists involved in a claim, for the purpose of recording in an accurate transcript words from Aboriginal languages and Aboriginal names that surfaced in evidence, was not so much a conscious decision as a practice that grew out of necessity. Lawyers experienced in communicating with Aboriginal people were able to solve a lot of problems that otherwise would have been significant. An understanding of kinship systems and of the lexical differences and imprecise expressions of AE was vital to the success of the hearings. So also was the understanding of lawyers of the culture of Aboriginal discourse. To some extent, this understanding ameliorated the inappropriate question and answer format of the hearings. Question and answer remained the basic way of conducting hearings, however. It is hard to see how it could have been abandoned, 341

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given that the claimants had to provide evidence that satisfied the technical requirements of the definition of traditional Aboriginal owners. Aboriginal land claims in the Northern Territory provide an excellent example of the modification of legal procedures to meet the cultural and linguistic characteristics of the principal participants in those claims.

Further reading Cooke, M. (2002) Indigenous Interpreting Issues for Courts, Melbourne, Australia: The Australian Institute of Judicial Administration Incorporated. Eades, D. (1992) Aboriginal English and the Law: Communicating with Aboriginal English Speaking Clients:  A Handbook for Legal Practitioners, Brisbane: The Continuing Legal Education Department of the Queensland Law Society Incorporated. —​—​—​ (2013) Aboriginal Ways of Using English, Canberra: Aboriginal Studies Press. Gray, P.R.A. (2000) ‘Do the walls have ears? Indigenous title and courts in Australia’, International Journal of Legal Information, 28(2): 185–​212.

Legal sources Aboriginal Land Rights (Northern Territory) Act 1976 (Cth) www.legislation.gov.au/​Details/​ C2019C00143 (accessed 10 July 2020). Mabo and Others v. Queensland (No. 2) [1992] HCA 23: (1992) 175 C.L.R. 1 www.austlii.edu.au/​cgi-​ bin/​viewdoc/​au/​cases/​cth/​HCA/​1992/​23.html?context=1;query=mabo;mask_​path= (accessed 10 July 2020).

References Cooke, M. (2002) Indigenous Interpreting Issues for Courts, Melbourne, Australia: The Australian Institute of Judicial Administration Incorporated. Dixon, R.M.W. (2019) Australia’s Original Languages: An Introduction, Sydney: Allen & Unwin. Eades, D. (1992) Aboriginal English and the Law: Communicating with Aboriginal English Speaking Clients:  A Handbook for Legal Practitioners, Brisbane:  The Continuing Legal Education Department of the Queensland Law Society Incorporated. —​—​—​ (2010) Sociolinguistics and the Legal Process, Bristol: MM Textbooks. —​—​—​ (2013) Aboriginal Ways of Using English Canberra: Aboriginal Studies Press. Edmonds-​Wathen, C. (2014) ‘Influences of Indigenous language on spatial frames of reference in Aboriginal English’, Mathematics Education Research Journal, 26: 169–​192. Gray, P.R.A. (1997a) Warlmanpa (Muckaty Pastoral Lease) Land Claim No. 135:  Report and Recommendation of the Aboriginal Land Commissioner to the Minister for Aboriginal and Torres Strait Islander Affairs and to the Administrator of the Northern Territory, Canberra: Australian Government Publishing Service. —​—​—​ (1997b) Elsey Land Claim No. 132:  Report and Recommendation of the Aboriginal Land Commissioner to the Minister for Aboriginal and Torres Strait Islander Affairs and to the Administrator of the Northern Territory, Canberra:  Aboriginal and Torres Strait Islander Commission. —​—​—​ (1998a) Tempe Downs and Middleton Ponds/​ Luritja Land Claim No. 147:  Report and Recommendation of the Former Aboriginal Land Commissioner, Justice Gray, to the Minister for Aboriginal and Torres Strait Islander Affairs and to the Administrator of the Northern Territory, Canberra: Aboriginal and Torres Strait Islander Commission. —​—​—​ (1998b) Central Mount Wedge Land Claim No. 154:  Report and Recommendation of the Former Aboriginal Land Commissioner, Justice Gray, to the Minister for Aboriginal and Torres Strait Islander Affairs and to the Administrator of the Northern Territory, Canberra: Aboriginal and Torres Strait Islander Commission. —​—​—​ (1999a) Carpentaria Downs/​Balbarini Land Claim No. 160: Report and Recommendation of the Former Aboriginal Land Commissioner, Justice Gray, to the Minister for Aboriginal and Torres 342

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Strait Islander Affairs and to the Administrator of the Northern Territory, Canberra: Aboriginal and Torres Strait Islander Commission. —​—​—​ (1999b) Palm Valley Land Claim No 48: Report and Recommendation of the Former Aboriginal Land Commissioner, Justice Gray, to the Minister for Aboriginal and Torres Strait Islander Affairs and to the Administrator of the Northern Territory, Canberra:  Aboriginal and Torres Strait Islander Commission. —​—​—​ (2007) The Alcoota Land Claim No. 146:  Report and Recommendation of the Former Aboriginal Land Commissioner, Justice Gray, to the Minster for Families, Community Services and Indigenous Affairs and to the Administrator of the Northern Territory, Canberra: Families, Community Services and Indigenous Affairs. Lawrie, D. (1999) Report: Inquiry into the Provision of an Interpreter Service in Aboriginal Languages by the Northern Territory Government, Darwin:  Office of the Northern Territory Anti-​ Discrimination Commissioner. Macquarie Dictionary (2017) 7th edn, Sydney: Macquarie Dictionary Publishers. New Shorter Oxford English Dictionary (1993) 4th edn, Oxford: Oxford University Press. Rose, D.B. (1992) Dingo Makes Us Human:  Life and Land in an Aboriginal Australian Culture, Cambridge: Cambridge University Press. Stanner, W.E.H. (1979) White Man Got No Dreaming:  Essays 1938–​1973, Canberra:  Australian University Press. Von Sturmer, J. (1989) Talking with Aborigines, Publisher unknown. Reproduced with permission from the Australian Institute of Aboriginal Studies. Retrieved from the Library of Federation University.

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Section II

The linguist as expert in the legal process

2.1

Expert and process

22 The forensic linguist The expert linguist meets the adversarial system Lawrence M. Solan

Science in the adversarial system The academic world and the world of litigation produce an awkward mix. Lawyers are in the business of winning their cases. Academics are in the business of engaging in disinterested research in an effort to uncover truths. Academics, including those who work in the ‘hard sciences,’ are accustomed to such tasks as evaluating competing theories, each of which has its own strengths and weaknesses. Criteria of evaluation generally include both descriptive and explanatory adequacy and sometimes such things as Occam’s Razor and other measures of parsimony and elegance. In linguistic theory, for example, competing syntactic accounts are frequently judged on the breadth of the phenomena they are able to explain without resort to ad hoc solutions. The most elegant solution that covers the most ground wins. In this realm, uncertainty is the norm. Those engaged in scientific inquiry do not close up shop once they have achieved some progress. Rather, they continue their explorations, often revising (and sometimes even discarding) earlier hypotheses as new data and new explanations come to light. The legal system is also designed to uncover truths. But, in places that employ an adversarial system, it does not do so by conducting disinterested research, but rather through the vigorous presentation of evidence slanted toward different positions. The assumption –​ more a matter of faith –​is that the better sets of facts, arguments and theories presented in the courtroom will rise to the top, and that thereby the quest for truth will be served (see Landsman 1984). For this reason, during the litigation process, lawyers are likely to exploit the uncertainty of opposing experts. This can lead to serious discomfort when an expert accustomed to living with a level of uncertainty as a professional matter finds himself the subject of ridicule in the courtroom (see, e.g., Shuy 2006; Coulthard, Johnson and Wright 2017 for discussion). Philosopher/​legal scholar Susan Haack, drawing on the work of Peirce, comments on the difference between scientific and legal inquiry: Distinguishing genuine inquiry, the real thing, from pseudo-​ inquiry or ‘sham reasoning,’ C.S. Peirce  –​a working scientist as well as the greatest of American 349

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philosophers –​wrote that ‘the spirit … is the most essential thing –​the motive’; that genuine inquiry consists in ‘actually drawing the bow upon truth with intentness in the eye, with energy in the arm.’ For the same reason, I am tempted to write of advocacy ‘research’ (in scare quotes); for it is something of a stretch to call advocacy research ‘research’ at all. Advocacy ‘research’ is like inquiry insofar as it involves seeking out evidence. But it is part of an advocacy project insofar as it involves seeking out evidence favoring a predetermined conclusion; and it is undertaken in the spirit, from the motive, of an advocate. In short, it is a kind of pseudo-​inquiry. (Haack 2008: 1071) Making matters worse, lawyers are not required to be sincere in their attacks. (Post 1987; Solan 2012). They are not permitted to lie outright. Nonetheless, the lawyer who believes the opposing expert’s position to be valid remains obliged to find holes in the analysis and to exploit them vigorously. If a coroner makes a computational error in computing the time of death, the lawyer will –​in fact, must –​take maximum advantage of the mistake, even if the lawyer believes the time of death in the report to be correct. At least that is so in the United States. It is somewhat ironic that scientific investigation accepts more uncertainty than does the legal process, since it is the legal system’s assumption that scientific knowledge is crisp and factual that makes it attractive in the first place (see Berger and Solan 2008 for discussion). Nonetheless, that is often the case. The imperfect match between scientific inquiry and the structure of the adversarial system presents a challenge for the expert witness. One lawyer wants the expert witness to act as a good team player, while the other attempts to rip the expert to shreds. In this chapter, I bring to the attention of the forensic linguistic community a number of issues that have been raised more generally about expert evidence in the adversarial system that might be important to the field as it develops. A large body of literature demonstrates that in interpreting facts, people (including experts) tend to be biased toward confirming the result that they have already reached. For example, when questioning individuals who may have committed a crime, the questioner’s ex ante presumption of guilt or innocence affects the types of questions that are asked, which in turn affects the speech conduct of the suspect (Kassin, Goldstein and Savitsky 2003). People are aware of such tendencies in others but deny it in themselves (Pronin, Lin and Ross 2002). This means that even experts with high moral integrity will tend to cast their conclusions in a way that is helpful to the position they have espoused. Moreover, people tend to accept positive results without regard to underlying base rates. This has led to the acceptance of forensic identification techniques that are not adequately grounded in science. The lessons learned from DNA analysis in legal settings makes the neglect of base rates in other forensic sciences particularly salient (see PCAST 2016 for discussion), but the problem has been there all along. Legal systems have reacted to these problems in different ways. In the United States, there has been a growing emphasis on the importance of valid and replicable methodology in court, as evidenced by the United States Supreme Court’s 1993 Daubert decision and its progeny. The U.K., while also considering a move in that direction (see Law Commission 2009), has required experts to certify that they understand their first obligation is to be straightforward and disinterested, at least making the experts aware that they may be subject to bias. Both are positive developments.

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I begin by discussing some of the cognitive biases that have been discussed in the recent psychological and legal literature. Awareness of them can help the expert linguist both to understand some of the pitfalls of entering the all-​or-​nothing fray of litigation and, further, to understand the intensity of the current push toward developing demonstrably reliable methodologies on which experts can base their testimony. I then turn to developments in the legal system directed at addressing some of these problems. Finally, I turn to forensic linguistics in particular, and discuss various standards that the field may adopt on its own behalf.

The challenge facing forensic identification sciences The need to make forensic science more scientific Forensic identification techniques have been under serious scrutiny and attack in the United States during the past decade since publication of the first edition of this Handbook. To take a dramatic example, bullet lead analysis used to be a staple of law enforcement agencies in criminal cases. For more than 30  years, analysts, in particular from the FBI, would testify that the lead from a questioned bullet and that from a reference box of ammunition associated with the defendant, ‘were analytically indistinguishable,’ ‘came from the same batch,’ ‘were consistent with their having come from the same box of ammunition,’ and so on. (Giannelli 2007: 200). Disturbingly, the difficulty in determining how to couch conclusions about the firmness of an identification shows itself in forensic linguistic identification as well. But more disturbingly, bullet lead analysis has now been shown to be without scientific basis. In 2004, the National Research Council (NRC), which is the research arm of the National Academies (formerly the National Academy of Science) issued a devastating report (NRC 2004). Among its conclusions was that the output from a single ‘melt’ of lead ‘can range from the equivalent of as few as 12,000 to as many as 35 million 40-​grain, .22 caliber long-​rifle bullets’ (2004: 6). Courts began jumping ship, and in 2005 the FBI abandoned the procedure. Prior to that, the analysis had been used in many criminal trials involving firearms, including death penalty cases. The recognition that this forensic procedure is not provably reliable has had its consequences. Based on the discredited technology, in 2008 a Florida court vacated the conviction of a man who had spent ten years in prison for killing his wife based on the discredited technology. The legitimacy of many other convictions has been brought into question. Lead bullet analysis is not alone. Even fingerprint identification, long considered an airtight method, has been questioned in recent years. Significantly, the history of fingerprint identification reveals that it developed in the absence of studies demonstrating fingerprint uniqueness, which had always been taken as a matter of faith (Mnookin 2001a). This is not to say that fingerprinting has been unsuccessful as a tool for law enforcement. Yet while few disagree that fingerprint comparison can be very accurate in most cases, fingerprints in forensic settings are often both partial and degraded and we do not know the rate at which accuracy and consensus diminish as the amount of information decreases. A case in point is the FBI’s incorrect fingerprint identification of an American Muslim as the Madrid bomber (see Dror, Charlton and Péron 2005). Studies reviewing cases in which a person convicted of a crime was later exonerated by DNA evidence show a small, but regular rate of error in fingerprint analysis (Cole and Scheck 2018; Garrett and Neufeld 2009).

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The same holds true for handwriting analysis, which has received particularly brutal treatment in the literature on the admissibility of expert testimony (see Risinger and Saks 1996; Mnookin 2001b; but see also Moenssens’ 1997 defense of the field). Here again, the issue is not whether document examiners ever get it right. Of course they do. Rather, the issue is that handwriting analysis was not put to the test to determine its limits. Even when a document examiner has been well-​trained and is a person of integrity, we do not know where the expert’s expertise begins and ends, other than as a matter of  trust. More broadly, in 2009, the NRC of the National Academies came out with a report on the status of forensic identification. Entitled Strengthening Forensic Science in the United States: A Path Forward (NRC 2009), among its findings were the following: Two very important questions should underlie the law’s admission of and reliance upon forensic evidence in criminal trials: (1) the extent to which a particular forensic discipline is founded on a reliable scientific methodology that gives it the capacity to accurately analyze evidence and report findings and (2) the extent to which practitioners in a particular forensic discipline rely on human interpretation that could be tainted by error, the threat of bias, or the absence of sound operational procedures and robust performance standards. … Unfortunately, these important questions do not always produce satisfactory answers in judicial decisions pertaining to the admissibility of forensic science evidence proffered in criminal trials. (NRC 2009: S-​7) The report, thus, criticizes both the various forensic disciplines for not policing themselves adequately, and the courts for falling asleep at the job and not performing their gatekeeping function with adequate standards. What should be done? The report suggests: A body of research is required to establish the limits and measures of performance and to address the impact of sources of variability and potential bias. Such research is sorely needed, but it seems to be lacking in most of the forensic disciplines that rely on subjective assessments of matching characteristics. These disciplines need to develop rigorous protocols to guide these subjective interpretations and pursue equally rigorous research and evaluation programs. (NRC 2009: S-​6) A second report, issued in 2016 to President Obama by the President’s Council of Advisors on Science and Technology (the ‘PCAST’ report) acknowledged progress following the NRC’s 2009 report, but continued to identify a profound need for the forensic identification sciences to establish scientific validity based on empirical studies as a prerequisite for being used in court. The study warned: It should be obvious—​but it bears emphasizing—​that once a method has been established as foundationally valid based on appropriate empirical studies, claims about the method’s accuracy and the probative value of proposed identifications, in order to be valid, must be based on such empirical studies. Statements claiming or implying greater certainty than demonstrated by empirical evidence are scientifically invalid. (PCAST 2016: 46) 352

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Cognitive biases in forensic science What are the biases to which forensic scientists are so susceptible? They are the same biases to which scientists of all sorts may succumb. First among them are observer effects, in particular confirmation bias. Observer effects refer to the long-​recognized fact that ‘context and expectations influence an individual’s perceptions and interpretations of what he observes,’ (Risinger et al. 2002: 12). Recognition of this potential drives a great deal of methodology in science, especially in areas of medical research where double-​blind studies are the norm. Even when patients are randomly selected for participation, it is only when both the doctor administering the treatment and the patient receiving it are unaware of whether the patient is receiving the experimental treatment or is a member of the control group receiving a placebo that the results of clinical trials are deemed reliable. The concern is that otherwise subtle, even unconscious cues may lead to distortions in the results. In the case of forensic experts, one of the most important cues is prior knowledge of the result that the party engaging the expert would like them to reach. This leads to confirmation bias, the ‘unwitting selectivity in the acquisition and use of evidence’ in which people are likely to engage (Nickerson 1998: 175). In fact, even when we have no stake in the outcome, we tend to look at data selectively to confirm tentative conclusions we have reached. In a famous study using a card game, Wason and Johnson-​Laird (1972) found that people quickly see the significance of information that may prove them either right or wrong. In contrast, most people ignore evidence that can disconfirm a working hypothesis but cannot otherwise serve to strengthen the hypothesis. Once we have taken a position on a matter, information that supports that position becomes more salient, and information that tends to disconfirm it becomes less so (Nickerson 1998; Simon 2004). To take a classic example from the psychological literature, Darley and Gross (1983) showed two groups of subjects a videotape of a child taking an academic test. One group of subjects was told that the child came from a high socioeconomic background, the other group told that the child came from a low socioeconomic background. They were then asked to evaluate the child’s academic ability based on what they observed of the child’s behavior while she took the test. The results were dramatic. Those who were told that the child came from a wealthy background rated her ability as greater than did those who were told she was economically disadvantaged. Both groups supported their ratings by referring extensively to evidence from the videotape. Real-​life experiences abound. It happens, for example, when the police, certain that they have apprehended the guilty party and acting in good faith, ignore evidence both of another’s guilt and of their suspect’s innocence as they build their case. Malcolm Coulthard discusses a number of such cases in his writings (see, e.g., Coulthard 2004). In one, convinced that they had apprehended four men who killed a 13-​year-​old newspaper delivery boy, the police extracted a confession from one of them –​Patrick Molloy. However, the police denied that the language contained in the confession was language that they had suggested to him and that he had accepted under duress, as he alleged. The four were convicted, and Coulthard was consulted on appeal, at which time he found the transcript of a police interview to be unrealistically identical to that of a statement attributed to Molloy. The Crown conceded error during the appeal process, based on other evidence of the defendants’ innocence. Such things happen when the police are so convinced that they have the right person that they feel justified in cutting corners. The doctoring of an interview record is misconduct, but the motivation to do so comes largely from confirmation bias. 353

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Confirmation bias also occurs when an expert witness focuses in a report on the information that bolsters the position taken and understates or ignores information that would tend to lead to a contrary position. Dror, Charlton and Péron (2005) presented five experienced fingerprint analysts with separate pairs of fingerprints for comparison. In each case, the pair was one that the analyst had himself identified as a match sometime earlier in the ordinary course of business. The experimenters also showed each of these five pairs of prints to independent examiners, who agreed that each pair of prints constituted a matched set. However, a confederate told each of these experts that the questioned prints were the ones erroneously identified by the FBI as a match in the Madrid bombing case. The experts were then told to ignore this contextual information in conducting their analysis. The result was that three of the five experts found no match, one said he could not decide and only one came to the same conclusion he had reached earlier: that there was a match. Making things worse, not only are we subject to this bias, but we each have a ‘bias blind spot’ (Pronin, Lin and Ross 2002). That is, we have a propensity to think that our own beliefs are objective, while the beliefs of others are colored by various biases that influence them. Even when such biases are brought to our attention, we tend to recognize them as applying to others –​not to ourselves. In other words, we see bias in others, analytical crispness in ourselves. Pronin and Kugler (2007) attribute this asymmetry to the fact that ‘people over-​value thoughts, feelings, and other mental contents, relative to behavior, when assessing their own actions, motives, and preferences, but not when assessing others’ (2007: 566). They call this the ‘Introspection Illusion.’ Their studies first confirmed the bias blind spot. When, for example, Harvard students were told that some people tend to be biased toward self-​serving views of their academic or job performance, they attributed this bias more to other, similarly-​situated students than to themselves. They further said that they judged themselves more by evaluating their own thoughts and motives, and judged others based more on their actual behavior. Whether judging themselves or others, the more they relied on thoughts and motives, the less bias they found. The more they relied on behavior, the more bias they found. Significantly, when participants were told in advance that relying on introspection instead of evaluating their own behavior can lead them to a biased assessment, they took heed and were no longer subject to the bias blind spot (2007: 575). This finding may have significant ramifications in the forensic arena.

Judicial reactions to expert evidence in the U.S. and the U.K. We have now identified two problems facing the expert linguist:  the brutality of the adversarial system, including snide and personal attacks on individuals working within standard scientific paradigms (see Fadden and Solan 2016), and a broad concern that the forensic identification sciences lack adequate scientific foundation. This section deals with how the courts have grappled with the second of these issues. The next section will deal with the tension between the two problems, and how forensic linguistics might develop to address them jointly. Expert linguistic testimony is widely accepted in both English and American courts. However, the courts in the U.S.  and the U.K.  have engaged different strategies to deal with the need for ensuring reliable expert testimony. While American courts have focused more on the need for valid and reliable methodology, British courts have concentrated

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on requiring experts to certify that they have conducted their analysis in a neutral, disinterested manner. Both approaches have something to offer in response to the issues raised above.

The Daubert standard in American courts: The judge as gatekeeper For most of the 20th century, American courts admitted scientific evidence if it had ‘gained general acceptance in the particular field in which it belongs.’ The standard was derived from a 1923 court of appeals case, Frye v. United States, a case that involved a lie detector test that measured systolic blood pressure. The problem with the Frye test, however, is that it is subject to manipulation by changing the definition of ‘the particular field in which it belongs.’ Among lie detector analysts, the device in question in Frye might be perfectly acceptable. Among social scientists and medical experts, waiting for the results of validation testing, it might be unacceptable. Moreover, as noted at the beginning of this article, science is often not about certainty, but rather about controversy. The ‘right’ theory may have been articulated, but is not yet generally accepted, whether because of the sociology of the scientific community, or because the theory is in development and has not yet been shown to be able to handle crucial cases and to explain apparent counterexamples. These problems with the Frye standard were recognized in 1975 when the Federal Rules of Evidence were first adopted. The standard under Rule 702 as originally enacted was that expert evidence should be admitted ‘if it will assist the trier of fact to understand the evidence or to determine a fact in issue.’ It was not clear from the rule’s language, however, whether this standard was intended to replace Frye, or merely to explain the goal of the Frye standard. The Supreme Court of the United States answered that question in three cases decided in the 1990s, which have come to be called the Daubert trilogy. The first case, Daubert v. Merrell Dow Pharmaceuticals, Inc., was decided in 1993. The issue there was whether Bendectin, an anti-​nausea drug taken during pregnancy, caused birth defects in the plaintiff’s children. Most of the scientific literature said that it did not, but the plaintiff wished to have an expert testify to challenge the scientific literature and to discuss animal studies which suggested that Bendectin might indeed cause birth defects in children. Ultimately, the Supreme Court sent the case back to the lower appellate court, which ruled that the expert testimony was not admissible because it lacked the indicia of scientific validity. In determining whether proffered testimony is scientifically valid, the standard would no longer be whether it was generally accepted by the scientific community. Rather, the testimony must have a ‘grounding in the methods and procedures of science’ (1993: 590). This grounding may be evidenced by four nonexclusive criteria: whether the theory offered has been tested; whether it has been subjected to peer review and publication; the known rate of error; and whether the theory is generally accepted in the scientific community (593). Note that the fourth criterion is the Frye standard, which has now become one of a number of nonexclusive factors that a court will consider. The second case in the Daubert trilogy, General Electric Company v.  Joiner (1997), concerned the standard of review for appellate courts of Daubert decisions made at trial. The Court held that rulings about the admissibility of expert testimony should be overturned only if the trial court had abused its discretion. This is a very lax standard, and it means in essence that the decisions of trial judges to admit or reject expert evidence will rarely be reviewed seriously, and even more rarely reversed.

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Finally, in Kumho Tire Company v. Carmichael (1999), the Supreme Court held that the Daubert approach applies not only to scientific testimony, but also to experts who testify based on their experience. The expert in that case was called to testify on the cause of tire damage based on his experience in the tire industry. The Court held that his opinion based upon experience that could not be tested did not meet evidentiary standards. The determining fact is whether the expert ‘employs in the courtroom the same level of intellectual rigor that characterizes the practice of an expert in the relevant field’ (p. 152). As a result of these three cases, the Federal Rules of Evidence were amended to permit expert testimony if it will ‘assist the trier of fact to understand the evidence or to determine a fact in issue,’ and if (1) The testimony is based upon sufficient facts or data, (2) The testimony is the product of reliable principles and methods, and (3) The witness has applied the principles and methods reliably to the facts of the case. (Rule 702, Fed R. Evid.) It should be noted that all three cases in the Daubert trilogy were civil cases in which an individual was suing a corporation, and in all three, the courts held that the expert’s proffered testimony did not pass muster. It was the legal academic community, and to some extent criminal defense lawyers, who subsequently argued that the Daubert approach should apply to the forensic identification sciences, which had not been adequately tested to prove their validity (see, e.g., Risinger and Saks 1996). It is still not at all clear that American courts apply these principles evenhandedly in civil and criminal cases alike (Risinger 2000) or, for that matter, that the actual rulings of courts differ significantly depending upon whether a jurisdiction applies the Frye standard or the Daubert standard (Cheng and Yoon 2005). Nonetheless, Daubert has colored the debate about forensic testimony and led to questions about the reliability of expert opinion testimony, unless accompanied by validation studies conducted in a scientific manner.

Expert certification of neutrality in the U.K. The U.K. has taken a somewhat different approach (see Law Commission 2009), although, at the time of writing, Daubert-​like standards are under consideration there as well. Rather than focusing on the methodology, the U.K. has traditionally focused on the credentials and integrity of the expert. Aware of the temptation for experts to present biased evidence, Civil Procedure Rules have been enacted requiring experts to affirm that they are acting in a neutral manner. The rules state explicitly that 1. It is the duty of an expert to help the Court on matters within his expertise. 2. This duty overrides any obligation to the person from whom he has received instructions or by whom he is paid. (Civil Procedure Rule 35.3) Expert reports must contain a statement that the expert understands his duty to the court and that he has complied with that duty (Civil Procedure Rules 35.10). 356

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Similarly, Appendix 8 to The Commercial Court Guide (2017, 10th edn) imposes neutrality on experts. Because the material may not be familiar to those who do not work within the British courts, it is worth quoting in full: 1. It is the duty of an expert to help the court on the matters within his expertise: rule 35.3(1). This duty is paramount and overrides any obligation to the person from whom the expert has received instructions or by whom he is paid: rule 35.3(2). 2. Expert evidence presented to the court should be, and should be seen to be, the independent product of the expert uninfluenced by the pressures of litigation. 3. An expert witness should provide independent assistance to the court by way of objective unbiased opinion in relation to matters within his expertise. An expert witness should never assume the role of an advocate. 4. An expert witness should not omit to consider material facts which could detract from his concluded opinion. 5. An expert witness should make it clear when a particular question or issue falls outside his expertise. 6. If an expert’s opinion is not properly researched because he considers that insufficient data is available, this must be stated in his report with an indication that the opinion is no more than a provisional one. 7. In a case where an expert witness who has prepared a report is unable to confirm that the report contains the truth, the whole truth and nothing but the truth without some qualification, that qualification must be stated in the report. 8. If, after exchange of reports, an expert witness changes his view on a material matter having read another expert’s report or for any other reason, such change of view should be communicated in writing (through the party’s legal representatives) to the other side without delay, and when appropriate to the court. 9. All expert evidence –​written or oral –​should be as concise as possible. 10. An expert witness should be ready to take initiative to narrow the areas of disputed expert opinion as far as possible, including by initiating further dialogue between experts. Admirably, the goal is to reduce the adversarial nature of scientific debate in the litigation context. No doubt these standards accomplish that goal to some extent. However, given both the pressure placed on experts and the bias blind spot discussed earlier, it is unlikely to accomplish that goal up to the level of purely disinterested scientific standards. Experts will continue to be tempted to write short, uninformative reports in order to keep the opposing party from preparing a rebuttal adequately, present few if any counterexamples to their analysis in their main reports; or to be as helpful to opposing parties during cross-​ examination as they would be if they believed themselves to be entirely neutral; or to raise issues on their own that might compromise their party’s position, even if they would have done so in an academic climate. As Sanders (2007: 1558) notes: [W]‌hen [experts] do fail to present adequate justification for a belief, often it is not because they fail to present the best case for a position but that they fail to tell the ‘whole truth’ about their belief and present with equal force the evidence for and against it. Thus, it should not be surprising that the U.K. is considering a move toward focusing on valid methods. 357

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The direction of forensic linguistics I have identified two problems facing the linguist who ventures into the world of litigation: One is a problem that experts have with the legal system –​its intolerance of uncertainty in scientific inquiry notwithstanding that scientists accept that the current best account may not ultimately survive the test of time. This, combined with the aggressive advocacy of the adversarial system, can lead lawyers to ridicule even those experts who are prominent researchers in their fields. The result of this hostility is a reluctance on the part of many top scholars to participate in the system at all (see Coulthard, Johnson and Wright 2017 for discussion). The second problem that the legal system has with experts is that the experts themselves provide inadequate protection against bias by failing to develop methods that have been independently validated. This is the main thrust of the National Research Council Report (2009) and the PCAST Report (2016) on forensic science in the United States. I would like to argue here that in fact these are the same problem, at least in large part. Fixing the second will reduce the severity of the first in that the best way for an expert to avoid bias and to reduce the stress associated with defending one’s professional opinion in court is to employ reliable methods that have been proven valid. A second, somewhat less effective approach is for experts to submit to proficiency testing where the methods employed are more subjective and tailored to the particular case. This is not as good as the first method, because even proficient experts can succumb to bias in a forensic setting. Nonetheless, I explore the benefits of proficiency testing below.

Developing valid methodology The basic concern in developing methods that will be acceptable in court and meet the standards of normal science is to develop and test those methods outside the litigation context. Not only is litigation-​driven research more prone to bias, but it is less valued by the courts for that very reason. In fact, as Haack (2008) points out, once Mrs Daubert’s case was sent back to the lower court for additional proceedings, the judge there commented on the reduced reliability of scientific evidence gathered for the purpose of the litigation itself. Judge Kozinski commented:  ‘[I]‌n determining whether proposed expert testimony amounts to good science, we may not ignore the fact that a scientist’s normal workplace is the lab or the field, not the courtroom or the lawyer’s office’ (Daubert 2 2009: 1316–​17 n.3). He further contrasted the increased likelihood of bias when the result is tied to remuneration, with independent research conducted as normal science, which carries its own indicia of reliability. While not a perfect proxy by any means, the ‘peer-​reviewed’ publication element of the Daubert standards is addressed at capturing this asymmetry. The development of valid methodology has produced positive results in other forensic fields. For example, as mentioned above, handwriting analysis has been in ill repute in the United States because of its inability to describe a valid method with provable rates of accuracy. In part because of that criticism, the government has funded research into the area, resulting in improved technology that has been accepted under Daubert analysis. In a 2002 case, United States v. Prime, the trial court summarized some of that progress –​ including a greater understanding of the rate of error –​in admitting the testimony of a handwriting expert who had been involved in these improvements to that field. Academic critics have also begun to recognize this progress (see, e.g., Giannelli 2003: 8–​9). 358

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How such research should be conducted in the linguistic arena differs from one subfield to another. The forensic-​phonetic literature, for example, is replete with studies of what circumstances make it easier or harder to recognize a speaker by his or her voice (see, e.g., Yarmey 2012, Morrison 2009). Moreover, some researchers are developing automated systems that are being tested for rates of error in terms of both misses (failure to identify) and false alarms (false identification) (see Watt and Brown, Chapter 25, this volume, for discussion of some of these developments.) At the same time, there has been some movement toward the proficiency testing of those phoneticians who use both aural and acoustical information to form judgments, a trend to which I return below. When it comes to authorship attribution, some researchers have attempted to identify criteria that, taken in combination, can diagnose both authorship and non-​authorship. Chaski (2005), for example, uses aspects of punctuation, marked syntactic structures and word length in combination. She has been permitted to testify in cases after Daubert scrutiny, although the process has still not been tested for validity and reliability through independent means. My point here is a basic one: The research upon which expert testimony is based is best conducted in the lab, outside the context of a particular dispute, as Judge Kozinski prescribes. Other researchers have employed similar research methods, using criteria for identification that differ from Chaski’s, sometimes using sophisticated mathematical modeling. For example, many other computational systems use n-grams for comparison (see, e.g., Stamatatos 2013). Over the past several years, methods based upon experimental results in which the ground truth was knowable have become more the norm than the exception. A  recent article (2019) by Janet Ainsworth (a lawyer with a sophisticated knowledge of both evidence law and linguistics generally) and Patrick Juola (a computer scientist who tests and employs computational models in authorship identification cases) articulates the progress in making authorship identification a standard bearer for solid work in the forensic identification sciences. The principal feature of this contemporary work is its commitment to testing the success rates of algorithms. To be clear, the issue is not so much the gap between algorithmic methods and methods that rely upon the analyst comparing salient features of questioned documents and the documents of identifiable authors. Rather, the issue is the gap between tested and untested methodologies. A conference held at Brooklyn Law School in 2012 produced a volume containing a number of algorithmic proposals, along with several examples of convincing analysis based on comparing idiosyncratic features in documents with known authors to the documents in question (see the open access Journal of Law and Policy, vol. 21: 2, 2013). In fact, as I noted in that volume (Solan 2013), some experts who point out salient similarities and differences may actually have smaller rates of error than do some of the better algorithms. That would depend on their ability to select cases in which their approach is mostly likely to work. Recent research into the conventions of text messaging show promise for research along these lines. Grant (2010) discusses cases in which two possible authors of a questioned text message use in general quite different styles of abbreviation and ellipsis in their texting. Once pointed out, one’s intuition is that such differences will predict authorship, although research confirming this has not yet been published. Grant himself suggests some ways in which such research could be structured. Nonetheless, as the government reports make clear, the legal system, as a general matter, will be better off relying on methods proven to be accurate within identifiable rates of error than on trusting practitioners’ assessment of their own work. 359

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In other subfields of forensic linguistics, the methodology may require only that the types of materials examined and the arguments made be standardized to the extent that a consensus develops about what might be useful to the legal community. Linguists frequently testify in trademark disputes, for example. Those who conduct frequent analyses, for the purpose of determining the confusability or the strength of a mark, might publish their approaches in order to set best practices for the field. This, at least to some extent, is occurring (see Shuy 2002; Butters, Chapter 23, this volume).

Proficiency as a substitute for methodology Those who have practiced in the area of forensic linguistics, especially in the area of authorship identification, might respond to the call for methodology as follows: ‘I have been doing this for a long time, and I am very good at it. I cannot tell in advance exactly which features in a particular case will be diagnostic of authorship, so requiring that I develop a methodology that is tightly defined will require me to ignore data that might be important in an individual case.’ In discussing some prominent cases involving authorship identification, Peter Tiersma and I (Solan and Tiersma 2005) noted that the absence of established methods might lead some insightful analysis to remain unacceptable in the courtroom. We therefore suggest that research projects be initiated to discover and validate reliable methods that will stand up to evidentiary scrutiny. Perhaps, however, proficiency testing, if done properly, could serve as an intermediate level of validation while a field conducts research into replicable methods. Professor Jennifer Mnookin (2001a) has referred to this as the ‘black box’ approach to forensic identification, and argues that it might be useful in some instances. The 2016 PCAST report, of which she is an author, uses that term as well. The concern is that in some instances, Daubert may be causing us to throw the baby out with the bathwater, rejecting skilled diagnosis based on experience (see Sanders 2001 for discussion). Medical diagnosis is in part an art in which the most skilled diagnosticians are unable to articulate what separates them from the rest of the pack (see Groopman 2007). It would not be surprising if practitioners of forensic linguistic identification also developed skills that more than meet the standard of being helpful to the trier-​of-​fact. Valid proficiency testing is difficult to accomplish. The biggest problem is developing materials that are relevant to real-​life forensic problems. For example, when a document has only two possible authors, rejecting one of them is sufficient to establish the other as the author (assuming only one person wrote the document). In other cases, however, the question is whether a particular suspect wrote a document, and there is no information about who else might have written it. How many other potential authors should the expert need to be able to reject before reaching an opinion that the suspect is the likely author? These are difficult questions that must be resolved before proficiency testing can be designed in a meaningful way. Notwithstanding these difficulties, information about a practitioner’s proficiency might be useful to the legal system, especially during the development of validated methodologies. In fact, the success rate of proficient practitioners might be compared with that of other methods, particularly automated ones. Cambier-​Langeveld (2007) conducted a study in which she pitted phoneticians using the auditory-​acoustic method against semiautomatic and automatic speaker recognition systems. The result was that the machines produced fewer false alarms than the phoneticians, but at the same time failed to make 360

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some correct identifications that the phoneticians were able to make. Some phoneticians were extremely good and outperformed the machines, but disturbingly, the phoneticians varied in their level of skill, highlighting the importance of proficiency testing as a minimum predictor of accuracy. Without that testing, the individual who goes before the jury with confidence and charisma may be the one who prevails, regardless of actual skill. Even experts who are proven to be good at what they do through proficiency testing will be subject to bias when they conduct their analysis in a litigation context. Thus, I do not advocate this approach as a long-​term goal in the development of forensic linguistics. Nonetheless, it might play a role in preserving insight while the field moves ahead.

Conclusion I have explored here two related, but seemingly distinct, problems that arise when the expert linguist enters the world of litigation:  the legal system is unrealistic about what science can do, and the forensic community has not adequately developed valid and reliable methods. I have attempted to show how these problems can be solved together, through a single approach to methodology, and have suggested that proficiency testing might bridge the gap in the short term. It will be up to both academics and the forensic linguistics communities to move the field ahead in these directions. To do so is particularly difficult given the dual role that many play as both academics and consultants. Yet some 30 years ago, it was the academic linguists and phoneticians who demanded that forensic use of spectrograms (voice prints) be used cautiously since they had not been proven accurate in forensic settings. The field of forensic linguistics remains capable of moving itself forward in the early part of the 21st century.

Notes The author wishes to express his gratitude to Susan Haack and Michael Risinger for valuable comments on an earlier draft of this chapter.

Further reading Darley, J. and Paget, H. (1983) ‘A hypothesis-​ confirming bias in labeling effects’, Journal of Personality and Social Psychology, 44: 20–​33. Giannelli, P.C. (2007) ‘Wrongful convictions and forensic science: The need to regulate crime labs’, North Carolina Law Review, 86: 163–​235. Koppel, M., Schler, J. and Argamon, S. (2013) ‘Authorship attribution:  What’s easy and what’s hard?’, Journal of Law & Policy, 21: 317–​331. National Research Council of the National Academies (2009) Strengthening Forensic Science in the United States: A Path Forward, Washington, D.C.: The National Academy Press. Pronin, E. and Kugler, M. (2007) ‘Valuing thoughts, ignoring behavior: The introspection illusion as a source of the bias blind spot’, Journal of Experimental Social Psychology, 43: 565–​578. Sanders, J. (2007) ‘Expert witness ethics’, Fordham Law Review, 76: 1539–​1584. Shuy, R. (2006) Linguistics in the Courtroom: A Practical Guide, Oxford: Oxford University Press.

Legal sources Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579 (1993). Daubert v. Merrell Dow Pharmaceuticals, Inc., 43 F.3d 1311 (9th Cir. 1993) (‘Daubert 2’). 361

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Frye v. United States, 293 F. 213 (D.C. Cir. 1923). General Electric Company v. Joiner, 522 U.S. 136 (1997). Kumho Tire Company v. Carmichael, 526 U.S. 137 (1999). United States v. Prime, 220 F. Supp. 2d 1203 (W.D. Wash. 2002). The Commercial Courts Guide (2017, 10th edn) (U.K.). Civil Procedure Rule 35 (U.K.). Federal Rules of Evidence, Rule 702 (U.S.).

References Ainsworth, J. and Juola, P. (2019) ‘Who wrote this?: Modern forensic authorship analysis as a model for valid forensic science’, Washington University Law Review, 96(5) https://​wustllawreview.org/​ volumes/​96/​issues/​5/​articles/​6/​. Berger, M. and Solan, L. (2008) ‘The uneasy relationship between science and law: An essay and introduction’, Brooklyn Law Review, 73: 847–​854. Cambier-​Langeveld, T. (2007) ‘Current methods in forensic speaker identification: Results of a collaborative exercise’, International Journal of Speech, Language and the Law, 14: 223–​243. Chaski, C. (2005) ‘Who’s at the keyboard? Authorship attribution in digital evidence investigations’, International Journal of Digital Evidence, 4: 1–​13. Cheng, E. and Yoon, A. (2005) ‘Does Frye or Daubert matter? A study of scientific admissibility standards’, Virginia Law Review, 91: 471–​512. Cole, S. and Scheck, B. (2018) ‘Fingerprints and miscarriages of justice: “Other” types of error and post-​conviction right to database searching’, Albany Law Review, 81: 807–​850. Coulthard, M. (2004) ‘Author identification, idiolect, and linguistic uniqueness’, Applied Linguistics, 25: 432–​447. Coulthard, M., Johnson, A. and Wright, D. (2017) An Introduction to Forensic Linguistics: Language in Evidence, 2nd edn, Abingdon: Routledge. Darley, J. and Paget, H. (1983) ‘A hypothesis-​ confirming bias in labeling effects’, Journal of Personality and Social Psychology, 44: 20–​33. Dror, I., Charlton, D. and Péron, E. (2005) Contextual information renders experts vulnerable to making erroneous identifications. Forensic Science International, 156: 74–​78. Fadden, L. and Solan, L. (2016) ‘Expert witness communication’, in G. Oxburgh, T. Myklebust, T. Grant and R. Milne (eds), Communication in Investigative and Legal Contexts:  Integrated Approaches from Forensic Psychology, Linguistics and Law Enforcement, Oxford: John Wiley & Sons Ltd. Garrett, B. and Neufeld, P. (2009) ‘Invalid forensic science testimony and wrongful convictions’, Virginia Law Review, 95: 1–​97. Giannelli, P. (2003) ‘Admissibility of scientific evidence’, Oklahoma City University Law Review, 28: 1–​15. —​—​—​(2007) ‘Wrongful convictions and forensic science: The need to regulate crime labs’, North Carolina Law Review, 86: 163–​235. Grant, T. (2010) ‘Txt 4n6: Idiolect free authorship analysis?’, in M. Coulthard and A. Johnson (eds), The Routledge Handbook of Forensic Linguistics, Abingdon: Routledge. Groopman, J. (2007) How Doctors Think, New York: Houghton Mifflin. Haack, S. (2008) ‘What’s wrong with litigation-​driven science? An essay in legal epistemology’, Seton Hall Law Review, 38: 1053–​1083. Kassin, S., Goldstein, C. and Savitsky, K. (2003) ‘Behavioral confirmation in the interrogation room: On the dangers of presuming guilt’, Law and Human Behavior, 27: 187–​203. Journal of Law & Policy (2013) Symposium: Authorship attribution workshop, Journal of Law & Policy, 21(2). Landsman, S. (1984) The Adversary System: A Description and Defense, Washington, D.C.: American Enterprise Institute. Law Commission (2009) The Admissibility of Expert Evidence in Criminal Proceedings in England And Wales. Consultation Paper 190 www.lawcom.gov.uk/​app/​uploads/​2015/​03/​cp190_​Expert_​ Evidence_​Consultation.pdf (accessed 21 July 2020). Mnookin, J. (2001a) ‘Fingerprint evidence in an age of DNA profiling’, Brooklyn Law Review, 67: 13–​70. 362

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—​—​—​(2001b) ‘Scripting expertise: The history of handwriting identification evidence and the judicial construction of reliability’, Virginia Law Review, 87: 1723–​1845. Moenssens, A. (1997) ‘Handwriting identification evidence in the post-​Daubert world’, UMKC Law Review, 66: 251–​343. Morrison, G. (2009) ‘Forensic voice comparison and the paradigm shift’, Science & Justice, 49: 298–​308. National Research Council of the National Academies (2004) Forensic Analysis: Weighing Bullet Lead Evidence, Washington, D.C.: The National Academy Press. —​—​—​ (2009) Strengthening Forensic Science in the United States:  A Path Forward, Washington, D.C.: The National Academy Press. Nickerson, R. (1998) ‘Confirmation bias:  A ubiquitous phenomenon in many guises’, Review of General Psychology, 2: 175–​220. Post, R. (1987) ‘On the popular image of the lawyer: Reflections in a dark glass’, California Law Review, 75: 379–​389. President’s Council of Advisors on Science and Technology (PCAST) (2016) Report to the President: Forensic Science in Criminal Courts: Ensuring Scientific Validity of Feature-​Comparison Methods, Washington, D.C.: Executive Office of the President https://​obamawhitehouse.archives. gov/​sites/​default/​files/​microsites/​ostp/​PCAST/​pcast_​forensic_​science_​report_​final.pdf (accessed 4 May 2019). Pronin, E. and Kugler, M. (2007) ‘Valuing thoughts, ignoring behavior: The introspection illusion as a source of the bias blind spot’, Journal of Experimental Social Psychology, 43: 565–​578. Pronin, E., Lin, D. and Ross, L. (2002) ‘The bias blind spot: Perception of bias in self and others’, Personality and Social Psychology Bulletin, 28: 369–​381. Risinger, M. (2000) ‘Navigating expert reliability: Are criminal standards of certainty being left on the dock?’, Albany Law Review, 64: 99–​152. Risinger, M. and Saks, M.J. (1996) ‘Science and nonscience in the courts:  Daubert meets handwriting identification expertise’, Iowa Law Review, 82: 21–​74. Risinger, M., Saks, M., Thompson, W. and Rosenthal, R. (2002) ‘The Daubert/​Kumho implications of observer effects in forensic science: Hidden problems of expectation and suggestion’, California Law Review, 90: 1–​56. Sanders, J. (2001) ‘Complex litigation at the millennium:  Kumho and how we know’, Law and Contemporary Problems, 64: 373–​415. —​—​—​(2007) ‘Expert witness ethics’, Fordham Law Review, 76: 1539–​1584. Shuy, R. (2002) Linguistic Battles in Trademark Disputes, New York: Palgrave Macmillan. —​—​—​ (2006) Linguistics in the Courtroom: A Practical Guide, Oxford: Oxford University Press. Simon, D. (2004) ‘A third view of the black box: Cognitive coherence in legal decision making’, University of Chicago Law Review, 71: 511–​584. Solan, L. (2012) ‘Lawyers as insincere (but truthful) actors’, Journal of the Legal Profession, 36: 487–​527. —​—​—​(2013) ‘Intuition versus algorithm: The case of forensic authorship attribution’ Journal of Law & Policy, 21: 551–​576 https://​papers.ssrn.com/​sol3/​papers.cfm?abstract_​id=2272090). Solan, L. and Tiersma, P. (2005) Speaking of Crime:  The Language of Criminal Justice, Chicago: University of Chicago Press. Stamatatos, E. (2013) ‘On the robustness of authorship attribution based on character n-​gram features’, Journal of Law and Policy, 21(12): 421–​439. Wason, P.C and Johnson-​ Laird, P. (1972) Psychology of Reasoning:  Structure and Content, Cambridge, MA: Harvard University Press. Yarmey, D (2012) ‘Affecting lay persons’ identification of speakers’, in L. Solan and P. Tiersma (eds), The Oxford Handbook of Language and Law. Oxford: Oxford University Press.

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23 Trademark linguistics Trademarks: language that one owns Ronald R. Butters

Historical and theoretical perspectives The rise of linguistic testimony about trademarks Trademark linguistics is an established area of forensic linguistic theory and practice:  ‘One type of case in which linguists routinely testify [in the United States] is trademark litigation, often with both sides offering linguistic testimony’ (Ainsworth 2006: 262). Testimony is also reported in Australia (Eades 1994b: 119), Chile (Oyandel and Samaniego 2004), South Africa (Sanderson 2007), and Great Britain (Heffer 2008; Olsson 2008). In the United States, the dialectologist Raven I.  McDavid, Jr. has reported having testified about linguistic issues involving an unnamed trademark sometime before 1977 (McDavid 1977:  126). In 1983, two eminent American lexicographers, Allen Walker Read and Jess Stein, testified for opposing sides in a case (Eastern Air Lines v. New York Air Lines, reported in detail in Bailey 1984) wherein the court ruled that the name Air-​ Shuttle is generic. Over the next 30 years, one eminent linguist had testified in so many cases that they formed the backbone of an entire book (Shuy 2002), and at least a dozen other American linguists have also been active trademark consultants. There is a growing body of scholarly literature (e.g. Adams 2005; Adams and Westerhaus 2005; Baron 1989; Butters 2007a, 2007b, 2008a, 2008b, 2012a, 2015, 2017; Butters and Westerhaus 2004; Clankie 2002; Creech 2005, 2007; Dinwoodie 2008; Durant 2008; Lentine and Shuy 1990; Shuy 2006, 2008; Tamony 1986). Japanese scholars have written about trademark linguistic theory (Okawara 2006; Hotta 2007; Hotta and Fujita 2007), and there is passing mention in Germany (Kniffka 2007: 29, 139–​140).

Definitions and terminology Trademarks (or just marks ), like copyrights, are proprietary language –​bits of linguistic or semiotic material that people, corporations and institutions in a very real but limited sense own. Paraphrasing Landau (2001: 405–​406), 364

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A trademark is a symbol, phrase, or name used by a maker of a product or provider of a service to distinguish the product or service from others of its kind. It is a name for or symbol or phrase associated with a brand of a kind of thing, rather than with the kind of thing itself. may be words or phrases (e.g. brand names such as Apple, Mac, Applecare Protection Plan); symbols, logos and designs (e.g. the profile of an apple with a bite taken out of it); slogans or taglines (e.g. ‘Think different,’ ‘It Does What a PC Does, Only Better’); and, in the past decade, internet domain names (apple.com, imac.com, imacapple.com, imac-​apple.com, podmart.com). Ownership of all the marks just mentioned is claimed by the computer company, Apple Inc. In the United States, the symbol ‘®’ is often attached to a mark (e.g. Mac®) to indicate that the mark has been properly registered with the federal government’s United States Patent and Trademark Office (USPTO); the symbol ‘TM’ indicates a claim for common law viability of a mark that has not been registered with the USPTO. Technically, trademarks identify goods, while service marks identify services. Trademark and copyright are legally distinct (Butters 2012b). Trademark laws have a narrow purpose: they grant control over the linguistic and semiotic entities (marks ) by means of which providers of goods and services identify what they market to the public. Copyright laws, however, protect broader linguistic and semiotic entities that are in themselves products, granting rights to individuals to reproduce, license and perform the results of their creative efforts (novels, poems, plays, essays, letters, musical compositions, paintings etc.). Copyright issues arise for forensic linguists who pursue questions of plagiarism, authorship identification and forensic stylistics. marks

Trademark litigation and the forensic linguist Shuy writes (2002: 182–​183) that ‘issues of phonology, morphology, syntax, lexicography, semantics, pragmatics, and discourse … are likely to be relevant in a trademark case,’ and he notes that semiotic analysis is sometimes employed as well (134–​135). Especially important to the knowledge and skills needed are (1) experience in applied linguistics such as one finds in lexicography and (2) the sort of interest in empirical data that dialectologists and sociolinguists deal with centrally in their professional endeavors. In the U.S.  there are two principal venues for litigation, (1)  the USPTO and (2)  the federal courts. The USPTO receives and approves or denies both trademark-​renewal applications and new applications, as well as petitions for cancellation of marks. In some cases, registration has been denied for reasons having to do only with the social valence (viz., impropriety ) of the mark itself; for example, a statute prohibits any mark that Consists of or comprises immoral, deceptive, or scandalous matter; or matter which may disparage or falsely suggest a connection with persons, living or dead, institutions, beliefs, or national symbols, or bring them into contempt, or disrepute. (15 USC 1052a 1947) However, a recent decision of the United States Supreme Court (in Matal v. Tam 2017) has held that the disparagement clause violates the United States Constitution’s First Amendment’s Free Speech Clause and is therefore unenforceable; the mark at issue 365

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was The Slants, a musical band composed of Asian-​American musicians. I have written forensic linguistic declarations (and sometimes testified at deposition) in support of the trademark registrations or renewals of the putatively intrinsically ‘disparaging’ marks Redskins (the name of a U.S. football team that was first allowed registration in the U.S. in the 1930s) and Dykes on Bikes (a San Francisco lesbian motorcycle club), as well as The Slants –​all initially rejected by the USPTO (for further discussion, see Butters 2007b: 336; 2008b:  243–​244; Nunberg 2001). Dykes on Bikes was successfully registered as a result of various appeals; The Matal v.  Tam ruling was automatically extended to allow the owners of the Redskins mark to retain full legal rights to the team name and logo. Even more recently, a 2019 Supreme Court ruling (in Iancu v. Brunetti) found the ‘scandalous’ and ‘immoral’ criteria also to be unenforceable –​a violation of the First Amendment –​ in effect ordering the registration of the mark FUCT (allegedly an initialism meaning ‘Friends U Can’t Trust’). In most trademark disputes, however, one party attempts to protect its established linguistic property (called the senior mark) from what it deems to be encroachment or infringement by a party that is using, or plans to use, a new, putatively similar or identical mark (the junior mark). A  USPTO judge decides whether or not an applicant’s junior mark would legally infringe upon the established one, in which case the losing side may appeal the decision to a subdivision called the Trademark Trial and Appeal Board (TTAB) –​or to a federal court. Federal courts are where a trademark owner brings a suit for financial damages against an alleged infringer. Forensic experts in trademark cases may be involved at three or four stages. Typically, the first duty of a forensic expert will be the preparation of an expert report, or declaration, submitted under oath to the court. If opposing counsel has already commissioned an expert report, the first expert may be asked to prepare a rebuttal report. Even counter-​rebuttal reports happen occasionally. Next, opposing counsel typically requires experts to appear for a deposition in which the expert will be questioned, under oath, about the report. Depositions are usually taken in face-​to-​face confrontation (often videotaped) in a law office and recorded by a trained court reporter; telephone depositions are also possible. Theoretically, depositions can go on for several days, though in practice they generally last between three and eight hours. Many trademark court cases are settled between the parties by agreements entered into without going to court. If there is no settlement , the linguistic trademark expert may actually testify at trial . Courtroom cases often are not decided by juries but by a judge acting alone in a procedure known as a bench trial   –​or in preliminary proceedings in which the judge decides if the outcome of the case is so apparent that having an actual trial would be a waste of time (summary judgment ). Forensic linguists confront four issues in trademark litigation. Only occasionally do linguists give expert advice on what is termed (1) the propriety of the mark (discussed above). Even rarer for forensic linguistic consultation is (2) dilution  –​though it is one of potential increasing interest (Butters 2008a: 507–​520). In these cases, owners of a famous mark allege that the use of the mark by a lesser-​known enterprise weakens the public’s perception of the uniqueness of the famous mark –​or sullies the mark through disreputable association. For example, in Starbucks Corp. v. Wolfe’s Borough Coffee, Inc.(2007) the plaintiff alleged dilution of its famous mark in an attempt to prevent the defendant’s use of Mister Charbucks for its coffee. An example of sullying might be if the famous mark McDonald’s were used for a chain of strip clubs. 366

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The two most frequent areas in consulting and testimony will be analyzed in the remainder of this chapter, giving some consideration as well to the linguistic consultant’s ethical responsibilities: (3) likelihood of confusion and (4) strength of the mark.

The two main consulting areas (case studies) Likelihood of confusion If consumers seem likely to confuse one mark with a similar one, then the senior mark’s owner may attempt to block use of the junior mark. Similarity is categorized as likeness in sight, sound and meaning; in addition, pragmatic similarity of use is also linguistically relevant. Likelihood of confusion was an issue in Circuit City Stores. v. Speedy Car-​X (1995), wherein I was consulted on behalf of Circuit City, the owners of the CarMax trademark. Having opened several of what was in the process of becoming a national chain of used-​ car stores, Circuit City had begun using CarMax as the chain’s trademark. They were worried that Speedy Car-​X, a long-​established automotive repair service, might seek to bar them from legally using the mark CarMax and argue that CarMax and the senior mark Car-​X were so similar that customers would be confused about the ownership of the two enterprises. My goal as consulting linguist was to explain the marks’ linguistic similarities and differences in a way that would help the bench-​trial judge to decide if the likelihood of confusion was so great that CarMax could not be allowed to use its mark. (The judge decided that no infringement litigation was imminent and dismissed the case; both CarMax and CAR-​X continue to be used as trademarks for their respective goods and services.)

The category of SIGHT Sight analyzes the totality of the appearance of a trademark, including also such semiotic features as color, typeface and design, but most particularly orthography and spelling. sight is especially important when the public’s exposure to trademarks is from signage, print-​media advertising, television ads and, of course, on packages. One complexity in the Circuit City case was that CAR-​X is printed in several different ways. It sometimes is spelled using some lower-​case letters (Car-​X), and there are two spellings without a hyphen:  www.carx.com (the firm’s website) as well as the stylized logo ‘℞,’ itself a registered trademark. Regardless of which spelling is selected, however, the argument in favor of the likelihood of confusion is supported by the fact that the beginnings and endings of the two marks are identical (i.e., ‘X’). It is a well-​accepted principle of psycholinguistics that the beginnings and endings of words are the most important to speakers (i.e., potential customers) for recognition and memory: There is abundant evidence that the initial portions of words are of crucial importance to word identification. … [M]‌emory storage of words assigns greater weight to the two ends of the words than to the middle, and probably particular weight to the initial positions. (Cutler 1982: 19)

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Moreover, CarMax and CAR-​X share five of the six alphabetical letters found in CarMax and four of the five found in CAR-​X. Thus 82% (9/​11) are identical –​and they are arranged in the same order. On the other hand, visual confusion will be inhibited by the major typographical and semiotic differences between their signature logos. (1) While Ca℞ uses an italic font and the eccentric hybrid character ‘℞’ (which has the meaning ‘prescription’), CARmax uses the default (unmarked) normal font. (2) The upper-​case ‘A’ and lower-​case ‘a’ of CARmax differs from the Ca℞ use of only the lower-​case variant. (3)  A  yellow background in the Ca℞ logo contrasts with a dark blue one in the CARmax logo. (4) The black letters in the Ca℞ logo contrast with yellow letters in the ‘CAR’ of ‘CARmax’ and its broken yellow underline with white letters in the max portion. (5) The Ca℞ logo visually underscores ‘Ca℞’ with a block of information (‘TIRE & AUTO’), whereas ‘CARmax’ underscores max with a broken line. With respect to sight , then, a linguist will point to the significance of the considerable differences as well as similarities of the two marks for the judge or jury to consider and weigh.

The category of SOUND The two marks are phonologically alike in that each is made up of two syllables, with a primary stress on the first syllable. They are also similar in phonemic length, CarMax [‘kar●mæks] or [‘ka●mæks] versus CAR-​X [‘kar●ɛks] or [‘kar●Iks] or [‘kar●ǝks] (variations depend on style and dialect). Thus, the two marks share 10 of 13 phonemes (77%) (or 8 of 12 –​67% –​for those dialects with post-​vocalic /​r/​deletion). Importantly, the marks are identical in the portions most salient for recognition and memory, the beginnings ([|kar] and endings ([ks]). Such features could be expected to inhibit speakers’ ability to remember which word refers to which business –​so that hearers might sometimes be unsure which referent was intended in a pragmatic context where either might be uttered (e.g. Did you pick up your car at that CarMax/​CAR-​X place?). However, some features of the pronunciation of CarMax and CAR-​X differentiate  them: 1. CarMax always has one more phoneme, [m]‌, than does CAR-​X. 2. The acoustic distinctive features of [m]‌are sharply different from all of the other phonemes in the two words: [m] is the only nasal and the only labial. 3. Physiologically, speakers must close their lips in the middle of uttering CarMax, whereas CAR-​X must be pronounced with the lips open. 4. At a normal speed of pronunciation, the second syllable of CAR-​X will tend to be pronounced much less loudly and forcefully than the second syllable of CarMax (because the underlying vowel [ɛ] of ‘-​X’ is susceptible to reduction to [I]‌or [ǝ]; the [æ] of Max resists reduction). 5. The vowel of the second syllable of CarMax differs from the second syllable of CAR-​ X by three distinctive features: [æ] is a low, non-​tense, front vowel, whereas [I]‌and [ǝ] are non-​high, lax, central vowels. 6. In some dialects, the [r]‌will be deleted in CarMax but not in CAR-​X. These significant, noticeable phonological differences may serve to distinguish the marks and prevent confusion. Various American court decisions have found all of the following pairs of marks to be confusingly similar.

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SMIRNOFF/​SARNOFF [smIr●naf]/​[sar●naf] DYPRIN/​DIAPARENE [day●prIn]/​[day●ǝ●prin] SMIRNOFF/​SERRANOV [smIr●naf]/​[sɛr●ǝ●naf] SMIRNOFF/​SMARKOFF [smIr●naf]/​[smar●kaf] AVENT/​AVANCE [ǝ●vɛnt]/​ǝ●væns] PROZAC/​HERBROZAC [pro●zæk]/​[hŗ●brǝ●zæk] BONAMINE/​DRAMAMINE [bon●ǝ●min]/​[dra●mǝ●min]

10/​13 = 77% 12/​16 = 75% 10/​14 = 71% 10/​14 = 71% 6/​10 = 60% 8/​14 = 57% 8/​15 = 53%

However, it is worth noting that the raw percentage of phonemic overlap between them varies considerably. The analyst must weigh such raw quantifications in light of (1) the position of the phonemes relative to each other and (2) the degree of distinctive-​feature similarities among contrasting phonemes. As Shuy has cautioned (2002:  12, 112), quantificational comparisons and distinctive-​ feature analysis must be reported with caution. He speaks of ‘another linguist, [who] … very successfully used distinctive feature analysis to show that the sounds of “Little Dolly” were only 13  percent different from those used in the name of his client, “Little Debby” ’ (75). However, Shuy also notes that such a highly technical analysis may be difficult for non-​linguist judges and juries to rely on. It is also not clear to me how such statistics are related to psychological reality: • Are some distinctive features more important than others? • How do feature similarities interact with the location of phonemes in words? • Do the acoustic effects on the hearer’s memory differ from the effects that differences in the physiological work of uttering may have on speakers?

The category of MEANING As reliable evidence in trademark disputes, courts accord special status to the dictionary definitions of words at issue, even though linguists understand that the most recent, professionally compiled dictionaries often contain far less in the way of analysis of meaning than a judge or jury may need to render a linguistically valid conclusion. Also, dictionaries generally disclaim any explicit authority with respect to the trademark status of the words that they list as entries (Landau 2001: 407–​408). Thus dictionaries give relatively little information about trademarks per se: even unabridged dictionaries have entries for no more than a small percentage of marks, and it is not at all surprising that, for example, neither CarMax nor CAR-​X is found in standard dictionaries. Indeed, they are coined words –​they have no ordinary dictionary meanings in and of themselves aside from their uses as trademarks. Courts seek to base likelihood of confusion on the meaning that marks will have in the minds of the ordinary persons who are likely to purchase the product or service (sometimes referred to collectively as ‘the goods’) to which the mark refers. The meaning of meaning in the legal context of trademarks includes (1) ordinary primary dictionary denotations and connotations of any component portions of the mark (morphemes ) such as car and max and x; and (2)  any specific referential association that may have developed between the goods and the source (i.e. the entity offering the goods for sale and/​or the goods themselves). The technical legal term for the latter association is sec ondary meaning , which is analogous to the linguist’s understanding of extended

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for example the extension of the meaning of signature from its older base meaning (Lexico/​Oxford University Press online dictionaries, 2019 www.lexico.com/​en/​ definition/​signature), A person’s name written in a distinctive way as a form of identification in authorizing a check or document or concluding a letter. to the additional, historically later, meaning A distinctive pattern, product, or characteristic by which someone or something can be identified, [for example,] ‘the chef produced the pâté that was his signature [dish]’. The extent of speaker knowledge of the extended meaning of a word used as a trademark is affected by various factors, including the general market reputation of the product or service, its market share, and the extent and effectiveness of its advertising –​factors that are only indirectly amenable to linguistic analysis: through what may be inferred from the use of the mark in the empirical record (publications and sound recordings). How often is the mark used in standard corpora relative to other marks of a similar nature? Is the mark used only in some dialects or among specific groups of potential consumers but not others? If secondary meaning is strong enough among the relevant sociolinguistic groups, courts will refer to the marks by the technical legal appellation famous marks . Speakers sometimes informally use exceptionally famous marks, such as Kleenex and Band-​Aid, as shorthand terms to refer to the general class of products or services (or their uses) that the owners of the mark offer to the public (i.e., Kleenex generally for paper tissues; Band-​Aid generally for small, self-​sticking bandages or metaphorically as temporary remedies for minor problems). A trademark’s connotations will depend largely on the denotations and connotations of the words or word-​like elements of which it is composed. Many marks may have homonyms that are ordinary words (e.g., Apple computers and apple ‘a type of fruit’), but for some coined marks (e.g., Exxon, Kodak) there may be no such independent connotations. CarMax and CAR-​X have component parts that themselves are ordinary words (Car), morphemes (-​X, Max) and graphemes with unique meanings (℞). These components have denotations and connotations that may influence the distinct mental images that speakers of the language will have for the marks themselves. A meaning analysis of a trademark thus begins with the dictionary definitions of the recognizable components, even if those definitions are only arbitrarily related to the enterprise that the trademark refers to. A trademark such as Caterpillar contains the recognizable word cat ‘feline mammal,’ which may remind a speaker of both a small domestic house pet as well as powerful predator animals –​panthers, leopards, lions, tigers –​although it is, of course, the latter meaning and its connotations that the owners of the mark want to associate with their heavy-​machinery products in their advertising and commercial reputation –​and the owners have even carried this forward to splitting off the form Cat and making it a famous registered trademark in its own right. In CarMax and Car-​X, car has only one pragmatically relevant meaning, ‘automobile,’ and it is found at the beginning of both marks. The consulting linguist will point out the contrasting meanings of Max and Rx as used in the respective marks as well as the similarities owing to the common element Car. As is often the case with trademarks, Max is explicitly defined in many recent standard dictionaries, though they often label it as ‘slang’ or ‘informal’ usages related to to the max, a clipped form of maximum (see, for example, 370

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the New Oxford American Dictionary (2001), s.  v. max: ‘informal a maximum amount or setting … at the most’). Understanding of the current meaning of Max as a suffix, however, is furthered by independent lexicographical research consisting of inductively examining the empirical data that a lexicographer would normally consider if a trademark-​sense entry were contemplated for a dictionary. An internet search returns the following commercial uses: • CINEMAX is the second element in the trademark of an American national pay-​ television channel. • D-​MAX Imaging Co. was the name of a desktop publishing firm in Durham, North Carolina. • OfficeMax is the name of an office supply store chain. • RE/​MAX is the name of a chain of real estate agencies. • T.J.Maxx is the name of a chain of clothing stores. • UMAX is a name of a computer-​equipment manufacturer. These parallel uses surely give rise to the connotations that consumers infer for a mark such as CarMax. As a part of a trademark or service mark, MAX conveys a strong sense that the product or service being offered to the public is au courant and superlative: CINEMAX is ‘the maximum in modern cinema’; OfficeMax offers ‘the best possible up-​to-​date office furniture and supplies.’ Similarly, CarMax suggests ‘the best and most state-​of-​the-​art place for  cars.’ The connotative meanings of the second syllable of CAR-​X are far less explicit, in part because the dictionary meanings of ‘-​X’ are so varied and difficult to relate to an automobile-​ related business. For example, in mathematics it is the unknown quantity. It marks the spot on a map. It is used to indicate a mistake or to fill in a box in a questionnaire. It may stand for Christ. In addition, the CAR-​X firm displays the ‘℞’ symbol (pronounced [ar●’ɛks]) prominently in its advertising, and ‘℞’ is the established symbol for medical prescriptions (see, e.g., the definition given in the Merriam-​Webster online dictionary [2019]: ‘doctor’s prescription; also, something resembling a doctor’s prescription in being an advisable or corrective course of action’). An internet search revealed that other businesses use ‘℞’ in this way as well, for example, ℞ Gallery and Wine Bar (San Francisco); and Score℞, a company that helps people increase their credit scores. The inductive conclusion is clear: speakers of current American English will infer that Ca℞ is intended to convey the meaning ‘car prescriptions’ –​a place where one would take an automobile for repairs with the same confidence and certainty that one would feel about a pharmacy. Such a meaning accords precisely with the nature of the CAR-​X business, which is automobile repairs and service. Otherwise, the -​X of CAR-​X contributes little to the connotative meaning because X has many semiotic functions, none of which seems particularly related to cars. This, in itself, separates the final element Max of CarMax, which has specific meaning, from the final element-​X of CAR-​X which may be interpreted as having only the quite different specific meaning when associated with the symbol ‘℞’. The assignable connotative meaning of CAR-​X, then, is demonstrably distinct from that of CarMax, despite the identity of the first element.

Ethics and outcomes It is not the job of the linguist to determine whether the scientific linguistic facts are legally compelling enough to sustain or deny the claims of the adversaries. That decision 371

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is left to the judge or jury for whom the linguistic evidence is normally only part of the evidence that is relevant to the outcome of a case. The linguistic expert’s goal must be to try to provide the court with all of the potentially relevant linguistic evidence upon which to base legal decisions. Even so, in the American system of justice, consultants are engaged by the parties, not the courts. Thus, the question of the degree to which linguistic testimony must –​and even should and can –​remain absolutely objective and nonpartisan is one that has been much debated by linguists and is not so easily resolved (Coulthard 2007, Butters 2008b; Shuy 2006; Solan 2012). On the one hand, unlike the lawyer, a consulting linguist’s reports and testimony must not merely advocate for the client’s cause; linguists are not simply the members of the ‘team’ of lawyer-​and-​client-​who-​are-​paying-​ the-​consulting-​fee. Lawyers will expect private advice as to the linguistic weaknesses as well as the strengths of the client’s case, and the courts expect the truth, nothing but the truth –​and, also, as the expert’s oath says, the whole truth. In the end, self-​serving reports and testimony not only violate the spirit if not the letter of the oath, they can also rebound to the expert’s loss of credibility and embarrassment. Although in preparing a forensic linguistic report and giving testimony a linguist is not writing for or speaking to a community of scholars, but at the behest of an advocating attorney, one must keep in mind that the client’s opponent may engage an expert to expose whatever may be glaringly omitted or speciously reasoned –​and one must also be mindful that judges and juries are not easily duped. In Circuit City, I testified with a good deal of professional confidence that ordinary consumers would on the whole not be likely to confuse CarMax and CAR-​X, if one considered only the linguistic grounds –​that, for recognition and memory, the combination of phonological, visual and semantic differences would greatly outweigh the similarities. The judge who decided the case heard the testimony of both sides but then dismissed the case because of legal issues having nothing to do with whether the sight, sound and meaning of the marks would create a sufficient degree of confusion among customers to deny CarMax the right to own its mark. The judge noted that a pragmatic factor served to distinguish the two: CarMax sells automobiles; CARx services them. Circuit City was allowed to keep using its CarMax mark.

Strength of mark Definitions Whether a trademark is deemed weak or strong depends on where its meaning is deemed to fall along a continuum of categories, (1)  generic , (2)  descriptive , (3)  suggestive , (4) fanciful and (5) arbitrary , where (1) is the weakest and (4) and (5) are the strongest. Marks that fall into categories (3)–​(5) generally are strongly protected from use by competitors. fanciful marks are coined words made up from what is at best only reminiscent of morpheme-​like material –​Kodak, for example, or Verizon. arbitrary marks are established words that have no discernable meaning relationship to the enterprises they name (Apple, for example, ordinarily denotes a kind of fruit, but as a trademark for a brand of computers it has nothing to do with fruit). Thus, fanciful and arbitrary marks have neither a denotative nor a strongly connotative relationship with the products or services to which they refer. S uggestive marks do not literally denote the products or services offered to the public, but they nonetheless connote some aspect of the enterprises they refer to. For 372

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example, the trademark Beanie Baby, a soft, plush, pellet-​filled doll, may bring to mind ‘doll’ (from Baby), ‘small’ (from the diminutive ‘-​y’ ending), and ‘pellet-​filled’ (Beanie). Such associations are thought to be a help to the memory of consumers in mentally keeping the brand apart from others. Suggestive marks also frequently create positive associations, as in the names of many sports teams:  the Minnesota professional football team is not literally composed of Vikings, but Vikings are legendary for fierceness in battle, and Minnesota is popularly thought to be the home of the descendants of many Scandinavians. The connotations of the Cat of Caterpillar relate obliquely to the heavy-​ machinery products that the mark names. Even though some cats are small felines that are ‘comfort’ pets, cat also applies to lions, tigers, leopards and other large, predatory felines, and it is the characteristics of these powerful beasts that are most appropriately conveyed by the association of the mark with the product. Even the ‘pet’ connotations may have associative meaning –​as if users of the equipment will be as fond of the product as owners of domestic cats are fond of their pet animals. descriptive marks merely denote some major aspect of the product or service being offered to the public, and may be turned down for official registration by the USPTO if the descriptive nature seems too severe. For example, Ham and Eggs could very well be considered a descriptive term for a restaurant specializing in breakfast and brunch. The Car of CarMax and CAR-​X would be considered a descriptive (or GENERIC) element  –​and, because laudatory terms (e.g., pure and tasty applied to food) are also, by law, considered descriptive, the Max of CarMax could be argued to be a descriptive element as well. However, when two descriptive morphemes are fused into one trademark, the product is less likely to be judged as unregisterably descriptive. GENERIC marks are descriptive marks that are so weak that by definition they cannot be trademarks at all for the entities that they denote. Landau (2001: 406) defines gen eric , as it applies both to lexicography and his understanding of the law, as, ‘an ordinary … term, not for the brand of a thing but for the kind of thing itself.’ Examples of generic terms (at least in the U.S.) are aspirin, automobile, theme park, even (as applied to fruit) apple –​they denote the product or service itself and not the brand name. Thus drug store is generic, Walgreens is not generic; theme park is generic, Universal Studios is not; automobile is generic, Chevrolet is not –​and car would also be generic if used by itself as the would-​be trademark for an automobile (Renault marketed an automobile as ‘Le Car’ in the United States in the 1980s, but it was never registered as a U.S. trademark). The rationale for the refusal to give protectable status to generic and descriptive marks is the good of both the provider of goods and services and the general public: if merchandisers were allowed to own such terms, then there would be little or even no straightforward way for their competitors to refer to their own products. This would give the owners of the generic and descriptive mark an unfair advantage in the marketplace, and it would also be confusing to the purchasing public, who rely on trademarks as a reliable indicator of source. Descriptive marks can only be legitimate trademarks if it can be demonstrated that they have acquired significant secondary meaning , that is, that the mark is in no small measure famous (see suggestive marks, below).

Challenging putatively weak marks Which category a mark falls into is often the subject of litigation, and linguists are frequently engaged to write reports and give testimony in such cases. Solan and Tiersma (2005: 248 n.42) note 373

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[M]‌orphology can be a helpful tool in trademark disputes. … [Strength of mark] issues are obviously linguistic questions, and courts deciding trademark cases usually allow linguistic expertise to be taken into consideration. The type of linguistic expertise required is much more a matter of practical applied linguistics than theoretical morphology. The forensic linguist is not reanalyzing medieval Celtic verb structure according to the latest redaction of theoretical syntax. Rather, forensic linguists use the methodology of lexicography to consider objective, empirical data to focus intensely and in depth upon the meaning of one or more of the morphemes that make up a mark. They: 1. access a relevant and representative body of data; 2. examine the data inductively so as to form conclusions about the meanings of the words in the minds of the persons who created the data. In strength-​of-​mark litigation, (1) an applicant for the registration of a mark challenges a TTAB denial of registration; or (2) a junior mark’s owner defends against a senior mark’s trademark-​infringement lawsuit on the grounds that the senior mark is either (1) descriptive without secondary meaning or (2) generic. I wrote a report in Steak ’n Shake v. Burger King (2004) in which the plaintiffs, a chain of fast-​food restaurants, had long marketed a type of sandwich that they called a Steakburger. Steak ’n Shake apparently never attempted to register the trademark, but they were able to claim de facto (common law ) trademark rights on the basis of secondary meaning because of their long continued, and allegedly exclusive, use of Steakburger as a trademark. When Burger King began also using Steakburger in advertising a new sandwich that they marketed in their fast-​food chain, they were almost surely aware of Steak ’n Shake’s use. However, when Steak ’n Shake brought an infringement suit against Burger King, their attorneys successfully defended their client’s use of the term by asserting that steakburger is a generic term for ‘burger sandwich made from steak.’ Therefore, steakburger could not be a valid trademark for a sandwich made from beef. Attorneys for Steak ’n Shake countered that their Steakburger is suggestive, or at weakest a famous descriptive mark (having significant secondary meaning). In analyzing steakburger, I  followed the established practice of consulting reputable dictionaries and employing standard lexicographical methodology. In addition, I surveyed the scholarly literature concerning the word hamburger –​literature that itself makes use of, and influences, the lexicographical methodology. The earliest dictionary record of the word steakburger that I found was that of the 1961 publication of the second edition of Webster’s New Twentieth Century Dictionary of the English Language, Unabridged, 2d edn (Publisher’s Guild, Inc./​World): burger [from hamburger] a combining form meaning sandwich of ground meat (and), as in steakburger, cheeseburger, etc. [Slang.] A similar definition is found in the Shorter Oxford Dictionary on Historical Principles, 5th edn, 2002: steak … Comb. & phrases: steakburger a beefburger made of minced steak 374

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These are important because both definitions describe exactly the sandwich that Steak ’n Shake calls its Steakburger, but without any reference to source: it is a kind of thing, rather than the name of a kind of thing. Moreover, the definitions span a 40-​year period, demonstrating a continuity of usage that indicates that the generic status of steakburger has been firmly established for some time. In addition, the 1961 definition treats steakburger as not only generic, but exemplary of an entire class of ground-​meat sandwiches using the suffix -​burger, of which steakburger is but one of many. The lexicographical record is clarified further by the specialized lexicographical literature. Pound (1938: 157) wrote, ‘The ending of “hamburger” is having good success irradiating itself. Cheeseburgers, made of ham [sic] and cheese, and chickenburgers may now be had in many dining places as well as at highway stands.’ A year later, Williams (1939:  154) cited the following burger words that he had recorded in ‘a notebook kept on travels about the country’:  chickenburger, cheeseburger, clamburger, lamburger, rabbitburger, nutburger, porkburger, Wimpyburger, goonburger and demonburger. A multitude of other examples can be cited from scholarly literature and from more specialized dictionaries in which the morpheme -​burger appears and is always used in a totally generic way. The meaning of the compounds is assumed to be transparent from the denotative component parts. Source is never identified. Another source of lexicological evidence that the courts find persuasive in genericness cases is that of third-​party use –​cases in which the senior mark is clearly used generically by competitors and the public at large. A search of newspapers, magazines and the internet from the 1930s onwards found an abundance of examples in which steakburger was used to denote a kind of sandwich, without any indication that the users intended to use it in exclusive reference to their own particular brand. Such evidence overwhelmingly indicates that steakburger is generic, and, even if it did not, there could scarcely be secondary meaning if the only source of identification of steakburger and Steak ’n Shake is Steak ’n Shake’s own advertising. Moreover, Steak ’n Shake’s claims of historic exclusive use (and original coinage) disappeared in the face of the linguistic record. In the trial, in which I  participated, Burger King prevailed. The judge declared steakburger to be legally generic as a name for sandwiches and indicated agreement that the linguistic history demonstrated that it was generic from the beginning. Interestingly, at least in the United States, Burger King’s marketing strategy seems to have shifted away from use of the steakburger entirely, and Steak ’n Shake continues to use the motto ‘Famous for Steakburgers’ on their company logo, even if they are unable to register the brand because of its apparent genericness.

Genericide According to the lexical record, Steakburger has always been a generic term for a kind of sandwich made of beefsteak; if no litigation had taken place before Burger King, it was because nobody ever chose to use the term in a way that any sandwich maker found threatening enough to pursue in court. Steakburger is thus an example of what is termed ab initio genericism. A different kind of genericness case arises when a mark may have at one time been strong, but has been a victim of its own success, becoming generic over a period of time. Many trademarks have gone this route (sometimes referred to as genericide ): aspirin, escalator and trampoline, for example (at least in the United States). When speakers sometimes use Xerox to refer in general to photocopies, photocopying machines and the general process of photocopying, without regard to whether 375

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they are actually referring to products manufactured by the Xerox firm, they are using the brand name as if it were generic. If the general population of photocopy product users ever comes to believe that Xerox is not a brand name, then Xerox will likewise lose its right to its own brand. Similarly, Hoover as a term associated with vacuum cleaners is recognized primarily as a viable trademark in the United States, but in the U.K. it has become genericized to the extent that, in common speech at least, it is often used as a verb for the process of using a vacuum cleaner (see, e.g., the current Oxford Learner’s Dictionary: The US and Canada usually hoover up most of the gold medals). The law makes a distinction between the commercial meanings that typical consumers actually attach to a trademark and the shorthand (or, to borrow a somewhat technical literary term, synecdochical ) uses that a consumer may make of that trademark. A trademark linguist may need to tease out from the data whether a trademark has truly undergone legal genericide or if it is merely exhibiting symptoms of synecdochical use (as do Kleenex, Band-​Aid, Frisbee and other hyper-​famous trademarks).

The function of trademarks in modern society: uses and abuses of linguistics Although the ideal of ‘freedom of speech’ is thought of as a fundamental right, all societies impose penalties for a variety of civil and criminal verbal acts such as: defamation, obscenity, sexual harassment, perjury, forgery, extortion, illegal solicitation, inciting a riot, offering or accepting a bribe, treasonously repeating state secrets, threatening another with harm to life or property. Even so, some people view the existence of proprietary interest in language as an insult to free-​speech rights and take exception to laws that allow persons to ‘own’ words, phrases and logos –​even for the limited purpose of brand identification. For example, the media were amusedly sardonic when reporting that a Canadian teenager, Michael Rowe, had received warnings that he must stop using the web address www.MikeRoweSoft.com, which he had registered as a domain name, because it supposedly infringed the proprietary rights of the Microsoft Corporation (Sieberg 2004). Not wishing to seem like greedy bullies, Microsoft reportedly tempered its initial demands after Rowe’s situation was widely publicized, offering Rowe ‘an Xbox with some games,’ which he reportedly accepted (Kotadia 2004). Clankie summarizes this highly negative concept of trademarks: That a common language expression can be withdrawn from use for no other purpose than financial profit is, in my opinion, a far more criminal action than is another company actually, using it in violation of the law. (Clankie 2002: 160) Clankie’s extreme condemnation too easily reduces trademark ownership to naked capitalist avarice, failing to consider that a trademark worth fighting over may well be as much a focus of ‘financial profit’ for the infringer as it is for the infringed-​upon. The simplistic view that trademarks are a ‘criminal’ insult to free speech ignores positive and important values of brand identification in modern society. Historically, trademarks originally became the object of legal protection in large part to shield honest businesses from unfair competition. If an upstart competitor were allowed to use an established respected brand name, the upstarts would appropriate for free the valuable reputation of the senior mark’s owners. The senior owner would have no control over the quality of the upstart’s 376

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product; inferior items sold by an upstart under the senior name would harm the reputation of the senior name owner and even facilitate an infringer’s lower pricing. Moreover, reliable brand names are useful to consumers, who employ the reputation of established marks when making choices between competing products and services. Misgivings about proprietary language are voiced as well by forensic linguists and legal scholars in more sophisticated critiques of the potential free-​speech implications of trademark law. Referring to a famous case (McDonald’s Corporation v. Quality Inns, International, Inc. (1988)) in which he testified for the defendants (wherein a world-​famous restaurant chain prevented another large company from using McSleep as a hotel trademark), an eminent forensic linguist writes, ‘one can still wonder why it is that the expenditure of money can determine who can have ownership of a word, much less a prefix [Mc]’ (Shuy 2002: 109); ‘expenditure of money’ refers to advertising outlays used to create in the public mind a linguistically arbitrary association between a single bound morpheme, Mc-​, and the goods offered for sale in fast-​food restaurants. One answer to Shuy’s rhetorical question may simply be that there seems little social benefit in creating a system that would make it easier for one megacompany (Quality Inns) to use a morpheme that another megacompany (McDonald’s) has long used as a product identifier. Moreover, altering the rules that currently govern trademarks and advertising would surely have disruptive effects that Shuy does not consider. But Shuy (2002: 2) also has in mind a more profound, related, challenge, one that is not totally unrelated to Mike Rowe’s encounter with Microsoft. Elsewhere, Shuy points out the danger to free speech that arises when trademark litigation (or even the threat of it) is used as a means of asserting ‘authority over what can be said or written, and [what can] not’ –​a form of censorship. For example, dictionary writers have long struggled with trademark lawyers’ threats of lawsuits: Some trademark owners are hostile to any inclusion of trademarks in a dictionary, [demanding that trademarks be] … entered in capitalized form and identified as trademarks. … Almost all trademark owners are concerned to have their trademarks identified [in dictionaries] as trademarks, and lawyers often try to specify to lexicographers the exact form which they find acceptable. … Trademark owners or their lawyers [make] … importunate demands, even threats [of legal action]. … The dictionary editor must do battle to include any [registered] trademarks, and he is under great pressure to distort the facts of usage. (Landau 2001: 406–​408) The lawyers are merely trying to protect their clients’ trademarks, but in so doing they may inadvertently be agents of censorship of the honest, professional work of lexicographers (or journalists, who may also sometimes be the recipients of similar warnings from attorneys). Of course, it is unlikely that dictionary makers could actually be sued for freely using a word in a way that a trademark owner might dislike (Richardson 2004: online 12). For example, as early as 2003 the McDonald’s Corporation announced their objection to the Merriam-​Webster Dictionary’s new entry, McJob, which was defined –​on the basis of actual usage –​as ‘a low-​paying job that requires little skill and provides little opportunity for advancement’ (BBC News 2003; Merriam-​Webster Online Dictionary 2009). Similar pressure was brought to bear in the U.K.  in 2007, when the Oxford English Dictionary added a similar definition (BBC News 2007). McJob is not actually a trademark of 377

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McDonald’s Corporation, but, as we have seen above, McDonald’s were victorious in asserting proprietary trademark rights in the USA to the Mc-​morpheme. Even so, despite McDonald’s effort to change the lexicographer’s conclusions about the public’s perception of the connotations of McJob (but no actual lawsuits for trademark infringement or dilution), the dictionary definitions remain today exactly as they were in 2003 and 2007 (see Oxford Dictionary Online 2020). Still, legal pressure has without question functioned as a kind of de facto censorship based on trademark law, as Landau attests. Citing Shuy’s censorship warnings, Richardson notes cases where trademark owners brought suit merely because they [are] unready to allow uses of their trademarks that they believe could reflect badly on them, or are controversial, or lie too far outside the scope of their activities, no matter their overall social value (and including cases where those who wish to use will pay). (Richardson 2004: online 11, 27) For example, the Star Wars mark owners sued to prevent its use in a critique of government military policies, claiming ‘trademark infringement, unfair competition, misappropriation, [and] disparagement’ (Lucasfilm, Ltd v. High Frontier 622 F Supp 931 [1985]). The case was dismissed, but, as Richardson notes, even if ‘plaintiffs generally fail in legal terms, the worry is [that] their ability to threaten will be enough to stop the practice’ –​the expense of defending one’s linguistic usage in court ‘raises the spectra of unfree speech in a society that generally values free speech and may even provide for it in its Constitution,’ a point that Shuy makes as well (2002: 13–​14). Moreover, such legal pressures do not always fail. Pullum (2004a, 2004b, 2004c) comments on how dilution litigation can restrain the use of trademarks for small businesses (a threat from the giant Lexus-​Nexus caused a small linguistics start-​up to drop the use of their chosen brand name, Lexeme). Richardson also reports on MGM-​Pathe Communications Co v. The Pink Panther Patrol 774 F Supp 869 (1991), wherein a public safety campaign mounted by a gay community organization was forced to changed its name (identical to that of a famous MGM-​owned movie) because the court held [it] too likely [to] confuse the public about possible sponsorship (which the First Amendment would not exempt) irrespective of the defendant’s political motives and the absence of evidence of actual confusion. The problem of the rich using their wealth to manipulate the legal system to censor or otherwise bully the poor is characteristic of a wide variety of types of civil case, not just trademark litigation. Even so, the forensic linguist has a citizen’s right to be concerned about such issues and even propose changes in the law (though Landau, Pullum, Shuy and Richardson do not), and the discussion of these and other ethical issues is certainly a proper subject for trademark linguistic theory. As for individual cases, as Shuy points out in a different book (2006: 123), ‘working on a case does not mean that you have to agree with or support the accusations or positions of the clients on either side’—​and, furthermore, forensic linguists are free to ‘avoid such cases’ as their ‘own moral reasons’ may dictate, on the rare occasions where one is asked to use one’s forensic linguistic expertise on behalf of a cause that one disapproves of.

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Further reading The foundational work on trademark forensic linguistics remains R. Shuy’s 2002 book, Linguistic Battles in Trademark Disputes (see also the ‘Trademarks’ chapter in his 2008 Fighting Over Words:  Language and Civil Law Cases). Landau’s 2001 book Dictionaries:  The Art and Craft of Lexicography (2nd edn) offers invaluable insights into lexicographical methodology and practice. Clankie’s book presents a useful list of genericized (and pseudo-​genericized) brand names. For specific discussion of genericness issues, see R.  Butters and J.  Westerhaus, ‘Linguistic change in words one owns: How trademarks become “generic” ’ (2004). Concerning dilution, see R. Butters, ‘A Linguistic Look at Trademark Dilution’ (2008a).

Legal sources 15 USC 1052, [1947] Trademarks Registrable on the Principal Register; Concurrent Registration www.bitlaw.com/​source/​15usc/​1052.html. Circuit City Stores, Inc. v.  Speedy Car-​X, Inc., 35 U.S.P.Q.2d 1703 (E.D. Va. 1995) https://​cases. justia.com/​federal/​district-​courts/​virginia/​vaedce/​3:2007cv00342/​218469/​14/​1.pdf (accessed 28 September 2007). Eastern Air Lines, Inc. v. New York Air Lines, Inc., 559 F. Supp. 1270 (S.D.N.Y. 1983). Iancu, Under Secretary of Commerce for Intellectual Property And Director, Patent and Trademark Office v. Brunetti, Certiorari To The United States Court Of Appeals For The Federal Circuit No. 18–​302 (USSC 2019). Lucasfilm, Ltd v. High Frontier, 622 F Supp 931 (1985). McDonald’s Corporation v. Quality Inns, International, Inc., 695 F. Supp. 198, 215–​16 (D. Md. 1988). MGM-​Pathe Communications Co v. The Pink Panther Patrol, 774 F Supp 869 (1991). Starbucks Corp. v. Wolfe’s Borough Coffee, Inc., 477 F.3d 765, 81 U.S.P.Q.2d 1927 (2d Cir. 2007). Steak ’n Shake Co. v. Burger King Corp., 323 F. Supp 2d 983, 985 (E.D. Mo. 2004). Matal, Interim Director, United States Patent and Trademark Office v. Tam, Certiorari to the United States Court of Appeals for the Federal Circuit No. 15–​129 (USSC 2017).

References Adams, M. (2005) ‘Property rights:  Trademarks and American dictionaries’, Verbatim:  The Language Quarterly, 30: 1–​8. Adams, M. and Westerhaus, J. (2005) ‘Surnames and American trademark law’, Names: A Journal of Onomastics, 53: 259–​273. Ainsworth, J. (2006) ‘Linguistics as a knowledge domain in the law’, Drake Law Review, 54: 651–​669. Bailey, R. (1984) ‘Dictionaries and proprietary names: The Air-​Shuttle case’, Dictionaries,  53–​65. Baron, D. (1989) ‘Word law’, Verbatim, 16: 1–​4. BBC News (2003) ‘McDonald’s anger over McJob entry’, BBC News Online, 9 November http://​ news.bbc.co.uk/​2/​hi/​americas/​3255883.stm (accessed 23 March 2009). —​—​—​(2007) ‘McDonald’s seeks ‘McJob’ rewrite’, BBC News Online, 20 March http://​news.bbc. co.uk/​2/​hi/​business/​6469707.stm (accessed 23 March 2009). Butters, R. (2007a) ‘Changing linguistic issues in US trademark litigation’, in M. Turell, M. Spassova and J. Cicres (eds), Proceedings of the Second European IAFL Conference on Forensic Linguistics/​ Language and the Law, Barcelona:  Institut Universitari de Lingüística Aplicada, Universitat Pompeu Fabra, 29–​42. —​—​—​(2007b) ‘Sociolinguistic variation and the law’, in R. Bayley and C. Lucas (eds), Sociolinguistic Variation: Theories, Methods and Applications, New York: Cambridge University Press, 318–​337. —​—​—​(2008a) ‘A linguistic look at trademark dilution’, Santa Clara Computer & High Technology Law Journal, 24: 101–​113. —​—​—​(2008b) ‘Review of Shuy (2006)’, Language in Society, 3(2): 300–​304. —​—​—​(2012a) ‘Imaginative leaps in trademark law’, in S. Tomblin et  al. (eds), Proceedings of The International Association of Forensic Linguists’ 10th Biennial Conference, Aston University, 379

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Birmingham, UK, July 2011, 283–​289 www.forensiclinguistics.net/​iafl-​10-​proceedings.pdf (accessed 14 November 2012). —​—​—​(2012b) ‘Forensic linguistics: Linguistic analysis of disputed meanings: trademarks’, in C. Chapelle (ed.), The Encyclopedia of Applied Linguistics, Oxford, UK:  Wiley-​Blackwell http://​ onlinelibrary.wiley.com/​doi/​10.1002/​9781405198431.wbeal0114/​full (accessed 21 July 2013). —​—​—​(2015) ‘Using lexicographical methodology in trademark litigation: Analyzing similatives,’ Dictionaries: The Journal of the Dictionary Society of North America, 36: 115–​130. —​—​—​(2017) ‘Killer tomatoes’, Conference Paper, Dictionary Society of North America, University of the West Indies, Barbados, 11 June 2017. Butters, R. and Westerhaus, J. (2004) ‘Linguistic change in words one owns:  How trademarks become “generic”’, in A. Curzan and K. Emmons (eds), Studies in the History of the English Language II, Berlin/​New York: Mouton de Gruyter, 111–​123. Clankie, S. (2002) Theory of Genericization on Brand Name Change, Studies in Onomastics, 6, Lewiston, New York: Edwin Mellen. Coulthard, M. (2007) ‘In my opinion’, in M. Turell, M. Spassova and J. Cicres (eds), Proceedings of the Second European IAFL Conference on Forensic Linguistics/​ Language and the Law, Barcelona: Institut Universitari de Lingüística Aplicada, Universitat Pompeu Fabra, 43–​56. Creech, R. (2005) Law and Language in the European Community: The Paradox of a Babel ‘United in Diversity’, Groningen: Europa Law Publishing. —​—​—​(2007) ‘Missing the mark: Assessing trademarks for distinctiveness and descriptiveness in Europe’s multilingual environment’, in K. Kredens and S. Goźdź-​Roszkowski (eds), Language and the Law: International Outlooks, Frankfurt am Main: Peter Lang, 371–​378. Cutler, A. (1982) ‘Guest editorial: The reliability of speech error data’, in A. Cutler (ed.), Slips of the Tongue and Language Production, The Hague: Mouton, 7–​28. Dinwoodie, G.B. (2008) ‘What linguistics can do for trademark law’, in L. Bently, J. Davis and J. Ginsburg (eds), Trade Marks and Brands: An Interdisciplinary Critique, Cambridge Intellectual Property and Information Law, 10, Cambridge: Cambridge University Press, 140–​158. Durant, A. (2008) ‘ “How can I  tell the trade mark on a piece of gingerbread from all the other marks on it?” Naming and meaning in verbal trade mark signs’, in L. Bently, J. Davis and J. Ginsburg (eds), Trade Marks and Brands: An Interdisciplinary Critique, New York: Cambridge University Press, 140–157. Eades, D. (1994) ‘Forensic linguistics in Australia:  An overview’, Forensic Linguistics:  The International Journal of Speech, Language, and the Law, 1(2): 113–​132. Heffer, C. (2008) ‘Report of Dr.  Christopher Heffer Dated 28 August 2008 [in re Bambino Mio Limited, Claimant and Cazitex N.V., Defendant’, unpublished manuscript. Hotta, S. (2007) ‘Morphosyntactic structure of Japanese trademarks and their distinctiveness:  A new model for linguistic analysis of trademarks’, in K. Kredens and S. Goźdź-​Roszkowski (eds), Language and the Law: International Outlooks, Frankfurt am Main: Peter Lang, 379–​392. Hotta, S. and Fujita, M. (2007) ‘The psycholinguistic foundation of trademarks: An experimental study’, in M. Turell, M. Spassova and J. Cicres (eds), Proceedings of the Second European IAFL Conference on Forensic Linguistics/​Language and the Law, Barcelona:  Institut Universitari de Lingüística Aplicada, Universitat Pompeu Fabra, 173–​178. Kniffka, H. (2007) Working in Language and Law:  A German Perspective, Basingstoke:  Palgrave MacMillan. Kotadia, M. (2004) ‘MikeRoweSoft Settles for an Xbox.’ c|netNews.Com, 26 January http://​news. com.com/​2100-​1014_​3-​5147374.html (accessed December 2008). Landau, S. (2001) Dictionaries: The Art and Craft of Lexicography, 2nd edn, Cambridge: Cambridge University Press. Lentine, G and Shuy, R. (1990) ‘Mc-​: Meaning in the marketplace’, American Speech, 65: 349–​366. McDavid, R. (1977) ‘Evidence’, in D. Shore and C. Hines (eds), Papers in Language Variation: SAMLA-​ ADS Collection, University of Alabama Press, 125–​132. Merriam-​ Webster Online Dictionary (2009) ‘McJob’, Merriam-​ Webster Online www.merriam-​ webster.com/​dictionary/​McJob (accessed 23 March 2009). New Oxford American Dictionary (2001) Oxford: Oxford University Press. Nunberg, G. (2001) ‘That’s correct’, California Lawyer, July www-​csli.stanford.edu/​~nunberg/​ CLRedskins.pdf (accessed December 2008).

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Okawara, M. (2006) Linguistic Analysis of Some Japanese Trademark Cases, unpublished doctoral thesis, University of Sydney. Olsson, J. (2008) ‘Statement of Witness: Report into allegations of intellectual property infringement with respect to the Internet domain name www.oraclecontractors.com’, unpublished manuscript. Oxford Dictionary Online (2020) www-​oed-​ com.proxy.lib.duke.edu/​view/​Entry/​245114?redirectedFr om=McJob#eid (accessed 20 July 2020). Oyandel, M. and Samaniego, J. (2004) ‘[Report written for the court’s consideration in a likelihood-​ of-​confusion case in 2005 involving rival trademarks Paltomiel and Palto con Miel]’, Republica de Chile, Tribunal de Defensa de la Libre Competencia, Sentencia Nº 24/​2005, p4 http://​mail.fne.cl/​ db/​tabla.nsf/​f34cb3b7c2bb5deb8425733e005faa18/​4a2b5134307725af0425705a0052ecfe/​$FILE/ ​ Sentencia-​24–​2005.pdf (accessed December 2008). Pound, L. (1938) ‘Jottings’, American Speech, 13: 157–​158. Pullum, G. (2004a) ‘Don’t say “lexeme” or we’ll break your legs’, Language Log, 21 March http://​ 158.130.17.5/​~myl/​languagelog/​archives/​000618.html (accessed January 2008). —​—​—​(2004b) ‘It wasn’t Lexus, it was Lexis!’, Language Log, 24 March http://​158.130.17.5/​~myl/​ languagelog/​archives/​000632.html (accessed January 2008). —​—​—​(2004c) ‘Database company to Toyota: Rename that automobile!’, Language Log, 8 April http://​itre.cis.upenn.edu/​~myl/​languagelog/​archives/​000728.html (accessed January 2008). Richardson, M. (2004) ‘Trade marks and language’, Sydney Law Review, 9:  193ff. www.austlii. edu.au/​cgi-​bin/​sinodisp/​au/​journals/​SydLRev/​2004/​9.html?query=%22Trade%20Mark%22%20 AND%20linguist (accessed December 2008). Sanderson, P. (2007) ‘Linguistic analysis of competing trademarks’, Language Matters, 38: 132–​149. Sieberg, D. (2004) ‘Microsoft takes on teen’s site MikeRoweSoft.com’, CNN News, 20 January http://​ edition.cnn.com/​2004/​TECH/​internet/​01/​20/​rowe.fight/​index.html (accessed 25 August 2009). Shuy, R. (2002) Linguistic Battles in Trademark Disputes, Basingstoke: Palgrave. —​—​—​ (2006) Linguistics in the Courtroom, Oxford: Oxford University Press. —​—​—​(2008) ‘Trademarks’, in R. Shuy, Fighting Over Words:  Language and Civil Law Cases, Oxford: Oxford University Press, 167–​212. Solan, L. (2012) ‘Intuition versus algorithm: The case of forensic authorship attribution’, Journal of Law and Policy, 21:  551–​ 576 h3p://​ brooklynworks.brooklaw.edu/​ faculty (accessed 20 February 2013). Solan, L. and Tiersma, P. (2005) Speaking of Crime: The Language of Criminal Justice, Chicago Series in Law and Society, Chicago: University of Chicago Press. Tamony, P. (1986) ‘Coca-​ Cola:  The most-​ lawed name’, in K. Harder (ed.), Names and Their Varieties:  A Collection of Essays on Onamastics, American Name Society/​University Press of America, 197–​202. Williams, A. (1939) ‘Hamburger progeny’, American Speech, 14(2): 154.

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24 Speaker profiling and forensic voice comparison The auditory-​acoustic approach Michael Jessen

Introduction Speaker profiling and forensic voice comparison are tasks within the field that is known by the names Forensic Phonetics and Acoustics, Forensic Speech and Audio Analysis or Forensic Speech Science. Two further important tasks within that field that are represented by chapters in this volume are forensic transcription and automatic speaker recognition. The latter is closely related to the content of this chapter because both cover forensic voice comparison; the difference lies in the approach with which the voice comparison task is addressed. Speaker profiling and forensic voice comparison apply if there exists at least an audio recording of an unknown speaker, i.e. the offender, in situations such as kidnapping, stalking or drug dealing. The existence of an audio recording of the unknown speaker allows for a profile of that speaker. Speaker profiles are usually requested by the police in an ongoing investigation for the purpose of finding a suspect. Useful information for that purpose includes age, sex, region, social status and foreign-​language background. In the same situation in which a speaker profile is requested, it is also possible to present audio samples of the unknown speaker to the general public, using mass media such as TV, radio or the internet. This is only implemented rarely because the subsequent expert work required to evaluate all the responses from the public (including conducting many subsequent voice comparisons) can be substantial. If in addition to the unknown-​speaker material there is also recorded material from a suspect, it is possible to conduct a forensic voice comparison (also known as forensic speaker comparison) and use it as evidence in court. The question the court is interested in is whether the individual in the recording of the unknown speaker is the same as the recorded suspect or whether it is someone else. The task of the forensic expert is to provide evidence relevant to this question. There are several approaches upon which forensic voice comparison can be based. Although international practice can differ widely in terms of the approaches that are 382

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preferred (Gold and French 2011, 2019; Morrison et al. 2016), there are two approaches in particular that figure very prominently in forensic practice. The first one is the auditory-​ acoustic approach, and this is the approach addressed in this chapter. The second one is automatic speaker recognition, which is addressed in Chapter 25 by Watt and Brown, this volume. Speaker profiling does not have such a variety of approaches. It is most commonly based on methods derived from auditory phonetics and linguistics. However, there is no reason why acoustic-​phonetic analysis should be excluded (see Jessen 2007 for discussion). Even automatic recognition methods, such as automatic dialect analysis, have become more effective over the years. Hence, the auditory-​acoustic approach mentioned in the title of this chapter is applicable not only to forensic voice comparison, but also to speaker profiling. This point will be emphasized again in the conclusion.

Speaker profiling Within the domain of speaker profiling it is useful to distinguish between the task of speaker classification and the task of identifying salient speaker characteristics that can be understood in lay terms. Speaker classification (Jessen 2007) can be understood as the task of inferring from speech evidence the ‘class’ or ‘category’ to which a speaker belongs. One reason why speaker classification is useful in an ongoing police investigation is because the information that is derived about the unknown speaker from the forensic expert might be used by the police in the form of searching records from local registration offices or related sources. For example, age, sex, body height, place of birth and current residence (the latter two of which often, but not necessarily, correspond to patterns of regional or foreign accent) are characteristics that are commonly available from identity documents. Further information on social factors such as education, occupation or religion might be available from other records. A speech sample might also contain other features that are striking and noteworthy speaker characteristics that might be noticed and described by a layperson although these features are not connected to speaker classification. For example, a voice might be very high-​or low-​pitched, the speaker might speak in a very fast or slow manner or in a very careful or sloppy manner; there might be a creaky, breathy, harsh or nasal voice quality and so forth. When descriptions like these are made available to a wider public in the form of a profile (along with speaker classificatory features, which are also informative), it is possible that members of the public or police officers from other local units will recall a person who fits this description. Therefore, the speaker-​profiling task should not be limited to speaker classification but should also be performed with a view to eliciting speech features that are striking from a layperson’s perspective. Another task that can become relevant in speaker profiling, but also in forensic voice comparison, is to draw conclusions about transitory speaker states, such as stress and emotion or the intake of drugs or alcohol. The authorities requesting speaker profiling might also be interested in further information that can be inferred from the submitted recording and that is not about speaker recognition. These could be sounds in the environment that can help determine when and where the recorded event took place. An important terminological point that emerges from this discussion and that will recur in the section on forensic voice comparison is the distinction between speaker classification characteristics and speaker-​specific characteristics. The properties that are used 383

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for speaker classification are characteristics of speakers that are definable and observable by means unrelated to language and speech patterns and their immediate anatomical/​ physiological causes. For example, there are means of determining the age, sex or residence during childhood of a person other than by referring to her/​his speech patterns. Speaker-​specific characteristics, such as a high-​pitched voice or a fast speech rate, carry individualizing information but do not point towards externally defined and observable characteristics. Another way to express this dichotomy is by using the terms ‘group-​level characteristics’ and ‘individual-​level characteristics’ proposed by Hughes and Rhodes (2018). For these authors, the former term addresses regional and social groups. This mostly corresponds to the speaker classification concept that is used here. However, body height, which will be discussed below, would be a classificatory but not a group-​level category –​except for rare circumstances, people do not form social groups or cluster regionally based on body height. The remainder of this section provides an overview of the speaker classification characteristics body height, age, sex/​gender and very briefly mentions sociolect, regiolect (dialect), foreign accent/​ethnolect and language. There is a certain correlation between body height and anatomical characteristics of the vocal tract, in particular the length of the vocal tract (distance from larynx to lips). Vocal tract characteristics, in turn, can be captured by measuring formant frequencies or by processing with cepstral coefficients (Rose 2002), which are commonly used in automatic speech or speaker recognition. The correlation between body height and acoustic vocal tract correlates is limited, which is why no accurate estimate of body height from acoustics is so far possible and why body height is not a regular part of most speaker profiling activities. However, research on the topic has improved over the years so that body height can to a certain extent be predicted from speech acoustics. What can be said, for example, is that a speaker with very low formant frequencies is likely not to be a short person and someone with very high formants is likely not to be tall (Greisbach 1999). This pattern is confirmed by research on German at the author’s laboratory (the language and audio unit of Bundeskriminalamt, BKA), as illustrated by Jessen’s (2010) chapter in the previous edition of this Handbook, and by scatterplots of data with negative correlation between body height and formants, shown in a study of 112 speakers of Chinese (Cao et al. 2014). Cao et al. report Pearson negative correlations up to about -​0.55 depending on which formants are measured for which vowels and whether the formants are summed, subtracted or taken individually. Hansen et al. (2015) propose a method involving formant frequencies and cepstral coefficients and their combination (called fusion). They report that the error between acoustically predicted and actual height was on average 4.89 cm for male and 4.55 cm for female speakers (see Jessen 2007 and the cited studies for more literature on the height-​acoustics relation). Turning to the domain of age, most of the criminal offenders in casework at the BKA are male and between 20 and 40 years old, sometimes up to 50 but rarely beyond. However, most of the changes in speech patterns occur below and above that age range, i.e. in childhood and puberty as well as in the transition into old age. These are also the age ranges for which most of the research has been done, whereas much less information is available for the forensically most relevant range. Most information is available about the influence of age on fundamental frequency level (f0). For male adults there is a decrease in f0 up to about the age of 40, then from about 50 an increase that becomes most prominent at advanced age between 70 and 80 years. For female adults, some studies show a gradual decrease from young adulthood up to about 50 years, others an almost constant pattern 384

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up to about age 50 and a decrease associated with menopause. There might be a slight increase again at very advanced age (Baken and Orlikoff 2000: 173–​176; Schötz 2006: 83f., 107). Another age correlate is speech tempo, which increases up to 30 to 45 years and then decreases again, more markedly in men than women (Schötz 2006:  110; Jacewicz et  al. 2010). Increasing age is also generally accompanied by a lowering of formant frequencies, especially the first formant (Schötz 2006: 126; Rhodes 2012). As mentioned in connection with speaker height, cepstral coefficients, known from automatic speaker recognition, are another feature type that is sensitive to age (Kelly and Harte 2015; Rhodes 2012). Some suppliers of automatic speaker recognition technology offer age detection tools. Testing these automatic tools for the purpose of speaker profiling is an important research task. In forensic casework, the age domain of speaker classification is most commonly approached by performing an age estimation that is based on overall perceptual impression. Braun (1996) has shown that the average differences between perceived age and chronological age are around six years, and that forensic experts are slightly better at this task than lay people. Age correlates, especially those at a young and old age, are primarily based on biological factors. There can also be age correlates that are motivated by social factors and that usually interact with gender and social status (Foulkes and Docherty 2006). Finally, age correlates can derive from instances of language change. Wells (1999), for example, shows that overt pronunciation of [h]‌in words like white declined from speakers born in 1933 to speakers born in 1973 and later. Thorough reviews on age in speech production and perception are provided by Linville (2001), Schötz (2006) and Rhodes (2012). The next domain to be discussed is sex/​gender (the term sex is usually used for the biological aspects and the term gender for the sociocultural aspects of the male-​female distinction/​spectrum). Deciding whether the unknown speaker in a recording is a man or a woman is usually not an issue because laypersons and forensic experts alike are, under most circumstances, able to perceptually identify the sex of the speaker among the adult population (before the onset of old age). This success of perceptual sex classification is largely based on the fact that most women have a much higher average pitch level than most men, which can be attributed predominantly to women having shorter vocal folds. The forensic-​phonetic expert is able to quantify and objectify the pitch level of a speaker by applying f0 analysis. According to a study of read speech based on 100 male and 50 female adult speakers of German, men on average have a pitch level of about 115 Hz and women of about 210 Hz (Künzel 1989). More important than the average across many speakers is the distribution of the f0 values of men and women in an estimate of the population. The range of mean f0 from the lowest-​pitched to the highest-​pitched voices is from about 80 to 170 Hz in (German-​speaking) men (Künzel 1989; Jessen et al. 2005) and from about 165 to 260 Hz in women (Künzel 1989; Simpson and Ericsdotter 2007). This information about f0 distribution can prove useful in situations where perceptual sex classification is difficult because the pitch of the unknown voice is too low for a typical female and too high for a typical male voice. In such a case, the expert can state whether and to what degree the given f0 evidence is more consistent with male or with female speech. There are situations, however, where pitch is not available as a cue to speaker sex. This could be because the pitch level is unreliable due to voice disguise (e.g. when creaky voice is used), or because the speech is voiceless, as in a whisper (which can be another voice disguise strategy). In such cases (or indeed generally) other phonetic cues to speaker sex can be used. One important source of sex differences lies in the acoustic effects of differences in the length of the vocal tract. The vocal tract length effect can be captured 385

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by measuring the formant frequencies F1 to F3 (formants higher than F3 are usually not accessible in telephone speech). Women tend to have higher formant frequencies than men (Simpson 2009). Although the characteristics of sex/​gender that have been discussed so far have an organic/​biological motivation (causation), this motivation is not sufficient to account for all male-​female differences in speech. One important point is that biologically determined differences can be exaggerated or minimised due to sociocultural factors. For example, Johnson (2006) shows that male-​female formant differences can be larger among speakers of Russian than among speakers of Danish. This is more likely to be due to sociocultural differences in these speech communities than to biological factors. Other sources of evidence indicating that sex/​gender characteristics go beyond anatomy and physiology are male-​female differences in childhood, where organic differences are too small to account for all the observable speech differences, or influences of sexual orientation, where some speakers adopt characteristics of the opposite sex/​gender. The reader is referred to Simpson (2009) as well as Munson and Babel (2019) for further information and discussion on anatomical and sociophonetic aspects of the male-​ female distinction/​spectrum. The speaker-​ profiling domains of sociolect, regiolect (dialect) and foreign accent/​ ethnolect will not be discussed here for reasons of space and because the reader can become familiar with them through a wide range of text-​and handbooks. Furthermore, the specifics of these three speaker-​profiling domains depend strongly on the language and the country. For example, the specifics of regional, social and ethnic differentiation are different in Germany from those in the UK. Experts who want to do casework in a specific language and in a specific country need to become familiar with the local situation, so a general overview across languages and countries is of limited help. In contrast, the other speaker-​profiling domains that have been discussed here are more universal, which is mainly due to their biological aspects. Language as a speaker classification characteristic becomes relevant in situations where the requesting authorities simply do not know which language was spoken or where the language classification provided by other parties turns out to be incorrect or imprecise. At the BKA difficulties like that have occurred in cases from language areas with a dense distribution of different languages (e.g. Caucasus) or with a complicated pattern of multilingualism (e.g. Berber vs. Arabic in North Africa). For further information about speaker profiling the reader can consult Künzel (2004), French and Harrison (2006), Jessen (2007), Schilling and Marsters (2015) and Foulkes et al. (2019).

Forensic voice comparison (FVC) In the discussion of speaker profiling a distinction was made between speaker classification characteristics on the one hand and speaker-​specific characteristics on the other. Such a distinction can also be made in the domain of forensic voice comparison (henceforth FVC), although the specifics differ due to the different nature of the tasks. Most importantly, speaker-​specific characteristics mentioned in FVC reports include a wide variety of specialised linguistic/​phonetic properties (e.g. fundamental frequency patterns), whereas, as mentioned, speaker-​specific characteristics mentioned in speaker profiles are intentionally restricted to properties intelligible on an intuitive level by everyone. The purposes and specifics of using speaker classification also differ between profiling and comparisons. 386

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How speaker classification becomes relevant when applied within FVC will be discussed in one of the following subsections. The following subsections give an overview of speaker-​specific characteristics often used in FVC, outline the principles behind FVC, comment on the semiautomatic approach to FVC and discuss the use of speaker classification within FVC.

Speaker-​specific characteristics The auditory-​ acoustic approach makes use of a wide variety of speaker-​ specific characteristics (also referred to as ‘features’). In their survey of FVC practices among experts, Gold and French (2011) asked, among other questions, for the speaker-​specific characteristics used in casework. The top-​percent ones were fundamental frequency and formant frequencies. These will be addressed here in some detail. Further speaker-​specific characteristics will be listed towards the end of this subsection. Pitch level and its acoustic correlate, average fundamental frequency, have already been mentioned as a particularly important correlate of sex/​gender, which is anatomically motivated primarily by the length of the vocal folds. The same motivation also holds within the sexes, where large differences between speakers occur. Figure 24.1 shows mean f0 for 100 male adult speakers of German in a laboratory situation for regular (normally loud) spontaneous speech and spontaneous speech in Lombard condition (exposure to 80 dB white noise over headphones, causing an increase in vocal loudness) reported in Jessen et  al. (2005). The figure shows that for normal vocal loudness a mean f0 of between 110 and 120 Hz is something that occurs very frequently among men, i.e. it is typical, but that a value of 85 or one of 165 Hz is something that is rare (nontypical). The importance of typicality will be addressed in the following subsection. The figure also shows that the distribution shifts towards higher f0 values when speech is produced more loudly than normal. Loud speech occurs frequently in forensic casework. The upward shift of f0 under this condition is a case of ‘intra-​individual variation’, again addressed separately below. When the mean of all 100 speaker-​specific mean values shown in Figure 24.1 for normal loudness is taken, the result is 120 Hz (this is in spontaneous speech; in read speech the value is 116 Hz). If the distribution shown in the figure were modelled as a Gaussian, 120 would be the centre of it, i.e. the most typical value in the (estimate of) the population of German male adult speakers when speaking normally. For Lombard speech the mean across speakers is 159 Hz. One strategy in casework for dealing with vocal loudness is to examine the recordings and look for passages in which speech production is at a normal level. This would be a way of controlling intra-​individual variation due to loudness (which, of course, does not work if the speaker is constantly loud). Knowing about and, if possible, controlling for sources of intra-​individual variation is an important principle that holds for FVC in general. As mentioned as a strategy with respect to loudness-​induced f0 here, speaker characteristics of questioned speaker and suspect should be compared under equivalent conditions. If that is not possible, the expert should have knowledge about the effect that different conditions (often referred to as ‘mismatched conditions’) have on the feature at hand, a point to be illustrated with respect to a case example shown in Figure 24.2 (effect of read vs. spontaneous speech on formants). Other general principles of FVC are explained in the following subsection. The values presented in Figure 24.1 are from speakers of German. Looking for related studies (involving similarly high numbers of speakers as here) in different languages 387

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Number of speakers

35

normal

loud

30 25 20 15 10 5 0

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Figure 24.1  Histogram of mean f0 in spontaneous speech among 100 male adult speakers of German. Results are presented for Lombard speech (light columns, back row) and speech at normal vocal loudness (dark columns, front row)

(focusing on laboratory-​setting normally loud produced spontaneous speech), the mean across male adult speakers is often quite similar, being close to 120 Hz. Specifically, such studies and their results include (see the individual studies for details of speaker definitions and methods): American English 116 Hz [military members], 123 Hz [students] (Hollien et al. 1997); Swedish 120 Hz (Lindh 2006); Danish 116 Hz (Sørensen 2011); Czech 117 Hz (Skarnitzl and Vaňková 2017); Chinese 122 Hz (Cao and Lei 2018). An exception is the study on British English by Hudson et al. (2007), based on the DyViS corpus (Dynamic Variability in Speech), where the corresponding value is 106 Hz. A possible reason for the lower value in the British English study lies in the methodological aspect that f0 detection threshold was set low in order to include portions of creaky voice, and that creaky voice possibly was more common in the community of subjects (Southern British English speakers aged 18–​25, mostly students of the University of Cambridge) compared to other studies. Consistently, San Segundo et al. (2019) remark that they encountered creaky voice in almost every speaker of the DyViS corpus and hypothesise that this might be a social group pattern. The high consistency of mean f0 across languages can be regarded as evidence for the anatomic motivation of this feature. For forensic purposes, this level of language universal behaviour is an advantage because casework often involves a variety of different languages and not always is there an appropriate study on mean f0 available. Moreover, when different languages are spoken by the questioned speaker and the suspect, FVC is generally possible despite the language difference. Formant frequencies have been mentioned above as important male/​female correlates which are due to differences in vocal tract length. As with f0, the same holds within the sexes. There are different ways to capture speaker-​specific aspects of formant structure. The method that has been used frequently in the BKA laboratory is the Long-​Term Formant Distribution (LTF), which was first proposed by Nolan and Grigoras (2005). According to the method that is used at the BKA, a speech signal is edited in a way that only vocalic portions remain in which formant structure is clearly visible. Subsequently, automatic formant tracking is applied and any remaining errors of formant tracking are

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corrected manually. The resulting formant tracks are exported and further statistics, most importantly averaging, are applied. Phonological differences between vowels are strongly reflected in the frequencies of the formants, specifically the first two. Averaging formants across vowels (and including the third formant, which does not vary much with vowel category) is seen as a strategy to neutralise as much as possible the strong effect that individual vowels and their combinations have on the formants. This requires a certain amount of speech material and even then some vowel-​induced (along with other) intra-​ individual variations remain (Moos 2010 for details). Figure  24.2, left, shows the mean LTF values of 71 of the 100 male adult speakers of German in the same corpus on which the f0-​parameters in Jessen et al. (2005) were investigated (Moos 2010). The LTF measurements were based on a version of the corpus that was transmitted by mobile phone. Figure 24.2, left, gives a good impression of the amount of inter-​individual variation that can be found with the LTF method. According to this figure, a speaker in a case with, for example, a mean LTF2 of 1300 Hz and mean LTF3 of 2200 Hz would be quite rare in the population. The figure also shows that LTF2 and LTF3 are to a certain extent correlated. This is predicted by a simple tube model of the vocal tract, where lengthening/​shortening the tube would decrease/​increase all formants respectively (as explained in many phonetics textbooks). Furthermore, the values for reading and spontaneous speech differ slightly (higher in reading).

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Casework experience by the author has shown that essentially the same LTF space as shown in Figure 24.2 is used by speakers of other languages as well. Studies on speaker differences using the LTF method in different languages are not as frequent and comprehensive as corresponding studies on fundamental frequency, but results indicate that LTF means differ only marginally between languages. Heeren et  al. (2014) compared LTF patterns (LTF2 and 3) in Dutch and Turkish using 12 bilingual speakers who each produced samples of both languages. In a second study, Heeren et al. (2015) selected two languages that have a rather large difference in vowel inventory size (Dutch vs. Moroccan Arabic), which might increase the influence of the phonological system on the LTF patterns. Twelve speakers were used for each language but, unlike the first study, different sets of speakers were used for the two languages. In both studies, which were in telephone quality and very close to casework conditions, LTF differences between languages were small, especially in the bilingual study (no significant difference in mean LTF2 and LTF3), where accidental differences in the composition of the speaker set were ruled out. In the 2015 study there was a non-​significant language effect with some tests (t-​tests), though not others (ANOVAs). LTF2 was almost identical in the two languages (just 10 Hz-​difference in the means), whereas the effect on LTF3 was stronger (70 Hz-​difference). This result is contrary to the hypothesis that LTF is affected by language, because vowel systems are predominantly expressed acoustically in terms of F1 and F2, not F3. Instead, this result supports the possibility that the LTF3 differences were due to accidental differences between the speakers involved. Overall, as argued for with fundamental frequency, such near language independent behaviour is evidence for the strong biological motivation behind long-​term formants. LTF is just one way of measuring formants for forensic purposes. Other methods measure formants as target values on different vowel categories or in terms of the dynamic changes in diphthongs or vowel sequences (see Nolan and Grigoras 2005, Foulkes and French 2012, Rose 2017 for forensic casework examples). Formants are also among the most frequently used feature types in forensic-​phonetic research. For a few among the existing studies see Rose (2002), McDougall (2006), Morrison (2011) and Hughes (2014). The two speaker-​specific characteristics discussed here are only a small selection. More are listed below. References will not be provided for reasons of space but can be found in Jessen (2018). Other overviews of speaker characteristics include Nolan (1983), Hollien (2002), Rose (2002), Gold and French (2011), Foulkes and French (2012) and French and Stevens (2013). • Variability of fundamental frequency (measured as standard deviation or in related  ways) • Auditory voice quality • Speech tempo • Filled pauses (utterances like uh or uhm, including their frequency and their acoustic characteristics) • Disfluencies generally (including filled pauses, but also silent pauses, syllable lengthening, interruptions, repetitions) • Non-​speech vocalisations (e.g. laughing, clicking, breathing patterns) • Speech rhythm • Features from speech pathology (e.g. lisp, stutter) • ‘Idiolect’ (e.g. combination of different language varieties or different combinations of linguistic features within a variety; greetings and stereotypical expressions)

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Principles of forensic voice comparison The most important principle underlying the application of FVC is to take into account similarity and typicality. When a recording of the unknown speaker (= questioned speaker) is compared to the recording of a suspect, a number of speaker-​specific characteristics (see previous subsection) are examined and an assessment is made as to how similar the instantiation (value) of each of the characteristics is in the two recordings. With acoustic characteristics, similarity is based on the proximity of values on a scale based on Hertz-​ values or other physical units. With auditory characteristics, similarity can be based on a scale of categorical stages (e.g. a scale ranging from the stages ‘no harsh voice’, over ‘weak harsh voice’ to ‘strong harsh voice’), it can be based on frequency of occurrence (e.g. the number of fluency interruptions per minute) or it can be treated as a binary property (e.g. indications of stutter vs. no such indications). When similarity is high, this provides evidence supporting speaker identity in the two recordings, when similarity is low, non-​ identity is supported. Typicality means how common (high typicality) or uncommon (low typicality) a given value of a given speaker-​specific characteristic is with respect to a relevant population. The relevant population defines the group of speakers who have speaker classification characteristics that correspond to those of the unknown speaker. If the expression ‘the unknown speaker is identical to the suspect’ is one of the hypotheses in a voice comparison (it can be called the ‘same-​speaker hypothesis’), the expression ‘the unknown speaker is identical to some other speaker in the relevant population’ is the alternative hypothesis (it can be called the ‘different-​speaker hypothesis’). For example, if the unknown person is an adult male speaker of German, the relevant population could be defined as consisting of other adult male speakers of German. As shown above, when mean fundamental frequency is evaluated with reference to that population a value of 170 Hz has low typicality, whereas a value of 120 Hz has high typicality. It was mentioned that when similarity is high there is some support for speaker identity. When at the same time typicality is high as well, this degree of support is only moderate. When however, the same degree of similarity occurs but typicality is low, the degree of support will be higher. Among the following set of rules Rule 1.  weak support for identity if similarity is high and typicality is high, Rule 2.  strong support for identity if similarity is high and typicality is low, Rule 3.   support against identity if similarity is low (degree depending on how dissimilar), the second and third make most sense intuitively. The first rule can be understood best when taking into account another important principle: only those features are useful for FVC in which inter-​individual variation is higher than intra-​individual variation. For any given feature there will always be some level of variation when the same individual makes utterances on different days, in different phonetic contexts, with different psychological states (e.g. stress) or in other types of conditions. This level of variation must be taken into account when performing a FVC. However, for features that are useful for FVC the amount of variation of that feature within an individual is usually lower than the range of values that the feature can show when looking across individuals. For example, as shown above, different male (adult) speakers can have mean fundamental frequency values that (in normal-​loudness speech) range from as little as about 80 Hz to as much as about

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170 Hz. This is not normally the range of mean f0 values found within the (loudness-​ controlled) speech of a single individual, which will be smaller (e.g. when comparing different recordings of the same speaker). This difference in variation (larger between than within individuals) explains the essence of the first rule given above: if the questioned speaker and suspect show values that are very typical of the population (e.g. mean f0 of 120 Hz), there is still some support for identity because due to high inter-​individual variation there are many speakers in the population that have values that are less typical. What has been explained here on a descriptive level can also be derived formally on the basis of Bayesian statistics and the notion of the likelihood ratio (Rose 2002, 2017; Morrison et al. 2018; Jessen 2018; also Coulthard, Chapter 32, and Watt and Brown, Chapter 25, this volume). The terms high and low (similarity and typicality) have been used here for the purpose of explaining the principles, but in reality, similarity and typicality are meant as scales, and working with these scales results in different levels of strength of evidence in support for or against speaker identity, or in other words, in support for the same-​speaker hypothesis or in support for the different-​speaker hypothesis. Strength of evidence needs to be assessed separately for each analysed feature and might not be the same for each feature, i.e. similarity and typicality might differ between features in a case. The final conclusion of a FVC will be developed from the combined outcomes of all pieces of evidence. There can also be scenarios where a voice comparison remains inconclusive. This can be the case if similarity is neither high nor low, if the results from examining different speaker-​specific characteristics lead in strongly opposing directions or if the quantity or quality of the speech material is prohibitively low for an analysis. The final principle of FVC that should be mentioned is the independence of different speaker characteristics. The number of speaker characteristics that can be analysed in practical casework is necessarily limited. The choice of the analysed characteristics should primarily fall on those that are maximally independent, i.e. minimally correlated. For example, there is no known dependency between mean f0 and the use of non-​speech vocalisations. More detailed information on the principles of FVC mentioned here and others can be found in Nolan (1983), Rose (2002), Morrison et al. (2018) and Jessen (2018). A case example will illustrate the principles of similarity and typicality, in particular Rule 2, based on LTF evidence (see Figure 24.2, right). In December 2007, a young man made an anonymous call to the police emergency centre in a town close to Kassel in Germany. In the call he warned about a planned school shooting in a centre for occupational studies that was located in the neighbourhood. The police identified a suspect and he agreed to make a recording. The police transcribed the text that was spoken in the anonymous call, and it was read by the suspect five times. It would have been beneficial to have had samples of spontaneous speech as well, but the police did not consult with an expert before the suspect recording was made. LTF measurements were made along with the analysis of other speaker-​specific characteristics. Figure  24.2, right, shows that the location of the LTF2/​F3 value of the questioned speaker is within the range of the five values obtained from the suspect recording. One can observe a certain tendency for higher values in the material from the suspect (read speech) than from the questioned speaker (spontaneous speech). This is consistent with the result of Moos (2010) that LTF values in read speech are on average slightly higher than in spontaneous speech. Along with the overlap between the values of the questioned and the suspect speaker, Figure 24.2, right, also shows that the values found in this case were somewhat below average relative to the 392

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distribution shown in Figure 24.2, left. The overlapping pattern (high similarity) and the below-​average pattern (relatively low typicality) provide relatively strong support for the identity of the questioned speaker and the suspect.

The status of speaker classification in FVC Speaker classification has two purposes when applied within forensic voice comparison. Firstly, it forms the basis upon which a relevant population is defined. Secondly, it can serve as evidence relevant to the speaker identity/​non-​identity question. When the relevant population term was introduced above, ‘adult male speakers of German’ was given as an example of a possible relevant population. That example makes reference to the speaker classification categories sex, language and to some level age. It is possible to define the relevant population in narrower terms, for example by, in addition to sex and language, specifying a regional accent or an age group. Making the relevant population narrower can increase the accuracy of the FVC analysis, but it will also be increasingly difficult to locate research data or to form a good subjective impression about such a narrowly defined population. Relevant populations cannot be narrowed down indefinitely because this will at one point render the FVC analysis impossible. What is important empirically is to what extent and with which degree of consistency different definitions of relevant populations have an impact on the speaker-​specific characteristics that are analysed (this also includes automatic speaker recognition). The concept of relevant population is explained in Hughes (2014) and references to more recent discussions are found in Hughes and Rhodes (2018). The status of speaker classification as evidence is unquestionable when there is a speaker classification difference (i.e. low similarity) between the questioned speaker and the suspect. In that situation there is evidence against identity (see Rule 3 in the previous subsection) and that evidence can be very strong. That situation occurs if the questioned speaker and the suspect speak different dialects/​regional accents. Such a situation can occur within a single individual only if s/​he is familiar with both regional varieties (Siegel 2010). Usually, such a situation of bidialectalism is possible but much less common than bilingual competence. If so, the bidialectal evidence of the case is more likely under the different-​speaker hypothesis than the same-​speaker hypothesis. Evidence against identity can also occur with other speaker classification characteristics such as age and sex. What if, staying with the dialect example, the questioned speaker and the suspect speak the same dialect, should that be treated as evidence in favour of speaker identity? This is not so clear. On the one hand, one can argue that dialect is a strong speaker-​distinguishing feature. For example, there will probably be fewer speakers in a dialect-​rich country like the UK or Germany who speak a particular non-​frequent dialect than those who have a low-​typicality high or low mean fundamental frequency. Yet, due to the status of dialect as a group-​level category that leads to regional clustering of individuals, the dialectal similarity between questioned speaker and suspect will be shared by many other individuals in the region where the dialect is spoken. To take a hypothetical example, it makes a huge difference in terms of the percentage of the local population that produces a Bavarian dialect, whether the forensic case took place in a Bavarian town (with many speakers of Bavarian around) or close to the Danish border (with few speakers of Bavarian around). This difference, however, is contextual information that is not always known to the expert. Should these kinds of case-​contextual facts be supplied to the expert as relevant information (in Bayesian terms there is the index ‘i’ for that kind of information in the likelihood 393

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ratio formula) and then be used by the expert in the evaluation of the same-​dialect evidence, or is this a priori information (in Bayesian terms) that the forensic expert should have no access to? An optimistic picture about group-​level similarity as FVC evidence is presented by Hughes and Rhodes (2018). But there is also the more traditional view that (with respect to dialect in particular) an observed difference has much more evidential value than a similarity (Hollien 2002:  74, 81f.). This is an aspect of FVC practice that should be discussed further.

Notes on semiautomatic speaker recognition In the introduction two approaches were mentioned that are frequently used in FVC –​ the auditory-​ acoustic approach, addressed here, and automatic speaker recognition, addressed by Watt and Brown in this volume (Chapter  25). There is a third approach that can be called semiautomatic speaker recognition (Drygajlo et al. 2015). Essentially, semiautomatic speaker recognition is based upon acoustic-​phonetic features, such as formant frequencies and f0, and strength of evidence of a comparison of two recordings is expressed quantitatively in terms of a likelihood ratio. Semiautomatic speaker recognition is an approach that lies in between auditory-​acoustic and automatic speaker recognition. It overlaps with the former approach by using some of the same features and it overlaps with the latter by allowing for full quantification of strength of evidence in terms of likelihood ratios. Another term for the same approach is ‘acoustic-​phonetic by forensic practitioners (statistical model)’ (Morrison et  al. 2016). This term emphasizes that the features are from the domain of acoustic phonetics and that the results of FVC are in statistical terms (specifically Bayesian statistics and the use of likelihood ratios within that type of statistics). Inclusion of statistical treatment differs from the auditory-​acoustic approach as characterized here:  although acoustic-​ phonetic analysis in the auditory-​ acoustic approach results in quantitative measurements, the assessment of similarly and typicality of these measurements is made qualitatively, for example by observing patterns of overlap between results from questioned speaker and suspect or by looking at whether the feature values of the questioned speaker and the suspect occur in the middle or at the margins of an estimate of a population (based on scientific studies or on casework experience). This was illustrated above with the formant-​based case example. In Bayesian statistics, on the other hand, similarity and typicality are fully quantified, similarity in terms of the numerator of the likelihood ratio and typicality in terms of the denominator (see Watt and Brown, Chapter 25, this volume for the likelihood ratio formula). According to the survey by Morrison et al. (2016) semiautomatic speaker recognition is used less frequently by practitioners than auditory-​acoustic or automatic speaker recognition (but for some casework examples see Rose 2017, including further references). However, semiautomatic speaker recognition is an approach that is very frequently used in forensic-​phonetic research. Among the many examples are: Rose (2002), Morrison (2011), Kavanagh (2012), Gold (2014) and Hughes (2014). In terms of criteria such as the maximization of objectivity or knowledge about error rates (which is one of the Daubert criteria  –​see Solan, Chapter  22, this volume for a discussion of Daubert) semiautomatic speaker recognition should be preferred over the auditory-​acoustic approach as characterized here, i.e. where similarity and typicality are judged (based on experience or knowledge of the research literature) rather than expressed numerically as a likelihood ratio. Probably the main reason why many 394

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practitioners of FVC continue to use the auditory-​acoustic approach (increasingly often in combination with automatic speaker recognition) is that for most acoustic/​linguistic features of the kind shown above there is insufficient reference data available on the exact and case-​relevant inter-​individual and intra-​individual variation of the given feature that would be required in order to calculate a likelihood ratio. This should not be accepted as a permanent situation but rather a challenge to improve on the corresponding research. This future research should include work on not just acoustic-​phonetic but also auditory/​ linguistic characteristics; there is no principled reason why semiautomatic speaker recognition should be limited to acoustic properties.

Conclusion In this chapter an overview of speaker profiling and forensic voice comparison was presented. As far as FVC is concerned, the subtitle ‘The auditory-​acoustic approach’ was given in order to distinguish it from another one that is frequently practised as well viz. automatic speaker recognition (addressed in the chapter by Watt and Brown). The name that was selected here is one of several terms for this approach. Other adjectives with equivalent meaning include auditory phonetic cum acoustic phonetic (Gold and French 2011), linguistic-​acoustic (Foulkes and French 2012) and auditory-​acoustic-​phonetic by forensic practitioners (qualitative opinion) (Morrison et  al. 2016). Taken together, these terms indicate that the methodology of this approach is based upon acoustic phonetics, auditory phonetics and linguistic analysis. Although according to the surveys of Gold and French (2011) and Morrison et al. (2016) some practitioners prefer auditory-​phonetic (and linguistic) analysis to the exclusion of acoustic phonetics, there is a broad majority, at least in Europe, who prefer the combination of both. Whereas this broad agreement applies to FVC, speaker profiling is often based on auditory analysis alone; there is no known survey on that, but it is an impression by the author based on national and international contacts. This perceived tendency has been counterbalanced here by discussing several acoustic correlates of speaker classification characteristics and by pointing out the advantages of including acoustic phonetics. For research on social and regional language varieties, the advantage of including acoustic-​ phonetic methodology has been recognized at least since the advent of ‘sociophonetics’ (Foulkes and Docherty 2006). It should also be considered more systematically for speaker-​profiling applications. In addition to auditory and acoustic-​phonetic correlates of speaker classification characteristics one should also pay attention to developments in the field of automatic speaker classification. There have been various degrees of success in classifying language, dialect, age, sex and body height automatically (with methods broadly analogous to those used in automatic speaker recognition), and some vendors offer software for these classificatory tasks which should be tested for their use in forensic applications. Another topic for the conclusion is the status of the likelihood ratio framework in the auditory-​acoustic approach to FVC. The likelihood ratio framework is a frequently advocated framework for the expression of conclusions in forensic science generally, specifically in cases with a same-​source vs. different-​source question (ENFSI Guideline for Evaluative Reporting in Forensic Science 2015). Morrison and Enzinger (2019) propose that analyses in FVC should be based on relevant data, quantitative measurements and statistical models and they see the likelihood ratio framework as the logically correct way to express the results of these analyses (see Morrison and Enzinger 2019 and Morrison 395

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et al. 2018 for further literature in which this view is expressed). In terms of quantitative measurements, they see automatic speaker recognition (in the human-​supervised mode, in which automatic speaker recognition is most frequently used according to Gold and French 2011, 2019 and Morrison et al. 2016) as the most promising approach. They have less confidence in the semiautomatic approach (where acoustic-​phonetic features are measured and the results quantified as a likelihood ratio), based on studies in which semiautomatic analysis leads to no improvement over automatic analysis. The auditory-​acoustic approach, as characterized in this chapter, is, as far as acoustic-​ phonetic characteristics are concerned, based on quantitative measurements and it is to some extent based on relevant data, though more commonly on the interspeaker variability aspect, important to make typicality statements (e.g. population statistics as shown in Figures 24.1 and 24.2, left), than the intraspeaker variability aspect. It is not based on statistical models and therefore there is no numerical output in terms of a likelihood ratio. Auditory speaker-​specific characteristics mostly lack relevant-​data studies even on the interspeaker variability aspect, they are intrinsically not quantitative measurements and, like with acoustic-​phonetic characteristics, there are no statistical models leading to likelihood ratios (otherwise they would be classified as semiautomatic). However, lack of quantification (though not necessarily based on measurements) or of relevant-​data studies need not be the case with auditory features. As mentioned in connection to similarity and typicality, auditory features can be graded on numerical scales or counted for their occurrences per time unit (Gold 2014: ­chapter 7; McDougall and Duckworth 2018; San Segundo et al. 2019). And of course there is nothing that speaks against further background studies on auditory speaker-​specific characteristics. What about the likelihood ratio framework? When discussing aspects of the auditory-​ acoustic approach, Morrison and Enzinger (2019) find this approach ‘consistent with the logic of the likelihood framework’ if conclusions are expressed either as ‘subjective numeric estimates’ of a likelihood ratio or as verbal expressions such as ‘the evidence is much more probable if the same-​speaker hypothesis were true than if the different-​speaker hypothesis were true’ (section 3.1.5 in their chapter). Making subjective numeric estimates is also the option that is presented in the ENFSI Guideline for Evaluative Reporting in Forensic Science (2015) when likelihood ratios cannot be arrived at by calculations. The conclusion from this discussion is that the auditory-​acoustic approach is compatible with the likelihood ratio framework if conclusions are expressed as subjective numeric estimates of a likelihood ratio or in the form of verbal expressions that keep the logic behind the likelihood ratio framework. Calculation of likelihood ratios, however, is only possible if statistical models and relevant data are involved. Where this is possible (depending on the feature), the auditory-​acoustic approach advances to the level of the semiautomatic approach (Drygajlo et al. 2015), as discussed above. Whether the semiautomatic approach leads to improvement over the automatic approach still needs further research. Such research should include features that are far removed from vocal tract characteristics, which are the characteristics that are primarily captured by automatic speaker recognition, and it should also include auditory features. Research is not only called for when there is an ambition to elevate an auditory-​ acoustic-​approach feature to a semiautomatic-​approach feature (which then can be directly tested for its speaker-​discriminatory performance), but there are many areas where it would be useful, even within the range of the auditory-​acoustic approach, to collect more data on the intra-​or inter-​individual variation of currently used speaker-​specific features. Gold and French (2019), in their second survey on FVC practice, note that from 396

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2011 to 2019 there has been an increasing use of population data to make assessments of typicality but that respondents still found these data lacking in many areas of FVC analysis. Data on intra-​individual variation from a forensic perspective are important as well (e.g. McDougall and Duckworth 2018). Beyond currently used features, another research interest lies in exploring new features or in revising more established ones. An example of the former is the recent work on speaker-​specific characteristics in the domain of timing and rhythm (Dellwo et al. 2015) and examples of the latter are recent intensive research activities in the domains of disfluencies (McDougall and Duckworth 2018) and auditory voice quality (San Segundo et al. 2019).

Acknowledgements Many thanks are expressed to Kirsty McDougall, Helen Fraser and Katharina Klug for valuable comments, to Toby Hudson and Kirsty McDougall for feedback about their fundamental frequency study and to Willemijn Heeren for making available the documentation of her conference presentations on the topic of long-​term formants.

Further reading French, P. and Stevens, L. (2013) ‘Forensic speech science’, in M. Jones and R. Anne-​Knight (eds), The Bloomsbury Companion to Phonetics, London: Continuum, 183–​197. Jessen, M. (2018) ‘Forensic voice comparison’, in J. Visconti (ed. in collab. with M.  Rathert), Handbook of Communication in the Legal Sphere, Berlin: Mouton de Gruyter, 219–​255. Morrison, G.S., Enzinger, E. and Zhang, C. (2018) ‘Forensic speech science’, in I. Freckelton and H. Selby (eds), Expert Evidence, Sydney: Thomson Reuters, ch. 99. Nolan, F. (1997) ‘Speaker recognition and forensic phonetics’, in W.J. Hardcastle and J. Laver (eds), The Handbook of Phonetic Sciences, Oxford: Blackwell, 744–​767. Rose, P. (2002) Forensic Speaker Identification, London: Taylor & Francis. Schilling, N. and Marsters, A. (2015) ‘Unmasking identity: Speaker profiling for forensic linguistic purposes’, Annual Review of Applied Linguistics, 35: 195–​214.

References Baken, R.J. and Orlikoff, R.F. (2000) Clinical Measurement of Speech and Voice, San Diego, CA: Singular. Braun, A. (1996) ‘Age estimation by different listener groups’, Forensic Linguistics, 3: 65–​73. Cao, H., Wang, Y. and Kong, J. (2014) ‘Correlations between body heights and formant frequencies in young male speakers:  A pilot study’, 9th International Symposium on Chinese Spoken Language Processing (ISCSLP), 536–​540. Cao, H. and Lei, Y. (2018) ‘Fundamental frequency statistics for young male speakers of Mandarin’, Journal of Forensic Science and Medicine, 3: 217–​222. Dellwo, V., Leeman, A. and Kolly, M-​ J. (2015) ‘Rhythmic variability between speakers: Articulatory, prosodic, and linguistic factors’, Journal of the Acoustical Society of America, 137: 1513–​1528. Drygajlo, A., Jessen, M., Gfroerer, S., Wagner, I., Vermeulen, J. and Niemi, T. (2015) Methodological Guidelines for Best Practice in Forensic Semiautomatic and Automatic Speaker Recognition, Frankfurt: Verlag für Polizeiwissenschaft http://​enfsi.eu/​wp-​content/​uploads/​2016/​09/​guidelines_​ fasr_​and_​fsasr_​0.pdf (accessed 17 July 2020). European Network of Forensic Science Institutes (ENFSI) (2015) ENFSI Guideline for Evaluative Reporting in Forensic Science http://​enfsi.eu/​wp-​content/​uploads/​2016/​09/​m1_​guideline.pdf (accessed 17 July 2020). Foulkes, P. and Docherty, G. (2006) ‘The social life of phonetics and phonology’, Journal of Phonetics, 34: 409–​438. 397

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Foulkes, P. and French, P. (2012) ‘Forensic speaker comparison: A linguistic-​acoustic perspective’, in L.M. Solan and P.M. Tiersma (eds), Oxford Handbook of Language and Law, Oxford: Oxford University Press, 557–​572. Foulkes, P., French, P. and Wilson, K. (2019) ‘LADO as forensic speaker profiling’, in P.L. Patrick, M.S. Schmid and K. Zwaan (eds), Language Analysis for the Determination of Origin, Cham: Springer, 91–​116. French, P. and Harrison, P. (2006) ‘Investigative and evidential applications of forensic speech science’, in A. Heaton-​Armstrong, E. Shepherd, G. Gudjonsson and D. Wolchover (eds), Witness Testimony, Psychological, Investigative and Evidential Perspectives, Oxford:  Oxford University Press, 247–​262. French, P. and Stevens, L. (2013) ‘Forensic speech science’, in M. Jones and R. Anne-​Knight (eds), The Bloomsbury Companion to Phonetics, London: Continuum, 183–​197. Gold, E. (2014) Calculating Likelihood Ratios for Forensic Speaker Comparisons Using Phonetic and Linguistic Parameters, PhD thesis, University of York. Gold, E. and French, P. (2011) ‘International practices in forensic speaker comparison’, International Journal of Speech, Language and the Law, 18: 293–​307. —​—​—​(2019) ‘International practices in forensic speaker comparisons: Second survey’, International Journal of Speech, Language and the Law, 26: 1–​20. Greisbach, R. (1999) ‘Estimation of speaker height from formant frequencies’, Forensic Linguistics, 6: 265–​277. Hansen, J.H.L., Williams, K. and Bořil, H. (2015) ‘Speaker height estimation from speech: Fusing spectral regression and statistical acoustical models’, Journal of the Acoustical Society of America, 138: 1052–​1067. Heeren, W., van der Vloed, D. and Vermeulen, J. (2014) ‘Exploring long-​term formants in bilingual speakers’, Paper presented at the Annual Conference of the International Association for Forensic Phonetics and Acoustics, Zürich. Heeren, W., Vermeulen, J. and van der Vloed, D. (2015) ‘Do long-​term formants vary with vowel inventory size? A  small-​inventory versus a large-​inventory language’, Poster presented at the Annual Conference of the International Association for Forensic Phonetics and Acoustics, Leiden. Hollien, H. (2002) Forensic Voice Identification, London: Academic Press. Hollien, H., Hollien, P.A. and de Jong, G. (1997) ‘Effects of three parameters on speaking fundamental frequency’, Journal of the Acoustical Society of America, 102: 2984–​2991. Hudson, T., de Jong, G., McDougall, K., Harrison, P. and Nolan, F. (2007) ‘F0 statistics for 100 young male speakers of standard southern British English’, Proceedings of the 16th International Congress of Phonetic Sciences, Saarbrücken, Germany, 1809–​1812. Hughes, V.S. (2014) The Definition of the Relevant Population and the Collection of Data for Likelihood Ratio-​Based Forensic Voice Comparison, PhD thesis, University of York. Hughes, V. and Rhodes, R. (2018) ‘Questions, propositions and assessing different levels of evidence: Forensic voice comparison in practice’, Science and Justice, 58: 250–​257. Jacewicz, E., Fox, R.A. and Wei, L. (2010) ‘Between-​speaker and within-​speaker variation in speech tempo of American English’, Journal of the Acoustical Society of America, 128: 839–​850. Jessen, M. (2007) ‘Speaker Classification in forensic phonetics and acoustics’, in C. Müller (ed.), Speaker classification I: Fundamentals, Features, and Methods, Berlin: Springer, 180–​204. —​—​—​(2010) ‘Forensic speaker identification by experts’, in M. Coulthard and A. Johnson (eds), The Routledge Handbook of Forensic Linguistics, Abingdon and New York: Routledge. —​—​—​(2018) ‘Forensic voice comparison’, in J. Visconti (ed. in collab. with M. Rathert), Handbook of Communication in the Legal Sphere, Berlin: Mouton de Gruyter, 219–​255. Jessen, M., Köster, O. and Gfroerer, S. (2005) ‘Influence of vocal effort on average and variability of fundamental frequency’, International Journal of Speech, Language and the Law, 12: 174–​213. Johnson, K. (2006) ‘Speaker normalization in speech perception’, in D.B. Pisoni and R.E. Remez (eds), The Handbook of Speech Perception, Oxford: Blackwell, 363–​389. Kavanagh, C.M. (2012) New Consonantal Acoustic Parameters for Forensic Speaker Comparison, PhD thesis, University of York. Kelly, F. and Harte, N. (2015) ‘Forensic comparison of ageing voices from automatic and auditory perspectives’, International Journal of Speech, Language and the Law, 22: 167–​202. 398

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Künzel, H.J. (1989) ‘How well does average fundamental frequency correlate with speaker height and weight?’, Phonetica, 46: 117–​125. —​—​—​(2004) ‘Tasks in forensic speech and audio analysis: A tutorial’, The Phonetician, 90: 9–​22. Lindh, J. (2006) ‘Preliminary descriptive f0-​statistics for young male speakers’, Lund University, Dept. of Linguistics & Phonetics Working Papers, 52: 89–​92. Linville, S.E. (2001) Vocal Aging, San Diego, CA: Singular. McDougall, K. (2006) ‘Dynamic features of speech and the characterization of speakers: Towards a new approach using formant frequencies’, International Journal of Speech, Language and the Law, 13: 89–​126. McDougall, K. and Duckworth, M. (2018) ‘Individual patterns of disfluency across speaking styles:  A forensic phonetic investigation of Standard Southern British English’, International Journal of Speech, Language and the Law, 25: 205–​230. Moos, A. (2010) ‘Long-​term formant distribution as a measure of speaker characteristics in read and spontaneous speech’, The Phonetician, 101/​102: 7–​24. Morrison, G.S. (2011) ‘A comparison of procedures for the calculation of forensic likelihood ratios from acoustic-​phonetic data:  Multivariate kernel density (MVKD) versus Gaussian mixture model –​universal background model (GMM-​UBM)’, Speech Communication, 53: 242–​256. Morrison, G.S. and Enzinger, E. (2019) ‘Introduction to forensic voice comparison’, in W.F. Katz, and P.F. Assmann (eds), The Routledge Handbook of Phonetics, Abingdon, UK:  Routledge, 599–​634. Morrison, G.S., Enzinger E. and Zhang C. (2018) ‘Forensic speech science’, in I. Freckelton and H. Selby (eds.), Expert Evidence. Sydney: Thomson Reuters, ch. 99. Morrison, G.S., Sahito, F.H., Jardine, G., Djokic, D., Clavet, S., Berghs, S. and Goemans Dorny, C. (2016) ‘INTERPOL survey of the use of speaker identification by law enforcement agencies’, Forensic Science International, 263: 92–​100. Munson, B. and Babel, M. (2019) ‘The phonetics of sex and gender’, in W.F. Katz and P.F. Assmann (eds), The Routledge Handbook of Phonetics, Abingdon, UK: Routledge, 499–​525. Nolan, F. (1983) The Phonetic Bases of Speaker Recognition, Cambridge: Cambridge University Press. Nolan, F. and Grigoras, C. (2005) ‘A case for formant analysis in forensic speaker identification’, International Journal of Speech, Language and the Law, 12: 143–​173. Rhodes, R. (2012) Assessing Non-​Contemporaneous Forensic Speech Evidence:  Acoustic Features, Formant Frequency-​ Based Likelihood Ratios and ASR Performance, PhD thesis, University of York. Rose, P. (2002) Forensic Speaker Identification, London: Taylor and Francis. —​—​—​(2017) ‘Likelihood ratio-​based forensic voice comparison with higher level features: research and reality’, Computer Speech and Language, 45: 475–​502. San Segundo, E., Foulkes, P., French, P., Harrison, P., Hughes, V. and Kavanagh, C. (2019) ‘The use of the vocal profile analysis for speaker characterization: Methodological proposals’, Journal of the International Phonetic Association, 49: 353–​380. Schilling, N. and Marsters, A. (2015) ‘Unmasking identity: Speaker profiling for forensic linguistic purposes’, Annual Review of Applied Linguistics, 35: 195–​214. Schötz, S. (2006) Perception, Analysis and Synthesis of Speaker Age, PhD thesis, Lund University, Sweden. Siegel, J. (2010) Second Dialect Acquisition, Cambridge: Cambridge University Press. Simpson, A.P. (2009) ‘Phonetic differences between male and female speech’, Language and Linguistics Compass, 3: 621–​640. Simpson, A.P. and Ericsdotter, C. (2007) ‘Sex-​specific differences in f0 and vowel space’, Proceedings of the 16th International Congress of Phonetic Sciences, Saarbrücken, Germany, 933–​936. Skarnitzl, R and Vaňková, J. (2017) ‘Fundamental frequency statistics for male speakers of Common Czech’, Acta Universitatis Carolinae Philologica 3 /​Phonetica Pragensia,  7–​17. Sørensen, M.H. (2011) Acoustic and Perceptual Aspects of Speaker-​Specific Differences in Speech and their Forensic Implications, PhD thesis, University of Aarhus, Denmark. Wells, J.C (1999) ‘British English pronunciation preferences:  A changing scene’, Journal of the International Phonetic Association, 29: 33–​50.

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25 Forensic phonetics and automatic speaker recognition The complementarity of human-​and machine-​based forensic speaker comparison Dominic Watt and Georgina Brown

Introduction Forensic speaker comparison –​also known as forensic voice comparison, voice identification or speaker identification –​is carried out for the purposes of assisting the police, intelligence services and courts to form a view concerning the identity of a person speaking in a voice recording. The voice sample in question could be an intercept recording of a telephone call between individuals suspected of plotting a terrorist attack, a tape recording of a blackmail message or ransom demand, or a covertly made recording of members of a drug trafficking ring. The recording is customarily referred to as the questioned sample (QS), as the identity of the speaker is as yet unknown. The police may then identify and arrest a suspect, and obtain a sample of the suspect’s speech for the purposes of comparing it with the QS speaker’s voice. Since the mid-​1980s, the Police and Criminal Evidence Act (PACE) has made it obligatory in the United Kingdom for police interviews to be recorded (Haworth, Chapter 10, this volume), though this is not the case in many other countries. The suspect recording –​the ‘known sample’ (KS) –​can now be compared directly with the QS. In the simplest scenario, there are just two samples for comparison (a so-​called ‘1:1 comparison’), but there may be more than two recordings for the expert to examine, for instance if multiple surveillance recordings have been obtained by bugging a suspect’s home, car or workplace, or if the suspect has been interviewed by police officers on more than one occasion. A range of different comparison methods can be used to identify the phonetic similarities and differences between the QS and KS. The longest-​established method consists of auditory analysis only (Gold and French 2019). This involves careful repeated listening to each sample, making detailed transcriptions of vowels, consonants and selected prosodic features using the International Phonetic Alphabet (IPA), and documenting anything else that is phonetically or linguistically noteworthy. The auditory-​only approach has lost favour internationally, however, and is now used only very rarely in the UK. A second, 400

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more sophisticated method incorporates the same kind of detailed listening and transcription, but the analyst also gathers quantitative acoustic-​phonetic data by making measurements of features such as the fundamental frequency (F0, ‘pitch’) of the talker’s voice, vowel formant resonance frequencies, durations of key consonantal intervals (e.g. closure duration in stop consonants), absolute and relative syllable durations for the quantification of speech rhythm, measures of articulation rate (tempo) and so forth. This technique is known as the ‘combined auditory-​acoustic method’ (Gold and French 2019; Jessen, Chapter 24, this volume). The auditory-​ acoustic method is arguably intrinsically problematic, owing to its dependency upon the analyst’s individual experience, and because of the inscrutability of the decisions he or she makes when choosing phonetic features for analysis and later making measurements of their acoustic properties. There is thus increasing pressure on experts to make greater use of computer software tools known as Automatic Speaker Recognition (ASR) systems, which are designed to make forensic speaker comparison more objective, consistent, accurate, precise and replicable. Extensive and rigorous testing of systems of this kind means that their error rates are known, in accordance with the Daubert standard concerning the admissibility of expert witness testimony in the US federal courts (Daubert v.  Merrell Dow Pharmaceuticals, Inc. 1993; the ruling has also exerted considerable influence internationally). By contrast, establishing error rates for human analysts is more difficult, because individual experts may employ quite distinct methods when conducting their examinations, and because each expert relies upon a body of knowledge that is effectively unique to him or her. Finding out how error-​prone human analysts are is also a slow and expensive process compared to the validation of ASR systems, which can perform comparisons in a matter of seconds rather than hours or days. When deploying automatic tools, the human expert may assume a ‘supervisory’ role: that is, he or she chooses the software settings prior to analysis, monitors the system’s output, makes adjustments to the settings during the analysis process and so forth. Vetting of the recordings in advance may also be carried out, for example to ensure that preparatory editing has been done correctly, and to evaluate the contents of the recordings in terms of the presence of features that may have a bearing on the choice of the reference population used (see below). The procedure is consequently known as ‘human-​assisted automatic speaker recognition’. However, in some jurisdictions, it is considered legitimate –​even preferable –​to bypass the human analyst altogether, and to leave the task exclusively to the software. This method is termed ‘fully automatic speaker recognition’. Morrison et  al.’s (2016) survey of analysis practices adopted by laboratories and independent forensic analysts around the world indicates that human-​assisted ASR was being used by around 20% of practitioners, while fully automatic ASR was favoured by less than 10% of the international community. The remaining 70% continued to use longer-​ established methods, in particular the auditory-​acoustic approach. The latest survey of this type (Gold and French 2019) indicates growth in the uptake of ASR systems in casework, with over 40% of the 39 respondents (individuals and laboratories, across 23 countries) stating that they make use of an ASR system. The field is undoubtedly changing, then, and it must continue to adapt in response to new findings and the introduction of novel methodologies. In the second part of this chapter, we will broaden our focus to consider some of the ways in which the scope of forensic speech science may in future need to expand into territory that has until now been treated as the province of forensic linguists, or even forensic psychologists and criminologists, rather than forensic speech experts in the strict sense. Our rationale for this 401

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suggestion is grounded in a recognition of the capacity of the speech signal to transmit information relating to the speaker’s psychological state, as well as the notion that the phonetic encoding of utterances –​the speaker’s ‘tone of voice’, in regular parlance –​can on its own lead to the speaker being charged with having perpetrated a language crime. If we are to use ASR as a more routine part of our work in forensic speech science it would, we argue, be of benefit to take factors of this type more fully into account. They may, after all, be of key importance to the victims, investigators and triers-​of-​fact in criminal cases, even if forensic speech experts have in the past tended to prefer to place them on the far side of a sharply-​drawn boundary dividing forensic speech science from the domains of forensic linguistics, forensic psychology and other allied disciplines. Before we address these broader questions, however, we provide a basic introduction to the characteristics and functions of ASR software systems, and the purpose of expressing the output of their analyses in the form of a ‘Likelihood Ratio’.

ASR systems The choice of the name ‘Automatic Speaker Recognition’ for the systems discussed in this chapter is not ideal, in that many forensic speech analysts no longer consider the term speaker recognition a valid label for speaker comparison. Recognition may imply too strongly to some non-​experts that a known speaker is being identified, given that recognising an individual generally presupposes that s/​ he is already familiar to the observer. More unfortunate is the fact that the initialism ‘ASR’ has also been used to refer to automatic speech recognition, thereby obscuring the important distinction between (a) the speaker who is talking, and (b) the speech itself. Speaker recognition sets out to detect features in the acoustic signal that cue the speaker’s identity without the linguistic content of the speech being of any interest, while in speech recognition the opposite is true. However, since the manufacturers of automatic speaker recognition software and many commentators on the subject use ‘ASR’ to refer to automatic speaker comparison, we will follow the same convention here. ASR systems are designed to run comparisons without needing a great deal of input from the user. As the name indicates, much of the analysis is done automatically. Furthermore, ASR systems do not aim to replicate the analysis a (forensic) phonetician would carry out on the same material. Commercially available systems will not directly pick out individual segments (vowels and consonants), for instance. Nor are they generally designed to focus on prosodic phenomena such as intonation or voice quality. Instead, the ASR system starts by stripping out silent portions of the recording (pauses, silent gaps in stop consonants, etc.), leaving behind the ‘speech-​active’ sections. Then, it splits the signal into brief overlapping chunks or ‘frames’ a few tens of milliseconds long, and examines the acoustic spectrum in each frame. The frames have to be short because speech changes so rapidly as we talk, and they overlap to ensure that the transitions between neighbouring speech sounds are adequately represented. The next step is to process each frame so as to extract from it a string (or ‘vector’) of numbers called mel-​frequency cepstral coefficients (MFCCs). The complex speech signal has now been reduced to a small number of digits –​fewer than 20 per frame –​representing the resonances produced by the speaker’s vocal tract, and other relevant acoustic properties of the signal captured in that frame. The MFCC vectors are then combined to produce a ‘speaker model’, which in principle is unique to the talker in question. Uniqueness can be assumed because the talker’s internal head and neck anatomy is likely to be different 402

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from any other person’s, even that of an identical twin, and also because the coordinated movements of the vocal organs during speech seem to be idiosyncratic. Models of this type have been found to work very well for automatic speaker recognition, and indeed also for speech recognition applications such as those built into smartphones, computers and virtual voice assistants (Siri, Cortana, Google Assistant etc.). Figure 25.1 illustrates the differences between a regular wide-​band spectrogram scaled using Hertz (Hz) units and the MFCC spectrogram of the same utterance. In the latter, 12 horizontal rows corresponding to each of the MFCC values represented in a 12-​coefficient vector can be discerned, as can numerous narrow vertical columns denoting the individual frames.

Figure 25.1  Wide-​band FFT spectrogram of 1-​second sample of the speech of a Swedish-​ speaking male, with a sampling rate of 8kHz (upper panel); corresponding 12-​coefficient MFCC spectrogram of same utterance (lower panel) 403

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We should note that before any comparison can take place the ASR system must first be informed of the kind of material it will be comparing: in this case, speech data rather than information of some other type, such as images. This is achieved using a ‘background model’, the purpose of which is to notify the ASR in a maximally general way about what human speech is like. Accordingly, the background model may contain a very diverse set of samples (speech of both men and women, and even children; multiple languages and dialects; telephonic and studio-​quality speech; read and spontaneous speech; etc.). The simplest sort of comparison the ASR system can then carry out involves comparing the speaker models derived from the QS and KS. This produces a so-​called ‘similarity score’, which gives us an indication of how closely the MFCC profiles of the two samples resemble one another. This score is of limited value, however, because we do not yet know how similar the samples are relative to other voices. We need to be able to weigh up the similarities and differences between the QS and KS against what would be found in the broader speech community. We therefore assess the level of QS~KS similarity against a reference corpus, to give us an idea of how likely we would be to find the same similarity score in the relevant population just by chance. Another way of putting this is that the reference population data give us an idea of how typical the similarities shared by the QS and KS are. The reference data are likely to be drawn from a corpus of recordings of dozens or even hundreds of speakers, with a total of 30 speakers normally being taken as a minimum. In this respect, we are following principles that are common to other forensic sciences, such as forensic DNA testing. It might be that the DNA profile of a hair sample found at a crime scene matches almost exactly with that extracted from a cheek swab provided by a suspect. This finding would tend to support the view that the offender and suspect samples came from the same individual, and that the police have therefore arrested the right person. However, we must remember that there is a non-​zero probability of obtaining such a match in the wider population, because other, not necessarily related, individuals can in fact share highly similar DNA profiles. This impacts on the probability that the two samples do indeed come from the same person, and accordingly we must revise our view of how far our evidence supports the competing hypotheses in the case (i.e. that the two samples came from the same person, as opposed to two different people; see further below). The reference population is selected according to its appropriateness to the case at hand. If the voices in the QS and KS are evidently those of young men speaking Newcastle English, it makes sense to select a corpus composed of speakers with the same sort of accent and age/​sex profile. It would not be appropriate to select one made up of recordings of young women from Newcastle, or one comprised of recordings of elderly Liverpudlian men. The ASR system, it should be noted, would still produce a result if mismatched data of this kind were used, though the validity of that result would certainly be open to question. The above steps have brought us to the point where we can run our evaluation of how closely the QS and KS models resemble one another in the context of our reference population. That is, we can weigh up how likely it is that we would observe the similarities between the QS and KS if the speech in them had been produced by the same talker, against the likelihood of making this observation if the samples contained the speech of two different people. We express the strength of the evidence in numerical terms as the ratio of these two likelihoods (the Likelihood Ratio, LR). The LR approach, which is grounded in Bayesian probabilistic reasoning, is increasingly accepted across the forensic 404

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sciences as the only ‘logically and legally correct framework’ within which the forensic speech expert should express conclusions (Gold and Hughes 2014: 292). The LR equation takes the following form: (1) LR = p[E|Hss] /​ p[E|Hds] Equation (1)  defines the LR as the probability (p) of obtaining the evidence E if we assume that the same-​speaker hypothesis (Hss) is correct, relative to the probability of obtaining E under the different-​speaker hypothesis (Hds). The magnitude of the LR is thus a measure of the strength of the support the evidence provides for the two hypotheses. If the LR exceeds 1, our evidence provides support for Hss (i.e., that the QS and KS samples were spoken by the same person), and should it do so by a large margin we can say that the evidence gives strong support to the same-​speaker hypothesis. If the LR is less than 1, the evidence supports Hds. Small LR values between 1 and 0 lend greater support for the different-​speaker hypothesis. Finally, where the LR = 1, we say that the comparison offers support for neither hypothesis. Note that because the LR values generated by our comparisons can at times be unwieldy, we convert them to a logarithmic scale (log10LR, or LLR); hence, LR = 1 is equivalent to LLR = 0. In the foregoing section, we have described what a forensic speech expert might do when instructed to compare two speech samples for a criminal investigation or a court trial. We have, however, glossed over a great number of factors which can make that process problematic. In fact, the picture is often extremely complicated, as we discuss below.

Problems Clearly, the ideal ASR system would be one that makes no errors at all. Software engineers are striving very hard to try to achieve that objective (Greenberg et  al. 2020). But given the nature of forensic casework recordings, which are often distorted, degraded by background noise or otherwise of poor quality, we must expect even the best system to be prone to occasional errors. In the circumstances, where a suspect’s liberty may be at stake –​or even his/​her life, in jurisdictions which impose the death penalty –​it is therefore crucial that we minimise the error rate as far as possible. An important consideration when seeking to do so concerns the characteristics of the reference population database. Users of ASR systems for forensic speaker comparison are often hindered by the scarcity of adequate reference population data, even for well-​ documented varieties of the language in question. Even for English, there are numerous gaps in the reference material. Existing corpora may be too small in terms of the number of speakers represented, or the samples may be too short in duration to be viable. The corpus may contain only readings of word lists; it may also be dated. Some corpora collected for sociolinguistic purposes are now several decades old, and no longer exemplify the variety especially well. If time and resources allow, the expert may have the opportunity to collect a bespoke corpus of recordings of informants who are linguistically comparable to the QS speaker. Realistically, though, this will be feasible in only a minority of cases, so it may be necessary to compromise by using a corpus representing a closely related variety, or to decline taking on the case altogether. ASR performance may be degraded for a host of other technical reasons, such as short sample duration or low sampling rate (meaning the recording only partially represents the original speech, much as a low-​resolution digital photograph omits a lot of potentially 405

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useful detail). The type of channel used to transmit the speech signal may differ between QS and KS: the expert may, for instance, be called upon to compare telephonic speech intercepted using a probe planted in a moving vehicle with a PACE interview recorded on a high-​quality recording device in a quiet room. The recording device itself may introduce technical artefacts into the signal if the recording head is not clean, if there is contamination from external radio interference or if there is some device-​internal issue with the electronic circuitry or power supply. All this is before we have even considered the linguistic behaviour of speakers themselves. In the forensic phonetician’s ideal world, speakers would fall into sharply differentiated dialect and accent categories that conform with what can be found in reference books, and their speech would not vary much in terms of its phonetic characteristics across time or setting. Each speaker would, as it were, occupy his or her own region of ‘linguistic space’, a region which would not overlap significantly with other speakers’ regions. Talker X would consistently speak in a way that is always distinct from the vocal habits of everyone else, so it would always be possible to identify that talker from any utterance s/​ he produced, irrespective of factors such as speaking style, illness, fatigue, drug or alcohol intoxication, damage to the vocal folds caused by smoking, or the effects of ageing. This is, of course, a long way from the reality. Real speakers can be hard to distinguish from one another even using the most sophisticated analysis techniques. They may, moreover, be multilingual or bidialectal, and even if they do not codeswitch between languages or dialects while talking, the speech that they produce may vary radically depending on when, where and with whom it is uttered. There is an indeterminately large number of degrees of freedom in human speech production, and the extent to which an individual speaker’s voice differs from others’ voices along different phonetic dimensions is still only incompletely understood (e.g. Eidsheim and Meizel 2019; Jessen, Chapter 24, this volume). Additionally, it is possible that the speaker is using some kind of purposeful voice disguise, in an effort to conceal his or her identity. Disguise is a common strategy in cases involving fraudulent or malicious telephone calls, recorded ransom demands and the like. There are numerous ways in which speakers may very effectively disrupt their normal speech patterns. Examples are making changes to voice quality by whispering, by using harsh phonation or by switching into falsetto register; the speaker may obstruct his mouth (e.g. by using a hand or piece of clothing, or by holding an object between his teeth), adopt a different regional or foreign accent, or impersonate another individual (Farrús 2018). Several sorts of disguise may indeed be used simultaneously (Eriksson 2010). In the case of accent disguise it is usually unnecessary for the speaker to strive for an imitation so authentic-​sounding that the listener will not detect that the accent is being faked. It is sufficient only that the speaker’s normal accent and voice quality are obscured. Disguise using electronic distortion, though apparently relatively uncommon, is another form of deliberate manipulation of the speech signal which may be extremely difficult or impossible for the expert to reverse (Wang et al. 2015). Concerns are growing in the security community that so-​called ‘voice cloning’ software –​examples are Google’s Tacotron, Lyrebird, CandyVoice, CereVoice Me and Baidu’s DeepVoice –​may come to be regularly used by criminals as a means of perpetrating fraud through spoofing attacks. Tools of this type use samples of the target person’s genuine speech to build a speaker-​specific model which can then be used to synthesise lifelike-​ sounding utterances the target has never said in reality. While until recently the rather unnatural quality of cloned voices would have alerted most listeners to the fact that they 406

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were listening to synthetic speech, we have already passed the point at which fake and real samples have become hard to distinguish (Wester et al. 2017). Genuine reference samples could be obtained in a variety of ways, for example by downloading examples of a talker’s speech from social media sites such as YouTube or Facebook, via phishing phone calls whereby the victim unwittingly provides the raw materials with which the criminal can build the model used for spoofing purposes, or by illicitly gaining access to a database of voice samples (Ahmed et al. 2019). The fraudster may then attempt to dupe a human listener or an automatic speaker verification system, or even both. In some cases these attacks have been successful (see e.g. Kundaliya 2019; Watt et al. 2019). The use of speaker verification technology in areas such as telephone banking and secure access to buildings (e.g. military facilities, science laboratories) is likely to keep growing over the coming decades. One recent forecast (Miller 2016) predicted that by 2020 some 500 million customers would have opted into telephone banking services that require them to register their ‘voiceprints’, derived from a small number of repetitions of a short spoken passphrase such as ‘My voice is my password’. Customers will expect this technology to be as invulnerable to fraudsters as it can possibly be, but will not react well if the bar is set so high that legitimate requests for access are more than very occasionally denied. It goes without saying that users will abandon the use of this technology –​ supposing that they can opt to do so  –​if the incidence of successful spoofing attacks surpasses a certain, probably quite low, threshold. It may be that the frequency of attacks, whether successful or not, is under-​reported by the organisations that have invested in the technology; it is known that the actual rate of financial fraud, which is already one of the commonest sorts of reported crime, is significantly higher than the official figures suggest (for recent UK government statistics, see https://​bit.ly/​2St6qcc). The pressure to improve the technology is therefore considerable, not least because there are several software vendors vying to dominate the automatic speaker verification and recognition market. The products which are currently available make assessments purely on the acoustics of the speech samples, and have proven to be very good at this one job. However, if we were to exclusively rely on these systems for casework, we would lose the additional observations which human experts bring to an analysis that machines are simply not capable of making at present. For example, human listeners can assess disparities between samples that are brought about by differences in speakers’ emotional states, as will be discussed below. As ASR systems become more ubiquitous it is likely that the role of the human forensic speech analyst will change, just as we expect to happen in other professions and areas of social life as machines supplant humans in tasks such as medical diagnosis. The engineers responsible for designing maximally foolproof but user-​friendly speaker recognition systems, whether these be intended for crime investigation and intelligence gathering purposes or day-​to-​day ‘civilian’ use like telephone banking, will ideally take into account as many of the factors that affect the characteristics of the speech signal as possible. Training systems using databases of speech elicited from speakers in a controlled fashion –​for example, by having them read standardised sets of sentences aloud, as per the commonly used TIMIT database (Garofolo et al. 1993) –​may be insufficient, even if those databases are very large. Corpora of read speech simply will not embody the range of variation present in speech in, as it were, its ‘natural habitat’. Although some more recent datasets, such as the SAS (Spoofing and Anti-​Spoofing) corpus used for the AVspoof2019 exercise (Yamagishi et  al. 2019), contain unscripted spontaneous speech, others do not (e.g. VCTK –​Voice Cloning Toolkit; Veaux et al. 2017). 407

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For forensic purposes, it would be appropriate to test the reliability of ASR systems using material that is properly representative of the kinds of speech one encounters in real casework recordings:  speech that is influenced by the speaker’s emotional state (anger, fear, elation, etc.), by the type of linguistic behaviour involved (shouting, whispering, singing, monologic vs. dialogic speech, etc.) and by physiological factors such as fatigue, pain, illness or the influence of alcohol or drugs. Issues of this sort have drawn attention in the research community for some time now (e.g. Park et al. 2016), though in view of the number of variables that should be tested for, making continued progress is going to require a good deal of concerted effort. Additional caution will be necessary in view of the number of degrees of freedom involved here, and the extent to which consideration of non-​linguistic factors (psychological, physiological, etc.) becomes ever more inescapable as this broader spectrum of speaking styles is taken into account. Such blurring of the boundaries between the domain traditionally occupied by speech science and other areas of inquiry may bring with it the risk that the limits of the analyst’s expertise are more frequently overstepped. Article (9) of the current Code of Practice of the International Association for Forensic Phonetics and Acoustics offers relevant guidance in this respect: (9) Members should not attempt to do psychological profiles or assessments of the sincerity of speakers. (IAFPA, 2019; iafpa.net/​code.htm) The first part of this clause is, it appears, intended to dissuade forensic experts from speculating about the mental state or thought processes of the speaker, while the second warns the expert against giving an opinion on whether or not the speaker is being truthful or genuine. Experts who specialise in speech analysis might, on the face of it, be expected by legal professionals and by laypeople to be both qualified and able to comment on these things; emotional affect is indubitably encoded in the speech signal (e.g. Scherer 2019), and a long tradition of research by forensic speech analysts on the phonetic cues to deception does not suggest that the subject is automatically considered off-​limits (e.g. Vrij 2019). Rigid observance of Article (9) on an expert’s part may therefore strike the contracting party as puzzling, but this unwillingness to address the links between speech and emotional state or sincerity is more to do with the current dearth of data on these subjects than it is a matter of scientific principle. With respect to emotional speech, the issues here are, firstly, that it is hard to identify consistent phonetic cues across speakers that serve to distinguish genuine speech of type X (e.g. angry, joyful, fearful, remorseful, deceptive) from the speaker’s ‘neutral’ or ‘sincere’ mode of speaking. A large proportion of the experimental work on emotional speech is based on elicited, acted emotion, and it is not yet clear how closely this kind of simulated behaviour resembles the real thing. It is possible for speakers at will to suppress the verbal expression of emotion, and they can also tell lies without their speech exhibiting any distinctive features that betray their untruthfulness. The work on deceptive speech has, indeed, yet to discover any features that can reliably be correlated with lying, even under controlled experimental circumstances in which it is known for certain that the subject is not telling the truth. Moreover, contrary to perceptions among the public, police forces, border agencies, airport security contractors and the like, speech analysis technology has not yet reached the point at which the task of identifying deception should, or even can, be handed over to a machine. In spite of their assurances, the claims made by the vendors 408

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of ‘emotion detection’ software such as Nemesysco’s ‘Layered Voice Analysis’ (LVA) system are not supported by the reputable publicly available scientific data on deceptive speech. Nor does the speech technology community at large recognize the broader theoretical and methodological principles that are said to underlie the operation of these products (Eriksson and Lacerda 2007). It is telling that the current Nemesysco webpage about LVA includes the apparent admission that ‘[m]‌any of the parameters Nemesysco’s technology uses are new to the world of phonetics, and focus on the uncontrolled and yet phonetically unexplained properties of the human voice’ (http://​nemesysco.com/​speech-​ analysis-​technology, accesses 11 February 2020). It would therefore be all the more unfortunate if, in the spirit of adhering to Article (9) of the Code of Practice, forensic speech scientists decided that there was no benefit to be gained by investigating the links between speech and psychological state any further. There is a risk that in this way the Code might serve to stifle legitimate research, and also that a cessation of work on the topic by impartial researchers with no profit motive could leave the path open to manufacturers of bogus lie-​detection technology. The systematic study of emotional speech is a particularly good illustration of the way in which the boundaries of what currently constitutes forensic speech science can be stretched to accommodate areas which some practitioners might previously have considered to occupy the relatively unimportant fringes of the field. Anyone who has worked with genuine forensic case recordings will know that the speakers in question often sound highly emotionally aroused (Tavi 2019). Consider a case in which an expert is approached by a police officer or solicitor to compare a recording of a male offender shouting in (apparent) anger with a reference recording of a suspect talking quietly and calmly in answer to a police interviewer’s questions. The expert is typical of the international community of practising forensic speech scientists in that she uses auditory analysis alongside computer-​based examinations. While screening the materials at the outset of the examination she must try to imagine what the voice of the suspect might be like if he were shouting angrily, and what the offender would sound like if he were not. This initial qualitative evaluation can be pivotal. It may be the point at which the expert decides that more detailed examination of the samples would be both appropriate and worthwhile, or it may lead to her declining to accept the case because it seems clear that an elimination (i.e. that the suspect and offender are different people) would be the correct decision. Either way, this kind of triage depends on the analyst having a mental model of what angry speech sounds like relative to ‘normal’ speech, and applying it to the samples in question. Using ASR technology to perform the comparison might mean the expert does not have to go through this decision process, if only because the comparison can be done so relatively quickly. However, she still has the task of interpreting the LLR returned by the ASR system after the comparison has been performed. Where there is a mismatch between the samples in terms of their apparent emotional content, one would expect accuracy to be affected: for same-​speaker sample pairs we can expect smaller positive or even negative LLRs (i.e. errors), and for different-​speaker pairs we could expect negative values closer to 0, or perhaps a greater likelihood of a false positive. To what extent can degraded performance of this sort be attributed to the emotional content of the speech, as opposed to speaker (non-​)identity? This can be very hard to judge, though as we collect more research data on the characteristics of emotional speech it should over time become easier to factor out variation that results from differences in emotional state versus interspeaker differences. 409

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Saying something in an ‘angry’ way is not a crime in and of itself. However, there is a type of language crime –​the verbal threat –​which can be perpetrated solely through the way in which the words in question are uttered. Threats are at the heart of offences such as extortion and blackmail, and in spoken form can constitute assault. Threats may be accompanied by other actions which are crimes in their own right –​robbery, for instance –​ but equally, threats may stand alone, as a warning to the recipient to do or not to do something, or as a promise to cause harm to people or property (e.g. Archer et al. 2019). They may be very short; a few words may suffice. They may also be ambiguous because the issuer of the threat does not directly state what is being threatened. Indirect threats of this type can be delivered in a number of guises: they can take the form of statements (I know where you live), commands (Think carefully about what you’re going to do next), questions (Do you like hospital food?) or even compliments (That’s two lovely little kids you’ve got there). The words themselves may not imply any malicious intent: the phrase I know where you live might, after all, be uttered for the most benign of reasons. Context is obviously vitally important in many cases. However, it is not always a requirement: as noted above, a listener can deem an utterance to sound menacing or sinister even where the words used have no apparent intrinsic threat content, and where no linguistic context is provided. In an experiment designed to elicit descriptions of different voice qualities from untrained listeners, Watt and Burns (2012) played monolingual English-​ speaking participants (N=23) a series of utterances in English and German recorded for the purposes of demonstrating phonatory qualities such as creaky voice, whispery voice, falsetto, etc. Eight voice qualities were exemplified for each of the two languages, but only one text per language was used:  the English sentence Learning to speak well is an important and fruitful task, and the German sentence fragment Beim Fußball können die Sportfreunde immer davon ausgehen … (‘Sports fans can always depend upon football …’). These do not in themselves appear to encode anything that would excite fear or alarm in listeners. In any case, the participants were unable to understand the lexical content of the German utterance. The English phrases were all spoken by the same talker, as were the German ones. However, the switch from regular modal voice to another phonatory setting in some cases brought about quite marked changes in the listeners’ qualitative judgments. When the English speaker used modal voice, he was described as ‘male’, ‘slow’ and ‘clear’. When he uttered the same words using whispery creaky voice, however, he was labelled ‘menacing’ or ‘scary’ by around a third of the listeners (8/​23); other terms chosen by participants for this guise were ‘menacing’, ‘ominous’, ‘threatening’, ‘horror movie’ and ‘pervert’. Whispery breathy voice in the German sample set was described using the terms ‘menacing’, ‘creepy’, ‘evil’, ‘scary’ and ‘sinister’, while the most popular labels for the same speaker using modal voice (other than ‘German’ and ‘man’) were ‘clear’, ‘slow’, ‘young’, ‘normal’, ‘calm’ and ‘soft’ (see also Watt and Kelly 2020). Other relevant results were obtained by Watt et al. (2013), who asked male speakers of five different languages –​English, Arabic, Hebrew, Norwegian and Swedish –​to utter the phrase I know where you live, or its translated equivalent, first in a neutral way, and then in a threatening way. The interpretation of ‘threatening’ here was left up to the speaker. The phrase was uttered alone, or embedded in a short context (neutral vs. threatening). The neutral context was an invitation to a social get-​together (We’re going to the park for a picnic, should we come and get you? I know where you live. So we’ll come and pick you up), while the threatening context was written so as to imply a degree of ill-​will towards a recalcitrant debtor (You better watch out. I know where you live. If you don’t pay me back, I’ll know where to find you). The middle sentence in each case was extracted and played back 410

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to listeners minus its surrounding context. Again, the listeners were monolingual English speakers who were screened beforehand to ensure that they did not have any familiarity with the four foreign languages. They were asked to rate the four different readings of the phrase in each of the five languages (±threatening, ±read in context) for threat and for ‘intent to harm’ (that is, their judgment of how likely the speaker would be to carry out a harmful act on the basis of the affective content of the utterance). The results indicated that the ‘threatening’ readings in English were rated higher for both threat and intent than the neutral ones, and that male listeners gave higher ratings on both measures than the female listeners did. The threatening utterances which had been read in isolation received higher ratings for threat and intent than those read within the contextual frames, perhaps because the readers thought the lexical content of the surrounding sentences would convey a degree of menace without it being necessary to rely exclusively on phonetic modifications. Though parallel effects were observed in the foreign-​language utterances, these were very much less marked and in the majority of cases were not large enough to achieve statistical significance. In spite of research seeking to identify the phonetic cues associated with spoken threats, whether genuine or acted (Kelly 2018), it has thus far been very difficult to find evidence to suggest that speakers deploy a particular set of phonetic cues in any consistent way to signal threat. In spite of our current lack of clarity in this area, it is nevertheless abundantly clear that ‘tone of voice’ on its own can trigger predictable and consistent responses from listeners, and that the affective content of even very brief vocalisations can reliably be identified, even if the hearer is not familiar with the language in question or linguistic content is lacking (e.g. Castiajo and Pinheiro 2019). While forensic speech scientists are justifiably cautious about taking untrained listeners’ subjective judgments at face value, it appears that as far as the police, intelligence services and courts are concerned, the notion that there exists a threatening tone of voice is an unproblematic one. As Gingiss (1986: 153) observes, there are risks in accepting the commonsensical view that people ‘know a threat when they hear one’. In the context of criminal trials and hearings in the family and civil courts, the central relevance of voice-​based perceptions of threat and aggression seems uncontroversial, as searching by appropriate keywords in the British and Irish Legal Information Institute (BAILII) database (www.bailii.org) or on news websites will reveal (e.g. Gable Tostee’s alleged use of a ‘menacing tone of voice’ in a recording adduced as evidence in his 2016 trial for the murder of Warienna Wright; R v. Tostee [2016]). Recent sharp increases in the United Kingdom and elsewhere in the number of reported hate crimes and other sorts of aggressive and threatening conduct (Hardy and Chakraborti 2020), and continuing governmental efforts to extend measures intended for the protection of the public, call urgently for greater quantities of up-​to-​date and broad-​ ranging empirical data relating to the phonetic aspects of these types of behaviours. Forensic speech scientists are much the best-​placed experts to offer opinions in this regard. If nothing else, they can reasonably be expected to advise law enforcement, intelligence and legal professionals that the recent research on the phonetics of threat speech has shown that the relationship between listener’s perceptions and the cues in the phonetic domain that underpin them is not at all a simple or straightforward one. Their expertise would also be valuable when improving the guidelines issued to emergency call handlers and personnel in other organisations (public transport hubs, large businesses, arts and music venues, government offices, embassies, schools, universities, etc.) which may potentially be the target of terrorist attacks. The questionnaire designed by the UK National Counter Terrorism and Security Office (NCTSO; see https://​bit.ly/​2ScFKxn), a portion of 411

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ABOUT THE CALLER:

Male

Female

THREAT LANGUAGE:

Well-spoken

Irrational

Taped

Foul

Incoherent

Calm

Crying

Clearing throat

Angry

Nasal

Lisp

Accent*

CALLER’S VOICE:

Nationality

Slurred

Excited

Stutter

Disguised

Slow

Rapid

Deep

Familiar**

Laughter

Hoarse

Age

Other (please specify)

*What accent? **If the voice sounded familiar, who did it sound like?

Figure 25.2  Extract from Form 5474 Actions to be Taken on Receipt of a Bomb Threat circulated by the UK Counter Terrorism and Security Office (Tompkinson 2018). Contains public sector information licensed under the Open Government Licence v3.0

which is shown in Figure 25.2, may strike linguistically informed readers as rather haphazardly laid out, as well as unclear in respect of the motivations for the inclusion of certain parameters (e.g. ‘clearing throat’, ‘well-​spoken’), or even what some of these labels might mean (e.g. ‘foul’, ‘irrational’, etc.). The introduction of speech technology might be seen as a way to bypass some of the subjectivity inherent in asking phonetically untrained listeners to make judgments about the voice quality and accent of other speakers, as does the questionnaire shown in Figure 25.2. But on many occasions, police officers will rely upon their own judgments of the speech patterns of an offender (e.g. in a recording of a masked gunman robbing a filling station) as justification for their arresting a suspect, before a forensic speech expert has been consulted. That arrest will then lead to an interview, and the interview may lead to a forensic speaker comparison using an ASR system. But here, the comparison ultimately rests on the degree of reliability of the untrained listener’s subjective observations. Untrained observers will not know which features are relevant to forensic experts and which are not, and they are unlikely, on balance, to distinguish between features that are phonetically tractable (voice fundamental frequency, say) and ones for which the phonetic correlates are harder to identify (e.g. an ‘aggressive tone’). This muddying of the waters is evident in the design of the NCTSO questionnaire. However, we would argue that it is unwise a priori to marginalise or ignore portions of lay-​listeners’ descriptions (e.g., ‘he had a menacing voice’) before considering the possibility that these aspects of the speech signal might be rooted in acoustic cues that systematic research has yet to uncover (for further discussion, see Watt and Kelly 2020). The foregoing discussion will, we hope, have made it plain that there is potentially a great deal to be gained by conducting research on areas in which forensic speech scientists and forensic linguists can make complementary and equally valuable contributions. There is already a considerable volume of literature on the topic of threats as language crimes, but to date there exist only trifling quantities of data on the phonetic dimensions of these 412

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sorts of offences. Similarly, despite the current preoccupation in public discourse about hate speech, and the rapidly growing body of scholarly research on the linguistic aspects of hate crimes, there is –​ironically –​practically nothing yet in the research literature on the characteristics of the speech part of hate speech (Neitsch and Niebuhr 2019). The most productive strategy in seeking to address this gap, it seems to us, will be to work with forensic linguists and forensic psychologists on the problem, rather than assuming from the outset that the phonetic components of these behaviours are best studied in isolation, if they are to be studied at all. The availability of automated methods will help to accelerate the production of data that are useful to this enterprise, even if it is still too early to make use of these data in actual forensic casework. Indeed, the use of ASR-​derived data in the criminal courts of England and Wales has recently been ruled inadmissible (R. v. Slade and Ors. (2015); see French and Watt 2018), so pending this restriction being overturned the issue of the validity of ASR data in UK trials is moot. In the interim, further research on forensically relevant ways in which the speech signal can vary, and the sensitivity of ASR systems as well as human listeners to these variations, will be paramount.

Conclusions The adoption of ASR technology in the sphere of crime investigation and intelligence gathering is without doubt a very positive step. As an addition to the forensic speech analyst’s methodological toolkit it has already proven its worth, even if the courts in some jurisdictions do not yet seem ready to accept evidence generated using the best ASR algorithms available. Although the technology is constantly improving, it is still limited by a large and probably underestimated number of technical and linguistic factors, many of which we have no control over, when the samples are being recorded. We must investigate more fully the effects of our choices regarding those factors we do have some ability to control for, though, as when selecting the appropriate reference population for the case at hand, supposing that one is even available. We must also recognise that although the effects on the speech signal brought about by changes in the speaker’s psychological state are not yet adequately understood, this gap in our knowledge should not lead us to close ourselves off from investigating these factors further. Similarly, we must look more closely at how the content and the form of potentially incriminating utterances interact with one another. Where we encounter problems at the margins of forensic speech science as it is currently defined, we should explore the benefits to be gained by joining forces with forensic linguists and forensic psychologists. These fields are in reality not sharply demarcated from one another, and there is much useful research to be done in the regions where the disciplines overlap. We therefore advocate developing initiatives to stimulate broader and deeper dialogue among practitioners in these closely related fields.

Acknowledgment We are grateful to Michael Jessen for his insightful comments on an earlier draft of this chapter.

Further reading French, P. (2007) ‘Caller on the line: An illustrated introduction to the work of a forensic speech scientist’, Medico-​Legal Journal, 75(3): 83–​96. 413

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Gales, T. (2019) ‘Threatening contexts:  An examination of threatening language from linguistic, legal and law enforcement perspectives’, in M. Evans, L. Jeffries and J. O’Driscoll (eds), The Routledge Handbook of Language in Conflict, London: Routledge, 472–​490. Greenberg, C.S., Mason, L.P., Sadjadi, S.O. and Reynolds, D.A. (2020) ‘Two decades of speaker recognition evaluation at the national institute of standards and technology’, Computer Speech and Language, 60: 1–​10 https://​doi.org/​10.1016/​j.csl.2019.101032. Hansen, J.H.L. and Hasan, T. (2015) ‘Speaker recognition by machines and humans:  A tutorial review’, IEEE Signal Processing Magazine, 32(6): 74–​99. Morrison, G.S. and Enzinger, E. (2019) ‘Introduction to forensic voice comparison’, in W.F. Katz and P.F. Assmann (eds), The Routledge Handbook of Phonetics, Abingdon, UK:  Taylor & Francis, 599–​634. Rosenberg, A.E., Bimbot, F. and Parthasarathy, S. (2008) ‘Overview of speaker recognition’, in J. Benesty, M.M. Sondhi and Y. Huang (eds), Springer Handbook of Speech Processing, Heidelberg: Springer, 725–​741.

Legal sources Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579 [1993]. R v. Tostee, Queensland Supreme Court (unreported) [2016]. R v. Slade and Ors, Court of Appeal –​Criminal Division, 10 February 2015 [2015] EWCA Crim 71.

References Ahmed, S., Chowdhury, A.R., Fawaz, K. and Ramanathan, P. (2019) ‘Prεεch: A system for privacy-​ preserving speech transcription’, arXiv:1909.04198v2 [cs.CR], 12 September https://​arxiv.org/​ pdf/​1909.04198.pdf (accessed 11 February 2020). Archer, D., Lansley, C. and Garner, A. (2019) ‘The value of linguistics in assessing potential threats in an airport setting’, in M. Evans, L. Jeffries and J. O’Driscoll (eds), The Routledge Handbook of Language in Conflict, London: Routledge, 454–​471. Castiajo, P.M.S. and Pinheiro, A.P. (2019) ‘Decoding emotions from nonverbal vocalizations: How much voice signal is enough?’, Motivation and Emotion, 43: 803–​813. Eidsheim, N.S. and Meizel, K. (2019) The Oxford Handbook of Voice Studies. Oxford:  Oxford University Press. Eriksson, A. (2010) ‘The disguised voice:  Imitating accents or speech styles and impersonating individuals’, in C. Llamas and D. Watt (eds), Language and Identities, Edinburgh:  Edinburgh University Press, 86–​96. Eriksson, A. and Lacerda, F. (2007) ‘Charlatanry in forensic speech science: A problem to be taken seriously’, International Journal of Speech, Language and the Law, 14(2): 169–​193. Farrús, M. (2018) ‘Voice disguise in automatic speaker recognition’, ACM Computing Surveys (CSUR), 51(4), article no. 68: 1–​22. French, P. and Watt, D. (2018) ‘Assessing research impact in forensic speech science casework’, in D. McIntyre and H. Price (eds), Applying Linguistics:  Language and the Impact Agenda, London: Routledge, 150–​162. Garofolo, J.S., Lamel, L.F., Fisher, W.M., Fiscus, J.G., Pallett, D.S., Dahlgren, N.L. and Zue, V. (1993) TIMIT Acoustic-​Phonetic Continuous Speech Corpus LDC93S1, Philadelphia: Linguistic Data Consortium https://​catalog.ldc.upenn.edu/​LDC93S1 (accessed 18 July 2020). Gingiss, P. (1986) ‘Indirect threats’, Word, 37(3): 153–​158. Gold, E. and French, P. (2019) ‘International practices in forensic speaker comparisons:  Second survey’, International Journal of Speech, Language and the Law, 26(1): 1–​20. Gold, E. and Hughes, V. (2014) ‘Issues and opportunities: The application of the numerical likelihood ratio framework to forensic speaker comparison’, Science and Justice, 54(4): 292–​299. Greenberg, C.S., Mason, L.P., Sadjadi, S.O. and Reynolds, D.A. (2020) ‘Two decades of speaker recognition evaluation at the national institute of standards and technology’, Computer Speech and Language, 60: 1–​10 https://​doi.org/​10.1016/​j.csl.2019.101032. Hardy, S-​J. and Chakraborti, N. (2020) ‘Increasing problems, increasing indifference’, in S-​J. Hardy and N. Chakraborti (eds), Blood, Threats and Fears: The Hidden Worlds of Hate Crime Victims, Basingstoke: Palgrave,  3–​9. 414

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Kelly, S. (2018) Investigating the Phonetic and Linguistic Features used by Speakers to Communicate an Intent to Harm, PhD thesis, University of York http://​etheses.whiterose.ac.uk/​23920/​ (accessed 11 February 2020). Kundaliya, D. (2019) ‘Cyber criminals use AI to mimic CEO’s voice and trick manager into transferring £200,000’, Computing, 3 September www.computing.co.uk/​ctg/​news/​3081119/​ai-​mimick-​ voice-​crime (accessed 11 February 2020). Miller, D. (2016) Voice Biometrics Census: Steady Growth of Global Enrollments http://​opusresearch. net/​wordpress/​pdfreports/​VBUpdate_​2016_​cover2.pdf (accessed 11 February 2020). Morrison, G.S., Sahito, F.H., Jardine, G., Djokic, D., Clavet, S., Berghs, S. and Dorny, C.G. (2016) ‘INTERPOL survey of the use of speaker identification by law enforcement agencies’, Forensic Science International, 263: 92–​100. Neitsch, J. and Niebuhr, O. (2019) ‘Types of hate speech in German and their prosodic characteristics’, Proceedings of the 1st International Seminar on the Foundations of Speech: Breathing, Pausing, and the Voice, Sønderborg, December 2019, Odense: University of Southern Denmark, 85–​87. Park, S.J., Sigouin, C., Kreiman, J., Keating, P.A., Guo, J., Yeung, G., Kuo, F.-​Y. and Alwan, A. (2016) ‘Speaker identity and voice quality: Modeling human responses and automatic speaker recognition’, Proceedings of Interspeech 2016, San Francisco, September 2016, 1044–​1048. Scherer, K.R. (2019) ‘Studying appraisal-​driven emotion processes: Taking stock and moving to the future’, Cognition and Emotion, 33(1): 31–​40. Tavi, L. (2019) ‘Classifying females’ stressed and neutral voices using acoustic–​phonetic analysis of vowels:  an exploratory investigation with emergency calls’, International Journal of Speech Technology, 22(3): 511–​520. Veaux, C., Yamagishi, J. and MacDonald, K. (2017) CSTR VCTK Corpus: English Multi-​speaker Corpus for CSTR Voice Cloning Toolkit, Edinburgh: University of Edinburgh Centre for Speech Technology Research (CSTR) doi: https://​doi.org/​10.7488/​ds/​1994. Vrij, A. (2019) ‘Deception and truth detection when analyzing nonverbal and verbal cues’, Applied Cognitive Psychology, 33(2): 160–​167. Wang, Y., Wu, H. and Huang, J. (2015) ‘Verification of hidden speaker behind transformation disguised voices’, Digital Signal Processing, 45: 84–​95. Watt, D. and Burns, J. (2012) ‘Verbal descriptions of voice quality differences among untrained listeners’, York Papers in Linguistics (Series 2), 12a: 1–​28. Watt, D., Harrison, P. and Cabot-​King, L. (2019) ‘Who owns your voice? Linguistic and legal perspectives on the relationship between vocal distinctiveness and the rights of the individual speaker’, International Journal of Speech, Language and the Law, 26(2): 1–​44. Watt, D. and Kelly, S. (2020) ‘Voice description’, in F. Nolan, K. McDougall and T. Hudson (eds), The Oxford Handbook of Forensic Phonetics, Oxford: Oxford University Press. Watt, D., Kelly, S. and Llamas, C. (2013) ‘Inference of threat from neutrally-​worded utterances in familiar and unfamiliar languages’, York Papers in Linguistics (Series 2), 13: 99–​120. Wester, M., Aylett, M.P. and Braude, D.A. (2017) ‘Bot or not: Exploring the fine line between cyber and human identity’, Proceedings of the 19th ACM International Conference on Multimodal Interaction (ICMI’17), Glasgow, November 2017, 506–​507. Yamagishi, J., Todisco, M., Sahidullah, M., Delgado, H., Wang, X., Evans, N., Kinnunen, T., Lee, K.A., Vestman, V. and Nautsch, A. (2019) ASVspoof 2019:  The 3rd Automatic Speaker Verification Spoofing and Countermeasures Challenge Database [sound], Edinburgh: University of Edinburgh Centre for Speech Technology Research (CSTR) https://​doi.org/​10.7488/​ds/​2555.

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26 Forensic transcription The case for transcription as a dedicated branch of linguistic science Helen Fraser

Introduction Many criminal investigations involve the collection of covert (secret) audio recordings, typically via intercepting telephone calls, or ‘bugging’ houses and cars. These and other kinds of forensic speech recording provide vital intelligence, enabling police to bring offenders to trial. A subset goes on to be used as evidence during the trial itself. It is these latter that are the focus of the present discussion. Legally obtained forensic speech recordings can provide powerful forensic evidence, allowing the court to hear speakers providing information they would not be willing to give openly. A major problem, however, is that the audio is often of very poor quality, making it hard to understand the content. This has become well known in forensic linguistics, thanks to publicity for colourful cases like the one where an utterance initially heard as ‘he died after wank off’ was shown by phonetic analysis to be ‘he died after one cough’ (French and Harrison 2006). Examples like these (often called ‘disputed utterances’) can give the impression that the legal process works well to identify and correct errors in understanding covert recordings. However, that is far from true (French and Fraser 2018). The legal handling of forensic speech recordings creates a number of problems going far beyond the resolution of individual utterances (useful as the latter is). Indistinct audio is usually accompanied by a transcript intended to assist the court in making out what was said and who said it. For a range of reasons, discussed below, these transcripts may be inaccurate or misleading in multiple ways. The unreliable ‘assistance’ they provide creates the potential for injustice in its own right. However, since the transcript is the foundation of all further analysis, the implications of errors and infelicities extend considerably further. This chapter provides a general introduction to the relatively new field of forensic transcription: the theory and practice of providing reliable and useful transcripts of indistinct recordings admitted as evidence in criminal trials. It highlights problems caused by confident false beliefs within the law about the nature of speech and how speech perception works, and discusses the role that linguists can play in bringing these false beliefs to light, and in advocating for reform to legal processes for admission and use of covert recordings. 416

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However, the chapter also emphasises that ensuring effective reform requires linguistics to address false beliefs of its own regarding the legal process, and to recognise limitations on its current understanding of factors that affect the perception and transcription of indistinct speech in forensic contexts. To help explain these points, the chapter is organised around my personal casework history, tracing my developing understanding of how the complex relationship between linguistics and the law affects forensic transcription. All cases have been anonymised and simplified so as to foreground issues relevant to the current discussion, and the complexity of both the legal and the linguistic concepts they involve has been greatly reduced –​for further detail see Fraser (2018a, 2018b). Though the focus is on the Australian context, many of the issues raised are relevant internationally (Bucholtz 2009; Fishman 2006; Haworth 2018; Orletti 2017; Prince 1990).

An auspicious start: the ‘conversation in a car’ case I started to become involved in forensics in a minor way while teaching phonetics at an Australian university in the 1990s. Then as now, most requests for expert assistance related to speaker identification. At one point, however, I  was asked to review a poor quality recording that the police had been unable to transcribe. The audio was certainly indistinct, featuring two people talking in a car with the radio playing, air conditioning on, and a great deal of traffic and line noise. However, I found that with repeated careful listening I could transcribe quite a lot of what was said. Fortunately, due to my background in phonetics and cognitive science, I had taken care to avoid ‘priming’ my perception with potentially misleading expectations by ensuring I started with minimal information about the context and content of the recording. This, I now know, is unusual: many transcribers of indistinct audio ask for contextual information to guide their listening. However, among other advantages, my precaution meant that my ability to transcribe names, places and events which I could only have learned about from the recording gave credibility to my transcript. The police appreciated my work, and it seemed unremarkable to me that someone with my expertise should have been asked to do it. I assumed (wrongly, as it turned out) that this was standard procedure in cases involving indistinct forensic audio.

A dose of reality: the ‘heroin’ case It was some time before another transcription case came my way, this one from defence lawyers –​and it was far more difficult. The recording featured multiple speakers, some with foreign accents, engaging in noisy activities while moving around inside a dwelling. Without contextual knowledge, much of the conversation was simply unintelligible, even with repeated close listening. I did what I could and sent back my transcript, upon which I was asked to consider pre-​existing transcripts of six utterances within the unintelligible sections. I was interested to notice that each transcript contained the word ‘heroin’, and returned to the audio to review the relevant sections. Although I was still unable to determine what was really said, I  was confident that the six utterances had been incorrectly transcribed. In particular, there was no phonetic evidence at all for the word ‘heroin’ in any of them. I concluded that the existing transcript was ‘not so much inaccurate as unfounded’, and expressed concern that such an unreliable transcript was being used as evidence in a trial for a serious crime. My question was, who on earth had produced these transcriptions? 417

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The answer came as a shock to me at the time, though I now know it is standard practice: the transcript had been prepared by detectives investigating the case. Not only that, the prosecution had hired an audio engineer to back up their version. Naturally, since engineers have no expertise in linguistics, his support for the police transcript involved a great deal of unscientific reasoning. I wrote a detailed report, published as a journal article in 2003, explaining not only why this particular transcript was wrong, but also why, in general, it is a bad idea to have transcripts of indistinct forensic audio prepared by detectives and validated by engineers (see Fraser 2014). The reason, in brief, is that, though common knowledge suggests that recognising words involves picking up sounds that exist objectively in the speech signal, like letters on a printed page, a great deal of research demonstrates that this is a false belief. In reality, speech is a continuous stream of sound, in which listeners seek ‘cues’ to help them construct words and phrases. In doing this, they rely heavily, though unconsciously, on ‘priming’ by background expectations that ‘get them ready’ to hear particular utterances. The more indistinct the audio, the more perception relies on this priming. Interestingly, however, priming is equally effective whether the listener’s expectations derive from reliable knowledge or from unfounded assumptions. This makes it easy for unacknowledged background expectations to lead listeners to confident but erroneous perception. For these and other reasons, I  argued, transcription of indistinct audio is a highly specialised task requiring both independence and expertise in linguistic phonetics  –​of which police officers, reasonably enough, have neither. Of course, I emphasised that I was not implying any kind of deliberate bias on the part of police. The kind of ‘top-​down’ influence involved in priming is a natural and unavoidable feature of human speech perception. Eventually I was called to the trial, where I defended my report under forceful cross-​examination from the prosecutor, who asked how I could call myself an expert when I  couldn’t even discern words that were perfectly clear to everyone else, and offered to bring me headphones to help me hear better. After the verdict (not guilty), I was able to learn more about the case. It turned out that this audio was the only ‘direct’ evidence linking the defendants to a major drugs crime. Prosecution and defence had been arguing about its contents for 11 years, making it one of the most expensive unsuccessful prosecutions ever run in Australia. The defence team were delighted that their ‘gotcha’ strategy with the heroin phrases had delivered this long-​awaited win. However, I  was uneasy. I  felt it would have been better if the audio had been transcribed by an independent expert at the start. For one thing, it would have used a great deal less taxpayers’ money than letting lawyers haggle for 11 years over what was said. For another, while I was confident the six ‘heroin’ phrases were unfounded, this by no means ruled out the possibility that the speakers might in fact have been discussing heroin. To my mind, the focus on these phrases was an expensive red herring. I had to assume the right verdict had ultimately been reached in this case, but it was clear that the approach it took to forensic audio was far from ideal.

Getting serious: the ‘don’t worry’ case My next transcription case, several years later and for the prosecution, was far more troubling, involving a very serious charge and a vulnerable defendant. It started as an unusually straightforward speaker identification case, and I readily supported the speaker attribution in the transcript I was provided with. However, I was concerned that some of the transcript 418

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content was presented in a misleading way. When I  pointed this out to the detective, he informed me that he was allowed to put his version to the court and it was up to the defence to challenge it. Given my experience in the ‘heroin’ case, this worried me, and I made sure to include my concerns about the transcript in my speaker comparison report. I assumed the defence, if not the prosecution, would want to discuss them, but no one contacted me. When I followed up, the prosecutor told me not to worry about the transcript, as the audio was just one small piece of evidence in their case, and anyway the judge would instruct the jury to listen carefully to the recording and form their own opinion about its content. This made me worry far more. With my background in cognitive phonetics, I was well aware that, with indistinct audio, exposure to an explicit suggestion of particular words that might be heard, as in a transcript, has a priming effect even stronger than that of general contextual expectations. I  had no confidence a jury, having been exposed to a misleading transcript, could reach an independent interpretation of the audio even if they earnestly followed the judge’s instructions. Although I was not involved in the trial, I followed the case –​noting that the audio was given considerable weight by the prosecutor, who read out several sections of the transcript in both opening and closing, and used their content to interpret other evidence –​all with no opposition from the defence. Again, while I had to assume that the eventual guilty verdict was deserved in the present case, I was worried that this approach to indistinct forensic speech evidence could easily lead to injustice in other cases. Indeed, I was surprised that lawyers were not as concerned as I was, and wished I had a better way of explaining the issues to them. At this point a forensic audio sample from a (completely unrelated) trial came into the public domain. It was a crisis call with a demonstrably inaccurate transcript.

Scientific evidence about legal evidence: the ‘crisis call’ experiment Although technical explanations of concepts like ‘priming’ and ‘top-​down processing’ were readily available in the speech perception literature (Pisoni and Remez 2005), it had been hard for me to find compelling examples directly related to legal contexts. The new audio, with its credible but inaccurate transcript, allowed me to create an experiment that delivered just that (see Fraser 2014). The ‘crisis call experiment’ started by asking participants to listen to the indistinct audio ‘cold’ (i.e. without contextual information). Next, it provided the (inaccurate) transcript, then mimicked the experience of a jury listening to the audio repeatedly as various pieces of evidence and counterevidence were supplied to participants. At first, they found the audio unintelligible, but when the transcript was provided, many confidently heard the words it (erroneously) suggested, and few were able to fully reset their perception, even in the face of expert evidence that the transcript was unreliable. Results showed that the suggestion had subtle but lasting effects on the perception even of participants who rejected all or part of it. However, this demonstration did not elicit the response I  hoped for from lawyers. Again, they told me not to worry: in cases of uncertainty over the transcript, the judge can listen personally to check there are no problems with the transcript. And again this served only to increase my worry. The whole point about priming is that there is no uncertainty in the minds of listeners. They hear the suggested words confidently, with nothing in their perceptual experience to distinguish the effect of being assisted by a reliable transcript from that of being misled by an unreliable transcript. Without intending disrespect, I had no reason to believe a judge would be any less susceptible to priming than any other 419

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listener. Indeed, I had discovered by then that the judge in the heroin case had accepted several of the ‘unfounded’ heroin phrases. I started to fear that the problem was not that lawyers lacked understanding of how to evaluate indistinct audio, but that they had developed some kind of confident misunderstanding –​a far more difficult problem to deal with. My next case, sadly, justified my concern.

Insight from tragedy: the ‘pact’ case The ‘pact’ case was a tragic family murder, in which a grandfather was killed by his grandson, who eventually confessed, stood trial and was sentenced to 20 years in prison. Some time later, the killer’s father, son of the victim, was also charged. A covertly recorded conversation between father and son made reference to a pact, which prosecution alleged was a joint criminal enterprise to kill the grandfather and share the proceeds of his will. Though the father strongly asserted his innocence, after a long trial, he, too, was found guilty of murder and sentenced to 30 years in prison. It was the father’s case that I became involved in, when I was requested, some years after his conviction, to review the extremely indistinct recording of the conversation with his son. Following extensive analysis, I concluded that the police transcript was unreliable in general, and specifically in relation to the passage referring to the pact. Though I could not tell exactly what had been said, I was confident the ‘pact’ phrase was not just incorrect but implausible. The word ‘pact’ had not even been used, and the utterance as a whole did not fit the phonetic structure of the audio at either segmental (vowels and consonants) or suprasegmental (rhythm and intonation) levels of analysis. Admission of such poor quality evidence would be worrisome in any trial, but the circumstances here made it particularly troubling. All the argument as to the nature of the pact involved circumstantial evidence that only gained significance if interpreted in light of an assumption that there had been a pact of some kind. Yet the only ‘direct’ evidence that there had been any pact at all was the transcript of the indistinct covert recording –​ which, as I had now shown, was wrong. If the error had been detected earlier, the case against the father might have collapsed, perhaps never have been mounted at all. As it was, the inaccurate transcript had played a key role in getting him convicted of murder. I became convinced he had not had a fair trial, perhaps even been wrongfully convicted –​compounding the family tragedy beyond the already horrible circumstance of having a grandfather killed by his own grandson. I agreed to write a report which the father’s lawyers could use as the basis of an application to review his conviction. In the meantime, I needed answers to a more general question: how was it possible, in a liberal democracy like Australia, that such an egregiously inaccurate transcript could be admitted as reliable evidence in a murder trial? It was time for me to delve beneath the hints I had been getting from lawyers telling me not to worry, and investigate the legal reasoning behind the use of indistinct audio in court (see Fraser 2014). What I discovered answered my questions –​but did not ease my worries.

Legal reasoning about forensic audio: far from naive but still wrong During the 1980s, technological advances meant covert recordings were being used in increasing numbers of investigations. Prosecutors were keen to use them also in trials. 420

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Unfortunately, many recordings were so indistinct as to be unintelligible to a jury. It was observed, however, that detectives working on the case could hear more than others could. Not only that, but transcripts produced by detectives assisted others to hear previously unintelligible audio quite clearly. Through a series of cases, judges sought ways to enable the courts to benefit from this form of assistance in understanding the often highly probative evidence in indistinct recordings  –​while taking care to avoid any prejudicial effect on the jury. Unfortunately, in doing this, they relied upon their own professional skill as users of language, not recognising that linguistics is a distinct domain of scientific expertise, providing relevant, though often counter-​intuitive, insights (cf. Heydon 2019). Their first step was to create a mechanism whereby the transcript could be admitted as assistance for the jury. Under normal circumstances, police are confined to providing factual evidence only. Legally, a transcript is not a fact but an opinion, and only expert witnesses are allowed to express opinions. To solve this, police transcribers were given the status of ‘ad hoc experts’, on the grounds that their ability to produce transcripts derived from a form of expertise specific to the case, gained by listening to the audio many times. Of course, this is the wrong explanation. If listening many times were all that was needed, the audio could be transcribed by normal transcription services working overtime. Whatever apparent advantage police may have derives from their knowledge and assumptions about the context and content of the recording, which prime them with tacit expectations regarding what the recorded conversation might be about. The problem is, as discussed earlier, while such expectations can certainly assist perception, they can just as easily mislead  –​and indeed, police transcripts are often unreliable (French and Fraser 2018). That is why linguists (including my earlier self) who first encounter this legal mechanism of deeming police transcribers to be ‘ad hoc experts’ are often surprised at what seems like naiveté on the part of the judges. However, the judges were fully aware that a detective’s opinion as to what is said might not be completely objective or accurate. That is why they added the requirement mentioned earlier: in any trial involving a police transcript, the judge must give a specific instruction to the jury that they should use the transcript only as an aid; the evidence is not the transcript but the audio, and they should be sure to listen carefully and reach their own conclusions as to its content. The problem here is that, as many linguists know, and as was demonstrated by the crisis call experiment, such an instruction, though well intentioned, is unrealistic: listeners are generally unable to resist the influence of an inaccurate transcript and reach an independent interpretation of indistinct audio (see also Miller 2016). Again, however, the judges were not nearly so naive as I  had feared. They were certainly well aware of the potential for juries to be influenced by an unreliable police transcript. The point I was missing was that it was never the intention that police transcripts would be handed straight to the jury. A key component of the adversarial trial process is the voir dire, a pre-​trial hearing intended to ensure that only relevant, fair and reliable evidence is put before the jury. The expectation is that, before the voir dire, the defence will have evaluated the audio and the transcript thoroughly, brought any errors to the attention of the prosecution, and agreed on a version deemed reliable by both parties. If agreement is not possible, the differing opinions are put before the judge, who listens impartially to arguments from each side –​and to the audio itself if that is considered necessary –​then makes a ruling as to whether the transcript is reliable enough to go to the jury. Following these steps, the instruction to the jury is seen only as a final precaution. 421

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Understanding all this enabled me, finally, to see why my demonstrations that police transcripts can be unreliable, and that juries can be influenced by unreliable transcripts, were missing the mark: the reason lawyers kept telling me not to worry was that they were confident my concerns had already been fully addressed by the voir dire process. However, their confidence was misplaced –​as had now been dramatically revealed by the fact that the demonstrably implausible and misleading ‘pact’ transcript had been admitted as reliable assistance to the jury who convicted the father. I thought I could now see the flaw in the reasoning that created the lawyers’ misplaced confidence. Checking exactly what had happened during the ‘pact’ voir dire confirmed my suspicions.

A failed voir dire and the ‘pact’ experiment During the voir dire, the father’s defence lawyers had vigorously opposed the transcript of the indistinct recording in which he allegedly discussed the pact with his son. However, they had explicitly accepted the implausible and misleading ‘pact’ phrase itself, telling the judge that that part was one they themselves found clear and were not disputing (Fraser 2018a). This made the ‘pact’ audio the perfect vehicle to demonstrate the fatal flaw in legal reasoning about police transcripts with a new experiment (see Fraser 2014). The ‘pact’ experiment started, in Part 1, by playing the audio ‘cold’ to 56 participants. None heard anything remotely like the ‘pact’ phrase. When the phrase was suggested, around a quarter accepted it, but all abandoned it when an alternative that better fitted the phonetic structure of the audio was suggested. Part 2, using 97 new participants, started with a story about a murder and a pact. When the audio was played to this group, around a quarter heard the word ‘pact’ even before they were given the transcript –​though still none heard anything remotely like the full ‘pact’ phrase. However, when it was explicitly suggested, a clear majority heard the exact phrase. And when the phonetically more plausible alternative was suggested, this group were far less likely to change their minds than the Part 1 participants had been. Together, these results showed how easy it is for listeners to be unwittingly primed to confidently hear words suggested by a transcript –​even when that transcript is demonstrably implausible and misleading. To fully understand how this affects the legal process, it is useful to look at what happens behind the scenes of a trial featuring indistinct audio evidence, before the voir dire takes place.

Behind the scenes: the pervasive but unrecognised role of priming in the legal process Long before the trial, prosecutors supply the defence with a brief containing all the evidence they plan to use in their case against the defendant. This is to allow the defence to develop a strategy that gives them the best possible chance of creating reasonable doubt about the prosecution case in the minds of the jury, and thus of persuading them to return a not-​guilty verdict. Any forensic audio and associated police transcripts are included in the brief. The defence team typically review the brief, including the transcript, then discuss the evidence with their client, the defendant, in order to decide which aspects of the prosecution case are most open to challenge. It is often assumed that at this point, if there are significant errors in the transcript, the defendant can simply provide the words that were really 422

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spoken, via their own lawyers, to the prosecution –​who will amend the transcript, and their case, accordingly. However, for a range of reasons, this scenario is far less likely than might be expected, especially with very indistinct audio (Fraser 2018a). In practice, it usually falls to defence lawyers to evaluate the police transcript against the audio. Notice that by the time they do this, they are thoroughly primed by both the context and the transcript. In other words, they are in a position like the participants in Part 2 of the ‘pact’ experiment –​except that they are not listening repeatedly to one small snippet of audio, via an experiment carefully designed to give maximum opportunity to notice errors. They are listening to lengthy indistinct recordings accompanied by poorly laid out transcripts, under the stressful conditions of their trial preparation. The best they can do is argue back and forth with the prosecution about specific phrases in hopes of agreeing a transcript that minimises the damaging impact of the audio evidence. The amount of effort they put into this, and their willingness to engage an expert witness, depends on their resources and their overall strategy for the trial –​as well as their evaluation of how the judge is likely to rule if they oppose the transcript at the voir dire, and, more importantly, what the jury is likely to hear if the police transcript is admitted to assist them.

Perception of indistinct audio: priming is not the same as bias The brief review above demonstrates the key problem with the process for admitting indistinct audio as evidence. After the police transcript is created, no one in the trial ever listens to the audio without being thoroughly primed by its ‘assistance’. Yet no one has a proper understanding of how perception of indistinct speech recordings is affected by priming. Lawyers are very familiar with concepts such as suggestibility, prejudice or bias –​the tendency to interpret evidence in a way that confirms a preconceived, often self-​serving, conclusion (cf. Ridley, Gabbert and La Rooy 2013). As well as being practised in the art of seeing evidence from different points of view, lawyers are highly sensitive to the need to protect juries from information that might prejudice them unfairly. Skills like these depend on an ability to reflect consciously on various sources of information that contribute to interpretation of evidence, and lawyers typically put high trust in their ability to selectively disregard potentially biasing information  –​though it must be noted that research suggests they may not always be as successful as they assume (Wistrich, Guthrie and Rachlinski 2005). Bias certainly affects speech evidence. After words have been perceived, interpretation of what speakers might mean by those words is susceptible to bias just like any other kind of evidence. However, the process of actually perceiving the words involves not bias but priming. Though the terms are often used interchangeably, priming is a different phenomenon, less familiar to lawyers, and even more difficult to bring to conscious awareness than bias. Thus listeners typically reject the suggestion that their hearing has been influenced by anything other than the sounds they (now) feel are ‘there to be heard’. Even those who accept in principle that they may have been primed find it very difficult to ‘unhear’ words they are convinced they have heard ‘with their own ears’, or to give an accurate appraisal of how the recording might appear to listeners primed in a different way  –​a ‘curse of knowledge’ effect (Lange, Thomas, Dana and Dawes 2011). The problem, as discussed above, is that priming with a misleading transcript is just as persuasive as priming with reliable information –​sometimes more so (Fraser 2018c). Unfortunately, though lawyers are no less prone to priming than anyone else, they may 423

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put unwarranted confidence in their own perception, and in their own ability to act as gatekeepers, via the voir dire process, to ensure suggestive or prejudicial transcripts do not reach the jury. All this creates a very dangerous situation: inaccurately perceived audio is capable of giving listeners confidence that they have heard crucial (but misleading) evidence ‘with their own ears’. Confident but inaccurate perceptual evidence is highly likely to be used in evaluating other evidence in the case  –​a well-​established cause of wrongful conviction (Gould, Carrano, Leo and Young 2012). The ‘pact’ experiment provided a compelling example, enabling me to understand and explain, with convincing evidence-​based arguments, how the current legal process for evaluating police transcripts is flawed in principle. In the meantime, however, I was coming to understand that the process can be even worse in practice.

Bad in principle, worse in practice: accumulating evidence against the law One powerful demonstration that the system is flawed was provided by a case involving a young mother who was in custody pending trial for a serious crime. The only ‘direct’ evidence against her came from a police transcript of an extremely indistinct covert recording. As in the ‘pact’ case, all other evidence was circumstantial and only gained significance in light of the transcript. A big advantage over the ‘pact’ case, however, was that I was able to demonstrate that the police transcript was unreliable before the trial took place. At the voir dire, the judge accepted my argument, and ruled that the audio should be provided to the jury with no transcript. This is not an ideal solution from a linguistics perspective. As shown by Part 2 of the ‘pact’ experiment, even without a transcript, contextual priming can cause listeners to mishear indistinct audio –​and if barristers subtly drop some key phrases into their arguments, they can add a further level of priming similar to that of a transcript. However, in the young mother’s case the jury were evidently unable to hear anything incriminating in the audio, and the defendant was found not guilty. Notably however, this occurred only after she had been kept in custody for two years –​with profound impact not just on herself and her career, but also on her young child –​purely on the basis of a few words some detectives thought they might have heard in the background of an extremely indistinct covert recording. Meanwhile I was discovering that problems with police transcripts go beyond the content of the utterances detectives claim to have heard. Their transcripts also attribute individual utterances to particular speakers. Detectives’ speaker attribution is highly prone to error caused by contextual priming. Yet it is even less questioned than the content of the transcript, typically forming part of the ‘Statement of Facts’ that guides the whole trial. Even when an expert opinion is sought regarding the identity of the speakers, voice comparison analysis typically accepts the utterances attributed to the suspect by police as the ‘unknown sample’ to be compared with a ‘known sample’ of the suspect’s voice (see Jessen, Chapter 24, this volume). Things get even worse when some or all of the conversation in a covert recording is conducted in a foreign language. In such cases the court requires a translation. Unfortunately the law has rather poor understanding of the many complexities involved in translation in general (see Hale, Chapter  30, this volume), and even poorer understanding of the additional issues involved in translating covert recordings (Gilbert 2017). Translators of 424

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forensic audio, especially for less common languages, may have minimal qualifications, and typically work very closely with the police. As a result, they sometimes create a misleading impression of what the conversation is about. Translators can even be given the status of expert witness in relation to identification of speakers’ language backgrounds –​with no attention to well-​known problems regarding the unreliability of such opinions (Patrick, Schmid and Zwaan 2019). A fourth problematic aspect of covert recordings is ‘enhancing’  –​a term frequently but inappropriately used to describe audio engineers’ attempts to make indistinct forensic recordings clearer. While audio engineers can creatively enhance good quality recordings, for example for movie sound tracks, they have no techniques that reliably make unintelligible audio intelligible (Fraser 2018d). Nevertheless, the courts frequently admit ‘enhanced’ versions of indistinct covert recordings as further ‘assistance’ to the jury. This is typically ineffective, but not always ineffectual: false beliefs about speech perception, exacerbated by use of the misleading term ‘enhancing’, can contribute to misinterpretation created by inaccurate transcription of indistinct audio. Unfortunately, judges are no less prone to false beliefs about enhancing than anyone else. For example, the judge who excluded the unreliable transcript in the young mother’s case also ruled that the enhanced audio should be admitted –​on the grounds that when he listened personally, he found it clearer than the original. However, later testing with listeners who were not primed by the context of the trial showed that the enhancing had made no objective improvement to its clarity (Fraser 2018d). Fortunately, in the young mother’s case, this judge’s misunderstanding of enhancing did not affect the verdict. However, judicial misunderstandings about ‘enhancing’ were a major problem in the next chapter of the marathon ‘pact’ case, in which the response to the application to review the father’s conviction revealed a web of serious false beliefs.

The fundamental problem: a web of confident false beliefs From a linguistics perspective, the application to review the father’s murder conviction was strong, demonstrating (a) that the ‘pact’ phrase was inaccurately transcribed; (b) that it was nevertheless likely to have been accepted by the jury, the judge’s instructions notwithstanding; and (c) that acceptance of the transcript would likely have affected the verdict. Nevertheless, the application was rejected at the first hurdle, preliminary review by a single judge. Rejection itself was not unexpected: success with such applications is extremely rare. What was disappointing was the reasons given for the rejection (Fraser 2018a). In general, these emphasised that the audio evidence had been handled in accordance with legal authority (which was true) and that it was therefore open for the jury to reach their own opinion as to its content (which may be true, but sidestepped my findings showing how unlikely it was that the opinion they reached would be reliable). Though it was frustrating to see legal authority trump scientific evidence in this way, it did have the advantage of confirming that the problematic cases I  had encountered were not occasional aberrations: they resulted from the legal process working exactly as it was intended to work. The most important aspect of the ruling, however, was that the judge stated explicitly that he could have been persuaded by my arguments if I  had used ‘enhanced listening technology’ to determine what was actually said in the indistinct recording (as opposed to 425

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merely demonstrating that the police version was wrong). This went beyond disappointing to disturbing. As discussed above, there is no ‘enhanced listening technology’ that can reliably make unintelligible audio intelligible –​yet here was a senior member of the judiciary making important decisions on the basis of the false belief that such technology exists, and should be preferred to the opinion of a highly qualified expert. It was now crystal clear to me that, due to a web of confident false beliefs, the processes for admission and use of covert recordings as evidence in criminal trials were deeply flawed in numerous ways, creating a genuine threat to justice. However, my mix of casework experience and developing understanding of the legal and forensic concepts had by now led me to rethink my earlier ideas regarding how to achieve the needed change. Since some of these ideas are still suggested by other linguists, it is worth reviewing them briefly here.

Educating the law: some common but not ideal proposals from linguists Educating police is not the answer Linguists often suggest educating the police to help them create better transcripts. While this is well intentioned, it is really not a viable solution. First, transcribing indistinct audio reliably requires genuine expertise that cannot be imparted in a workshop or two. Second, to create reliable transcripts, even genuine experts must have complete independence from the case (Fraser 2014). Investigators by definition cannot have the needed independence. Worst of all, in the absence of that independence, training can have the effect of increasing police confidence without improving their reliability (Harris 2012). This does not mean that the police should not have role in the preparation of reliable transcripts related to their cases –​they should. But their contribution should be managed as part of an expert process, they should not have responsibility for the final product and their version should not be the starting point for the work of others.

Educating prosecutors is not the answer Another common suggestion is to educate prosecutors regarding the need to get police transcripts verified by an expert. This too is unlikely to be successful as a general solution. First, as long as the law allows the police version to be admitted as the work of an ‘ad hoc expert’, there is little motivation for prosecutors to invest the time and funds needed to obtain an expert opinion. More importantly, even if they do see the value of hiring an expert, there is no guarantee that they will get the right expert for the job. Few linguists with appropriate qualifications make themselves available as expert witnesses, leaving a vacuum readily filled by others willing to back up the police version with pseudo-​scientific technical analyses. It can be surprisingly difficult for the law to distinguish the genuine experts from the not-​so-​genuine, especially in these days when many universities offer short courses in forensic linguistics, potentially giving students an inflated sense of their own expertise.

Educating judges is not the answer Another common suggestion is to educate judges to be more cautious and critical of the transcripts they evaluate during the voir dire. However, even if judges were to take the 426

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time to review every transcript brought before them, this is unlikely to yield a solution to the problems uncovered above. Judges are actually very limited in what they can do within an individual trial. It is a principle of the adversarial system that whatever evidence can be evaluated by the jury should be evaluated by the jury. So, unless the judge notes specific issues liable to unfairly prejudice jurors, the default response is to admit both the audio and the transcript, sometimes both in multiple versions. To do otherwise risks the verdict being subjected to appeal. Even withholding the transcript, as was done in the young mother’s case, was a relatively bold move –​yet it is suboptimal for reasons mentioned earlier.

Educating defence lawyers is not the answer By far the most commonly suggested solution is to educate defence lawyers to do a better job of evaluating police transcripts. But is it fair to put all the responsibility on the defence? More importantly, will it work? As discussed earlier, it is far more difficult than usually recognised for defence teams to detect errors in police transcripts of very indistinct audio –​or even to acknowledge errors when they are pointed out by an expert. As an aside, this provides a useful demonstration of the difference between priming and bias –​if bias were the only issue, defence teams would surely be inclined to prefer an expert opinion that benefited their case over a police opinion, but this is not always the case (Fraser 2018a). Even if defence teams have the knowledge and funds to obtain a reliable independent opinion from an appropriately qualified expert, and even if the expert opinion is found persuasive at the voir dire, it may be admitted only as an alternative to the police version, with the jury invited to make up their own minds as to which they prefer. Unfortunately, listeners do not always prefer the more reliable version (Fraser 2018c), and even if they do, the whole process takes far too much time –​as demonstrated by the young mother’s case. Indeed, it can be argued that putting the onus on the defence to detect errors in a police transcript contradicts the foundational principle of the adversarial system that responsibility for the basic fairness of evidence rests with the prosecution. Finally, it has to be noted that defence teams do not always use education about the unreliability of police transcripts in the way linguists might intend. The primary responsibility of lawyers, on both sides, is to win their cases. The role of defence is not to determine the truth, but to cast doubt on the prosecution case. This is not a criticism; it is simply how the adversarial legal process works (see Solan, Chapter 22, this volume). It does mean that leaving evaluation of transcripts to the defence can create a search, not so much for a reliable transcript, as for a ‘gotcha’ error, like the one in the heroin case. This last point is useful in countering arguments, sometimes raised, that linguists’ work tends to benefit the defence over the prosecution. Surely the best approach for all concerned is to ensure that transcripts are reliable before they enter the trial process.

Towards a real solution: recognise forensic transcription as a science The current handling of indistinct covert recordings in Australian and similar jurisdictions embodies a number of problems. The solution is to ensure that all audio admitted as evidence in criminal trials is accompanied by a demonstrably reliable transcript that sets out the content, provides translations where necessary and attributes utterances reliably to participants in the conversation (leaving identification of these participants to a separate 427

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process). Achieving that requires taking responsibility for the creation and evaluation of transcripts out of the hands of police and lawyers, and giving it instead to appropriately qualified experts in relevant branches of linguistic science. This in turn requires changes both within the legal process, and within linguistics.

Requirement 1: Bring about necessary changes in the law Current procedures for admission of audio recordings as evidence invoke the basic principle that understanding spoken language is a matter of common knowledge, and thus rightly left to the jury. This principle may be valid for good quality recordings of clear speech in the language the jury speaks. However, the way it has been extended to cover interpretation of indistinct recordings, and recordings featuring languages other than English, is highly problematic. While ostensibly making understanding audio evidence ‘a matter for the jury’, it actually put juries under the influence of potentially misleading transcripts created by police ‘ad hoc experts’ and evaluated by lawyers  –​ thus creating a number of worrisome internal contradictions within the legal process (Fraser 2018a). Both preparing and evaluating transcripts of indistinct forensic recordings require highly specialised knowledge about the nature of speech and how speech perception works. This knowledge is no less scientific than the knowledge needed for preparing and evaluating DNA evidence. A major difference, however, is that, while DNA evidence is incomprehensible to those without appropriate scientific knowledge, with speech evidence anyone can form an understanding on the basis of common knowledge. The problem, of course, is that the understanding so formed can be confident but wrong. This makes it more, not less, necessary to ensure courts admitting indistinct audio evidence are always and only supplied with reliable, useful transcripts, and reliable guidance on how to use them effectively. Achieving that requires changing legal procedures that have been in place for over 30 years, and are deeply embedded in all areas of law and law enforcement. Fortunately, at least in Australia, the judiciary are taking an active interest in these matters and there is hope that collaboration between law, law enforcement and linguistics will bring about appropriate change (Fraser 2018b).

Requirement 2: Develop transcription studies as a dedicated branch of linguistic science Transcripts are widely used in various branches of linguistic science, notably conversation analysis (Sidnell and Stivers 2012) and phonetics (Heselwood 2013). However, the preparation of reliable transcripts of indistinct forensic audio to be used as evidence in court involves issues that are not addressed by these branches. The most obvious issue is that forensic audio is often of far poorer quality than recordings used in linguistic analysis. A  less obvious but more important issue is that transcripts of forensic audio are intended to be used by a third party, without supervision from a linguist, and for a purpose very different from that of normal linguistics research (see Fraser 2018a). The most significant issue, however, is the fact that with forensic audio, ‘ground truth’ (i.e. indisputable knowledge) regarding the content of the recording cannot be known with certainty. For almost all linguistic uses of transcripts, the concern is not to determine 428

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the content, but to decide the best way to represent the content. By contrast, with forensic transcription, the main concern is to determine the content (to the extent possible) in order to assist the jury in interpreting the significance of the audio evidence in the trial. This adds a substantial new dimension, especially in view of the major consequences that can attend any inaccuracy. One key aspect is the need to manage priming and bias. Linguists are certainly not immune to these forces (Wald 1995). Yet, attempting to avoid priming by removing all sources of external information about the recording risks denying the analyst information that could potentially assist in a constructive way. The concept of linear sequential unmasking (Dror et  al. 2015), in which the analyst starts with no background information then is systematically exposed to relevant and reliable contextual background is likely to be of some value here –​though the details of its use will have to be adapted, with thorough testing, before it can be recommended for indistinct audio.

Conclusion It is clear that establishing procedures that ensure juries are not misled by unreliable transcripts of forensic recordings requires greater understanding within the law about linguistics. A  less often recognised, but equally important, requirement is for greater understanding within linguistics about the law, and for fundamental research aimed at developing processes for creating reliable and useful forensic transcripts in contexts very different from those that attend transcription tasks more familiar to linguists (Fraser 2018a). This research may be valuable not just in fulfilling the practical needs of forensic analysis, but in reinvigorating efforts to establish principled accounts of transcription in general (Heselwood 2013; Himmelmann 2018; Jenks 2013; Lapadat 2000; Voutilainen and Inoue 2019). After all, in linguistics, no less than in forensics, the transcript is the foundation of much further analysis. We need a branch of linguistic science dedicated specifically to the study of transcription.

Further reading Burridge, K. (2017) ‘The dark side of mondegreens: How a simple mishearing can lead to wrongful conviction’, The Conversation http://​theconversation.com/​the-​dark-​side-​of-​mondegreens-​how-​a-​ simple-​mishearing-​can-​lead-​to-​wrongful-​conviction-​78466 (accessed 16 October 2019). Fraser, H. (2018) ‘Forensic transcription:  How confident false beliefs about language and speech threaten the right to a fair trial in Australia’, Australian Journal of Linguistics, 50(2), 129–​139. French, P. and Fraser, H. (2018) ‘Why “ad hoc experts” should not provide transcripts of indistinct forensic audio, and a proposal for a better approach’, Criminal Law Journal, 42, 298–​302. Haworth, K.J. (2018) ‘Tapes, transcripts and trials’, International Journal of Evidence and Proof, 22(4), 428–​450 http://​doi.org/​10.1177/​1365712718798656. Wald, B. (1995) ‘The problem of scholarly predisposition’, Language in Society, 24(2), 245–​257 http://​doi.org/​10.1017/​S0047404500018601.

References Bucholtz, M. (2009) ‘Captured on tape: professional hearing and competing entextualizations in the criminal justice system’, Text and Talk –​an Interdisciplinary Journal of Language, Discourse & Communication Studies, 29(5): 503–​523 http://​doi.org/​10.1515/​TEXT.2009.027. Dror, I.E., Thompson, W.C., Meissner, C.A., Kornfield, I., Krane, D.E., Saks, M.J. and Risinger, M. (2015) ‘Context management toolbox: A linear sequential unmasking (LSU) approach for minimizing cognitive bias in forensic decision making’, Journal of Forensic Sciences, 60(4): 1111–​ 1112 http://​doi.org/​10.1111/​1556–​4029.12805. 429

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Fishman, C.S. (2006) ‘Recordings, transcripts, and translations as evidence’, Washington Law Review, 81(3): 473–​523. Fraser, H. (2014) ‘Transcription of indistinct forensic recordings: Problems and solutions from the perspective of phonetic science’, Language and Law/​Linguagem e Direito, 1(2): 5–​21 http://​ojs. letras.up.pt/​index.php/​LLLD/​article/​view/​2429 (accessed 16 October 2019). —​—​—​(2018a) ‘Forensic transcription:  How confident false beliefs about language and speech threaten the right to a fair trial in Australia’, Australian Journal of Linguistics, 50(2): 129–​139 https://​doi.org/​10.1080/​07268602.2018.1510760. —​—​—​(2018b) ‘Thirty years is long enough:  It’s time to create a process that ensures covert recordings used as evidence in court are interpreted reliably and fairly’, Journal of Judicial Administration, 27(3): 95–​104. —​—​—​(2018c) ‘“Assisting” listeners to hear words that aren’t there:  Dangers in using police transcripts of indistinct covert recordings’, Australian Journal of Forensic Sciences, 50(2): 129–​139 https://​doi.org/​10.1080/​00450618.2017.1340522. —​—​—​(2018d) ‘“Enhancing” forensic audio: False beliefs and their effect in criminal trials’, Australian Journal of Forensic Sciences, 55(2): 165–​177 http://​doi.org/​10.1080/​00450618.2018.1491115. French, P. and Fraser, H. (2018) ‘Why “ad hoc experts” should not provide transcripts of indistinct forensic audio, and a proposal for a better approach’, Criminal Law Journal, 42: 298–​302. French, P. and Harrison, P. (2006) ‘Investigative and evidential applications of forensic speech science’, in A. Heaton-​Armstrong (ed.), Witness testimony: psychological, investigative and evidential perspectives, Oxford: Oxford University Press, 247–​262. Gilbert, D.W. (2017) ‘Electronic surveillance and systemic deficiencies in language capability:  Implications for Australia’s courts and national security’, in D. Caruso and Z. Wang (eds), Proof in Modern Litigation: Evidence law & forensic science perspectives, Adelaide: Barr Smith Press, 123–​142. Gould, J.B., Carrano, J., Leo, R. and Young, J. (2012) Predicting erroneous convictions:  A social science approach to miscarriages of justice, Washington DC: National Institute of Justice. Harris, D.A. (2012) Failed evidence: Why law enforcement resists science, New York: NYU Press. Haworth, K.J. (2018) ‘Tapes, transcripts and trials’, International Journal of Evidence and Proof, 22(4): 428–​450 http://​doi.org/​10.1177/​1365712718798656. Heselwood, B. (2013) Phonetic Transcription in Theory and Practice, Edinburgh:  Edinburgh University Press. Heydon, G. (2019) Researching Forensic Linguistics, London: Routledge. Himmelmann, N.P. (2018) ‘Meeting the transcription challenge’, in B. McDonnell, A.L. Berez-​ Kroeker and G. Holton (eds), Reflections on language documentation years after Himmelmann 1998, Hawaii: University of Hawaii Press, 33–​40. Jenks, C.J. (2013) ‘Working with transcripts: An abridged review of issues in transcription’, Language and Linguistics Compass, 7(4): 251–​261 http://​doi.org/​10.1002/​lnc3.12023. Lange, N.D., Thomas, R.P., Dana, J. and Dawes, R.M. (2011) ‘Contextual biases in the interpretation of auditory evidence’, Law and Human Behavior, 35(3):  178–​187 http://​doi.org/​10.1007/​ s10979-​010-​9226-​4. Lapadat, J.C. (2000) ‘Problematizing transcription: Purpose, paradigm and quality’, International Journal of Social Research Methodology, 3(3): 203–​219 http://​doi.org/​10.1080/​13645570050083698. Miller, A.E. (2016) ‘Jury suggestibility: The misinformation effect and why courts should care about inaccuracies in transcripts that accompany recorded evidence’, Law and Psychology Review, 40: 363–​382. Orletti, F. (2017) ‘Transcribing intercepted telephone and uncovered recordings:  An exercise of applied conversation analysis’, in F. Orletti and L. Mariottini (eds), Forensic Communication in Theory and Practice:  A study of discourse analysis and transcription, Newcastle upon Tyne: Cambridge Scholars Publishing, 11–​26. Patrick, P.L., Schmid, M.S. and Zwaan, K. (eds) (2019) Language Analysis for the Determination of Origin: Current Perspectives and New Directions, Cham; Springer. Pisoni, D.B. and Remez, R.E. (eds) (2005) The Handbook of Speech Perception, Oxford: Blackwell. Prince, E.F. (1990) ‘On the use of social conversation as evidence in a court of law’, in J.N. Levi (ed.), Language in the Judicial Process, New York: Springer, 279–​289 ftp://​ling.upenn.edu/​papers/​faculty/​ellen_​prince/​georgetown.ps (accessed 16 October 2019) 430

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Ridley, A.M., Gabbert, F. and La Rooy, D.J. (2013) Suggestibility in Legal Contexts, Chichester: Wiley-​Blackwell. Sidnell, J. and Stivers, T. (2012) The Handbook of Conversation Analysis, Chichester:  John Wiley & Sons. Voutilainen, E. and Inoue, M. (2019) Sociolinguistic and Sociotechnical Approaches to Official Transcripts, presented at the 16th International Pragmatics Association, Hong Kong https://​ pragmatics.international/​page/​Program (accessed 16 October 2019). Wald, B. (1995) ‘The problem of scholarly predisposition: in G. Bailey, N. Maynor and P. Cukor-​ Avila, eds., The emergence of Black English:  Text and commentary’, Language in Society, 24(2): 245–​257 http://​doi.org/​10.1017/​S0047404500018601. Wistrich, A.J., Guthrie, C. and Rachlinski, J.J. (2005) ‘Can judges ignore inadmissible information? The difficulty of deliberately disregarding’, University of Pennsylvania Law Review, 153(4): 1251–​1345.

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27 Consumer product warnings Composition, identification and assessment of adequacy Bethany K. Dumas

Introduction Definitions Warnings, whether labeled as such or not, are generally considered to be statements about future events or states that are not in the hearer’s best interest, and which are uttered in situations in which it is not obvious to both the hearer and the speaker that the event will occur or that the state will transpire. (Searle 1969: 67) Warnings are thus like promises and threats in that they refer to possible future actions (Fraser 1975, 1998). They are different from promises in that the future action is not in the hearer’s best interest; they are different from threats, a special type of warning (Fraser 1975, 1998), in that the future action will be the result of the hearer’s actions, not the action of the speaker. I have suggested that evidence of the close similarity between warnings and promises, if we categorize a threat as a special type of warning, is instanced by the frequent occurrence in informal conversation of the joking rejoinder, ‘Is that a threat or a promise?’ (Dumas 1992: 268). Warnings may be either direct or indirect and either literal or nonliteral. That is, many warnings are highly context-​dependent, and their interpretation may depend upon lesser or greater amounts of inferencing. They can also be categorized as categorical or hypothetical. Searle suggests that categorical warnings fulfill the function of advising, not requesting. Such warnings inform hearers or readers that certain results will follow certain modes of behavior, but the warnings do not attempt to get a given individual to modify his or her behavior. An example, tongue-​in-​cheek, is a statement on a menu that says, ‘Eating Any Selection From The Enclosed MENU Can Be Dangerously Habit Forming!’ Hypothetical warnings, by contrast, are phrased in such a way that they fulfill the function of requesting. The basic logical structure for a hypothetical warning is ‘If X, then Y,’ though the if and then elements may be implicit, rather than explicit. Thus 432

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an example might be ‘Give me your money or I’ll shoot,’ a statement that is generally regarded as a demand that the individual spoken to turn over money. (It is also a special type of warning, a threat.) Warnings can also be categorized as imperative or informational (Tiersma 2002 and see below). Categorical warnings are generally informative, while hypothetical warnings are at least partly imperative. It has long been recognized that all these categories are fuzzy. Further, there is overlapping among the sets of categories. Vanderveken (1990: 174) points out and Tiersma (2002: 363) affirms that the speech act of warning is ‘systematically ambiguous between an assertive and directive use’ and shares features of both the informative/​categorical and imperative/​hypothetical styles. Below are examples of real-​life warnings (Dumas 1992:  277–​278); I  include them here with new category labels in order to illustrate the complexity and ambiguity of the classification schemes. Example 1. Take heed, sweet soul. —​nonliteral, indirect, hypothetical, imperative Example 2. Let me tell you something straight. When you go and snitch to anyone that we had anything to do with this, you’ll find a snitch tattoo on your forehead. —​literal, direct, categorical, informative Example3. Smoking Causes Lung Cancer, Heart Disease, Emphysema, and May Complicate Pregnancy —​literal, indirect, hypothetical, informative Example  4. Warning:  The Surgeon General Has Determined That Smoking Is Hazardous to Your Health —​literal, direct, categorical, informative Example 5. This is the final warning. I have acted as a gentleman should, have given you ample time to consider my demands before an unfortunate incident occurs. You have twenty-​four hours to introduce a bill in the Congress of the United States of America to return to me, as the righful heir to James Smithson, the Smithsonian Institution and its belongings. Time has run out, sirs. —​literal, direct, hypothetical, imperative/​informational

Legal requirements When used on consumer products, warning labels are often designed to meet specific legal requirements. Warnings on US tobacco products, for instance, must comply with specific wording requirements; further, manufacturers of tobacco products such as cigarettes sold in the US must use one of a set of rotating warnings. As Tiersma (2002) points out, the kinds of consumer products generally involved in litigation about warnings and other safety information are those that serve a useful function, but also have ‘potential risks or dangers associated with their use’ (2002: 54). Such cases thus fall within the legal standards for product liability law (Tiersma 2002: 54; Shuy 2008). As Tiersma (2002) documents, the legal standards for warnings are more difficult to apply when products are intended for use by non-​native speakers of English with limited proficiency. Symbols, pictograms and color can be used to assist in achieving adequacy, but symbols can be misunderstood by members of different cultures, so they must be used with care. More research is needed with respect to the issue of warnings addressed to non-​ native speakers of English (or any local language). 433

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Warnings have been used and known by speakers of the English language since at least the 14th century. We thus have a situation in which a common, ordinary term and concept, warning, is put to a special use where legal requirements in product liability law are concerned. This chapter will explore the nature and function of warnings in product liability law, describe and evaluate techniques for assessing and increasing adequacy of such warnings, and suggest strategies for continuing to improve warning and other safety information adequacy.

Nature and function of warnings and warning labels The nature of warnings and warning labels In order to assess warning adequacy and effectiveness, it is necessary to recognize the difference between a warning and a warning label. Government agencies often prescribe the wording of product warnings, and these prescriptions often specify that consumer products must carry specific warning labels such as Danger!, WARNING or Caution. However, for various reasons, including the fact that industries often lobby successfully to have their preferred wording used in legislation about warning labels, statements labeled as warnings may actually be other kinds of speech acts. For instance, one of the rotating warnings required on cigarette packages reads thus: ‘SURGEON GENERAL’S WARNING: Quitting Smoking Now Greatly Reduces Serious Risks to Your Health.’ On its surface, the text suggests that it is a promise, not a warning. In spite of the label WARNING, the text of the message suggests that good will result if the one being warned quits smoking. The text does, of course, imply a warning, a warning that might be worded thus:  ‘SURGEON GENERAL’S WARNING:  Continuing to Smoke Greatly Increases Serious Risks to Your Health.’ However, a strong argument can be made that if we are serious about advising consumers about health risks, we should reduce reliance on such inferencing. It is also necessary to recognize the difference between imperative and informational warnings, between warnings like Do Not Climb Beyond This Point and Climbing Beyond This Point May Result in Injury and Death. As Tiersma (2002) points out (citing Fraser 1998 and Vanderveken 1990), all warnings contain both a bit of a directive (even if it is indirect, as above) and some information. One question needing further research is whether one style is more effective than the other. There is probably not a single answer, and Tiersma is probably right when he suggests that some consumer products, including cigarettes, probably need warnings that are both imperative and informational, perhaps something like ‘do not smoke cigarettes; smoking can kill you.’ He is also probably right when he suggests that ‘Many governments will balk at the imperative element, however, given the tax revenues that derive from smoking’ (Tiersma 2002: 64). And certainly private interest groups sometimes lobby against what are perceived to be effective consumer product warnings. Such lobbying is frequent in the USA when Congressional action is involved. The interests of private interest groups, as I have previously pointed out (Dumas 1992), are often at odds with those of the average consumer, and such groups often have enormous sums of money at their disposal. One such group is the Tobacco Institute, the lobbying arm of the tobacco industry. The wording of cigarette package warnings in the USA has always been the result of a compromise between Congressional proposals and successful lobbying efforts by the Tobacco Institute and other private groups. 434

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The very existence of lobbying by private interest groups suggests that there is some general knowledge about what constitutes an adequate warning –​or at least that many individuals assume that they know what constitutes an adequate, i.e. effective, warning. And linguists are in general agreement about what constitutes an adequate warning, even though there may not be complete agreement about the effectiveness of warnings that are more informative than imperative. My own position is that hypothetical warnings are more effective than categorical warnings and that, as Tiersma suggests, the best warnings should be both informational and imperative. I also agree with Tiersma that imperative warnings are better when it is not possible to provide both informational and imperative language.

Functions of warnings and warning labels Warnings and warning labels have a variety of functions. They sometimes seem to serve primarily merely to call attention to items, often for comic effect. For instance, a few years ago, cartoons showed warning labels on raw eggs, stating that they contain cholesterol. And in a cartoon strip, a child was questioned about why she was eating only French fries for lunch. She replied that if they were dangerous there would be a warning on the side of each one, just like there was on everything else that she wasn’t eating. Equally revealing are the annual results of the Wacky Warning Label Contest (conducted by Michigan Lawsuit Abuse Watch, M-​LAW, and designed to reveal how lawsuits, and concern about lawsuits, seem to have created a need for common sense warnings on products). The first-​ place winner in 2005 was a toilet brush which warned: ‘Do not use for personal hygiene’; another winner that year was a popular scooter for children that warned, ‘This product moves when used’ (www.mlaw.org/​wwl/​pastwinners.html). The 2007 Grand Prize went to a label on a small tractor that warned, ‘Danger! Avoid Death.’ But the primary function of warnings and warning labels in the legal context is to inform of and thereby reduce risk. For a warning on a product to be adequate, it must get the attention of the intended user and then convey comprehensible information about potential risks and methods of avoiding them. My earlier analyses of consumer product warnings were conducted on the basis of three general guidelines to ensure that they come to the attention of the user and provide information about both risks and how to avoid them. They need to be displayed on products which would be unreasonably dangerous without such warnings. They need to be directed to the ultimate users of the product and to any individuals who might be expected to come into contact with it. And they need to be able to (1) catch the attention of a reasonably prudent person in the circumstances of use, (2) be understandable and (3) convey a fair indication of the nature and extent of the potential danger to the individual. These functions of warnings were suggested by Shuy: 1. Name the hazard or risk. 2. Explain how to avoid the hazard or risk. 3. Explain what to do if injury occurs. (Shuy 1998: 171) In quoting Shuy (1998) Tiersma (2002: 64) points out that both Shuy and the American National Standards Institute (ANSI) recognize implicitly the dual function of warnings in that they require language about both the risk and methods of avoiding the risk. 435

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More recently, Shuy has provided this statement of the function of consumer product warnings and warning labels: Warnings … should identify and describe the nature and danger of the risk. Then they should tell the reader how to avoid it. Finally they should communicate those things in clear and understandable language. (Shuy 2008: 72) There is general agreement that warnings have a dual function, but it is less clear how those dual functions can best be accomplished; the topic of the following section.

Warning adequacy Warnings on cigarette packages My initial research on consumer product warnings began in 1985 with the specific goals of identifying (1) the legal issues involved in cigarette warning litigation, and (2) the issues of warning adequacy from the point of view of both linguistic and human factors analysis. My research began after I received a telephone request from a local attorney to research the adequacy of cigarette warnings. I replied that I would have to do some preliminary work before I could tell him whether I thought I would be useful to him in a case against R. J. Reynolds Tobacco Company (1986). In my initial literature search, I discovered that there were two lines of research, one by linguists (e.g. Searle 1969; Fraser 1975) and one by human factors analysts (e.g. Lehto and Miller 1986). The linguists had focused on discourse analysis and speech act identification, while the human factors analysts had focused on such issues as type size, placement and the general visibility of warning labels, as well as the usefulness of graphic images. I drew on both in planning my own empirical research. I also familiarized myself with the legislative history of warning label requirements on cigarette packages and with the role of the Federal Trade Commission (FTC) in that history and examined some federally mandated warning labels used on prescription drugs. Finally, I  analyzed the six cigarette warnings of the day in order to identify potential problems with content and readability and to formulate hypotheses for research. I studied the legislative history of the warning label requirements in order to discover the factors which had been identified as important by the drafters. As I studied, I learned that required warnings have usually been significantly weaker than those initially proposed. Legislation mandating use of the original (1965) cigarette package warning ‘Caution: Cigarette Smoking May Be Hazardous to Your Health’ had the effect of preempting a proposed FTC Trade Regulation Rule that would have required all cigarette packages and advertisements to warn that ‘Cigarette Smoking is dangerous to health and may cause death from cancer and other diseases’ (The Trade Regulation Rule for the Prevention of Unfair or Deceptive Advertising and Labeling of Cigarettes in Relation to the Health Hazards of Smoking). Had Congress not preempted that requirement, the very first federally mandated warning would have mentioned specific negative consequences of smoking cigarettes (specific diseases) and would have specified that smoking is dangerous, not merely hazardous. Later the FTC proposed a modified version of the warning, which, had it been adopted, would have required all cigarette packages and advertisements to carry this 436

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message:  ‘Warning:  Cigarette Smoking Is Dangerous to Health and May Cause Death From Cancer, Coronary Heart Disease, Chronic Bronchitis, Pulmonary Emphysema, and Other Diseases’ (34 Fed. Reg. § 7919 [1969]). Sadly, Congress amended the text to read:  ‘Warning:  The Surgeon General Has Determined That Cigarette Smoking Is Dangerous To Your Health’ (15 U.S.C. §§ 1331 et seq., 1970). Later four rotational warnings were adopted. Again, the impetus for change seems to have come from the FTC. A May 1981 FTC Staff Report on the Cigarette Advertising Investigation (Staff Report) sets out the reasons why that agency thought the 1970 warning was ineffective. The first factors, identified on the basis of common sense, were (1) overexposure (the warning was ‘worn out’), (2)  lack of novelty (it contained no new information), (3) the abstract and general nature of the wording, and (4) the lack of personal relevance of the warning. Also, the unchanging size and shape of the 1970 warning were felt to contribute to its ineffectiveness. Later market research surveys reported by the FTC suggested additionally that (1) if warnings were to be effective, they should be short (one idea per warning), simple and direct; and (2) disease-​specific warnings, that is, those listing specific diseases as possible consequences of smoking, are far more effective than non-​ disease-​specific warnings. The proposal to use a rotational warning system evolved partly as a way to address the four problems already cited. The FTC recommended that the rotational warnings should be selected in accord with four criteria: (1) medical accuracy, (2) demonstrable filling of a gap in consumer knowledge about health hazards, (3) intelligibility, and (4) ability to ‘prompt consumers to think about the health hazards of smoking’ (Staff Report: 5–​33). Sample warnings prepared by the FTC meet all those criteria. Representative ones include the following: 1. WARNING: Smoking causes death from cancer, heart attacks and lung disease. 2. CARBON MONOXIDE:  Cigarette smoke contains carbon monoxide and other poison gases. 3. WARNING: Smoking may be addictive. 4. LIGHT SMOKING: Even a few cigarettes a day are dangerous. Again, we find the same pattern of FTC-​proposed warnings mentioning specific negative consequences of smoking, followed by Congressionally promulgated warnings which mention fewer or weaker specific negative consequences of smoking. The four rotating warnings eventually required were a good deal weaker and certainly less comprehensive than the first ones proposed by the FTC. I also examined some federally mandated warning labels used on prescription drugs. Most of the warnings were brief, appear to be medically accurate and certainly filled gaps in my own knowledge about health hazards. They were generally intelligible and, as a consumer, I felt that they would prompt me to think about health hazards. Most striking was the use of graphic symbols (e.g. automobiles, outlines of faces) and color contrast. It seemed obvious that warning label designers could comply with the FTC-​proposed criteria and that the resulting warnings could be medically accurate, fill gaps in consumer knowledge about health hazards, be intelligible and ‘prompt consumers to think about the health hazards of smoking.’ My empirical research was carried out by means of written categorization, rank-​ ordering and paraphrase experiments, as well as rapid and in-​depth anonymous interviews. On the basis of the pilot study, I concluded that there was 437

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strong evidence for the existence of objective criteria by means of which the relative adequacy of warnings on cigarette packages [could] be assessed and that those objective criteria [were] for the most part not characteristic of present or past cigarette package warnings. (Dumas 1992: 262–​263) I further suggested that warnings differ by degree and that consumers show some uniformity in classifying warnings as strong or weak and that strong warnings generally have at least some of the following characteristics, while weak ones lack one or more of these characteristics. 1. They are often formulated as hypothetical warnings or contain strong warning words like POISON. 2. They mention specific possible negative consequences and lack such modal qualifiers as may and could. 3. They are easy to see. 4. They are written in simple syntax and in ordinary, everyday language. Federally mandated cigarette package warnings display characteristics of weak warnings: (a) qualifying language (e.g. the modal auxiliaries may and can), (b) unusual syntax (e.g. the double-​ing construction as in Quitting smoking now) and (c) technical and semi-​technical vocabulary (e.g. fetal injury, carbon monoxide). The warnings lack significant information (What are the precise dangers? Who will be affected? To what extent?). The warning labels are hard to read because of their position on the side of the package, their small type size and the fact that they often appear in hard-​to-​read color combinations (e.g. gold on red). Space limitations constitute another problem. Later research by graduate students reported that some pregnant women thought that Low Birth Weight was a desirable result of smoking. It was unclear whether that was because they interpreted the statement to mean that their weight would be lower at birth or that having a baby weighing less would be desirable. Attempting to propose alternative wordings makes it clear that some problems inherent in the warning would take more words to clear up than there was room for on the package. The usual need for brevity is a serious obstacle to the formulation of adequate warnings. An informationally adequate warning might read thus: ‘Smoking by pregnant women may cause injury to the baby before birth, as well as dangerous health problems resulting from the baby’s being born prematurely or underweight.’ Also, there is some evidence that two of the rotating warnings had the effect of weakening the effectiveness of the one disease-​specific warning in current use. These were my recommendations: 1. Either formulate the warnings as hypothetical or use strong conventional warning labels like POISON. 2. Avoid unnecessary qualifying language, e.g. the modal auxiliaries may and can. 3. List specific undesirable consequences of unsafe behavior. 4. Make the warnings conspicuous in all ways, e.g. color contrast, type size and position on product. 5. Write the warnings in simple syntax and using ordinary vocabulary.

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6. Include specific information about negative consequences on each label in a rotational series. 7. Do not narrow the target population by addressing specific labels to different portions of that population (e.g. pregnant women). 8. When considering the use of rotating warnings, consider that differences in the strength of individual warnings may have the effect of weakening stronger warnings. 9. Field-​test all proposed warnings. (This step would appear to go without saying, but, given the history of proposed federally mandated warnings, it is clear that it does not.) (Dumas 1992: 300–​301) Shortly before the trial, I was able to obtain a copy of the Confidential Version of the 1981 Federal Trade Commission Staff Report on the Cigarette Advertising Investigation (Myers et  al. 1981), a document that revealed that the Tobacco Institute had actually conducted research similar to that I had just concluded and had used the results to lobby for changes in proposed new cigarette warnings. I testified at trial in the Roysdon v. R. J. Reynolds case, but I was not allowed to testify as to the ultimate issue, i.e. whether the warnings on cigarette packages are, or have in the past been, adequate to inform consumers about the health risks of smoking. That is because, shortly before the trial began, Judge Thomas G. Hull of the Eastern District of Tennessee, the presiding judge, had ruled that the federally mandated warnings on cigarette packages were adequate as a matter of law. This ruling had the effect of removing the issue from consideration. In my testimony, I described my research methods, summarized my conclusions about how warning labels are perceived by consumers and summarized published information about how the Tobacco Institute had conducted research into how warning labels are perceived, prior to lobbying Congress about the wording of current cigarette package warnings. Further, at the end of the plaintiff’s presentation (including my testimony), Judge Hull dismissed the suit, ruling that the plaintiff had made no case. He gave two reasons for doing so:  (1) the federal statute on cigarette package labeling had preempted state common law actions based on alleged inadequacies and (2)  common knowledge about tobacco was such that cigarettes are not unreasonably dangerous. The plaintiff appealed, but the Sixth Circuit upheld the ruling of the trial court, stating that the smoker’s claim under state law, based on the tobacco company’s failure to provide adequate warnings, was preempted when the warnings required by the Cigarette Labeling and Advertising Act, 15 U.S.C.S. §§ 1331–​41, were given. The district court directed a verdict for the tobacco company because the smoker failed to establish a prima facie case that the cigarettes were defective or unreasonably dangerous. The court held that a ‘defective condition’ was one that rendered a product unsafe for normal or anticipatable handling and consumption, Tenn. Code Ann. § 29-​28-​102(2). Since, there was no evidence that the use of the cigarettes presented risks greater than those known to be associated with smoking, the court held that no reasonable jury could find that they were defective in the sense that they were improperly manufactured or contained dangerous impurities. Extensive public information regarding the risks of smoking precluded a jury question as to whether the cigarettes were unreasonably dangerous (Roysdon v.  RJ. Reynolds Tobacco Co., 623 F.Supp.  1189 [E.D. Tn. 1986]).

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The ultimate outcome of this case was that the Sixth Circuit Court affirmed the dismissal of the smoker’s claim, holding that the ‘failure to warn’ claim was preempted and affirmed the order directing a verdict for the tobacco company. The appellate court held that the cigarettes presented no greater risks than those associated with smoking, and so were not defective. The court also held that the availability of extensive public information about the risks of smoking precluded asking a jury whether the cigarettes were unreasonably dangerous (Roysdon v. RJ. Reynolds Tobacco Company [6th Cir. 1988], rehearing denied 1988). The plaintiff did not appeal to the Supreme Court.

Warnings on a manufacturing product A few years later, I was asked to evaluate the adequacy of both warnings and safety information contained in Material Safety Data Sheets (MSDS), safety information statements that often accompany industrial products. Such statements have the potential to convey much more safety information than can be printed on a product label. In two 1990 cases, Whitis v. Loctite Corporation and Davis v. Loctite Corporation, plaintiffs were workers who developed disabling contact dermatitis; they alleged that the cause was a glue product, Loctite RC/​609, used on the assembly line, which was manufactured by the defendant corporation Loctite and furnished to the manufacturing company. I began my research with photocopies of warning labels on the glue containers and of the MSDS, the American National Standard Guide for Classifying and Labeling Epoxy Products According to Their Hazardous Potentialities (1978) (ANSI Standard) and medical reports on the effects of Loctite RC/​609 on the human body and also of the medical conditions of the plaintiffs. Although medical causality was, of course, not within my area of expertise, I was asked to assess whether the warnings were adequate to warn potential users of severe and possibly disabling dermatitis: whether the MSDS adequately warned employers that use of the glue could result in disabling contact dermatitis; whether they took precautions with employees; and whether they gave additional warnings to employees, including the information that using vinyl gloves and rubber finger cots might not be adequate protection. The following labels appeared on various sizes of glue containers: CAUTION: CAUTION: CAUTION:

MAY IRRITATE SENSITIVE SKIN. Contains methacrylic ester. Wash after skin contact. KEEP AWAY FROM CHILDREN. [found on the back of one container] MAY IRRITATE SENSITIVE SKIN. READ CAUTION ON BACK LABEL. [found on the front of one container] Contains methacrylic ester. Wash after skin contact. KEEP AWAY FROM CHILDREN. [found on the back of the container which directed the user to the back of the container]

The language on the latter two labels contains a total of five sequenced information chunks (Shuy 1990) or idea units (Chafe 1985). They read thus: CAUTION: CAUTION:

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MAY IRRITATE SENSITIVE SKIN. READ CAUTION ON BACK LABEL. Contains methacrylic ester. Wash after skin contact. KEEP AWAY FROM CHILDREN.

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The warning label on the front of the container functions primarily for reference value. It mentions the possibility of a harmful effect following its use, then directs the reader to a second label. Unfortunately, the second label, on the back of the container, is not much more informative. It again mentions the possibility of skin irritation, but says nothing about severe, even disabling dermatitis. I  suggested that a highly informative warning might read something like this: WARNING! IF you handle this product without wearing gloves, you risk DISFIGUREMENT and DISABILITY. ALWAYS WEAR GLOVES WHEN HANDLING THIS PRODUCT. Further, one of the statements, including the technical term methacrylic ester, is probably meaningless to the average consumer or worker, almost certainly meaning less even than carbon monoxide, prominent in one of the rotating cigarette warnings. There is a great deal of highly technical information in the MSDS as well as information about possible health risks and recommended precautions. That information is not prominently displayed and there is no evidence that the employer is expected to convey any of the information to an employee. Two precautions suggest that gloves (rubber or plastic) be worn and that ‘prolonged skin contact’ be avoided, but in the cases at issue, employees were wearing vinyl gloves at all times they were in contact with Loctite RC/​609. Clearly, the safety information provided by the manufacturer was inadequate to warn of and then avoid the dangers inherent in exposure to the glue. I testified for parts of two days at trial. Aside from plaintiffs, the only other witness was the medical doctor who testified about the severity of the disabling dermatitis caused by exposure to Loctite RC/​609. It was so severe that one plaintiff, who was pregnant, was told that she would have to wear gloves in order to change her baby’s diapers. The jury found for the plaintiffs and awarded the largest amount of damages ever in a civil case in Anderson County, Tennessee. However, as I  soon learned, while the jury was deliberating, the plaintiffs, worried about the outcome, reached a ‘high–​low’ agreement with the defense. A high–​low agreement is a settlement that is contingent on a jury’s award of damages and that sets a minimum amount that the defendant will pay the plaintiff if the award is below that amount and a maximum amount that the defendant will pay if the award is above that amount, regardless of the amount the jury awards. The jury verdict was for far more than the ‘high’ amount agreed. However, the plaintiffs felt that the defense had a good chance of winning on appeal, so both sides agreed to live with the ‘high–​low’ figures and also to retain all trial exhibits, including charts and other materials used by witnesses. Those materials would thus be unavailable for future litigation. After trial, I learned that the jury had been strongly pro-​defense prior to hearing my testimony. The verdict and jury award amount were based on linguistic evidence of a failure to warn (Dumas 2000).

Cleaning product risk, carbon monoxide poisoning, toxic shock syndrome and toxic gas poisoning In a discussion of three product liability cases in which he testified as an expert witness, Shuy (2008) provided rich data from cases involving carbon monoxide poisoning, toxic shock syndrome and toxic gas poisoning (­chapters 8–​11 of Fighting Over Words: Language and Civil Law Cases). In one case involving carbon monoxide poisoning in a recreational 441

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vehicle, he compared ANSI requirements with three owner’s manuals, concluding that two manuals failed to meet ANSI standards in a number of ways. He made use of topic, topic sequencing, speech act, and semantic analysis to reach his conclusions (2008:  106). In another case involving the use of a cleaning product on a ship, Shuy compared regulatory standards with the label on the tin of cleaning compound, concluding that the label was not consumer-​friendly and that it minimized the danger. In a third case involving tampon-​ induced toxic shock syndrome, Shuy analyzed tampon box warnings and package inserts in order to assess the adequacy of the warnings. He also made some suggestions for warning label revision, suggesting reordering, reduced syntactic complexity and redesign, both to increase the likelihood that a consumer would pay attention to the text and to enhance readability.

Conclusion I suggested at the outset of this chapter that I would summarize research about the nature and functions of warnings, describe and evaluate techniques for assessing and increasing the adequacy of warnings and then suggest strategies for continuing to improve warning and other safety information adequacy. Summaries of past research reveal clearly, I think, both the complexity of assessing the adequacy of consumer product warnings and other safety information and the reasons for the difficulties of applying reasonable standards –​ and also the real difficulties of composing effective warning labels, especially in contexts where space is limited. The role of context, both in our society as a whole and in particular personal or commercial contexts, is important. In our society, we face, for instance, the fact that effective warning information on tobacco products might have the effect of reducing tax revenues (Tiersma 2002). In industry, some warnings appear to be constructed with more attention to their anti-​litigation function than their effectiveness and, as noted above, product warnings often have to compete for consumers’ attention with package construction designed to attract consumers. However, as linguists we have the tools to improve the quality of warnings if others empower us to do so. One example of package construction designed to attract consumers comes from 2007, when R.J. Reynolds introduced Camel No. 9 cigarettes, clearly designed to attract female smokers. The cigarettes were described as ‘light and luscious,’ and their packages featured what the New York Times called ‘hot-​ pink fuchsia’ and ‘minty-​green teal’ colors; flowers surrounded the packs in magazine ads (Lee 2008). The packaging strategy is not new. A  2008 exhibit of historic cigarette ads at the New  York Public Library’s Science, Industry and Business branch, ‘Not a Cough in a Carload,’ displayed historic cigarette ads that were designed to override medical information and conventional notions of appropriate behavior, especially for women: [I]‌n 1928, Edward Bernays, often considered the father of modern public relations, was retained by American Tobacco Company to help get women to smoke. Recognizing that women were still riding high on the suffrage movement, Mr. Bernays used the equality angle as the basis for his new campaign. He convinced a number of genteel women, including his own secretary, to march in the 1929 Easter Day parade down Fifth Avenue and light up cigarettes in a defiant show of their liberation. … [T]‌he media ate it up: 442

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Ten young women turned out, marching down Fifth Avenue with their lighted ‘torches of freedom,’ and the newspapers loved it. Two-​column pictures showed elegant ladies, with floppy hats and fur-​trimmed coats, cigarettes held self-​consciously by their sides, as they paraded down the wide boulevard. Dispatches ran the next day, on page one, in papers from Fremont, Nebraska, to Portland, Oregon, to Albuquerque, New Mexico. The Times published an article the next day on the Easter Parade, with headline saying in part, ‘Group of Girls Puff at Cigarettes as a Gesture of’Freedom’’ … . The cigarettes became known as ‘torches of freedom.’ Cigarette companies then started tailoring their messages to women. One of the most resonant themes was that smoking would keep women slim (even then, women thought thinner was better). (Lee 2008) Then Philip Morris USA began marketing cigarettes labeled ‘Virginia Slims Superslims Lights’ that also appear to be directed primarily at female smokers. The cigarettes themselves were much thinner than most cigarettes; 20 of them fit into a package called a ‘Purse Pack’ much thinner than most cigarette packages. The packages were lavender and silver and green and silver. I first saw them when I purchased packs of Camel No. 9 cigarettes. The packages were so tiny that I  did not believe that one could hold 20 cigarettes. I purchased and opened one to verify the contents. Both the sales clerk and I were astonished to find 20 cigarettes inside. Clearly, the contest continues. The contest is sometimes portrayed as one between conscience and profits or between comprehensibility and profits, but the contest also involves the full role of context in communication scenarios, including the psychology of risk assessment as noted above. Linguists cannot address the issues of profit versus conscience, but we can address the issues of comprehensibility and also the full role of context. My earlier suggestions about improving written and graphic warning labels and Material Safety Data Sheets were restricted primarily to comprehensibility issues. I  now suggest that linguists can further contribute to increasing the effectiveness of safety information statements, including warnings and such documents as Material Safety Data Sheets, by focusing attention on the likelihood that even strong, effectively worded warning information may appear in contexts in which glamour and style compete with health concerns. How do we counter that? One possibility is to incorporate the lure into some warnings, possibly by stating something like this: ‘Lose weight by smoking? Yes! All of it! You die!’ or ‘Smoking: A Sure Slow Death’ or even ‘Look Good While You Die —​Smoke!’ Additional research into the relationship between locutionary and illocutionary acts and perlocutionary effects is still needed if we want to improve on the persuasiveness of warnings –​ but then, on the other hand, such research may simply enable advertisers to be even more successful in selling cigarettes and other tobacco products.

Further reading Cotterill, J. (ed.) (2002) Language in the Legal Process, Houndmills, Basingstoke, Hampshire and New York: Palgrave Macmillan: 54–​71. (Contains chapter by Tiersma on ‘The Language and Law of Product Warnings’.) Dumas, B.K. (2000) ‘Warning labels and industry safety information standards: The case of Loctite RC/​609’, in J. Peyton and P. Griffin (eds), Language in Action:  New Studies of Language in Society, Cresskill, NJ: Hampton Press, 302–​317. 443

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—​—​—​(2001) ‘Warnings’, in J. Mitchie (ed.), Reader’s Guide to the Social Sciences, vol. 2, London and Chicago: Fitzroy Dearborn, 1747–​1748. (Overview with bibliography.) Hagemeyer, C. and Coulthard, M. (2015) ‘On product warnings’, Language and Law –​Linguagem e Direito, 2(1): 53–​75 Shuy, R.W. (2008) Fighting Over Words: Language and Civil Law Cases, Oxford: Oxford University Press. (Contains data from four product liability cases.) Wogalter, M.S. (2008) Handbook of Warnings, London: Lawrence Erlbaum.

Legal sources Roysdon v. R.J. Reynolds Tobacco Co., 623 F.Supp. 1189 [E.D. Tn. 1986]. Roysdon v. R.J. Reynolds Tobacco Company, 849 F.2d 230 [6th Cir. 1988].

References Chafe, W.L. (1985) ‘Linguistic differences produced by differences between speaking and writing’, in D.R. Olson, N. Torrance and A. Hildyard (eds), Literacy, Language and Learning: The Nature and Consequences of Reading and Writing, London: Cambridge University Press, 105–​123. Dumas, B.K. (1992) ‘An analysis of the adequacy of cigarette package warnings: An analysis of the adequacy of federally mandated cigarette package warnings’, Tennessee Law Review, 59: 261–​304. —​—​—​(2000) ‘Warning labels and industry safety information standards: The case of Loctite RC/​ 609’, in J. Peyton and P. Griffin (eds), Language in Action: New Studies of Language in Society, Cresskill, New Jersey: Hampton Press, 302–​317. Fraser, B. (1975) ‘Warning and threatening’, Centrum, 3: 169–​180. —​—​—​ (1998) ‘Threatening revisited’, Forensic Linguistics: International Journal of Speech, Language and the Law, 5(2): 159–​173. Lee, J.B. (2008) ‘CITY ROOM; Female smokers, and a P.R.  coup’, The New  York Times, 11 October https://​archive.nytimes.com/​query.nytimes.com/​gst/​fullpage-​9C03E6D71 039F932A 25753C1A96E9C8B63.html. Lehto, M.R. and Miller, J.M. (1986) Warnings, Vol. 1:  Fundamental, Design, and Evaluation Methodologies, Ann Arbor, MI: Fuller. Myers, M.L., Iscoe, C, Jennings, C, Lenox, W., Minsky, E. and Sacks, A. (1981) Federal Trade Commission Staff Report on the Cigarette Advertising Investigation, Washington, D.C.: Federal Trade Commission. Searle, J. (1969) Speech Acts:  An Essay in the Philosophy of Language, London:  Cambridge University Press. Shuy R.W. (1990) ‘Warning labels:  Language, law, and comprehensibility’, American Speech, 65(4): 291–​303. —​—​—​ (1998) The Language of Confession, Interrogation, and Deception, Thousand Oaks, CA and London: Sage Publishing. —​—​—​ (2008) Fighting over Words: Language and Civil Law Cases, Oxford: Oxford University Press. Tiersma P. (2002) ‘The language and law of product warnings’, in J. Cotterill (ed.), Language in the Legal Process, Basingstoke, Hampshire and New York: Palgrave Macmillan, 54–​71. Vanderveken, D. (1990) Meaning and Speech Acts, Volume I:  Principles of Language Use, Cambridge: Cambridge University Press.

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28 Terrorism and forensic linguistics Linguistics in terrorism cases Roger W. Shuy

Introduction United States law describes terrorism as ‘the use of threat or violence to intimidate or cause panic, especially as a means of affecting political conduct’ (18 USCA § 2331). The criminal acts involved in terrorism overlap laws about threatening, extortion and murder. Types of terrorist act include domestic terrorism, illegal acts carried out against one’s own government and fellow citizens, international terrorism, illegal acts taking place outside the jurisdiction of the United States, and cyberterrorism, the use of computers to carry out illegal acts that create harm or fear. In 2018 the FBI Director pointed out that his agency was currently investigating about 5,000 terrorism cases in all 50 states and had made hundreds of arrests (Washington Post, 10 October 2018). Successful investigations of terrorism usually follow three steps:  (1) find reasons to suspect that a terrorist activity is happening or likely to happen; (2)  collect evidence; (3)  evaluate this evidence and decide whether it is useful for trial. When law enforcement agencies satisfy these procedures, they produce results that keep citizens safe from terrorists, but mistakes can ruin the lives of innocent people, deplete budget resources and waste taxpayer’s money. Law enforcement agencies often follow the above procedures and bring true terrorists to justice, but sometimes there are problems, especially when they locate the wrong suspects and misinterpret what they said. This chapter points out problems that an anti-​terrorism unit had with its language evidence and demonstrates how linguistic analysis could have helped resolve a terrorism case.

How linguistic analysis can help When the evidence consists of large amounts of continuous conversation, the analyst must account for the entire linguistic context in which language is used rather than relying on the purported ‘smoking gun’ statements. For example, what may seem to be an agreement is meaningless if the language evidence does not make precisely clear what that agreement includes and whether the participants mutually understand what it specifies. The social 445

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The Inverted Pyramid Speech Event Schemas Agendas Speech Acts Strategies Grammar Words

Figure 28.1  Inverted pyramid approach

context can be as important as the language context, especially when the speaker has limited language ability or lacks cognitive acuity. Linguists address the language evidence by using their skills in phonetics, morphology and syntax to improve the accuracy of the government’s transcripts, by applying their skills in discourse analysis to identify and keep track of and properly attribute the speakers’ agendas, topics, themes and schemas, by calling on their knowledge and skills about pragmatics and speech acts to identify and accurately distinguish the presence and felicitous use of participants’ requests, promises, agreements, denials, etc. But they also need the communicative skills of a good teacher to successfully express their findings in ways that jurors will understand. These linguistic contributions to a terrorism case are the same ones that the prosecution could have used in its own intelligence analysis. These tools are best utilized in an inverted pyramid sequence first addressing the largest context of language and proceeding through the smaller ones (Shuy 2013, 2014, 2016, 2017).

Speech events (what is being talked about) Analysis of the discourse begins with the largest structure of the conversation –​the speech event (Gumperz and Hymes 1972; Hymes 1974). The speech event is the largest and most indispensable conversational unit for it contextually frames the rest of the language found within it. Speech events are miniature social systems governed by norms of appropriateness that specify what is to be accomplished, how it is communicated, who can participate and in what capacity (Gumperz 1998: 186). For example, if the speech event is announced as a discussion about religion, participants are expected to relate their experience and knowledge about that topic but not about other things such as football games or business transactions, which are defined as different speech events. Gumperz (1982:  9) referred to speech events as ‘unspoken conventions as to what counts as valid and what information may or may not be introduced.’ He gave examples of job interviews, courtroom examinations and business negotiations, adding that there were many more.

Schemas (how participants think about what is being talked about) Most participants in conversations are consciously aware of what speech event they are in. It frames their schemas about how to talk about that speech event. They use their 446

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existing knowledge, attitudes and ideas to interpret what they understand to be relevant to that speech event. Their own language reveals their schemas, but when they misperceive the speech event they are in, their erroneous schemas can lead them down a very wrong path.

Agendas (what participants contribute to what is being talked about) The flow from speech events to schemas forms a bridge to the speakers’ agendas that are revealed by the topics they introduce and their responses to topics introduced by other participants in the conversation. Agendas, the cognitive substance of conversations, can provide useful clues to participants’ motivations, predispositions and intentions.

Speech acts (how participants convey their contributions) As speakers present their agendas, they use speech acts (Austin 1962; Searle 1969). Meaning is communicated not only explicitly through grammar and lexicon, but also by speech acts that provide the explicit and inferred intent. Speech acts are speakers’ ways of getting things done with language, such as promising, admitting, advising, apologizing, agreeing, denying, offering and reporting. Each speech act has its own felicity conditions and if, for example, an attempt to apologize does not meet these conditions, it fails as a felicitous speech act. In terrorism cases, it is important to examine the speech acts of agreeing, promising, offering and denying.

Conversational strategies (how participants try to influence each other) Conversational strategies are techniques that speakers use to achieve the results they desire (Gumperz 1982; Hansell and Ajirotutu 1982; Tannen 1994). It is common for speakers to employ various conversational strategies to help them reach their goals. Since the goal of police officers is to capture criminality on tape, they can be tempted to use various conversational strategies to achieve it more efficiently. When gathering language evidence, their strategies can include ambiguity, blocking the other person’s speech by interrupting or overlapping, using the hit and run strategy, contaminating or camouflaging illegal words, and inaccurately restating or scripting the target about what to say next (Shuy 2005:  13–​29). Their most commonly occurring strategy is using ambiguity that causes their contribution to appear to be about something that their targets perceive quite differently (Shuy 2017).

Grammar and lexicon (how participants convey meaning in sentences) In criminal cases much attention is placed on individual words, phrases and sentences in which alleged smoking gun evidence is thought to be found. Often this is a good place to find evidence of criminal intent, but when these words, phrases and sentences are vague or ambiguous, they can refer to something different. Many problems of syntactic meaning derive from pronoun and deictic referencing and from unshared meanings of words. This is especially problematic when the targets are non-​native speakers of English, are poorly educated or are so overwhelmed with external problems that they pay little or no attention to what the agent is saying.

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Terrorist case example I spent seven months consulting with the attorneys for Marwan El-​Hindi, one of the three defendants in this case. Analysis of the language evidence provided a very different picture from the prosecution’s. It showed how the undercover agent capitalized on his target’s inability to listen carefully and understand his ambiguity, indirectness and hints. It also showed how the agent became discouraged by El-​Hindi’s failure to understand his many encouragements to set up a terrorist training cell, after which the agent abandoned that scenario and created a new one in which he asked El-​Hindi to copy certain videotapes from the Middle East and attach them in an email to him, an action that led to the conviction of all three targets. But upon careful examination, even this second scenario presented serious problems for the prosecution.

Case background Marwan El-​Hindi, 44, was a naturalized U.S. citizen from Jordan now working as a self-​ employed businessman. Mohammad Amawi, 28, a dual citizen of the U.S. and Jordan, was a travel agent. Wassim Masloum, 26, a college student from Lebanon, was a legal permanent U.S. resident. Although all three defendants were Muslims living in Toledo, they had never met until the agent brought them together. None of them had previous criminal records. Darren Griffin, who the government hired to conduct the intelligence gathering, was an ex-​Army Special Forces member and former drug user now experiencing financial difficulties. In the past he had served briefly as a consultant to the FBI, which then rehired him for this two-​year assignment to try to discover terrorist activities in the Toledo Muslim community. At trial, Griffin testified that he was paid some $350,000 for his work on this case. Griffin used the guise of owning his own private security business, which included training others for security work. His approach was to hang around Toledo mosques telling people that he was a recent convert to Islam and was disenchanted with U.S. foreign policy. He also told selected people (but not El-​Hindi) that he’d like to do violence to the U.S. government. During his undercover role he grew a beard, wore Arabic clothing and tried to appear to be an Islamic extremist. At a different mosque he told various people that he hated the president and wanted to train Muslims to carry out violent jihad. He made no progress at that mosque, however and, ironically, several American Muslims there were so disturbed that they reported him to the FBI, which did nothing about it, of course, telling Griffin to move to a different mosque. Griffin eventually found another mosque, where he first met the three defendants separately and tape-​recorded their conversations. In February 2006 the three suspects were charged with conspiring to provide resources to kill U.S. troops serving in Iraq. Amawi was also charged with threatening President Bush, based on his severe verbal criticisms. All three targets were charged with cyberterrorism because they had shared with Griffin some videotapes of Iraq War action that included the use of plastic explosives, rockets and bombs. At the agent’s request, El-​Hindi had made copies of videotapes of television programs they had watched together at his home. Masloum, who was present in only a couple of the recorded undercover conversations, was also charged with requesting the agent to train him to carry out violent jihad in the Middle East.

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Motivations and intentions Griffin created two scenarios to elicit the targets’ illegal motivation and intentions. First, he tried to elicit their desire to establish a training cell that would prepare them and others for violent jihad. When this effort failed, Griffin’s second scenario was to engage them in electronic jihad. Amawi, a travel agent and devout Muslim, had recently visited his native Jordan, where he learned about what his friends and relatives thought of the Iraq War. Clearly the brightest of the three suspects, Amawi was technologically competent enough to access television programs and internet resources about the Middle East conflict. The prosecution claimed that Amawi’s motivation was to engage in extremist jihad. Masloum was an overweight college student who knew that he would soon have to fulfill his six-​month military obligation in Lebanon. Based on the language evidence, his only noticeable motive was to get in good physical shape for his forthcoming military service. The prosecution claimed that Masloum’s motive was to receive military training from Griffin in order to commit violent jihad. El-​Hindi, also a devout Muslim, was a bumbling business entrepreneur, whose only income came from commissions for recruiting prospective medical students to attend several European medical schools. He was constantly attracted to other possible business ventures, none of which succeeded. A father of five children, he was in the process of a bitter divorce. The tapes demonstrated El-​Hindi’s deep concerns about the problems of poor Muslims and their children’s education in the U.S. Foremost of his lofty business schemes was to obtain a property where he could create a religiously oriented school. None of El-​Hindi’s plans came close to success, but he was charged with electronic jihad because he had forwarded videotapes of the Middle East war to the agent.

Linguistic analysis The tape-​recorded language evidence in this case was analyzed according to the sequence suggested by the inverted pyramid approach (Figure 28.1).

Speech events The meetings of Griffin and El-​Hindi consisted of five major speech events: (1) Religion, introduced by Griffin Griffin’s first meeting with El-​Hindi made clear that this speech event was a discussion about religion. El-​Hindi was happy to assume the role of his spiritual mentor as he tried to explain Islam. He responded to Griffin’s recurring introduction of this speech event throughout their conversations but Griffin paid little attention to this religious information. (2) Building an Islamic school, introduced by El-​Hindi While they talked about the Islamic faith, El-​Hindi switched the speech event to the need for a local school for Muslim children, telling Griffin about his own small children

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and expressing his desire for a school where children could acquire normal education while learning about Islam. Griffin said he could provide physical training at this school. Throughout, Griffin vaguely tried to convert his offer of physical education to that of weapons training while El-​Hindi interpreted this as training Muslim Americans how to defend themselves when attacked. (3) Establishing a training program, introduced by Griffin Griffin tried many times to get El-​Hindi to invite other Muslims to his home for ‘training.’ His hidden goal was for it to become a terrorist cell that could lead to a violent jihad. This idea went nowhere and Griffin’s effort went unfulfilled. El-​Hindi’s responses show that he considered Griffin’s training to be physical education for the proposed school and exercise for men who needed to lose weight to get in shape. (4) Raising money for the proposed Islamic school, introduced by El-​Hindi El-​Hindi suggested various ill-​conceived ideas for raising money for his proposed school for Muslim children. Griffin then reinterpreted these speech events as plans to create a terrorist cell to support violent jihad. (5) A dinner party, introduced by Griffin Griffin finally suggested that it would be good for the three men to meet with him for a social event. El-​Hindi volunteered to invite them all to his home for the speech event of a dinner party. While they ate and talked, Griffin suggested that they watch television programs and videotapes of the war in the Middle East. Griffin then converted this speech event into what the prosecution called ‘electronic jihad,’ by asking El-​Hindi to send him copies of those tapes. The first four speech events were recycled frequently throughout the first 13 meetings, producing no language evidence that El-​Hindi understood what Griffin was trying to do. Griffin ignored El-​Hindi’s speech event of religion, but tried to convert El-​Hindi’s speech event of raising money to build a school into a place that would train people for violent jihad. The prosecutor considered Griffin’s speech event of the dinner party successful enough to charge the targets with an electronic version of terrorism.

Schemas Undercover operations like this often produce conflicting schemas about what is going on. There is no doubt that Griffin’s schema was that El-​Hindi was a terrorist and that he could capture him planning or executing violent jihad. El-​Hindi’s schemas, very different from Griffin’s, stemmed from his very different perception of all five of these speech events. Griffin used his purported interest in religion as his schema for developing a relationship with the targets that could lead them to commit a crime. He reinterpreted El-​Hindi’s schema about a Muslim school as an opportunity to build a terrorist cell. Griffin’s schema that the dinner party would create an opportunity for him to get El-​Hindi to engage in electronic jihad was far different from El-​Hindi’s schema that it was only a pleasant social event.

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Agendas Once the speech events and their attendant schemas were established, the participants revealed their agendas through their topics and responses to the topics of the other participants.

The agent’s agenda Government agents are encouraged to follow what can be summarized as a three-​step process in their efforts to elicit evidence of criminal intentions and activities (Gudjonnson 1992: 8–​10; Shuy 2005: 7–​9): (1) Let the suspects talk freely and expose their own agendas, thereby self-​generating their own evidence of guilt. If this step doesn’t succeed, go to step two. (2) Produce hints and indirectness about the targets’ agendas that can encourage them to clearly express their illegal predisposition and thereby expose their culpability. But if the suspects still don’t say anything that suggests their guilt, go to step three. (3) Represent your own agenda, clearly and unambiguously to indicate the illegality of the proposal. This step is a requirement listed in the FBI’s guidelines for agents carrying out undercover operations (Heymann 1984). Analysis of these conversations indicates that Griffin never got beyond step 2. He let El-​ Hindi talk freely on a multitude of topics (step 1), none of which were relevant to Griffin’s investigation. El-​Hindi provided no language evidence that he ever tumbled to Griffin’s frequent use of indirectness and hints (step 2) and Griffin never unambiguously expressed the illegality of his agenda (step 3).

El-​Hindi’s  agenda El-​Hindi’s agenda was revealed by his topics of religion, his divorce, his children, his plans for a Muslim school, helping poor people and orphans, Muslims accosted on the street, his physical condition and finding financial support for a school. El-​Hindi introduced no inculpatory topics but stayed firmly within a legally benign agenda. In none of the 13 tapes did El-​Hindi respond positively to Griffin’s hints and vague efforts that promoted violent jihad.

Conflicting agendas Since El-​Hindi’s agenda did not implicate himself, Griffin’s agenda required him to reinterpret El-​Hindi’s agendas into creating a corporation to accept grants, providing weapons training, and watching videos and internet programs about war in the Middle East. Although there are many instances demonstrating their conflicting agendas, the following are a representative sample.

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(1) Conflict about creating an organization: Griffin considered El-​Hindi his ‘money man’ and encouraged him to get grants to create an organization that could provide resources for the training program that Griffin wanted to create. Griffin tried hard to make it look like this organization would become a terrorist cell, but when El-​Hindi reported that he was having a lawyer set up a legal non-​profit organization, Griffin was shocked: El-​Hindi: Before I check on the grants, we have to establish the, uh, non-​profit organization. I will call it in, God willing… I will tell the lawyer what exactly we need for the non-​profit organization that we planning. Griffin: What lawyer? El-​Hindi: There’s a lawyer, the one who does my corporation. After hearing this, Griffin quickly changed the subject. A  legal corporation would not fit his plans. El-​Hindi did nothing more about this until two months later when he reintroduced this topic. El-​Hindi: You have to submit all tax papers then. Before, it was only you submit the federal ID number and that’s it. Griffin: You have to submit your taxes? El-​Hindi: You have to submit the actual paper, the certificate and everything. Now you have to submit; before, just the tax number and they would tell us. I think you have at least three officers for a small organization. As before, Griffin changed the topic as rapidly as possible. A bit later El-​Hindi saw a request from Egyptian police to create a training program for their officers. Griffin tried to get El-​Hindi to explain what else they could do there while they ran the program: Griffin: You were saying that you were going to set up an organization over there and all that. El-​Hindi: Orphanages. Not only orphans but very poor, way below poverty. El-​Hindi made it clear that his agenda was to apply for a legal non-​profit organization to do charity work while they did the police training. Once again, Griffin quickly changed the subject. (2) Conflict about creating a school with a mosque: El-​Hindi’s frequent topic concerned creating a school for local Muslim children. Griffin kept trying to convert El-​Hindi’s agenda into a terrorist cell where he could conduct weapons training. El-​Hindi, clearly oblivious to Griffin’s efforts, stayed firmly with his own agenda that this would be a school for kids with part of it serving as a mosque located on the site of a building that had been a private elementary school but was now for sale: El-​Hindi: I took Ameer with me to see if, if we can uh, close a deal on buying the building and convert it into a mosque over there…We could get grants to 452

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teach the children how to swim, right?...So this building we could get, God be praised, even for day care. Griffin: If we had a building, it’d be perfect because we could do it at night. There’s no prying eyes and all that good stuff, so we’ll see. El-​Hindi: It’s a private building, I mean. They’re going to come and search? Griffin: No, no. That’s not it. El-​Hindi: And we’re not gonna be doing something illegal anyway. Griffin: No, no. We can’t shoot or any of that other good stuff. El-​Hindi: Well, it’s just training. Despite Griffin’s expressions, ‘do it at night,’ ‘prying eyes,’ and ‘other good stuff,’ El-​ Hindi continued to express his belief that what they were planning was perfectly legal and that Griffin’s ‘training’ would be for physical education including swimming, since that building also had a swimming pool. During their next conversation a month later, El-​Hindi recycled his school agenda to Griffin, this time inviting him to bring his own children to it. El-​Hindi: I would like to set up a salafi school over here, for the kids, Koran memorization and Hadith memorization. You can bring your kids to it. It’s going to be one of the best in the United States. I wanna get a school, God willing, we need a place. El-​Hindi continued to recycle his agenda of building a school while he remained deaf to Griffin’s hints about using it for questionable purposes. One of the important contributions a linguist can make in a case like this is to mark, organize and keep track of the agendas of the speakers because these are relatively clear indicators of their motivations, predispositions and intentions.

Speech acts Speech acts support the speakers’ agendas. In criminal cases the most salient speech acts are offering, promising, agreeing, and denying or disagreeing. Offering, also commonly found in business contracts, commits the speaker to a course of action if that offer is accepted. To be felicitous, offers must be mutually understood. Griffin ambiguously offered El-​Hindi his skills in training throughout their first 12 conversations. El-​Hindi’s 37 specific responses to Griffin’s offers of training indicated that he understood this training to be for learning the Koran, physical fitness, self-​protection, recreation, getting grants, becoming a translator and helping train the Egyptian police. The agent’s offers of illegal uses failed because his speech acts were infelicitous. Promising is a speaker’s commitment to bring about a proposition in the future that is in the best interest of the hearer. A  felicitous promise takes place only when the promise is mutually understood by the speaker and the hearer. Otherwise it can be considered a lure created to induce the listener to take an action that can result in that person’s harm. El-​Hindi’s language never came close to promising to train children or adults for extremist jihad. In contrast, on several occasions he argued against the violent jihad carried out by others. Griffin never told El-​Hindi explicitly that his promised training program was to prepare for extremist jihad. Instead, he vaguely and ambiguously mentioned ‘training,’ 453

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probably in the hope that later listeners could think he meant training to carry out jihad. Government agents commonly use deceptive ambiguity, as illustrated in Shuy (2017). Agreeing is an expression of a speaker’s intent to support or bring about a current proposition. A felicitous agreement takes place only when there is a mutual understanding between speaker and hearer about what is being agreed. El-​Hindi agreed with Griffin’s idea to include ‘training’ in his proposed school for Muslim children, but at no point in these conversations did El-​Hindi agree that this training was for doing anything illegal. El-​Hindi also agreed with Griffin’s suggestion to host a dinner party at his home, where Griffin videotaped the meeting with a camera hidden in his watch. The video was of poor quality but its clearer audio made it possible to determine who was present and who was not during their conversation that evening. If any participants made allegedly damaging statements when El-​Hindi was not present or out of hearing range, he was unlikely to hear them. When he was present, the conversation was mostly about legally benign topics such as Islamic religious practices and his own marriage and divorce problems. After dinner, they moved to an adjoining room as they watched videotapes from the Middle East. Some showed violent scenes of explosions and a U.S. marine being killed at a checkpoint in Iraq. The targets located the examples Griffin requested, played them and then, at Griffin’s request, downloaded them for him. The act of sending these tapes to Griffin’s home produced the government’s charge that they had committed ‘electronic jihad.’ Denying and disagreeing are expressions that a speaker does not accept a proposition made by another speaker. A denial or disagreement is felicitous only when the speaker and receiver mutually understand that which is denied or disagreed. El-​Hindi’s disagreement with Griffin was central to his defense. His language often made clear that he didn’t understand or hear propositions that he might actually disagree with. Since Griffin frequently spoke ambiguously and hinted at illegality without specifically saying it, El-​Hindi’s responses suggested that he didn’t properly infer the intention of Griffin’s meanings. But even when Griffin tried to be specific, El-​Hindi demonstrated that he didn’t understand. The following is one example: Griffin: There’s definitely stuff to teach kids. You know, it’s basic stuff, as far as weapons training. Weapons training is basic. El-​Hindi: I was in good relation with Ji’atan Academy and he trained in karate. The ongoing topic here was the possibility that they could rent or buy the Ji’atan Academy’s school building then for sale. This academy had taught children karate. Here, El-​Hindi interpreted Griffin’s expression, ‘weapons training,’ as karate instruction for self-​ defense. Although some listeners might catch Griffin’s hint that their proposed school for children would include weapons training, the ongoing topic was about the physical education that Griffin might provide for the school. El-​Hindi either misunderstood Griffin’s meaning of ‘weapons training’ or disagreed with it by reminding him that he was referring to a different type of physical education training for self-​defense. Griffin’s disagreements with El-​ Hindi were many. Since the agent considered El-​ Hindi his ‘money man,’ he kept trying to get El-​Hindi to set up a corporation to provide resources for the training programs Griffin wanted to create. The prosecution made much of El-​Hindi’s word, ‘organization,’ claiming that its purpose was to be a terrorist cell. But when El-​Hindi reported that he had gone to a lawyer to set up a legal non-​profit organization, Griffin reacted with shock: 454

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El-​Hindi: Before I check on the grants, we have to establish the, uh, non-​profit organization. I  will call it in, God willing, and see what they, I  will tell the lawyer what exactly we need for the non-​profit organization that we planning. Griffin: What lawyer? El-​Hindi: There’s a lawyer, the one who does my corporation. Following this legal procedure was not what Griffin wanted to hear. He must have realized that El-​Hindi was tacitly disagreeing him, so he quickly changed the subject. Two months passed before they talked about this corporation again: El-​Hindi: You have to submit all tax papers then. Before, it was only you submit the federal ID number and that’s it. Griffin: You have to submit your taxes? El-​Hindi: You have to submit the actual paper, the certificate and everything. Now you have to submit. Before, just the tax number and they would tell us. I think you have at least three officers for a small organization. Once again, Griffin quickly changed the subject. El-​Hindi did not budge in spite of Griffin’s attempts to disagree with his agenda. He followed the legal procedures for applying for a legal non-​profit organization to do charity work. Even though Griffin was vague about his own agenda, El-​Hindi tacitly disagreed with it. El-​Hindi frequently recycled his agenda of creating a school for Muslim children while Griffin tried to convert this into a place to conduct weapons training. El-​Hindi either missed Griffin’s point or tacitly disagreed with it, sticking firmly to his idea for that school. As we noted above, at one point they talked about a local school property that was for sale: El-​Hindi: I took Ameer with me to see if, if we can uh, close a deal on buying the building and convert it into a mosque over there …. So this building we could get, God be praised, even for day care. Griffin: If we had a building, it’d be perfect because we could do it at night. There’s no prying eyes and all that good stuff, so we’ll see. El-​Hindi: It’s a private building, I mean. They’re going to come and search? Griffin: No, no. That’s not it. El-​Hindi: And we’re not gonna be doing something illegal anyway. Griffin: No, no. We can’t shoot or any of that other good stuff. El-​Hindi: Well, it’s just training. El-​Hindi couldn’t understand why anyone would want to come and search and he explicitly denied that he wanted to do anything illegal. From what he understood about Griffin’s physical training, there was no reason for him to be concerned about ‘prying eyes.’ El-​Hindi also disagreed with Griffin clearly and strongly when they discussed the proposal for training Egyptian police: Griffin: What are they taking applications for? For actual fighters? El-​Hindi: No, no. I didn’t see that … The way I understand it, they don’t need fighters. All they need is some push from the outside to educate people. 455

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El-​Hindi’s speech acts of agreeing and denying were consistent with his agenda of finding resources to build a school for Muslim children but were inconsistent with Griffin’s agenda of establishing a terrorist cell. Nor did Griffin’s infelicitous speech acts of offering and promising produce any inculpatory responses from El-​Hindi.

Conversational strategies It is common for participants to use various conversational strategies to bring about the results they want. In the case of undercover conversations, however, it is especially important to identify the conversational strategies used by agents as they use them to further their goal of capturing taped evidence of the target’s illegal predispositions and intentions. In such cases any conversational strategies El-​Hindi may have used to influence Griffin to agree with his legal goals are not as relevant as those used by Griffin. Following are examples of the strategy of ambiguity: • Ambiguous uses of ‘training’ Griffin frequently talked about ‘training’ in his conversations with El-​Hindi. Since my role in this case was to analyze only the conversations involving El-​Hindi, I cannot vouch for the way agent Griffin used ‘training’ to Amawi and Masloum when El-​Hindi was not present with them. But it is clear that Griffin talked about ‘training’ to El-​Hindi almost every time he got a chance and there is no evidence that El-​Hindi could have learned Griffin’s meaning of ‘training’ from the other two targets. Evidence that El-​Hindi did not tumble to Griffin’s ambiguity is found in El-​Hindi’s 37 specific references to ‘training’: for the Koran, for physical fitness, for self-​protection, for recreation, for horses, for getting grants and for becoming a translator. Not only did El-​ Hindi never agree to train for extremist jihad, he strongly and specifically argued against jihad several times during their discussions about Islam. That Griffin was consistently ambiguous strongly suggests that he intentionally used ambiguity to try to elicit incriminatory responses. El-​Hindi was often so absorbed with his own agenda that it made it hard for Griffin to succeed. Although the prosecution claimed that Griffin had been clear and unambiguous that he meant training for terrorist purposes, El-​Hindi’s responses clearly indicated the contrary. The following are examples: • Training for personal security Griffin often talked about ‘security,’ purportedly suggesting that Muslims must be careful to avoid being caught while carrying out their training for extremist jihad. But El-​Hindi’s own very different definitions of ‘security’ were evident in his descriptions of the way he and other Muslim Americans had been detained at airports and attacked on the streets. For example, after El-​Hindi had described his own experience of being mugged, Griffin continued: Griffin: The biggest thing is security, you know. El-​Hindi: That’s what I’m saying. Griffin: We have to be extra careful because … they’re after Muslims.

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Here Griffin’s created ambiguity with his word, ‘they’re.’ Although the prosecution claimed that El-​Hindi is agreeing with Griffin on his definition of security from being caught for doing something illegal, the context of this isolated clip of their conversation demonstrates that they had very different schemas about what security related to. Up to this point, Griffin’s uses of training were vague, but here he hints that they refers to the police. This effort went right past El-​Hindi, who interpreted they as the people who attack Muslims on the streets. Next, Griffin, who claimed to have a day job as a security expert, introduced an attractive ‘VIP’ idea. Griffin: I’m gonna train some other guys … so we’ll, and uh, basically how we’re gonna do it, uh, I found out too is they could be my VIP protection team. El-​Hindi: This is something I want to get into too. Although Griffin did not say what this protection team would protect, it flattered El-​ Hindi to be considered a VIP, because he was vain enough to consider himself one of the very important persons who would participate in the physical training Griffin would offer ‘some other guys.’ This too was consistent with El-​Hindi’s concern for the security of Muslims on the streets. • Training for physical fitness Griffin commonly used ‘training’ to mean physical fitness. El-​Hindi was aware that his middle-​aged body was terribly out of shape. Griffin: It’s like you’re gonna be in training too. El-​Hindi: I am. I am. I have to. I have to. Apparently this opportunity to refer ambiguously to ‘training’ once again was not lost on Griffin. • Training for charitable acts About halfway through their conversations, a close Arab friend of El-​Hindi’s asked him to fly to Egypt to locate and bring home his two sons, who had squandered their college tuition money to fly to Cairo. Their parents feared the boys were going to get involved politically and possibly even join a jihad movement. Since El-​Hindi’s brother was a physician living in Egypt, El-​Hindi agreed to go and ask his brother to help him find the two young men. He and his brother quickly located them and brought them home. Griffin doubted El-​Hindi’s reasons for making the trip and tried to make it look as though El-​Hindi went to Egypt to organize a jihadist cell. After El-​Hindi returned home, Griffin complained that the boys were not properly trained for jihad. Griffin: They don’t have the training so what we gotta get across to them is you just goin’ over there to commit suicide. That’s not jihad. So we have to reel those boys in.

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El-​Hindi: I told them, ‘listen, you have some money. You really wanna benefit the people there?’ They said, ‘yes.’ I said, ‘let’s slaughter some animals and give to the poor people. And then you are helping a lot of people.’ I wanna give to the poor people. They get the reward. We’re going on a mission of change. Once again, El-​Hindi gave no evidence of understanding Griffin’s encouragement to train the boys to perform jihad properly. Shortly after their return, Griffin met with these two young men at an Arabic business convention held in a Chicago hotel. El-​Hindi had set up a booth there to promote his business of enrolling students for European medical schools. Griffin videotaped his meeting with these boys privately, talking about weapons training and other pro-​Arab topics. El-​Hindi was not present when Griffin talked with the boys. Later, Griffin taped his conversation with El-​Hindi about the boys. They both agreed that the boys were stupid and needed instruction about many things, including how to protect themselves. El-​Hindi: Listen, before we do anything, brother, you give them like a small thing and see if they hang onto it. Griffin: They can’t because we’re talkin’ security here. We’re talkin’ my livelihood and everything … I’m puttin’ together a training program and I’ve already started training some of these brothers that are going, that, that need it. And they gotta protect theirself. We have to stay in communication though because this is serious, you know. El-​Hindi: Help the needy. Help the needy. The prosecution tried to show that El-​Hindi’s ‘help the needy’ meant that the boys should join a terrorist cell. In contrast, El-​Hindi was warning Griffin to take whatever life-​skill training he might provide them slowly, while maintaining his topic that the boys should do charity work. • Training for education and religion Throughout their 13 conversations, El-​Hindi’s major agenda was to find a suitable location to create a school where Muslim children could learn the Koran, along with a mosque with recreation facilities. Griffin offered to provide the physical education. On two separate occasions, a month apart, Griffin raised the ante by indicating that they could ‘mask’ his training by making it look like something else. His first reference to masking was in their next to last conversation. El-​Hindi was talking about a local school they could rent or buy: El-​Hindi: The first floor, make it like a prayer area, mosque and—​ Griffin: And everything else training. El-​Hindi: Oh yeah. Griffin: ‘Cause that’s how we could mask it. El-​Hindi: You will fall in love with that place. Two floors. Griffin: You know, like you were sayin’ before, we’ll do the daycare and use the rest of the money for, you know, the training and everything. El-​Hindi: I got to get in shape quick.

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It is difficult to know what if anything El-​Hindi understood by Griffin’s ‘mask it,’ but if the agent had wanted to be clear, he could have used a word that might be better understood by a non-​native English speaker, such as ‘disguise,’ ‘hide,’ ‘conceal,’ ‘cover up’ or even the military word, ‘camouflage.’ El-​Hindi showed his lack of reaction to Griffin’s effort to suggest illegality by continuing his excitement about obtaining a building with an attached mosque and a recreation facility. El-​Hindi’s ‘oh yeah’ in response to Griffin’s use of ‘training’ is consistent with his repeated desire to create a school for training children. Since Griffin apparently realized that El-​Hindi still had not understood his efforts to conceal the illegality, he repeated his use of ‘mask’ almost a month later: Griffin: My training and everything, it’s in the millions of dollars. You know who I work for so I’m getting in shape and getting ready and everything too. El-​Hindi: I need to get in shape too. Are we gonna have something for kids and adults or—​ Griffin: If we mask it with uh, you know, the training. El-​Hindi: For the kids? Griffin: We can automatically do it for the adults too. We’ll cater it toward the kids and then, you know, we can always bring the uh, the adults along. Here Griffin recycled his use of ‘training’ to indicate physical training and El-​Hindi appeared to understand it that way, mentioning that he also needs to get in shape. Then Griffin repeated his alleged smoking gun term, ‘mask it,’ associating it with his proposed training. By asking if the training would be for the kids, El-​Hindi’s response indicates that he clearly didn’t get Griffin’s hidden meaning. To El-​Hindi, training meant education. Griffin’s use of the pronoun, ‘it,’ in his ‘mask it’ and ‘do it’ were characteristically ambiguous. • Training for an Egyptian police department One of El-​Hindi’s futile business ideas led him to think he was qualified to submit a bid in response to an Egyptian police department’s request for proposals to provide training for their officers. Part of this request was for bidders to supply horses, horse-​trailers, trucks and other equipment for the Egyptian police. Since El-​Hindi wanted to bid on this proposal, he subsequently contacted several vehicle manufacturers about their prices for trucks and also called various breeders about the cost of horses. El-​Hindi: They will establish a whole program training for shooting, training for horses … a whole camp. Training for everything, even for swimming … It’s going to be a huge camp to train for horses, you know, horses, camels, martial arts and weapons. The prosecution interpreted El-​Hindi’s use of ‘camp’ as evidence of his agreement with Griffin’s vague suggestions for creating a terrorist cell for weapons training. Even though this was a public Egyptian police-​training project, El-​Hindi’s reference to it as a ‘camp’ encouraged the prosecution’s claim that he really intended to set up a camp to train for violent jihad.

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Griffin used the conversational strategy of ambiguity many other times throughout their conversations. Even when it was clear that El-​Hindi misunderstood Griffin’s hints, the agent made no effort to clarify. He found it more advantageous to let his ambiguous terms like ‘mask it’ and ‘camp’ appear to evidence that El-​Hindi understood that his proposed new school would house a terrorist cell. Griffin’s other obvious conversational strategy was to withhold the critically important idea that his own goal was to create a terrorist cell. Griffin also used the common conversational strategy of ignoring El-​Hindi’s direct and indirect disagreements with many of his ideas.

Lexicon and grammar Prosecutors commonly focus their attention on words and grammar because they often look like smoking gun evidence. Many of the examples of ambiguous grammar and lexicon were evidenced in Griffin’s conversational strategies, including his vague pronoun references, such ‘it’ and ‘they’re after Muslims,’ in his undefined nouns, such as ‘training’ and ‘our project’ and in his contextually confusing verbs such as ‘mask’ and nouns such as ‘organization’ and ‘camp.’ These all failed as purported smoking guns when properly placed into their contexts.

Internal evidence that the agent’s effort failed Although the best evidence supporting an indictment comes from targets’ own inculpatory statements, El-​Hindi provided none. In contrast, the agent frequently admitted that he was getting nowhere. I prepared a chart of these for the defense to use when they cross-​ examined Griffin, including the following individual examples. Griffin: But I mean like it’s like everything we have before, you know, we always say something, you know, we’re gonna do it but we don’t follow through. We got to stay focused. We have to move together.  •    •    • Griffin: Just whatever grant stuff you got, if you say we gotta establish an organization, then fine, let’s do it. We gotta start marching with that, you know. So let’s do it, you know, ‘cause the time for talking is over. We, we, I have to move forward, so I want you with me, you know, when we do our projects.  •    •    • Griffin: The time for talking, we have to move forward ‘cause we’re, you know, in the sand. We’re hardly moving.  •    •    • Griffin: We all have to play our part. We can’t sit and talk any more ‘cause that’s what too many Muslim brothers are doing right now. They’re sitting and talking about it but they’re not helping the nation at all. After two years of failing to establish El-​Hindi’s predisposition and intent to build a terrorist cell, Griffin then resorted to his cyberterrorism scenario which, when analyzed carefully, provided him no clearer results. The taped evidence makes very clear that El-​Hindi’s agenda, schema, speech acts, grammar and lexicon supported his goal of helping the poor and establishing a school for Muslim children, in sharp contrast with the agent’s efforts to create a terrorist cell. 460

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Conclusions Since the jury was not persuaded by the defense lawyers’ efforts to point out the analysis described here, they found all three defendants guilty of terrorism. While we can speculate about the apparent ineffectiveness of El-​Hindi’s defense, the U.S. remains in a state of fear created by the terrorist acts of 9/11. FBI Director Christopher Wray reported that in 2018 his agency was currently investigating about 5,000 terrorism cases, a fifth of which involved homegrown violent extremists (Washington Post, 10 October 2018). Some are convinced that terrorist activity surrounds us daily and people of Middle Eastern descent remain the prime suspects. It was unfortunate for El-​Hindi that he fit this broad profile. This is not to say, however, that all terrorism cases are like this one, for many times the prosecution is justified. In El-​Hindi’s case, however, we must reprise the questions about whether this investigation located the right suspects, properly identified their predispositions, intentions and actions, and accurately determined what the language evidence provided. Undercover agents are required to provide suspects with the opportunity to commit a crime, but must not mislead, coerce, take advantage of their weaknesses or misinterpret the language evidence. Rather than starting with known suspects, Griffin trawled for Muslims in mosques and tried to induce them to commit crimes. El-​Hindi’s background provided no evidence that he was the right suspect. He simply fit the agent’s preconceived cultural profile  –​a Muslim. I  can’t say whether Amari and Masloum were rightfully suspects, because my retaining lawyers instructed me to not analyze the tapes in which these two defendants talked with Griffin outside of El-​Hindi’s presence. Three essential steps in the process of prosecutor’s intelligence analysis are (1) collect evidence; (2)  evaluate it; (3)  decide whether to indict (Harris 1976, 30). Agent Griffin collected the evidence. An accurate intelligence analysis would have shown that El-​Hindi said nothing to demonstrate any illegal intentions during the first 12 conversations. As for the last scenario, El-​Hindi’s language demonstrated that he was a distracted, naive and gullible target who meekly and naively complied with Griffin’s request to forward copies of videotapes to Griffin’s home computer. The prosecutor’s intelligence analysis failed to see that Griffin manipulated El-​Hindi and created only the appearance that he knowingly committed the crime of cyberterrorism. The prosecutor gave no evidence that he realized the importance of the speech events, agendas, schemas, speech acts and conversational strategies of the participants. If prosecutors can’t do this by themselves, linguists are available to help them. Unfortunately for El-​Hindi, the judge ruled before this trial started that no linguistic testimony would be allowed. The defense lawyers tried their best to communicate the above analysis, but apparently were not effective. This case demonstrates how prosecutions can go astray by basing their claims of guilt on ambiguous representations made by undercover agents and by failing to understand that the agent’s efforts to elicit inculpatory responses actually failed. El-​Hindi’s case illustrated all of these weaknesses in the government’s case. If the prosecutors had called on linguists to analyze these conversations before the case went to trial, it is likely that El-​Hindi would never have been indicted. When they leave it to the defense to use linguistic analysis, there is always a possibility that the judge may not allow expert witnesses to offer testimony at trial, which is what happened in this case. El-​Hindi was convicted and sentenced to 14 years in prison. 461

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Further reading Gumperz, J. (1972) ‘Introduction’, in J. Gumperz and D. Hymes (eds), Directions in Sociolinguistics: The Ethnography of Communication, New York: Holt, Rinehart and Winston, 1–25. Shuy, R.W. (2017) Deceptive Ambiguity by Police and Prosecutors, Oxford: Oxford University Press. Shuy, R.W. (2019) ‘The importance of borrowing across disciplines: the anthropological notion of speech events’, Pragmatics and Society, 10.3: 453–469.

References Austin, J.L. (1962) How to Do Things with Words, Cambridge: Harvard University Press. Barrett, D. and Demirjian, K. (2018) ‘FBI director defends “limited” Kavanaugh background probe’, Washington Post, 10 October www.washingtonpost.com/​world/​national-​security/​fbi-​ director-​expected-​to-​face-​questions-​about-​kavanaugh-​probe-​during-​senate-​hearing/​2018/​10/​09/​ 00f65510-​cc01-​11e8-​a360-​85875bac0b1f_​story.html (accessed 06 September 2019). Gudjonsson, G. (1992) The Psychology of Interrogations, Confessions and Testimony, New York: John Wiley & Sons. Gumperz, J. (1982) Discourse Strategies, New York: Cambridge University Press. —​—​—​(1998) ‘On the interactional bases of speech community’, in G. Guy, C. Feagin, D. Shiffrin and J. Baugh (eds), Towards a Social Science of Language, Amsterdam: John Benjamins. Gumperz, J. and Hymes, D. (1972) Directions in Sociolinguistics, New  York:  Holt, Rinehart and Winston. Hansell, M. and Ajirotutu, C. (1982) ‘Negotiating interpretations in interethnic settings’, in J. Gumperz (ed.), Language and Social Identity, Cambridge: Cambridge University Press, 85–​94. Harris, D. (1976) Basic Elements of Intelligence, Washington D.C.: U.S. Law Enforcement Assistance Administration. Heymann, P. (1984) Testimony before the Subcommittee on Civil and Constitutional Rights of the House Committee on the Judiciary, 96th Congress, 4 March 36–​39. Hymes, D. (1974) Foundations in Sociolinguistics, Philadelphia: University of Pennsylvania Press. Searle, J. (1969) Speech Acts, London: Cambridge University Press. Shuy, R.W. (2005) Creating Language Crimes, New York: Oxford University Press. —​—​—​ (2013) The Language of Bribery Cases, New York: Oxford University Press. —​—​—​ (2014) The Language of Murder Cases, New York: Oxford University Press. —​—​—​ (2016) The Language of Fraud Cases, New York: Oxford University Press. —​—​—​ (2017) Deceptive Ambiguity by Police and Prosecutors, New York: Oxford University Press. Tannen, D. (1994) Gender & Discourse, New York: Oxford University Press.

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Multilingualism in legal contexts

29 Non-​native speakers in detention Assessing the English language proficiency of non-​native speakers in detention: an expert witness account Fiona English

Introduction I first became involved in this area of work in 1994 as the result of a speculative enquiry from a London law firm to my university department. The case concerned a nightclub confrontation which had resulted in a fatal stabbing and the detainee, an 18-​year-​old Turkish Cypriot man with English as an additional language, was on remand in prison. The acting solicitors wanted ‘an opinion’, as they put it, on the defendant’s level of comprehension and his ability to articulate accurately in English during the series of interviews he had with the police, all of which had been videotaped. They were particularly concerned about the first interview, where there had been neither a solicitor nor an interpreter present and where their client had, essentially, incriminated himself. They were convinced that, as a result of poor English language skills, he had failed to understand not only his rights under the law, but also much of the questioning that followed. This chapter draws on my work as an expert witness in relation to the English language proficiency of non-​native detainees and, using examples from actual cases, it describes the approach I use in assessing a detainee’s proficiency in order to fulfil the request to ‘give an opinion’.

The language question Evidence of English language proficiency is a normal prerequisite for non-​native speakers of English seeking entry to communicatively demanding contexts such as university study or certain work environments. However, for non-​native speakers involved in legal encounters such as through arrest, interrogation and court interaction, the checks are far less rigorous even though the stakes are arguably much higher. As Eades (2005: 524) points out when referring to cases relating to asylum claims ‘an interviewee with limited proficiency in the language of the interview may  –​simply because of language

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difficulties –​appear to be incoherent or inconsistent, thereby leading the interviewer to a mistaken conclusion concerning the truthfulness of the interviewee’ (see also Eades 2010, on testing in asylum claims cases). Of course, the circumstances of an arrest and interrogation do not allow for formal pre-​testing but, given that language proficiency is fundamental to the reliability of evidence gained through police interviews, its relevance needs to be taken more fully into account. This is not to say that no account is taken of English language proficiency in these situations, as can be seen in the following excerpt from the UK Police and Criminal Evidence Act (PACE) Code of Practice, which is regularly updated to respond to societal changes including, most significantly for this discussion, the advice on English language proficiency. If the detainee appears to be someone who does not speak or understand English or who has a hearing or speech impediment, the custody officer must ensure that without delay arrangements are made for the detainee to have the assistance of an interpreter. (Home Office, PACE code C, Section 3.12, 2018) A procedure for determining whether a person needs an interpreter might involve a telephone interpreter service or using cue cards or similar visual aids which enable the detainee to indicate their ability to speak and understand English and their preferred language. This could be confirmed through an interpreter who could also assess the extent to which the person can speak and understand English. (Home Office, PACE code C, Notes for Guidance 13B 2018) While this is an improvement on the previous PACE (2008) code in that it acknowledges there is a need for some kind of assessment other than simple observation, the question of competence and reliability remains. A police officer is unlikely to be a language expert, even less an expert in language assessment, and the views of an interpreter may also be unreliable. In the UK, according to a report commissioned by the Ministry of Justice (Optimity Matrix 2014) only some 50% of registered interpreters have formal interpreting qualifications, let alone expertise in linguistics and language testing (see e.g. Hale, Chapter 30, this volume). What is more, there is even no guarantee that registered interpreters will be used, as it is left to the discretion of the local police to decide who to contact (see Alverti et al. 2017) including casual untrained bilinguals (Hale et al. 2019). In such a context, misjudgements about language proficiency as in ‘he understands English perfectly’, stated by one police officer about a Lithuanian detainee, or ‘you’ve spoken perfect English’, referring to the Turkish Cypriot man above, are inevitable. Such flawed assumptions are often further compounded by detainees’ own misconceptions about their English language ability, a phenomenon identified by Ross (1998), who points out that learners have difficulty in giving accurate estimations of their own additional language skills, tending to either underestimate or overestimate. Added to this is a kind of bravado that can make detainees reluctant to admit to any kind of weakness including linguistic disadvantage. A comparison of extracts (1) and (2) below, taken from the case involving the Turkish speaker mentioned above illustrate this phenomenon perfectly. The exchange in (1)  occurs shortly after the exchange in (2)  which clearly shows the detainee’s obvious difficulty in expressing himself adequately.

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(1) Interview with detainee Mr O (IE) by Police Interviewer (IR) at Police Station 1 IR My friend, my friend, this interview we’ve spoke now for an hour and a half. 2 IE Yeah. 3 IR And you’ve spoken perfect English. 4 IE Yeah. (2) Interview with detainee Mr O (IE) by Police Interviewer (IR) at Police Station 1 IR Which man, which man had this shining thing? 2 IE Who wear white thing. 3 IR The white thing? 4 IE White, white shirt. 5 IR Is he the man you stabbed in the backside? 6 IE Yeah 7 IR Yeah? 8 IE Yeah 9 IR And how long was this shining thing? 10 IE Fifteen second it’s 11 IR How, how, how? 12 IE Five seconds. How long? Ah yeah [responding to IR’s gesture], I can’t remember. 13 IR You can’t remember 14 IE I see something shining but I can’t remember. The consequences of such faulty English can be profound, as was indeed the case here. In fact, although an interpreter was finally called in at the behest of the solicitor, the detainee resisted his help until much later in the series of interviews once he began to realise the seriousness of the charges and his own linguistic disadvantage. Similar concerns about non-​native speaker interactions with the police, particularly in relation to rights statements, have been expressed by, for instance, Innes and Erlam (2018) regarding comprehension, or Pavlenko (2008) on the failure, of even highly competent non-​native speakers, to understand their sociocultural relevance. And when the police rephrase these statements in an attempt to help detainees understand, as has been shown in Rock (2012) or in my own work with a Portuguese-​speaking detainee, described in English and Marr (2015), the problem of understanding can be compounded. However, it is not only interactions around rights that can be problematic. As extracts (1) and (2) indicate, all interactions between police and non-​native speakers are susceptible to miscommunication and errors of linguistic judgement which can lead to factual mistakes and biased impressions. This is why guidance from linguistics experts is helpful in shedding light on language related factors which may influence a non-​native detainee’s performance. Before moving on to the specifics of language testing for forensic purposes and the procedures involved in producing a language report for legal use, a brief discussion on language testing and performance assessment will provide some background information.

Language testing Language testing is most usually associated with language education and research and has developed to serve three main purposes:  achievement, that is testing what has been learned, proficiency, used to predict how someone might handle a given situation such as 467

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a course of study or a job, and research, to provide language data samples for linguistic analysis. It is the last two purposes that are most relevant to my work.

Language testing in applied linguistics Bachman’s (2000) review of language testing offers a concise and informative account which highlights important theories, approaches and techniques used in making assessments of language proficiency (see also McNamara 2000). Of particular relevance to the current discussion is assessment based on language performance which requires the collection of language samples for analysis. These samples can be ‘authentic’, that is collected from naturally occurring communicative activity, such as conversations around the breakfast table, interviews (including police interviews), debates and so on. They can also be ‘contrived’ through the use of tasks which are designed to promote natural language activity within ‘unnatural’ settings such as a classroom or, in my case, a prison or lawyer’s office. Unlike item-​based tests such as right/​wrong multiple-​choice tests, task-​based tests provide self-​contained, meaningful communicative contexts where the goal is on task completion rather than on right answers. Ellis (2009) in his review of task-​based learning and teaching lists key elements for such tasks, which include, in addition to those I have just mentioned, that ‘there should be some kind of gap (i.e. a need to convey information, to express an opinion or to infer meaning)’ and that the participants should have to draw on their own linguistic resources when completing the task (Ellis 2009: 223). Because a testee cannot rely on specific test-​taking skills to complete a task, the language samples collected provide an authentic measure of someone’s language proficiency and it is for this reason that they are used in many public language tests such as the International English Language Testing Service’s (IELTS) test for non-​native English-​speaking university candidates (see Shaw and Weir, 2007). Examples of such tasks are simulations of ‘real world’ activities such as planning a weekend trip to the seaside or more controlled activities such as the construction of a story based on a set of pictures (see Tavakoli and Foster 2008). Once collected through audio or video recordings, or scripts in the case of written tasks, the samples can be analysed, and evidence about performance across the range of communicative contexts, as promoted by the tasks used, can be derived. Tasks are particularly useful in language testing for forensic purposes because they provide contexts for communication that go beyond well-​rehearsed and potentially sensitive personal background topics. What is more, some of them can be designed to reflect the genres involved in the case under investigation, including police interviews, thus making it possible to micro-​test specific language forms that not only typify these genres (such as ways of asking questions or culture-​specific meanings of concepts and practices) but also occur in the actual interviews themselves.

Language testing for forensic purposes The main goal for the kind of language assessment I am concerned with in this chapter is to provide a linguistic profile (see below) of the person I am testing which I can use to make inferences from their performance during police interviews, court appearance or other relevant language-​based interactions that are relevant to the case; in other words I can ‘give an opinion’. The case referred to at the beginning of this chapter, in which my assessment was based only on an evaluation of the videotapes and transcripts of police 468

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interviews, made me realise the shortcomings of that approach. Police interviews are very particular communicative events potentially involving, on the part of the detainee, tactics such as avoidance strategies and, on the part of the police, the strategic manipulation of the interview to disguise, for example, the saliency of certain questions (see Pavlenko 2008). By contrast, face-​to-​face assessments allow for tests that focus on specific issues in, arguably, a less pressurised setting. Ellis and Barkhuizen (2005: 21) point out that ‘what learners know is best reflected in their comprehension of input and in the language they produce’ and face-​to-​face testing incorporating a variety of assessment tools, including tasks, provides the opportunity to find out what that might be. Although language testing for forensic purposes is similar in some ways to language testing more generally, there are a number of aspects that differ. One difference is in the reporting process. The audience, consisting of legal professionals, the police, the judiciary and, if a court appearance is required, a jury made up of people from all walks of life, makes the report a tricky document to produce. It has to ‘speak’ to people who draw on many different frames of knowledge. This means the linguistic expert has to achieve a balance between using technical terms, important for professional credibility, and presenting in a way that is accessible and meaningful for a non-​professional audience, each of whom, as Coulthard (2005: 40) explains, ‘is in some senses an expert on language’ by dint of their being language ‘users’. Another key difference concerns the way in which an expert’s testimony is treated if called to give evidence in court. Because of the adversarial nature of courtroom interaction, no matter how strong the linguistic evidence might be, it will never ‘convince’ the legal representative for the other side, whose job is to refute it. Coulthard et al. (2017: 194) explain that ‘Novice academic experts may be deceived into thinking that they are still in an academic environment and that, if they are sufficiently coherent and persuasive, they can convince the cross-​examiner of the correctness of their opinion’, pointing out that in courtroom cross-​examination Gricean ‘rules’ of communication are subverted if not completely flouted. Solan (2010: 395) also highlights tensions around academic caution versus a courtroom predilection for arguments to be presented in unequivocal terms. There is no doubt that the experience of a court appearance is challenging and, although I have become more familiar with the context, I still experience doubts about how strongly I should state my case or, indeed, whether I have been helpful in shedding light on matters at all! Reassuringly, similar feelings and concerns are reported in Clarke and Kredens (2018) in their study into self-​perceptions and professionalism of the forensic linguistics expert witness. What my experience has taught me, though, is that evidence, both in the written report and in a court appearance, needs to be highly explicit with illustrative examples. It must not be overly disciplinary in its discourse, though sufficiently so to be considered professionally valid. It must provide enough background to the assessment materials and analytical criteria without becoming too technical and it must provide readily accessible information about performance and its implications. One further consideration is that unlike most language tests, which are used to comment on current or potential performance, my assessments are mainly used to make inferences about past performance. This can be seen as problematic since the circumstances in which the assessment samples are obtained are very different from those of a police interview which, because it is inevitably more stressful, might well have a deleterious impact on a detainee’s English language performance. Moreover, the person being tested may have taken English language classes in the intervening time, particularly if on remand in prison, and hence is likely to have improved since the time of arrest. Nevertheless, despite these reservations, a linguistic profile of the detainee based on performance during 469

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face-​to-​face assessments can provide useful and important insights into earlier performance during the interviews. My discussion of different cases below shows how this works in practice.

Conducting an assessment An assessment involves three main phases: obtaining a linguistic profile of the detainee based on face-​to-​face testing data; juxtaposing the linguistic profile against performance during the police interviews; producing a report. The report includes information about the assessment procedures, the linguistic profile itself and, drawing on the profile, an opinion of whether poor language proficiency might have played any part in the interviews.

Methodology and materials Testing is usually carried out in one of two places depending on the circumstances and usually lasts up to an hour. If the detainee is on bail, it usually takes place on the premises of the acting solicitors, but if he is on remand it takes place in the prison. It may be assumed that testing in a prison might lead to a somewhat constrained interaction, but my experience is otherwise. In fact, because the language assessment breaks the routine of prison life, the detainee tends to be extremely willing to talk, particularly with someone from outside the prison or legal community and about topics other than matters of their legal case. This can be highly motivating and productive and often results in spontaneous authentic conversation which is invaluable for collecting language samples. In fact, the environment in which the test is conducted, how the tests are perceived by the testee and how familiar he is with language testing as a procedure all play a part in influencing the quality of language data that can be collected. Willingness, for example, may depend on a detainee’s attitude toward the test, how convinced he is of its usefulness, whether the tasks seem to him stupid or childish or even familiar. Lack of familiarity with the kinds of activity used in the assessment, such as describing pictures, spotting the differences, doing listening comprehension activities, is a factor that needs to be borne in mind. In one case, involving a detainee on remand, I introduced a task based around a ‘spot the differences’ puzzle assuming that it would be immediately recognisable and therefore needed minimal explanation. From his expression of bafflement I realised my assumption was wrong –​he had simply never encountered this kind of thing before. This resulted in a somewhat laboured performance as, despite my willingness to forgo the task, having started he did not want to give up. Of course for the purposes of the forensic assessment, task completion is not necessarily important as it is simply a means to obtain speech data. From the detainee’s perspective, however, completion can be experienced as achievement and inability to complete can be experienced as ‘failure’ which can be very demotivating. With regard to the last point, the question arises of whether a detainee might under-​ perform in an attempt to strengthen his case. For example, Coulthard et al (2017: 137) have suggested that face-​to-​face language assessments might be open to challenges of underperformance and my court experience confirms this. They point out that ‘although applied linguists have a great deal of experience in assessing the linguistic performance of non-​natives, most of their tests are predicated on the assumption that the testee is trying to do their best’, whereas, they argue, language assessment for forensic purposes might 470

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result in him doing his worst because he thinks it might help his defence. However, in my experience, underperformance is rare and would anyway be quite difficult to maintain throughout an extended interview. In any case, I make clear to both the detainee and the acting solicitors that silence or underperformance would be counterproductive and would result in my being unable to give a meaningful opinion. In most cases, though, even where a detainee is not particularly cooperative, a test effect comes into play and, caught up in the assessment process, he strives to do well. Evidence of this might include expressions of irritation at not ‘getting’ something during a listening comprehension task or requests for a section to be played again and again to try to catch what was said. As I audio-​record every aspect of the test as well as taking observational notes, requests for clarification and help or expressions of frustration and satisfaction can provide further evidence of the detainee’s language performance and their level of engagement. This additional information can be incorporated into the report and referred to as evidence of willingness and effort in response to potential claims of underperformance. Wherever an assessment takes place or whatever test materials are used, it is important to make sure that the detainee understands the process and that his permission to record the proceedings is gained. So far nobody has refused. Acknowledging the abnormality of the situation and agreeing to suspend belief, so to speak, is also important in creating a sense of mutuality. These initial conversations can be used to establish an informal and relaxed environment which can then lead onto uncontroversial topics about languages spoken or work, avoiding anything that might be sensitive, particularly the offence they have been charged with. This enables the assessor to gauge the detainee’s general level of English language before deciding on which tasks to use and how to use them. What is more, these discussions can provide information about sociolinguistic factors such as linguistic affiliation and community or domains of English use and linguistic repertoires (Blommaert 2010) each of which might be relevant in explaining any mismatch between proficiency and length of residence in the UK. The decision about what kinds of assessment materials to include depends partly on the legal case itself –​a fraud case may require information about reading comprehension, for instance, whereas a speeding offence or theft might not –​and partly on the need to generate as much language data as possible in order to produce the linguistic profile. Visual materials are particularly useful as a means to stimulate a discussion or to elicit evidence about a detainee’s ability to give precise descriptions, for instance, or explain a sequence of events. They might show everyday scenarios such as the workplace or the home, pictures of people and places, sequences of images for ‘story’ telling and puzzle images for speculation. Analysis of the language samples obtained can provide information about extent of vocabulary, features of pronunciation that might affect comprehension and degree of familiarity with some of the complex grammatical forms that typify the police interview genre such as clause density and elision or elaborated and embedded questions (see Rock, Chapter 8, this volume; English and Marr 2015; Innes and Erlam 2018). An example of how this can work is as follows: 1. The assessor shows two pictures on a similar theme (e.g. two street scenes) and asks for a description of the picture to see if she can match the description to the picture being described. This provides samples of speech associated with descriptions including use of prepositions, present tenses and vocabulary range. 2. The assessor takes one picture and asks speculative questions about it, including questions about where it is, where the people might be going, what they are doing 471

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and what might happen next. The assessor can use a mixture of direct and embedded questions to explore how easily these are handled and can encourage the use of speculative grammatical forms such as modal verbs or conditional clauses. This approach offers flexibility in how to use the materials and enables the linking of task choice to the circumstances. Pictures of scenes like these can also provide the chance for further discussion, particularly if there is some kind of connection between the image and the experience of the detainee. For instance, I used the photo in Figure 29.1, which shows a Hong Kong street, in an assessment with a Vietnamese man who, it turned out, had spent time there after leaving Vietnam in the 1970s. As soon as he saw the picture he became more animated than previously and began to speak more freely about his time there, friends who remained in Hong Kong and even his former life in Vietnam. Extract (3)  is from the recording made during the assessment.

Figure 29.1  Hong Kong street scene 472

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(3) Assessment of detainee (AE) by the author as assessor (AR) 1 AE Mayb::e (.) Hong Kong? 2 AR Yeah it is 3 AE In Hong Kong? (.) Yes beca:use I (.) I been Hong Kong (.) before 4 AR [Mmm] 5 AE [Many times] […] 6 AE Did you go to the er what you call the (.) the mountain? 7 AR Oh the er Victoria Peak? 8 AE Yeah yeah (.) look at at night (.) it’s nice 9 AR [It’s beautiful yeah] 10 AE You can see the street (.) You can see the (.) what the sea? 11 AR The harbour 12 AE Yeah yeah harbour […] 13 AE I wa:::s um in Hong Kong 19:79 14 AR [Mmm] 15 AE When I came t::o England 16 AR [Mmm] 17 AE And I came back for two two time From the moment he guessed it was Hong Kong (line 1), his position changed from being a ‘testee’ to being an equal participant in a conversation. His personal knowledge enabled him to ask his own questions (line 6), provide his own information (line 8) and then go on to volunteer information about how he had come to be in Hong Kong (line 13). This shift from a task to conversation produced a rich source of linguistic data, as well as valuable sociolinguistic information of the kind referred to above, in a natural and unforced way. This change in tone carried through all the subsequent tasks and resulted in a highly productive session. Of course, such informality, so helpful in obtaining authentic performance data, could lead to criticisms of partiality due to overfamiliarity with the detainee, as suggested by Gray (2010). However, he also goes on to say that professionalism, both as a practitioner and a researcher, offers an effective defence, a factor that Clarke and Kredens (2018), also stress. It is also important to test listening comprehension, not only within the context of discussions like the one in (3) above, but in isolation as a specific task. I tend to use a mix of published language-​teaching recordings and recordings downloaded from the radio. Published recordings are graded (elementary, intermediate etc.) and therefore offer a point of formalised reference for non-​linguists. However, I  modify the tasks associated with these materials to ensure that they are appropriate for the needs of the assessment in hand. The radio recordings, by contrast, provide examples of spoken communication that is unregulated in terms of language level. These can reveal a person’s ability to cope with the conversational features –​hesitations, overlapping, incompletions, accent, regional dialect –​that typify natural communicative behaviour. In cases such as fraud, where there is dispute relating to written documents, it is necessary to assess a detainee’s literacy in English, particularly reading comprehension. In these instances I design tasks that test different levels of reading skill, from locating basic information or filling in a form correctly to the more demanding task of drawing inferences from what has been written. I use a combination of everyday texts, such as newspaper 473

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articles and bureaucratic texts that are similar, though never identical, to the disputed documents in the legal case. As with the other test materials, it is helpful to use texts that might resonate with the detainee. In a recent case involving a British Pakistani woman, I downloaded an article from a Pakistani English language magazine, a favourite publication of hers as it turned out, and in other cases, including the Vietnamese man above, I have used articles from their local newspaper. Using texts that concern local issues and places they may be familiar with makes the task more immediately accessible and allows for an assessment that is based more on language and literacy than subject matter. Having obtained an assessment based on these texts means that there is a point of reference for subsequent testing based on the more bureaucratic specialist texts of the type involved in the legal case. Someone may well be able to locate factual information from a short local newspaper article, but they may not be able to do the same from a more official or specialist document.

Analysing the performance samples In most cases I  have been involved in, the analysis entails examining two sample sets; one obtained during the face-​to-​face assessment and the second being the recordings and transcripts of the police interviews. I  have developed the practice of always analysing and describing the language samples obtained through the assessments before moving onto the police interview data. This, I believe, ensures greater impartiality in conducting the assessments, although it is fair to say that the way in which I  have developed the assessment tasks has been greatly informed by my growing familiarity with the discourse of police interviews.

Language assessment samples The language samples are analysed from the perspectives of production (pronunciation, grammar and vocabulary) and proficiency (communicative effectiveness and task outcomes) and comprise the main content of the linguistic profile. The focus on performance allows me to comment on a detainee’s ability to deal with certain communicative situations, including the handling of different types of question, whilst the focus on production enables me to identify linguistic features which typify their use of English and draw inferences about how this may affect successful communication (see Iwashita et al. 2008). Sometimes it is helpful to link these to issues related to mother tongue transfer (Faerk and Kasper 1987), as problems associated with this are often misunderstood and hence underestimated by non-​professionals. My observation notes (e.g. ‘he seems to be struggling with this one’, ‘he raced through that reading text’) can add useful contextual information regarding how the tasks have been handled.

Police interview samples This aspect of the work is the reason why my advice has been sought in the first place. It is a lengthy process involving careful analysis of the video or audio tapes and transcripts of the interviews. The aim is to gain an overall impression of the interactions between the participants, identify instances of communication breakdown or unresolved miscommunications and see if these correspond to language

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issues identified in the assessment. Evidence from the language assessments can also be used to support (or undermine) claims of a detainee’s failure to understand as in the case shown in extract (13) below. Equally, consideration can be given to how the police themselves perform in interviews in response to language issues. For instance, some officers might overestimate a detainee’s language proficiency and misinterpret language difficulty as reluctance to respond, while others, more aware of the role language comprehension might play, work harder to check comprehension and seek to repair miscommunications. Although these interviews provide a very rich source of data, particularly for applied and socio-linguists, it is difficult to decide where to draw the line between reporting for use in legal settings and reporting for linguistics research. Nevertheless, bearing in mind the law’s desire for clear-​cut evidence, it is necessary to limit the report to those aspects which are relevant to the case, especially where there is concrete evidence that can be produced such as instances of faulty grammar, imprecise vocabulary and issues of pronunciation that might give rise to miscommunication between the participants or, more importantly, that might lead to comprehension issues. If you cannot pronounce the words ‘can’ (/​ kæn/​) and ‘can’t’ (/​ka:nt/​) differently, it is possible that you will not hear the difference when someone else uses those words; if you speak a language with a different intonation pattern, you might not recognise that a declaration with a rising final tone is intended as a question.

Producing the report The report is the most salient aspect of the expert’s work because it is this which is used as evidence. It usually contains the following sections: assessment procedures and rationale; contextual factors; linguistic profile derived from the assessments; implications in relation to the police interviews; additional information; concluding remarks. However, depending on the case, the sequence may vary depending on what aspects are most relevant to the case. The overall aim is to provide a systematic and explicit account of the process, as well as both a summary and detailed explanation of the findings. In what follows I  include extracts from five reports to give a flavour of the approach, starting with the category of Assessment Procedures and Rationale. For purposes of anonymity I have replaced all names, referring to detainees by letters.

Assessment procedures and rationale Under this heading I include a general overview of the circumstances of the assessment (4), which provides a justification for the report and establishes a backdrop against which to present the assessment. (4) Report on Mr. A I met Mr. A at the offices of W. & Co on Tuesday 13th September 20XX in order to carry out an assessment of his standard of spoken English. According to the police charge record, Mr. A  ‘speaks very good English’ (MG/​DD/​A:  p.2) ‘understands English perfectly’ (p.17) and ‘spoke to the doctor in fluent English’ (p.17). In the light of these comments, the purpose of my assessment was to explore the extent of Mr. A’s proficiency through a more formal evaluation procedure. 475

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In some cases, such as that of Mr. C, there may be relevant contextual background information that needs to be added (5) and in others, such as Ms. D (6), the contextual factors may be the most salient issue in the whole case. (5) Report on Mr. C It is important to note that Mr. C has been in prison for eight months, fully immersed in an English speaking environment and taking regular classes in English language. In such a context his level of English is likely to have improved substantially, so my assessment must be understood with this in mind. (6) Report on Ms. D Ms. D is typical of the social-​cultural group of older South Asian women in migrant communities who have limited personal experience of managing their own domestic bureaucracy (official documents, bills, etc.) She relies on family members to act as what are known as ‘cultural mediators’ (Capstick 2016) to deal with such matters. Hence, it is highly probable that she would not be familiar with the literacy practices associated with the documents at the heart of this case. The report then goes on to explain the purpose of the assessment in general and to provide details of each of the assessment tasks and the rationale behind them. This ensures that readers of the report understand the scope of the assessment, the relevance of the tasks and the kind of information that is provided. Extract (7), from the case of Mr. B, exemplifies this. (7) Report on Mr. B –​Picture Story I showed Mr. B a set of three pictures concerning a road incident involving a vehicle and its passengers. The pictures were designed to be arranged to produce a short narrative. I told Mr. B that he could put them in whatever order he liked so as to make a story which he could then tell me. This involved describing the incident and explaining why it had happened and what the consequences might be. I also asked Mr. B a number of questions, using different question forms, about certain aspects of the story he had told. Rationale Narrative is a familiar activity for everyone, but it has a particular relevance in police interviews. I wanted to see how well Mr. B could sequence events and how effectively he could elaborate on them. I also wanted to test how well he dealt with different questioning strategies, such as embedded or elaborated questions, common in police interviews.

The linguistic profile As explained previously, the linguistic profile is used to comment on a detainee’s proficiency in English, indicating areas of concern about their performance during police interviews as in the case of my first example, the young Turkish man. It is crucial that the report provides concrete examples and demonstrates how these might affect communication. It is first of all necessary to describe features of production (see 8) such as grammatical flexibility, pronunciation or vocabulary range in order to refer to how these might impact on performance in relation to the case. 476

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(8) Report on Mr. B Mr. B was very co-​operative and forthcoming throughout the whole assessment. He spoke freely, which gave me a good opportunity to evaluate his use of English and his comprehension ability. 1. Mr. B can speak freely, though inaccurately, about familiar topics. 2. He has a confident manner when speaking and perseveres to get his meaning across. 3. His English is heavily marked by a strong Turkish accent and he has difficulty in producing certain sounds (e.g. /​w/​instead of /​v/​, /​e/​(as in men) instead of /​ӕ/​ (as in man), /​d/​instead of /​ð/​(as in they)). 4. He frequently misses hearing certain key sounds which can have a marked effect on comprehension, particularly when those sounds represent morphological meaning such as un-​as in unimportant. 5. His grammar is seriously flawed, particularly his use of the following: auxiliaries (is, be, have etc.) (e.g. I living …) verb tenses (simple past etc.) (e.g. I go last week) prepositions (to, for, at etc.) (e.g. I get to home) phrasal verbs (look after, get over, etc.) (e.g. She look to the children) articles (the, a, etc.) (e.g. I go to pub) 6. He does not appear to recognise embedded questions (e.g. I wonder what they’re doing?) 7. He does not respond appropriately to elaborated requests or questions (e.g. Do you think you could tell me what’s going on in this picture?) 8. He appears reluctant to admit his failure to understand, which can result in a communication breakdown. 9. He sometimes responds to questions he mistakenly thinks have been asked rather than to what has actually been asked. In other words, he sometimes does not know that he has not understood. It is worth noting that in one trial I  was involved in, concerning a driving offence, the judge dismissed the case, which revolved around whether the detainee had understood what the arresting police officers had said. This was in direct response to the profile I had produced, which indicated that the detainee might have difficulty in understanding unfamiliar regional accents. It turned out that the chief witness, namely the arresting police officer, had a strong Glaswegian accent. Following on from the summary findings, a more detailed discussion of performance on each of the tasks is provided in order to demonstrate the evidence with which the linguistic profile was produced. Extract (9) is an example of a discussion of just one of the tasks involved in the assessment. (9) Discussion of performance tasks –​ Mr. B Picture Story Mr. B was able only to tell a very scant story based on the pictures, despite the explicitness of the plot, the additional prompts I gave and the familiarity that might be expected with the situation.

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He was unable to respond to the embedded or elaborated questions that I asked and could only answer when I simplified them as direct questions with extra non-​verbal indications such as pointing to the relevant details in the pictures. e.g. Elaborated Question: ‘What do you think is going on here?’ rephrased as ‘What’s going on here?’ Embedded Question: ‘Can you tell me what’s happening here?’ rephrased as ‘What’s happening here?’ The kind of information in (8) and (9) can then be juxtaposed with the police interviews as in (10). (10) Interview with detainee Mr. B (IE) by Police Interviewer (IR) at Police Station 1 IR Do you accept that that was you making that contact? 2 (Mr. K does not respond) 3 IR The phone calls made by your phone were made by you? 4 IE Maybe I phone him, maybe he phone me… The opening remark contains two questions (Do you accept?) and (Was that you?), the former produced using a clear interrogative form while the latter (that was you), which is embedded within the former, is presented as if it were a statement. In response to the silence, this is then rephrased as a grammatical statement but with a rising questioning tone at the end, known as a declarative question. In neither case did the interviewer ask a simple direct question. It is impossible to say whether the detainee did or did not understand these question forms and the lack of response in line 2 may be attributed to momentary consideration before deciding on how to answer. However, the evidence from the test results outlined above suggests that there could be an element of doubt about the level of comprehension displayed. In Mr. C’s case, although there were few incidences of actual communication failure, there were occasions where his faulty grammar led to misinterpretations, as illustrated by the exchange in (11). (11) Interview with detainee Mr. C (IE) by Police Interviewer (IR) at Police Station 1 IE I don’t want to get involved with him in this matter. 2 IR So if you don’t want anyone involved you lie do you? 3 IE Yeah The implication of the interviewer’s construction of Mr. C’s statement is that it is Mr. C who doesn’t want to get involved with the other person rather than, as is later clarified, that Mr. C doesn’t want to get that person involved in his problems. Hence Mr. C’s desire to protect the other person is construed quite differently as a result of Mr. C’s faulty phrasing. This might lead to a more negative impression of Mr. C than might otherwise be the case.

Contextual information This aspect of the report has become increasingly relevant in the light of my experience of court appearances. Frequently, I am asked about how someone could have lived in the UK for many years and still have problems with English, a phenomenon which is widely experienced by members of the public, particularly those living in multicultural towns 478

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and cities, but which is little understood. It is a double-​edged question, because on the one hand it seeks to undermine my own assessment and on the other its implication gives a negative impression of the witness or defendant as someone who couldn’t be bothered to learn. I have already made reference to this in relation to literacy practices in (6) above and in (12) I do so again, but this time with reference to the more general point of overall proficiency in the language and the effect of living and working predominantly in a given minority language community. (12) Report on Mr. C A further point to note concerns the length of time Mr. C has been living in the UK. It is reasonable to assume that after 30  years residence, someone would have fully mastered the language and would have no problems in using English across a wide range of contexts. However, it is often the case that people who arrived as adults and remain within their own ethnic and linguistic community have a level of English language proficiency that is significantly lower than might be expected given their length of time in the country. This phenomenon has been well documented both in the media (e.g. Manzoor 2007) and in scholarly literature (e.g. Wei 1994, Carr-​Hill et al. 1996, Stevens 1999) […] In other words, language proficiency depends as much on the contexts in which one uses it as on the length of time one lives in a given country. In the case of Mr. C, most of his interactions, until his arrival in prison, had taken place within the Sino-​Vietnamese community. Contextual information like this can make a difference to how the rest of the report is received and, as can be seen in extracts (6) and (12), I include references to academic work to show that it has serious academic provenance. A related, but different, sociolinguistic matter concerns the role of the court interpreter in accurately translating not just literal meanings but sociopragmatic meanings as well; the kind of meanings that affect the tone of what someone is saying, for instance whether it is polite or not (see Maley 2000, Eades 2005 or Blommaert 2010 for a discussion of sociopragmatic and sociocultural factors). A recent case involving an Urdu-​ speaking defendant (Mr. E), whose use of English I  had earlier tested and whose trial I was attending, provides a good example of this. During the lunchtime court recess, I  was asked by the team, how I  thought Mr. E was coping linguistically. Given concerns about his level of English as a result of my initial assessment, he had been provided with a court interpreter and throughout the trial switched between English and Urdu, responding directly in English whenever he thought he understood a question, but referring to the interpreter, using Urdu, whenever he was confused or unable to respond adequately. The interpreter, for his part, would translate into Urdu for the benefit of Mr. E and then translate into English Mr. E’s response for the benefit of the court. A particular issue was picked up by the acting solicitor, an Urdu speaker himself, and brought to my attention. The solicitor had noticed, and I had heard it myself, that the defendant tended to finish his Urdu responses with the particle ‘ji’ which I  learned is a marker of politeness and respect. However, when translating during the cross-​examination, the interpreter failed to reflect this important social courtesy. The acting solicitor spoke to the interpreter about this during the recess and asked him to properly reflect the tone of the defendant’s responses and to explain to the court that up till then he had not done so. On request, I later prepared a supplementary report as can be seen in extract (13) for use by the defence team. 479

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(13) Supplementary Report on Mr. E While responding to the interpreted questions, Mr. E would often use the ‘word’ (or particle) ‘ji’, most frequently as in han ji which is very difficult to translate in a way which gives a precise meaning. Han means Yes, but by itself it might well appear rather blunt or even rude so people often add the particle ji to show that when they say ‘yes’ they mean it politely. (In English we might say something like ‘Yes, I did’ or ‘Yes, that’s right’ which sounds softer, perhaps more polite than plain ‘Yes’.) The particle ji is also often used in conjunction with someone’s name or designation (Fatima-​ji; guru-​ji) to show respect. It can also act as a polite questioning word –​e.g. when asking for clarification Ji? with a rising tone. There is no precise equivalent in English so an interpreter would have to find an alternative way of reflecting it in a translation. During Mr. E’s questioning I  noticed him using han ji frequently in response to questions. This was translated as a simple ‘Yes’ which by itself did not convey the politeness that was actually intended and at times it gave the impression of rudeness on the part of the defendant. In my opinion this may have given the jury a more negative impression than had the elaborated ‘Yes, that’s right’, ‘Yes, respectfully’ or even ‘Yes, that’s right, Sir’ been used instead. It is impossible to know whether the interpreter’s shortcomings in this case had a negative impact on the outcome, but the importance of representing not just what is said but how it is said is clear. Liu and Hale (2018: 300) make this point in their discussion of interpreter training, arguing that ‘an accurate interpretation requires the complete transfer of the propositional content, as well as the illocutionary force of the source language’.

Giving an opinion This is the final part of the report and the reason why the assessment was sought in the first place. It draws conclusions from the findings of the assessment and then comments on the implications of performance during the interviews. Extract (14) from Mr. A’s report exemplifies this. In this case, the issue concerned an oral rendition of an official document relating to drink driving. (14) Report on Mr. A Mr. A’s English language proficiency is far from ‘perfect’, as suggested in the police report cited earlier. His use of English is full of grammatical inaccuracies and his vocabulary limited. His understanding of spoken English is problematic in that it fluctuates between comprehension, apparent comprehension and clear lack of comprehension as demonstrated in my detailed findings above. Having examined the proforma texts used in the police procedures I  can confidently state that it is highly unlikely that Mr. A would have understood much of the language used. The texts contain items of vocabulary which are far beyond the level of his comprehension let alone his own production (e.g. alleged, consumed, offence, specimens, device, proportion, disregarded, render, liable, prosecution). The grammatical structures involved are complex for someone with Mr. A’s level of English. For instance, consider the following:

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I require you to provide two specimens of breath for analysis by means of an approved device. (A14) This sentence contains: • the subjunctive (I require you to provide) • participial phrasing/​reduced relative clause (for analysis-​instead of … which is for analysis) • idiomatic phrasing (by means of) • participial phrasing/​reduced relative clause + passive structure (an approved device –​ instead of a device which is approved by….) Taking these two aspects (vocabulary and grammar) together, and Mr. A’s standard of English as discussed above, it can be said with a high degree of confidence that such discourse was beyond his comprehension. It is the opinion part of the report which is referred to by both defence and prosecution lawyers, which is why it needs to be explicit, comprehensible and as unambiguous as possible. The rest of the report, including description of the test materials and the linguistic profile, serves as evidence to support the ‘opinion’. In the end, though, as with all the evidence provided, its effectiveness depends largely on how the legal team makes use of it in the proceedings.

Conclusion The process of assessing language proficiency among non-​native speakers of English for forensic purposes is, as has been seen, more complex than may be assumed within the judicial system. Work of this type is still relatively unusual, at least in the British context, perhaps because language tends to be viewed as instrumental and transparent rather than as a communicative resource (e.g. Kress 2010), socially, culturally and contextually shaped. The linguistic demands associated with arrest, interview and court interactions, as we have seen, are far more complex than an instrumental understanding of language might imply and the experience can be frustrating for both interviewers and interviewees alike. There is no doubt that carrying out diagnostic language tests, or even ad hoc assessments like those suggested in PACE, can be helpful in indicating the need for an interpreter. But as has already been pointed out, this may not provide the panacea hoped for. However, the approach I have described in this chapter is not focused on diagnosis but on something else. Its purpose is to ‘give an opinion’ on whether a non-​native English-​speaking detainee’s language performance during their interactions within the legal process could have resulted in misunderstandings that might have influenced conclusions drawn by the police and prosecutors which, in turn, might influence the final outcome of a trial. This is not to say that the assessments can have no diagnostic function, they can indicate the need for an interpreter in court, for instance, but this is not the core aim. Undertaking a language assessment for forensic purposes is a time-​consuming and challenging commitment (some cases can be quite harrowing) so an assessment is not to be embarked on lightly. It is important to maintain professional impartiality but at the same time it is essential to develop a sufficiently relaxed relationship with the person being assessed so as to obtain sufficient useful language data. This can be a difficult balance. Producing the report itself has its own challenges, as discussed earlier, and it is not easy to

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second guess how it will be understood or what use will be made of it if examined during a trial. Nevertheless, the work is interesting and worthwhile because it can make a difference to outcomes. And even if it does not, its inclusion in legal proceedings can be beneficial because it ensures that language, communication and the sociolinguistics of intercultural interactions is foregrounded as an issue which may have important implications for all concerned. Evidence of how non-​native detainees struggle with certain grammatical structures such as embeddings or idiomatic expressions such as phrasal verbs, often mistakenly thought to be ‘easy’, can help police interviewers adjust their own language choices accordingly. Showing that different languages have their own sociopragmatic features and that these are a fundamental aspect of communicative interaction can help all those involved in the legal process safeguard against hasty decisions about attitude. Acknowledging that a minority language person can live their lives outside the linguistic mainstream can help explain a lack of familiarity with English language and literacy practices that might normally be taken for granted. Of course, as Solan (2010: 395) has pointed out, ‘The academic world and the world of litigation produce an awkward mix’ and more work needs to be done to develop forensic linguistic approaches that can withstand the cut and thrust of adversarial courtroom interactions. In fact, although it can be tough, courtroom experience has been extremely useful in refining my approach. Challenges to my evidence have helped me to see gaps in the areas I report on that need to be addressed. This has not only improved my own reporting but has enabled me to reveal issues that might otherwise go unnoticed. It is clear that such witnesses and defendants are disadvantaged in terms not just of their English language proficiency, but also of the extent to which they are sociolinguistically integrated into the majority language community. Although there has been considerable research in many areas of forensic linguistics, research in this area has been more limited as there are few people involved in work of this kind. However, there is no doubt that further research into the experiences of non-​native English language speakers embroiled in the legal process should be encouraged so that it can feed into the training of police and legal professionals. This would not only raise awareness of the kinds of problem that can arise but would also advance the development of strategies for resolving them.

Further reading Blommaert, J. (2010) The Sociolinguistics of Globalisation, Cambridge: Cambridge University Press. Coulthard, M., Johnson, A. and Wright, D. (2017) An Introduction to Forensic Linguistics: Language in Evidence, 2nd edn, Abingdon: Routledge. Ellis, R. and Barkhuizen, G. (2005) Analysing Learner Language, Oxford: Oxford University Press. Mooney, A. (2014) Language and the Law, Basingstoke: Palgrave Macmillan. Van den Brandon, K., Bygate, M. and Norris, J.M. (2009) Task-​Based Language Teaching: A Reader, Amsterdam: John Benjamins.

References Aliverti, A. and Seoighe, R. (2017) ‘Lost in translation: Examining the role of court interpreters in cases involving foreign national defendants in England and Wales’, New Criminal Law Review, 20(1): 130–​156. Bachman, L. (2000) ‘Modern language testing at the turn of the century: Assuring that what we count counts’, Language Testing, 17(1): 1–​42. Blommaert, J. (2010) The Sociolinguistics of Globalisation, Cambridge: Cambridge University Press. Capstick, T. (2016) Multilingual Literacies, Identities and Ideologies:  Exploring Chain Migration from Pakistan to the UK, London: Palgrave Macmillan. 482

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Carr-​Hill, R., Passingham, S., Wolf, A. and Kent, N. (1996) Lost Opportunities: the language skills of linguistic minorities in England and Wales, London: The Basic Skills Agency. Clarke, I. and Kredens, K. (2018) ‘“I Consider myself to be a service provider”: Discursive identity construction of the forensic linguistic expert’, International Journal of Speech, Language and the Law, 25(1): 79–​107. Coulthard, M. (2005) ‘The linguist as expert witness’, Linguistics and the Human Sciences, 1(1): 39–​58. Coulthard, M., Johnson, A. and Wright, D. (2017) An Introduction to Forensic Linguistics: Language in Evidence, 2nd edn, London: Routledge. Eades, D. (2005) ‘Applied linguistics and language analysis in asylum seeker cases’, Applied Linguistics, 26(4): 503–​526. —​—​—​(2010) ‘Language analysis and asylum cases’, in M. Coulthard and A. Johnson (eds), The Routledge Handbook of Forensic Linguistics, Abingdon and New York: Routledge, 411–​422. Ellis, R. (2009) ‘Task-​based language teaching: Sorting out the misunderstandings’, International Journal of Applied Linguistics, 19(3): 221–​246. Ellis, R. and Barkhuizen, G. (2005) Analysing Learner Language, Oxford:  Oxford University Press. English, F. and Marr, T. (2015) Why Do Linguistics: Reflective Linguistics and the Study of Language, London: Bloomsbury. Faerk, C. and Kasper, G. (1987) ‘Perspectives on language transfer’, Applied Linguistics, 8(2): 111–​136. Gray, P.R.A. (2010) ‘The future for forensic linguists in the courtroom. Cross-​cultural communication’, in M. Coulthard and A. Johnson (eds), The Routledge Handbook of Forensic Linguistics, Abingdon and New York: Routledge, 592–​602. Hale, S. (2010) ‘The need to raise the bar: court interpreters as specialised experts’, in M. Coulthard and A. Johnson (eds), The Routledge Handbook of Forensic Linguistics, Abingdon and New York: Routledge, 440–​454. Hale, S., Goodman-​Delahunty, J. and Martschuk, N. (2019) ‘Interpreter performance in police interviews. Differences between trained interpreters and untrained bilinguals’, The Interpreter and Translator Trainer, 13(2): 107–​131. Innes, B. and Erlam, R. (2018) ‘Did he understand his rights? Assessing the comprehensibility of police cautions in New Zealand’, The International Journal of Speech, Language and the Law, 25(1): 21–​51. Iwashita, N., Brown, A., McNamara, T. and O’Hagan, S. (2008) ‘Assessed levels of second language speaking proficiency: How distinct?’, Applied Linguistics, 29(1): 24–​49. Kress, G. (2010) Multimodality:  A Social Semiotic Approach to Contemporary Communication, London: Routledge. Liu, X. and Hale, S. (2018) ‘Achieving accuracy in a bilingual courtroom:  The effectiveness of specialised legal interpreter training’, The Interpreter & Translator Trainer, 12(3): 299–​321. Maley, Y. (2000) ‘The case of the long-​nosed potoree: The framing and construction of witness testimony’, in S. Sarangi and M. Coulthard (eds), Discourse and Social Life, London: Longman, 246–​269. Manzoor, S. (2007) ‘The language of loneliness’, The Guardian, 12 September. McNamara, T. (2000) Language Testing, Oxford: Oxford University Press. Optimity Matrix (2014) Independent Review of Quality Arrangements under the MoJ Language Services Framework Agreement, November, London https://​assets.publishing.service.gov.uk/​government/​uploads/​system/​uploads/​attachment_​data/​file/​388333/​matrix-​report.pdf (accessed 18 January 2019). Pavlenko, A. (2008) ‘“I’m very not about the law part”:  Non-​native speakers of English and the Miranda warnings’, TESOL Quarterly, 42(1): 1–​30. Rock, F. (2012) ‘The caution in England and Wales’, in L. Solan and P. Tiersma (eds), The Oxford Handbook of Language and Law, Oxford: Oxford University Press, 312–​325. Ross, S. (1998) ‘Self-​assessment in second language testing: A meta-​analysis and analysis of experiential factors’, Language Testing, 15(1): 1–​20. Shaw, S and Weir, C.J. (2007) Examining Writing in a Second Language, Studies in Language Testing 26, Cambridge: Cambridge University Press and Cambridge ESOL. Solan, L.M. (2010) ‘The expert linguist meets the adversarial system’, in M. Coulthard and A. Johnson (eds), The Routledge Handbook of Forensic Linguistics, Abingdon and New  York:  Routledge, 395–​407. 483

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Stevens, G. (1999) ‘Age at immigration and second language proficiency among foreign-​born adults’, Language in Society, 28(4): 555–​578. Tavakoli, P. and Foster, P. (2008) ‘Task design and second language performance:  The effect of narrative type on learner output’, Language Learning, 58(2): 439–​473. Wei, L. (1994) Three Generations, Two Languages, One Family, Clevedon: Multilingual Matters.

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30 Court interpreting The need to raise the bar: court interpreters as specialized experts Sandra Hale

Introduction Much has been said and written about incompetent interpreting in the courtrooms; as Moustacalis (in Todd 2008) says, ‘if you do not understand the proceedings through competent interpretation, you are denied justice.’ Yet, not enough seems to have been done to achieve systematic improvements that will lead to a better administration of justice. Multiple factors contribute to this impasse, but its underlying cause seems to be the general lack of recognition of the complex nature of court interpreting as a highly specialized activity (Christensen 2008; Hale 2019). Many are quick to criticize the interpreter’s performance, but few are willing to advocate rigorous pre-​service university training, to provide adequate working conditions and to pay professional rates that are commensurate with the difficulty of the task (Morris 2008; Stern et al. 2015). On the one hand, courts seem content to employ untrained bilinguals to act as interpreters at very little expense; on the other, they wonder why these poorly paid, untrained individuals are not performing satisfactorily (Berk-​Seligson 2008). The answer should be obvious, yet not enough is being done at the systemic level to rectify this anomaly. Either the courts do not see the connection, or they do not consider the issue important enough to take any action. What should indeed be surprising is that, given the current employment conditions, poor remuneration and lack of recognition, there are still many highly trained, competent and professional interpreters in the market whose work is undervalued, unrecognized and unacknowledged. There also seems to be an underlying misconception, as implied by the introductory quotation, that it is only an accused who does not understand the language of the courtroom who needs interpretation in order to ensure a fair trial. The fact is that when any participant cannot understand or be understood, it is the legal process itself that suffers and justice cannot be done. A lawyer’s best efforts to ask the most strategic questions in order to elicit the answers that will benefit his/​her case can be thwarted by inadequate interpretation. A jury’s attempts to evaluate the credibility of a witness can be frustrated by inadequate interpretation. A  magistrate’s evaluation of the evidence presented in 485

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another language will be flawed if based on inadequate interpretation. I  use the word inadequate deliberately. Inadequate does not refer only to the interpreter’s level of linguistic competence, but also to the interpreter’s specialist training in court interpreting and prior preparation. In addition, the interpreter’s opportunity to render an adequate interpretation depends heavily on the physical working conditions and the behavior of all the participants involved in the interaction. The 2007 Critical Link 5 Congress highlighted the necessity for all participants in interpreted interactions to share the responsibility for the quality of the interpretation and the success of the communication. The misconception that interpreters perform ‘a purely mechanical function, much like a hearing aid, microphone, or typewriter’ (NSWLRC 2004: 62), portrays interpreting as an activity devoid of thought, judgment, skill or effort and removes from the main speakers any responsibility to help the interpreter understand and render the message accurately. Interpreted proceedings cannot be expected to be the same as monolingual proceedings, no matter how competent the interpreter. Allowances must be made in order to accommodate the interpreter. Before the event, interpreters need to be briefed with as much background information as possible in order to adequately prepare. During the event, speakers’ turns at talk must be clear and of manageable length, and the interpreter should be given permission to interrupt the proceedings if and when clarification is required or a reasonable request warranted. The physical working conditions are also important, including proper acoustics, so the interpreters can hear the speakers clearly, comfortable seating to allow for note taking and reference material, access to drinking water and permission to take regular breaks. Ideally, for long trials, interpreters should work in pairs, which is the current practice for interpreters in international settings. This creates a quality assurance mechanism, because the interpreters can monitor each other’s performance, as well as take regular breaks. However, even if such conditions were granted, only competent interpreters with the correct specialist training would be able to offer a quality service.

Lack of awareness about the complexity of interpreting and the need for high standards Although some countries have certification systems that provide some type of benchmark for competence, in most countries training is not compulsory before interpreters are allowed to practice (Hlavac 2013). It is still not uncommon in some countries for the police or the courts to use bilingual volunteers, including children or police officers, as interpreters (Berk-​Seligson 2000; Roberts-​Smith 2009; Allimant and Anne 2008). Ahmad comments on the inconsistency that exists in the United States, where: lawyers rarely subject interpreters to the level of scrutiny regarding qualifications and reliability to which they would subject other types of expert. Indeed, it is nearly inconceivable that untrained, untested, unpaid volunteers would be used as expert witnesses with the frequency with which such volunteers are used for legal interpretation. (Ahmad 2007: 1059) In a review article, Len Roberts-​Smith, a former Australian Chief Justice, comments that ‘monocultural or Anglophone lawyers and judges’ lack an understanding of interpreting issues, resulting in forensic error. He reviews a number of cases where poor interpretation created legal problems and attributes these to one of the following causes: 486

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1. The absence of anyone to interpret due to either a misconception from some judges and lawyers that interpreters are an obstacle to communication or to the unavailability of interpreters; 2. The provision of unqualified bilinguals or interpreters qualified in the wrong language; and 3. The use of the services of ‘professional accredited’ interpreters who are not trained and who do not possess the high-​level skills necessary to perform at the required level (Roberts-​Smith 2009) Such lack of recognition for trained interpreters and lack of awareness of the complexity of court interpreting is not unique to English-​speaking countries. A study of court interpreting in Ecuador revealed a similar attitude (Berk-​Seligson 2008). When asked about who interprets for indigenous populations who do not speak Spanish, a judge said: ‘We call in a person who understands the Quichua language and who translates it into Spanish. There are two or three people who live nearby. They are called. They collaborate. They aren’t paid. They are collaborators’ (Berk-​Seligson 2008: 20). Berk-​Seligson comments that, ironically, although these judicial officers are happy to call on non-​ professionals, there are always vehement criticisms of their work (2008: 27). Studies from other countries such as Malaysia (Ibrahim 2007), Spain (Ortega-​Herráez and Foulquié Rubio 2008; Giambruno 2008; Del Pozo Triviño and Toledano-​Buendía 2016), Austria (Kadric 2000) and Denmark (Christensen 2008) have produced similar findings. Hertog et al. comment on the fear that surrounds the establishment and enforcement of adequate standards for legal interpreters (Hertog et al. 2007). They speculate that not only may governments fear having to pay adequate fees to qualified interpreters, but also unqualified practitioners may fear losing their work and educational institutions may fear not attracting sufficient numbers of students or students with the high level of bilingual competence required to become interpreters. They conclude that ‘this unholy trinity of, often unnecessary, fear has hindered and still hinders progress’ (Hertog et al. 2007: 164). It is ironic that the fear is based on issues other than the potential for misinterpretation and for the grave consequences it can have on the administration of justice. Del Pozo Triviño and Toledano-​Buendía report that in domestic violence cases in Spain, untrained ad hoc bilinguals are used to assist, leading to serious miscommunication and increased vulnerability for the victims (2016: 193). There is, however, hope for a better future, at least in some countries. In recent years, Australia has gone through a couple of very important developments that will lead to improvements for court interrpeting. The first development refers to the National Accreditation Authority for Translators and Interpreters (NAATI). NAATI underwent an overhaul of its system in response to recommendations arising from its first comprehensive review (Hale et  al. 2012). From 2018, all aspiring interpreters must undergo a minimum amount of training in order to attempt the generic Certified Interpreter examination. Certified interpreters are now required to complete continuous professional development in order to re-​certify every three years. In addition, a legal interpreter certification examination is currently being developed. In order to sit for the examination, candidates must be certified interpreters first, have a minimum amount of experience in the field and have completed specialized legal interpreting training (NAATI website). The second significant development has been the launch of the Recommended National Standards for Working with Interpreters in Courts and Tribunals in October 2017 (Judicial Council for Cultural Diversity 2017). The Standards were written by a specialist committee 487

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comprising representatives from the interpreting and legal professions. The document provides 26 standards for interpreters, lawyers, judicial officers and tribunal members. It also contains important educational material on all aspects of legal interpreting. In its preamble, it states: The standards are recommended rather than prescriptive, and can be implemented progressively in line with resource capacity. It is proposed that all courts and tribunals in Australia implement these standards, where necessary adapting them to meet the needs and legislative context of each jurisdiction (JCCD 2017: ii) Although the standards are not compulsory, they have already had an impact on some judicial officers who are voluntarily implementing them in their own courts. One such example is Justice Kunç, from the NSW Supreme Court, who warned bilingual solicitors that being bilingual does not make them interpreters, and even if they are proficient, they still need to retain the services of a professional interpreter or translator for any official legal transaction (McMillan 2019: 90).

Court interpreters as highly trained professionals [C]‌ourt interpreters must be properly trained, the difficulty and importance of their work fully recognized, their pivotal role in the judicial process acknowledged and accepted by judicial authorities, and their compensation established in accordance with their responsibilities. (Giambruno 2008: 48) Compulsory pre-​ service training will not guarantee error-​ free interpretation, just as legal training does not guarantee error-​free lawyering. However, it will guarantee both a minimum standard and professional status for interpreters. An experimental study that compared the performance of trained Spanish interpreters with untrained bilinguals showed statistically significant differences, with the trained interpreters performing consistently better on all measures of competence (Hale, Goodman-​ Delahunty and Martschuk 2018). The different skills that interpreters need as their everyday tools are acquired through rigorous training and consistent practice. The main ones include the acquisition of pre-​assignment preparation skills, specialized note taking and memory aide skills, and competence in the different interpreting modes: short consecutive, long consecutive and simultaneous interpreting and sight translation. Knowing when to use each of these modes, how accuracy is constrained by each of them and the consequences of the interpreter’s choices on the interaction are competencies that can only be acquired through adequate training based on sound theories and on the results of practical applied research (see Hale 2019 for more details). Added to these generic skills, court interpreters need to acquire specialized knowledge of the legal system, of different legal settings, of bilingual legal terminology and of the discourse practices and strategies particular to the courtroom. Qualified interpreters will also be familiar with a code of ethical conduct that will guide them on issues of impartiality, confidentiality and their role in providing an accurate rendition of the original message, as far as the situation and the participants will permit. Another crucial area of competence is the interpreter’s ability to manage the interaction, to know when and 488

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how to intervene to highlight a translation ambiguity or difficulty or explain a translation choice that may impact on the case at hand. The next section will review each of these areas of competence with illustrative examples.

Court interpreting competence Prerequisite to becoming an interpreter: high-​level bilingual competence Interpreting is a highly complex activity that requires as a base a native or native-​like level of competence in at least two languages in a variety of genres and registers. This in itself is a rare ability that should be valued as such, as normally only those who have received formal bilingual education and have lived in at least two different language communities throughout their lives can acquire such high levels of bilingualism. Very few professions require such a demanding prerequisite to train in their field. The pool of competent bilinguals in all of the language combinations which require interpreters is undoubtedly very limited. This fact alone makes it crucial for such people to be provided with the necessary incentives to pursue a career as highly specialized interpreters. Without such incentives, they are likely to leave the profession. On the other hand, examples of people who act as interpreters, but who lack basic linguistic competence, abound. These people are, of course, not necessarily trained, certified or even paid for their services. Even if they have every intention of interpreting accurately, their lack of basic skills does not allow it. For example, Ahmad (2007: 1061) comments on an affidavit taken through an interpreter, which was replete with grammatical errors, basic vocabulary and very short sentences, giving the impression that the speaker was an uneducated person, when in fact he was a university academic. Berk-​Seligson (2000) gives examples of police officers in the United States who, despite their inadequate Spanish language skills, insist on asking questions in Spanish, making it very difficult for the suspects to understand. Examples of inadequate English competence can also be found in Australia, with different implications on the outcome of the case. Example (1) below shows an instance of a Korean interpreter’s grammatical inadequacy in English. (1) Interpreter: Counsel:

Ben Kim said someone is going to Central Coast. to the Central Coast?

(Lee 2009a: 106)

The interpreter’s omission of the definite article is highlighted by counsel’s need to clarify the utterance, adding unnecessarily to the length of the case and possibly creating confusion for the witness, who does not understand why his/​her answer is being repeated by counsel. Another example of inadequate interpreting leading to an obvious consequence can be found in a Refugee Review Tribunal hearing, where the Arabic interpreter continually misinterpreted ‘persecution’ as ‘prosecution’ and ‘witness’ as ‘martyr,’ confusing the witness and leading to an appeal on the grounds of poor interpretation (Szldy & Ors v. Minister for Immigration & Anor [2008] Fmca 1684). However, even if a person is a balanced, competent bilingual, this does not guarantee their ability to interpret, as Justice Kunç, quoted above, aptly pointed out (McMillan 2019). The misconception that any bilingual, including children, can automatically be called upon to interpret is unfortunately still prevalent. Roberts-​Smith (2009) provides 489

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an example of police asking a 15-​year-​old girl, who was visiting the inmate they needed to interview, to interpret. When she left, the interview continued without her, and on the record it was written ‘interpreter quit here,’ automatically attributing to the girl the title of ‘interpreter.’ A  similar situation can be seen in example (2), where the police prosecutor, during cross-​examination in court implies that a child was sufficiently competent to act as the interpreter for her mother when police first attended the domestic violence scene. Interestingly, the mother qualifies the daughter’s ‘interpreting’ performance in an insightful manner, proposing that the child was not interpreting, but providing her own version of the facts and supplying her with some words when needed. (2) PP: W: PP: W: PP: W: PP: W: PP: W:

(The court interpreter’s version was removed from the example and replaced by my own translation) (PP is police prosecutor; W is witness.) Your daughter Karen was there, wasn’t she? Sí, estaba conmigo (Yes, she was with me) And she speaks English? Sí (Yes) And she speaks good English? Sí (Yes) And she speaks Spanish as well? Sí (Yes) And she assisted you in giving your version of events to the police, didn’t she? Bueno, mi hija dio la..la versión de ella, de lo que vio y me ayudó a mí las cosas que yo no … que ella me preguntaba que yo no sabía cómo contestarla’ porque no sé el inglés po’ (Well, my daughter gave her … her own version of what she saw and she helped me with the things that I didn’t … that she asked that I didn’t know how to answer because I don’t speak English, you know). (Police v. X. Assault case, Fairfield Local Court, NSW, 1996)

Bilingual helpers will normally do what the witness above stated; they will give their own summary of what they heard. Qualified interpreters are taught to aim at achieving faithful and complete renditions of what the speaker said, attempting to maintain the appropriate register and style (see Hale, Goodman-​Delahunty and Martschuk 2018 for examples). Faithful interpreting, however, is a complex and at times controversial concept. Although widely discredited, the idea that faithful interpreting equates to word-​for-​word translation is still common among some legal practitioners (Hale 2011; Lee 2009b). A  number of scholars have based their theories of accurate interpreting on communicative theories of discourse and pragmatics, which also extend to translation theories (House 1977; Nord 1997; Mason and Stewart 2001; Berk-​Seligson 1990, 2002; Hale 1996, 2004, 2007; Hale and Liddicoat 2015). These theories argue against the concept of literal, word-​for-​word translations, as such translations generally fail to achieve an accurate representation of the communicative point and effect of the original utterances. While it is beyond the scope of this chapter to explain these theories in detail, the underlying concepts will be reviewed below, with accompanying examples.

Understanding the interpreting process Untrained interpreters generally base their choices on personal intuition. Formal training attempts to systematize those choices by providing theories to guide and inform 490

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interpreters in the process. From a discourse/​pragmatic perspective, the interpreter’s goal is to interpret from the source to the target language in such a way that the listeners in the target language understand and react to the message in the same way that listeners in the source language would; this has been referred to as ‘pragmatic equivalence’ (see House 1977; Hale 2007). Within a Speech Act theory framework (Austin 1962), the interpreting process can be roughly explained in the following way:  when listening to the source speech, the interpreter analyses it in terms of its locutionary act (the words uttered), illocutionary act (what is performed by those words) and perlocutionary act (what is achieved through them). In other words, the interpreter needs to fully understand the communicative function of the utterance and the likely effect on the listeners. Such understanding of the utterance will largely depend on the speech event itself, on its participants and on the knowledge shared by those participants. To interpret faithfully, the interpreter needs to bridge the gap that exists between the two languages and cultures by aiming to render the illocutionary act and at the same time aspiring to achieve the intended perlocutionary act. This is often done at the expense of the locutionary act. The examples below will illustrate some of the differences that exist across languages at the various levels of the language hierarchy: lexical, grammatical, semantic and pragmatic. (3) Spanish sentence: Lexical translation (literal, word-​for-​word): Semantic translation: Pragmatic translation:

A la niña la mordió el perro. To the girl it (feminine) bit the dog. The dog bit the girl. It was the girl that was bitten by the dog.

One difference between languages is word order, as exemplified in (3), which clearly demonstrates that a literal, word-​for-​word translation would be inadequate in English. Hale (2007) proposes that interpreting competence can be evaluated by the approach the interpreter adopts when rendering his/​her translation. For example, a person whose bilingualism is rudimentary will approach translation at the lexical level and produce a literal translation; untrained interpreters will tend to approach translation at the sentence level, concentrating only on the propositional content and produce semantic translations; and the most competent, trained interpreters, will approach translation at the discourse level and attempt to produce pragmatic translations. In (3), we can see that the semantic translation produces the correct propositional content: the dog bit the girl. The Spanish utterance, however, uses a marked structure leading to the presumption that, in context, a possible distinction needs to be made between what animal bit which child, hence the marked theme position of the girl/​object, even though the clause is in the active voice. The same effect can be achieved in English by resorting to a cleft construction. In order to achieve a pragmatic translation, the interpreter needs to choose from a different grammatical resource in English in order to match the original intention rather than the original words or structure. This process can be further complicated when context, participants and culture are added to the equation. This complex process is not widely understood let  alone applied by untrained interpreters. Research has found that many tend to translate semantically, not pragmatically, thus inadvertently changing the illocutionary acts and perlocutionary forces of the original utterances (Hale 1996; Berk-​Seligson 1990/​2002; Fraser and Freedgood 1999, Hale 2018). 491

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Overcoming challenges caused by cross linguistic differences Trained interpreters will face as many challenges as untrained interpreters. However, trained interpreters will ideally have received the tools to deal with such challenges. They will also have the resources not only to make informed choices, but also to explain those choices to the court when necessary. Languages differ at all levels of the linguistic hierarchy, so interpreters need to be competent at all levels in each language, and be able to make judgments about what aspects of the original utterance to sacrifice in order to achieve a pragmatic rendition. This is particularly difficult in court interpreting, where subtle changes to utterances can lead to changes in the evidence and to the evaluation of witness credibility. This section will present a number of examples to illustrate cross linguistic differences that require high-​level expertise to produce adequate, accurate interpretations. At the grammatical level, a number of challenges can arise. One such challenge is interpreting tense and aspect accurately between English and Chinese. In English, tense and aspect are manifested mostly through verbal morphology, whereas in Chinese the use of adverbial markers and context carry these same meanings, thus making it difficult for interpreters to choose the most accurate renditions (Lin 2006). In the case of Arabic and Spanish, Hale and Campbell (2002) present the results of an empirical study which demonstrates the number of choices translators are confronted with. The categories that produced the highest number of alternatives, and therefore created the greatest difficulty in finding translation equivalents, were specialized terms, metaphors and complex noun phrases. One example was the seemingly unproblematic English noun phrase ‘case management,’ which caused difficulty at both semantic and grammatical levels because in neither Arabic nor Spanish can a noun modify another noun. Another very subtle difference between Spanish and English is the way speakers verbalize motion. For example, Slobin (1996) found that English speakers tend to express the manner of the motion by using manner verbs such as ‘staggered into the room,’ whereas Spanish speakers rarely describe the motion at all and when they do, do so by adding an adjunct of manner ‘entró tambaleándose’ (entered staggering). In a study of the way interpreters interpreted manner verbs in witness testimonies, Filipovic found that as a result of the habitual need to express manner in English, different lexical choices are made in the English translation that add information about the manner of motion, not present in the Spanish original due to the use of manner-​neutral lexical items, which could result in different interpretations of the situation described. (Filipovic 2007) One such example is (4). (4) Witness: Literal translation: Interpreter:

pero … salió por la seven But … (he/​she/​you formal) exited via the seven the suspect ran up 7th street. (Filipovic 2007: 253)

Filipovic explains that the English questioning persistently insists on more detail about the manner in which an action took place, while such information tends to be absent 492

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from Spanish descriptions. This may lead interpreters to believe that they need to add descriptions of manner, as in (4), where salió (went out) is translated as ‘ran up.’ Such translation demonstrates the interpreter’s own perception of the event, which may not necessarily match the reality, as the details were not specified in the original. The interpreter is possibly also attempting to make the English version sound more natural and pragmatically appropriate, but such an addition may impact on the propositional content of the utterance. In a legal case, a witness’s detailed description of what they saw is crucial and any subtle changes produced by the interpreter, as in example (4), can impact on the consistency of the accounts by different witnesses. The interpreter is therefore presented with the difficult task of deciding how to achieve the illocutionary and perlocutionary acts without interfering with the propositional content. Filipovic goes on to explain that the interpreter’s assumption that everyone was running in the chase scene turned out to be incorrect, as it was later made clear that some people were on bicycles. Another example provided by Filipovic is the difficulty in translating the non-​agentive reflexive pseudo-​passive from Spanish into English, as in (5). (5) Witness: Literal translation:

Se me cayó en las escaleras To-​me-​it-​happened that (she/​he/​it) fell on the stairs. (Filipovic 2007: 262)

The Spanish utterance in (5)  poses a translation challenge that is difficult to overcome without an explicit explanation to the court. As (5)  clearly shows, a literal word-​for-​ word translation would not produce an accurate rendition. The interpreter in this case interpreted the utterance as either ‘I dropped her’ or ‘she fell,’ both of which are accurate translations but neither conveys the same subtle meaning of the original. In this case, both translations caused confusion, leading to the same question about the dropping of the victim being asked nine times. The difficulty was caused by the different expressions of intentionality in Spanish and English. The Spanish utterance ‘se cayó,’ could be translated as ‘s/​he/​it fell,’ as the gender is unspecified and the interpreter needs to clarify it, unless it is understood from previous information. The addition of ‘me,’ as in the example ‘se me cayó’ indicates that the speaker was involved in holding or carrying the person who accidentally fell out of the speaker’s grasp. The English ‘I dropped her’ could indicate that the speaker deliberately let go, whereas the Spanish clearly indicates that the dropping was unintentional and intentionality is crucial in legal cases. This is a clear example of a situation where the interpreter would be justified in intervening to explain the translation difficulty, as a subtle misunderstanding of this utterance could have major legal implications. At the discourse level, interpreting challenges occur when utterances can be translated easily at the lexical or semantic levels, but due to pragmatic differences, they do not convey the same illocutionary and perlocutionary acts. Interpreting speech acts such as polite requests in courtroom questions can cause difficulties in some languages. In English polite requests are normally performed indirectly, by the use of a modal interrogative, such as ‘Could you tell the court what happened?’ When interpreters hear this utterance, they firstly need to understand that it is an indirect speech act which functions as a polite request, and not as a genuine question about the listener’s ability to speak. The illocutionary act, therefore, is a polite request for specific information regarding an event. Languages such as Russian or Czech, for example, formulate such requests directly by the use of the imperative followed by a politeness marker (Searle 1975; Mir 1993). A Russian 493

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interpreter, for instance, would need to change the indirect speech act into a direct speech act in order to match the illocutionary and perlocutionary acts in the target language.

Understanding the discourse strategies of the courtroom Another layer of complexity is added to the interpreter’s task when interpreting in the courtroom, due to the constraints placed upon the interpreting process by the setting and by the strategic use of language itself. Studies of the discourse of the adversarial courtroom in particular have shown the significance of language as a metaphorical tool (Danet and Bogoch 1980; Drew and Heritage 1992; Gibbons 2003). Different types of questions are used by lawyers to achieve specific goals depending on the type of examination. The form and the words used in questions can influence the answers they elicit, and even the recollections they trigger in eye witnesses (Harris 1984; Loftus 1979; Maley and Fahey 1991). Similarly, the language and style used by witnesses when giving evidence can impact significantly on how convincing or credible they are (O’Barr 1982). A number of studies of court interpreting found that even competent, accredited interpreters who had not received specialized legal interpreting training were not aware of the significance of certain linguistic features of courtroom discourse, and consequently tended to unjustifiably omit or disregard them. Examples include arbitrary changes of question type (Hale 2004; Pérez González 2006); the omission of discourse markers to preface lawyers’ questions (Hale 1999); the omission of coercive tag questions during cross-​examination (Hale 2001; Rigney 1999) and changes to levels of politeness and changes of style and register in witness testimonies, all of which led to different evaluations of character (Krouglov 1999; Berk-​Seligson 1990/​2002; Hale 2004). The changes found in these studies were generally not explainable by cross linguistic pragmatic differences; rather they were usually the result of interpreters disregarding what they seemed to consider superfluous features of speech. Example (6) shows an unjustified change of question type, from an open question to a polar interrogative eliciting a very different answer. (6) Question: Interpreter:

Yeah, can you tell the court to the best … to the best of your recollection, to the best of your memory? ¿Pero algo recuerda usted? (But you remember something?) (Hale 2004: 58)

The English question is an indirect request to the witness to tell the court what s/​he remembers. The interpreted question changes the expected answer to a yes/​no response, which would then require a further question to get the witness to describe the events. The interpreted version not only omits the reference to the court but also changes the register and level of politeness. The interpreter deviated completely from the question’s original intention. Example (7) shows the omission of the discourse marker well. (7) Question: Interpreter: Answer: 494

And uh you tell the court that you have no prior convictions? ¿Dice usted a la corte de que no ha tenido antes ninguna condena? (Are you saying to the court that you have not had any convictions before?) No.

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Interpreter: Question: Interpreter:

No. Well, is it correct that you have no prior convictions? ¿Es correcto decir que usted no ha tenido condenas anteriores? (Is it correct to say that you have not had convictions before?) (Hale 2004: 64)

The use of well in this case indicates that the lawyer was dissatisfied with the answer because it was ambiguous; an ambiguity that was caused by the original question. It is not clear whether the answer ‘no’ refers to ‘no I don’t tell the court’ or ‘no, I have no prior convictions.’ In order to clarify the answer, the lawyer asks another question, which he links with the discourse marker well. Pragmatically, well implies ‘let me put it another way,’ which maintains coherence in the discourse. However, the interpreter omits the initial discourse marker altogether and simply translates the rest of the question, but this omission changes its pragmatic effect. Well in this case could have been translated as ‘Bueno, pero’ (well, but) or by the conditional ‘Entonces, sería correcto decir …’ (Then, would it be correct to say …). One common complaint from judicial officers has been that: evidence given through an interpreter loses much of its impact … The jury does not really hear the witness, nor are they fully able to appreciate, for instance, the degree of conviction or uncertainty with which his evidence is given; they cannot wholly follow the nuances, inflections, quickness or hesitancy of the witness; all they have is the dispassionate and unexpressive tone of the interpreter. (Filios v. Morland [1963] S.R. (NSW) 331, per Bereton J at 332–​333, in Roberts-​Smith 2009) The fear expressed above has been confirmed by the results of experimental studies. However, it has also been found that interpreters can be trained to maintain certain features of discourse that will minimize the impact of the interpreter on the evaluation of witness credibility (Berk-​Seligson 1990; Hale 2004). Based on authentic transcripts, Hale (2004) conducted a number of experiments to ascertain whether the stylistic characteristics classified by O’Barr (1982) as powerless and powerful speech styles determined the way jurors evaluated the credibility, trustworthiness and competence of witnesses. The results showed that Spanish jurors rated the Spanish-​ speaking witnesses who spoke in the powerful style as more credible, more competent and more trust-​worthy. The same results were obtained from English-​speaking jurors, thus corroborating O’Barr’s study, both for English and Spanish-​speaking jurors. When the ratings of the original Spanish witnesses were compared with the interpreters’ renditions, it was found that the interpreters who interpreted accurately at the propositional level, but changed the style of the original from powerless to powerful, obtained a better evaluation on all three points. When interpreters maintained the propositional content, but changed the style from powerful to powerless, they received a less positive evaluation than did the original witness on all three points. However, when the interpreters maintained as much as possible of both the propositional content and the style of speech, the impact of the interpreter was minimal and the juror evaluations showed no statistically significant differences. The results of the above study show that with adequate training, competent interpreters can produce renditions that are stylistically, propositionally and pragmatically accurate, which will counteract the negative effects of the interpreter’s intervention mentioned by Judge Brereton above.

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Understanding the role of the court interpreter Misunderstanding of the interpreter’s role is common among non-​professionals hired as interpreters. Instead of seeing themselves as impartial interpreters, they see themselves as advocates or gatekeepers. Such attitudes may be manifested overtly, in their comments or advice to their ‘client’ or to the legal practitioner (as in (8)); or covertly, either through the omission of utterances they deem irrelevant or through the addition of information (as in (9)). At the one extreme, we find examples like (8) provided by Ahmad (2007), where a Burmese priest acts as a volunteer interpreter. (8) Lawyer to client: Is there someone there that we could speak to? Reverend Sen: Why is it necessary for you to speak with them? (volunteer interpreter addresses lawyer, without interpreting into Burmese) Lawyer: Reverend, would it be possible for you to just translate what we said? If Mae has questions about why we would like to speak with them, we can answer then. Reverend Sen: I have helped many Burmese to apply for asylum, and I don’t see why this information is important. Please explain it to me before I translate for Mae. (Ahmad 2007: 1005) Reverend Sen cannot be blamed for acting in this way. He is not a professional interpreter and is not bound by any professional ethical code, nor has he received any training. The responsibility here lies with the lawyers who did not hire the services of a professional interpreter and expect a volunteer to act like one. Ibrahim (2007) gives another example of an interpreter in Malaysia, who, unbeknown to the Bench, persuaded an unrepresented accused to change his plea from not guilty to guilty based on what the interpreter himself considered to be evidence against the accused that would most certainly lead to a conviction. Ibrahim explains that an interpreter is considered by the Malaysian legal system to be ‘a bilingual intermediary, clerk of the court, and advocate of unrepresented accused, [who] receives little or no training and is not paid appropriately for the responsibilities (s)he carries’ (Ibrahim 2007: 209). In Austria, studies of paid interpreters in asylum interview settings also found examples of role confusion, where some interpreters interwove their own comments into their renditions and covertly took on the role of pseudo-​immigration officials (Pöllabauer 2004; Kolb and Pöchhacker 2008). This can be seen in example (9). (9) Adjudicator: Interpreter: Applicant: Interpreter: Applicant: Interpreter: 496

(→Applicant)

Und haben Sie Ihre Religion ausgeübt? (And did you practice your religion?) Did you practice that religion? Yeah, I was a Christian! And I go to church. Yes, but but-​look, there are many Christians who never go to ch-​You went to church? Yes. Ich bin in die Kirche gegangen. (I went to church). (Kolb and Pöchhacker 2008)

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In (9) the answer ‘Yeah, I was a Christian!’ was not interpreted into German, presumably because the interpreter did not agree with the implication that Christians practice their religion, a personal opinion the interpreter makes explicit to the applicant but not to the rest of the tribunal. Here the interpreter holds a private conversation in English for no reason other than his/​her disagreement with the applicant’s proposed implication. It is impossible to say whether this interpreter had received any specialist training and whether s/​he understood the consequences of his/​her choices. In example (10) below, we see the interpreter being confronted with a claimant who does not understand his role. The interpreter is interpreting to the claimant simultaneously in whispering mode, while others are giving evidence. This is standard practice in court interpreting, but while the interpreter interprets, the claimant must not make any comments, as that would interfere with the interpreter’s rendition. In (10) we see that the claimant intervenes by commenting to the interpreter that s/​he did not have a contract. The interpreter then tries to explain his/​her role in the subsequent turn. (10) Interpreting simultaneously while others are giving evidence Arbitrator: [addressing the defendant] Do you have a lease with this lady? Interpreter: [for the benefit of the Polish-​speaking claimant—​in Polish] Do you, Ma’am, have a contract with this lady? Claimant: (in Polish) But I don’t have a contract Interpreter: (to claimant, in Polish) No, no no, Ma’am. I’m only translating what the lady is asking. (Angermeyer 2005: 215) Unrealistic expectations of the role of the interpreter plus poor working conditions and inadequate pay have led to interpreters refusing to take on court assignments or leaving the profession altogether. Ibrahim speaks of the ‘perpetual shortage of interpreters in Malaysian courts, as senior ones retire and new ones either resign after a short period or do not come forward at all’ (Ibrahim 2007: 213). A parallel can found with Australian Aboriginal interpreters, as expressed in the quotation below: I stopped doing court interpreting years ago. … They just didn’t really understand what the interpreter’s role was, and I just got sick of sort of being blamed, you know, for allowing people to go free or putting people in. (Cooke 2009)

Acquiring the expertise to know when and how to intervene to offer expert opinion Interpreters are constantly faced with difficult choices about how best to interpret each utterance, and need to continually make judgments about the likely impact of any changes on the legal process, so as to alert the court to potential misunderstandings. A well-​trained competent court interpreter will have the expertise to intervene to explain situations where potential misunderstandings arise, where direct equivalents are not possible or where a linguistic strategy does not have the same effect in the target language. Such interpreter expertise should be valued and welcomed by the court. Lee (2009a) speaks of difficulties 497

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encountered by Korean interpreters due to ambiguity and inexplicitness found in Korean utterances. In an interview with Korean court interpreters, she found that most were reluctant to interrupt the court proceedings to seek clarification when utterances were ambiguous. Lee argues that the interpreters’ reluctance to intervene is mainly due to the intimidating atmosphere of the court, which tends to ignore the presence of the interpreter or not to view them as experts. On the other hand, Berk-​Seligson (1990) and Hale (2003) found that untrained Spanish interpreters interrupted the proceedings for a number of unjustified reasons, for example in order to point out to counsel that a question just asked had been asked previously, or to attempt to help the witness answer a question. Attempts to make clarifications were also found to create more confusion. These untrained interpreters demonstrated a lack of understanding of the discourse strategies of the courtroom and of the role of the interpreter as well as inadequate linguistic and interpreting expertise.

Conclusion Despite the law’s claim to ‘precision,’ language is imprecise (Gibbons 2003), misunderstandings are common even in monolingual situations and the potential for misunderstanding in bilingual situations is much greater. Legal systems have failed to recognize the complexities of court interpreting, and have been content to ‘make do’ with the less than adequate interpreting services provided by unqualified bilinguals. Such bilinguals, however, are often subject to unrealistic expectations, criticized for their failings, overworked and underpaid or even unpaid. The inadequate performance of these bilingual helpers has at best led to appeals on the grounds of poor interpretation, and at worst to wrongful convictions. If justice is to be served, things need to change. Firstly, the system must acknowledge that highly competent court interpreters are crucial for the successful conduct of bilingual proceedings and secondly, it must be prepared to pay for a quality service. On the one hand, the demand for trained, competent interpreters will lead to the creation of high-​quality university programs. On the other, incentives such as adequate remuneration, decent working conditions and due recognition will lead to high-​level bilinguals choosing to complete the relevant training to enter the profession. Interpreters who receive adequate training will be educated not only on linguistic, cultural and interpreting issues, but also on the discourse practices of the courtroom and the requirements of the setting and its participants. Similarly, legal professionals must be educated about what conditions and facilities interpreters need in order to perform adequately, with all participants assuming some of the responsibility for the success of the interaction. Ultimately, legal professionals need to work together with interpreters and recognize them as expert participants, rather than ‘mere’ translating machines. Only when the bar is raised on court interpreters, will quality services be guaranteed and justice served.

Note 1 The Critical Link international conference series is dedicated to interpreting in legal, medical and welfare settings. CL5 was held in Sydney, Australia, from 11 to 15 April 2007. Its theme was ‘Quality in interpreting: A shared responsibility.’

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Further reading Berk-​Seligson, S. (1990/​2002) The Bilingual Courtroom: Court Interpreters in the Judicial Process, Chicago: Chicago University Press. (This book reports the first and one of the largest data-​based studies into court interpreting in the U.S.A.) Cook, M., Eades, D. and Hale, S. (eds) (1999) ‘Special issue on legal interpreting’, Forensic Linguistics, 6(1). (This special issue of Forensic Linguistics provides a compilation of research papers on different aspects of legal interpreting covering a wide range of topics from different perspectives.) Judicial Council for Cultural Diversity (2017) Recommended Standards for Working with Interpreters in Courts and Tribunals https://​jccd.org.au/​wp-​content/​uploads/​2018/​02/​JCCD-​Interpreter-​ Standards.pdf (accessed 22 July 2020). (This is a resource for interpreters and legal practitioners on best practice in working with interpreters in courts and tribunals.) Hale, S. et  al. (2018) ‘Interpreter performance in police interviews. Differences between trained professional interpreters and untrained bilinguals’, The Interpreter and Translator Trainer, 13(2): 1–​25. (This article presents the results of a large experimental study that shows statistically significant differences in the performance of trained professional interpreters and untrained bilinguals). Hale, S. (2004) The Discourse of Court Interpreting, Amsterdam and Philadelphia, PA:  John Benjamins. (This book reports the results of one of the largest data-​based studies into court interpreting in Australia looking at the discourse practices of interpreters, lawyers and witnesses in fine detail.) Mikkelson, H. (2000) Introduction to Court Interpreting, Manchester: St Jerome. (This is a useful introduction to court interpreting for those wanting to know more about the discipline or wanting to become court interpreters.) Russell, D. and Hale, S. (eds) (2008) Interpreting in Legal Settings, Washington, D.C.:  Gallaudet University Press. (This is an edited volume of articles on spoken and signed language court interpreting from around the world.)

References Ahmad, M.I. (2007) ‘Interpreting communities: Lawyering across language difference’, UCLA Law Review, 54(5): 999–​1086. Allimant, A. and Anne, S. (2008) ‘No room…Homelessness and the experiences of women of non-​ English speaking backgrounds’, 5th National Homelessness Conference, Adelaide, Australia. Angermeyer, P.S. (2005) ‘Is “you”? Polite forms of address and ambiguous participant roles in court interpreting’, Target, 17: 203–​226. Austin, J. (1962) How to Do Things with Words, Oxford: Oxford University Press. Berk-​Seligson, S. (1990/​2002) The Bilingual Courtroom. Court Interpreters in the Judicial Process, Chicago: The University of Chicago Press. —​—​—​(2000) ‘Interpreting for the police: Issues in pre-​trial phases of the judicial process’, Forensic Linguistics, 7: 212–​237. —​—​—​(2008) ‘Judicial systems in contact. Access to justice and the right to interpreting/​translating services among the Quichua of Ecuador’, Interpreting, 10: 9–​33. Christensen, T.P. (2008) ‘Judges’ deviations from norm-​based direct speech in court’, Interpreting, 10: 99–​127. Cooke, M. (2009) ‘Interpreter ethics versus customary law:  Quality and compromise in Aboriginal languages interpreting’, in S. Hale and U. Ozolins (eds), Critical Link 5. Quality in Interpreting: A Shared Responsibility, Amsterdam and Philadelphia: John Benjamins Publishing Company,  85–​97. Danet, B. and Bogoch, B. (1980) ‘Fixed fight or free for all? An empirical study of combativeness in the adversary system of justice’, British Journal of Law and Society, 7: 36–​60. Del Pozo Triviño, M. and Toledano-​Buendía, C. (2016) ‘Training interpreters to work with foreign gender violence victims in police and court settings’, Language and Law /​Linguagem e Direito, 3(2): 192–​203. Drew, P. and Heritage, J. (eds) (1992) Talk at Work. Interaction in Institutional Settings, Cambridge: University of Cambridge Press. 499

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Filipovic, L. (2007) ‘Language as a witness: Insights from cognitive linguistics’, The International Journal of Speech, Language and the Law, 14: 245–​267. Fraser, B. and Freedgood, L. (1999) ‘Interpreter alterations to pragmatic features in trial testimony’, paper presented at the annual meeting of the American Association for Applied Linguistics (21, Stanford, CT, 6–​9 March 1999). Giambruno, C. (2008) ‘The role of the interpreter in the governance of sixteenth-​and seventeenth-​ century Spanish colonies in the “New World”’, in C. Valero Garcés and A. Martin (eds), Crossing Borders in Community Interpreting. Definitions and Dilemmas, Amsterdam and Philadelphia: John Benjamins Publishing Company, 27–​50. Gibbons, J. (2003) Forensic Linguistics, Malden and Oxford: Blackwell. Hale, S. (1996) ‘Pragmatic considerations in court interpreting’, Australian Review of Applied Linguistics, 19: 61–​72. —​—​—​(1999) ‘The interpreter’s treatment of discourse markers in courtroom questions’, Forensic Linguistics. The International Journal of Speech, Language and the Law, 6: 57–​82. —​—​—​(2001) ‘How are courtroom questions interpreted? An analysis of Spanish interpreters’ practices’, in I. Mason (ed.), Triadic Exchanges. Studies in Dialogue Interpreting, Manchester: St. Jerome, 21–​50. —​—​—​(2003) ‘ “Excuse me, the interpreter wants to speak” –​Interpreter interruptions in the courtroom: why do interpreters interrupt and what are the consequences?’, Proceedings of the Third Critical Link Conference, Montreal, May 2001 https://​criticallink.org/​wp-​content/​uploads/​2020/​ 04/​CL3_​Hale.pdf (accessed 23 July 2020). —​—​—​ (2004) The Discourse of Court Interpreting. Discourse Practices of the Law, the Witness and the Interpreter, Amsterdam and Philadelphia: John Benjamins. —​—​—​ (2007) Community Interpreting, Basingstoke: Palgrave Macmillan. —​—​—​ (2011) Interpreter Policies, Practices and Protocols in Australian Courts and Tribunals. a National Survey. Melbourne: Australian Institute of Judicial Administration, 1–​79. —​—​—​(2019) ‘Specialist legal interpreters for a fairer justice system’, in S. Faiq (ed.), Discourse in Translation, Oxford and New York: Routledge, 47–​66. Hale, S. and Campbell, S. (2002) ‘The interaction between text difficulty and translation accuracy’, Babel, 48: 14–​33. Hale, S., Garcia, I., Hlavac, J., Kim, M., Lai, M., Turner, B. and Slatyer, H. (2012) Improvements to NAATI Testing: Development of a Conceptual Overview for a New Model for NAATI Standards, Testing and Assessment, Sydney www.naati.com.au/​wp-​content/​uploads/​2020/​01/​Improvements-​ to-​NAATI-​Testing.pdf (accessed 21 July 2020). Hale, S., Goodman-​Delahunty, J. and Martschuk, N. (2018) ‘Interpreter performance in police interviews. Differences between trained professional interpreters and untrained bilinguals’, The Interpreter and Translator Trainer, 13(2): 107–​131. Hale, S. and Liddicoat, A. (2015) ‘The meaning of accuracy and culture, and the rise of the machine in interpreting and translation. A conversation between Sandra Hale and Anthony Liddicoat’, Cultus: The Journal of Intercultural Mediation and Communication, 2015(8): 14–​26. Harris, S. (1984) ‘Questions as a mode of control in magistrates’ courts’, International Journal of the Sociology of Language, 49: 5–​27. Hertog, E., Corsellis, A., Rasmussen K.W., Van Den Bosch, Y., Van Der Vlis, E. and Keijzer-​ Lambooy, H. (2007) ‘From Aequitas to Aequalitas. Establishing standards in legal interpreting and translation in the European Union’, in C. Wadensjö, B. Englund Dimitrova and A.-​L. Nilsson (eds), The Critical Link 4, Amsterdam and Philadelphia:  John Benjamins Publishing Company, 151–​165. Hlavac, J. (2013) ‘A cross-​national overview of translator and interpreter certification procedures’, Translation & Interpreting, 5(1): 32–​65. House, J. (1977) A Model of Translation Quality Assessment, Tubingen: Gunter Narr Verlag. Ibrahim, Z. (2007) ‘The interpreter as advocate. Malaysian court interpreting as a case in point’, in C. Wadensjö, B. Englund Dimitrova and A.-​L. Nilsson (eds), The Critical Link 4. Professionalisation of Interpreting in the Community, Amsterdam and Philadelphia:  John Benjamins Publishing Company, 205–​213. Judicial Council for Cultural Diversity (2017) Recommended Standards for Working with Interpreters in Courts and Tribunals https://​jccd.org.au/​wp-​content/​uploads/​2018/​02/​JCCD-​Interpreter-​ Standards.pdf (accessed 22 July 2020). 500

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Kadric, M. (2000) ‘Interpreting in the Austrian courtroom’, in R. Roberts, S. Carr, D. Abraham and A. Dufour (eds), The Critical Link 2:  Interpreters in the Community, Amsterdam and Philadelphia: John Benjamins, 153–​164. Kolb, W. and Pöchhacker, F. (2008) ‘Stories retold: Interpreting in asylum appeal hearings’, in D. Russell and S. Hale (eds), Interpreting in Legal Settings, Washington, D.C.: Gallaudet University Press,  26–​50. Krouglov, A. (1999) ‘Police interpreting. Politeness and sociocultural context’, The Translator, 5: 285–​302. Lee, J. (2009a) ‘Interpreting inexplicit language during courtroom examination’, Applied Linguistics, 30: 93–​114. —​ —​ —​(2009b) ‘Conflicting views on court interpreting examined through surveys of legal professionals and court interpreters’, Interpreting,11(1): 35–​56. Lin, J.W. (2006) ‘Time in a language without tense:  The case of Chinese’, Journal of Semantics, 23: 1–​53. Loftus, E. (1979) Eyewitness Testimony, Cambridge, MA: Harvard University Press. Maley, Y. and Fahey, R. (1991) ‘Presenting the evidence:  constructions of reality in court’, International Journal for the Semiotics of Law, V: 3–​17. Mason, I. and Stewart, M. (2001) ‘Interactional pragmatics, face and the dialogue interpreter’, in I. Mason (ed.), Triadic Exchanges. Studies in Dialogue Interpreting, Manchester:  St Jerome,  51–​70. McMillan, J. (2019) ‘Traps for bilingual solicitors: Working with culturally and linguistically diverse clients’, Law Society Journal of New South Wales, 54 (April): 90. Mir, M. (1993) ‘Direct requests can also be polite’, 7th Annual International Pragmatics Conference, University of Illinois. Morris, R. (2008) ‘Missing stitches. An overview of judicial attitudes to interlingual interpreting in the criminal justice systems of Canada and Israel’, Interpreting, 10: 34–​64. NAATI The National Accreditation Authority for Translators and Interpreters www.naati.com.au/​ certification/​the-​certification-​system/​ (accessed 21 July 2020). Nord, C. (1997) Translating as a Purposeful Activity. Functionalist Approaches Explained, Manchester: St Jerome. NSWLRC (2004) Blind or Deaf Jurors, New South Wales Law Reform Commission. O’Barr, W.M. (1982) Linguistic Evidence. Language, Power, and Strategy in the Courtroom, New York: Academic Press. Ortega-​Herráez, J.M. and Foulquié Rubio, A.I. (2008) ‘Interpreting in police settings in Spain. Service providers’ and interpreters’ perspectives’, in C. Valero Garcés and A. Martin (eds), Crossing Borders in Community Interpreting. Definitions and Dilemmas, Amsterdam and Philadelphia: John Benjamins Publishing Company, 123–​146. Pérez González, L. (2006) ‘Interpreting strategic recontextualization cues in the courtroom: Corpus-​ based insights into the pragmatic force of non-​restrictive relative clauses’, Journal of Pragmatics, 38: 390–​417. Pöllabauer, S. (2004) ‘Interpreting in asylum hearings:  Issues of role, responsibility and power’, Interpreting, 6: 143–​180. Rigney, A. (1999) ‘Questioning in interpreted testimony’, Forensic Linguistics, 6: 83–​108. Roberts-​Smith, L. (2009) ‘Forensic Interpreting  –​Trial and Error’, in S. Hale and U. Ozolins (eds), Critical Link 5.  Quality in Interpreting:  A Shared Responsibility, Amsterdam and Philadelphia: John Benjamins Publishing Company, 13–​35. Searle, J.R. (1975) ‘Indirect speech acts’, in J. Cole and J. Morgan (eds), Syntax and Semantics, Volume 3: Speech Acts, New York: Academic Press, 59–​82. Slobin, D.I. (1996) ‘Two ways to travel:  Verbs of motion in English and Spanish’, in M. Shibatani and A. Thompson (eds), Grammatical Constructions. Their Form and Meaning, Oxford: Clarendon Press. Stern, L. et al. (2015) ‘Inefficiencies of court administration despite participants’ goodwill’, Journal of Judicial Administration, 25(2): 76–​95. Todd, R. (2008) ‘Court interpreters inadequate?’, Law Times, 21 April www.lawtimesnews.com/​ news/​general/​court-​interpreters-​inadequate/​258591 (accessed 21 April 2008).

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31 Interpreting outside the courtroom ‘A shattered mirror?’ Interpreting in law enforcement contexts outside the courtroom Krzysztof Kredens, Eloísa Monteoliva-​García and Ruth Morris

Introduction Globalization has brought ever larger numbers of people to places where the local legal systems were not used to dealing with speakers of other languages, or if they were, with only a small linguistic range. Inevitably, non-​proficient or ‘second-​language’ speakers become involved in law enforcement practices, whether as victims, witnesses or suspects. In order to ensure equal access to justice, decision-​makers in a rapidly growing number of countries must nowadays find ways of coping with the resulting increased linguistic diversity at all stages of the judicial process. Given the nature of courtroom language, with its highly structured discourse, competing narratives and speech styles, court interpreting is often regarded as the most important sub-​domain of legal interpreting (see Hale, Chapter  30, this volume). It is certainly the most researched sub-​domain, being the subject of more than half of the publications on interpreting in legal and law enforcement settings between 2008 and 2017 (Monteoliva-​García 2018). However, in the context of forensic linguistics, no less relevant are issues of interpreter-​mediated communication in other legal and forensic contexts; this chapter is devoted to just such issues. In the law enforcement chain that begins with a crime, interpreters for second-​language speakers, whether they be suspects, victims or witnesses, can be an all-​important link. Unless the highest standards are maintained at all stages, problems may result further down the line, at trial or at a subsequent appeal. In what follows we discuss interpreting at five stages of the judicial process:  initial contact, police interviews, client–​ lawyer interactions, probation meetings and prison visits. These different stages do not necessarily pose different kinds of linguistic problems. Rather, they can each be associated with certain consequences (1) for the interpreter, who may be subjected to various sources of pressure and often forced to take on unexpected roles, (2) for the second-​language speaker, who will be variously disadvantaged depending on the context, and, finally, (3)  for the administration of justice.

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Emergency interpreting A second-​language speaker’s experience of law enforcement may begin with an emergency call to the police. In the UK, when a caller is deemed to have limited proficiency in English, the police service operator uses a telephone interpreting service, such as Language Line, which claims on its website to be able to provide 24-​hour access to interpreters working in over 240 languages (www.languageline.co.uk). In New York the NYPD Language Access Plan1 (revised in August 2018) includes telephone interpreting provision, interpreting in the field and interpreting at police facilities, and Language Line has been the contractor for telephone interpreting services there since July 2005. The programme was originally piloted in 2004 in some of the city’s most ethnically diverse communities. Police officers were equipped with cellular and dual-​handset speaker phones which had direct, instant access to interpreters of over 180 languages, in order to better assist immigrant victims of domestic violence. By 2018 there were ten designated or baseline languages citywide: Arabic, Bengali, Chinese, French, Haitian Creole, Korean, Polish, Russian, Spanish and Urdu. Among the services included in the NYPD Language Access Plan is in-​house interpreting for 911 callers, provided primarily by bilingual Spanish-​speaking operators. Telephone-​based and videoconference interpreting, while a most welcome development, are not without problems (Napier, Skinner and Turner 2017), most of which have to do with the absence of the non-​verbal cues that normally facilitate turn-​taking and also enable the interpreter to make decisions about pragmatic aspects of the message. The interpreter is disadvantaged also because, as Moser-​Mercer (2003) writes, ‘the coordination of image and sound, the piecing together of a reality far away and the concomitant feeling of lack of control, all draw on mental resources already overcommitted in this highly complex skill’ (http://​aiic.net/​ViewPage.cfm/​article879). This coincides with the outcomes of an experimental study on videoconference interpreting conducted by Braun (2014). Additionally, individuals requiring police assistance are often emotionally distressed. In such cases the interpreter may actually have to intervene by taking over, whether explicitly or implicitly, the task of assuaging the caller’s agitation in order to be able to obtain relevant information. The need for what can be termed ‘emergency interpreting’ may arise in situations where the police respond to an emergency call by arriving at the location only to find that they are unable to communicate with the individuals concerned. This problem is well illustrated by the case of Robert Dziekański, a Polish man who died after being tasered by officers of the Royal Canadian Mounted Police at Vancouver Airport in October 2007. Although his death seems to have been triggered by a combination of factors including a delayed flight, failure by airport staff to locate Dziekański following a request from his mother, who was waiting for him in the arrivals hall, and his disorientation following a prolonged period in a confusing environment (he had never flown before), the most important factor was probably his inability to communicate in English. After he left the immigration waiting area, some nine hours after his arrival, he became agitated and apparently in an attempt to attract attention, threw a computer monitor onto the floor and overturned a table. When the police officers arrived, they were unable to establish communication and, finding his behaviour threatening, tasered him five times, following which he died on the scene. The police officers had also been erroneously advised by bystanders that Dziekański spoke Russian, which –​though ultimately unrelated to what followed –​illustrates a further problem integral to emergency situations. A crucial, but

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often overlooked, factor is the proper identification of the specific language spoken by the individual with whom the police need to communicate, and/​or even the need to provide an interpreter or other effective means of communication with witness, victim or suspect. Widespread assumptions –​such as that most people from Eastern Europe can speak Russian, or that people from India or Pakistan can all understand each other through a common language, be it Urdu or Hindi, or that everyone from South America speaks Spanish –​can result in miscarriages of justice (see the Iqbal Begum case below). As made all too clear by the Dziekański case, unless an appropriate medium is chosen in a specific instance, communication may be defective at best or non-​existent at worst. When access to a reliable telephone interpreting service is unavailable, modern technology can offer a number of stopgap methods of communication. With the widespread availability of text-​to-​text Google Translate and its in-​development video features, ways of addressing communication needs in real time are improving. Smartphones can enable Deaf sign-​language users to communicate via a remote interpreting service. However, ‘translation apps’ are far from perfect and their use in pre-​trial legal contexts requires careful consideration but, accompanied by the arguably universal semiotics of the police uniform, they may be effective in identifying the initial circumstances and telling those involved that they are being taken to the police station, where a ‘live’ interpreter will join them. Where the language spoken by a suspect can be correctly identified, remote mobile telephony can normally provide on-​the-​spot interpreting at the moment of arrest.

The police interview Article 6 of the European Convention on Human Rights, which addresses the right to a fair trial, stipulates in its section 3(1) that everyone charged with a criminal offence has the right to be informed promptly, ‘in a language which he understands [emphasis added] and in detail’, of the nature and cause of the accusation against him. Article 14.3(a) of the International Covenant on Civil and Political Rights uses almost identical language. In the European Union, a number of promising legislative instruments were passed between 2010 and 2013, including Directive 2010/​64/​EU on the right to interpretation and translation in criminal proceedings from the moment a person is made aware that they are suspected or accused of having committed a criminal offence until the conclusion of the proceedings. Article 2(1) of the Directive provides that: Member States shall ensure that suspected or accused persons who do not speak or understand the language of the criminal proceedings concerned are provided, without delay, with interpretation during criminal proceedings before investigative and judicial authorities, including during police questioning, all court hearings and any necessary interim hearings. [emphasis added] The Article acknowledges the range of grounds that may make interpreting necessary and the prompt provision of interpreting throughout the process. Quality of translation and interpreting services are referred to in Article 4, and Article 5 establishes that Member States shall endeavour to establish a register of appropriately qualified translators and interpreters. Apart from Directive 2010/​ 64/​ EU, three other directives are significant for legal interpreting. These are Directive 2012/​13/​EU on the right to information in criminal proceedings; Directive 2012/​29/​EU establishing minimum standards on the rights, support 504

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and protection of victims of crime, and replacing Council Framework Decision 2201/​220/​ JHA; and Directive 2013/​48/​EU. Blasco Mayor and del Pozo Triviño (2015) provide a thorough overview of these directives and their significance for interpreting and communication in legal proceedings. Police practice when dealing with second-​language speakers varies greatly worldwide. For example, in Britain and Australia police forces normally work with outside interpreters from the interview stage onwards. In the United States, where the vast majority of cases involve Spanish, standard practice is for the police to try to manage with the linguistic skills of their own officers, to recruit bilingual personnel and provide them with interpreter training, or to deploy bilingual personnel in areas where second-​language speakers are particularly numerous. The relevant recommendations are comprehensive and map out highly detailed plans to assess language needs and implement language access plans, including initiatives to train personnel on language access policies.2 Whereas measures such as deploying bilingual officers in areas with a large second-​language population and having bilingual personnel within the institution can improve community–​police relationships and initial language provision, risks related to conflicting roles of officers acting as interpreters still exist, and more research is needed to examine quality assurance issues. When an officer conducts the interview and another acts as ‘interpreter’, problems abound, as Berk-​Seligson (2000, 2009) shows in a review of appellate cases from 1965 to 1999 drawn from three states –​California, Florida and New York. In particular, she identifies the absence of clear-​cut demarcations between certain sorts of legal actors and others, such as court interpreters, community interpreters and police interpreters. Where the police employ an incompetent interpreter, there will inevitably be major pitfalls, such as violation of the right to waiving Miranda rights knowingly or voluntarily when the rights are delivered by an officer acting as an interpreter, or when the translations of interview transcripts are conducted by officers in their dual role as police officers and translators. The delivery and interpretation of the police caution has been the focus of numerous studies (Berk-​Seligson 2002; Ikane 2007; Vernon and Coley 1978). Writing about the delivery of the caution through interpreting with special reference to Japanese native-​ speaker suspects in the Australian criminal investigation system, Nakane (2007) identifies a number of factors which may lead to difficulties in communicating the suspect’s rights in police interviews: (1) rendering an originally written legal text in face-​to-​face speech mode; (2)  the degree to which the illocutionary force and the legal implications of the caution can be maintained in the translation; (3) the interpreter’s understanding of the meaning and legal implications of the cautions; (4) the dynamics of interpreter-​mediated interaction; (5) the degree to which cultural or institutional gaps are to be bridged by the interpreter; and (6) the interpreter’s professional competence. Nakane reports that both Shuy (1997) and Gibbons (2001) argue that, in some cases they had worked on, there was some evidence that the suspects tended to say ‘Yes’ to the comprehension check question when they actually had little understanding of the cautions, a phenomenon Liberman (1981, in Eades 1994)  has called ‘gratuitous concurrence’. Nakane quotes a passage that illustrates this point to perfection. Taken from Coldrey (1987:  84–​85, cited in Gibbons 2003:  209), the material graphically illustrates the problems involved with cautioning an Aboriginal man, who is ostensibly an English speaker and hence no interpreter is involved in the exchange.

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(1) P: Right. Now I want to ask you some questions about the trouble out there but I want you to understand that you don’t have to answer any questions at all. Do you understand that? W: Yes. P: Do you have to tell me that story? W: Yes. P: Do you have to though? W: Yes. P: Do you, am I making you tell me the story? W: Yes. P: Or are you telling me because you want to? W: Yes. The exchange in (1)  makes it clear that the problem lies with the suspect’s inability to understand the questions he is being asked by the police officer, who is trying hard to convey the intent of the cautions. This raises the question to what extent would a competent, trained, experienced interpreter have been able to overcome these problems, which fall in part under Nakane’s category (5), the degree to which cultural or institutional gaps are to be bridged by the interpreter. As is clear from Nakane’s paper, and as Hale (Chapter 30, this volume) also makes clear in her chapter on court interpreting, even high-​level proficiency in the languages concerned combined with two-​way interpreting skills does not necessarily guarantee the provision of high-​calibre communication in the legal system. Interviewing mechanics can clash with the cognitive and interactional demands of interpreting (Wadensjö 1998). Lack of awareness of interviewing techniques among interpreters and the strategic use of some discourse features can lead to misinterpretations of interviewers’ input such as e.g. silent pauses (Nakane 2011) and reformulations (Nakane 2014; Monteoliva-​ García 2017). At the same time, some interviewing techniques, e.g. the promotion of free uninterrupted flow to enhance recall in witness interviews, are difficult to maintain in an interpreted interview, where interruptions in the narrative flow are unavoidable in the consecutive mode (Böser 2013; Heydon and Lai 2013). In his study of authentic audio-​recorded interpreted interviews with Portuguese and Italian suspects in England and Wales, Gallai (2013) shows how footing shifts in the interpreter’s role can disrupt rapport-​building efforts by interviewers. Lai and Mulayim (2013) also show that whereas professional interpreters translated TED (Tell/​Explain/​Describe) questions accurately, they had difficulties maintaining the less accusatory How come? questions recommended by the 2004 New Zealand Police Guidelines (Mulayim et al. 2014: 25), thus introducing a more accusatory wording in the versions that interviewees received. However, interpreter training improves quality (Hale et al. 2018) as does training for police officers in how to work with interpreters (Perez and Wilson 2007). In specific types of interviews specialised knowledge of the particular demands and risks of police procedure are of the utmost importance, as in the case of investigative interviews with minors (Balogh and Salaets 2015) and with victims of domestic violence (Toledano and Del Pozo Triviño 2015; Tipton 2017). Böser and LaRooy (2018) propose adaptations of child interviewing protocols for interpreter-​mediated child interviews, which are multiparty and highly sensitive, including a protocol to allow time for the interpreter to establish contact with the child before the interview and a clear protocol to establish conversational rules. 506

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A number of extralinguistic aspects of the various speech events, some of them not directly related to the interpreting itself, play a role in determining the quality, and hence effectiveness, of interpreting. In her survey-​based study with police officers and interpreters, Mayfield (2016) shows how a lack of awareness of the effect of interpreting upon the interaction prevails among English police officers. Bilingual competencies among interpreting users can also have an impact on quality. This can refer to the interviewee, such as in Gallai (2013) and Monteoliva-​García (2017a, 2017b), as well as to language transparency among interpreters if more than one is present (Kredens 2017). When interviewers have some knowledge of the language used by interviewees and interpreters, this can lead to confusion regarding the language regime and the interpreter’s role. In his above-​mentioned study of interpreter-​mediated police interviews with English-​ Portuguese and English-​Italian suspects, Gallai (2013) reports on an interview in which the interpreter was observed interrupting, overlapping, shifting footing inconsistently and omitting information in order to try to establish whether the suspect should speak English and only resort to the interpreter occasionally, or should stick to speaking Italian. Excerpt (2), turns 13–​27, is reproduced below. In the preceding sequences the interpreter (I) had informed the police interviewer (P) that Antonio (A) spoke some English and suggested a potential solution: (2) 13

P

14

A

15 16 17 18

P A P A

19

P

20

I

21 22 23 24 25 26 27

A I P P I P I

I’m just [I’m just wonde]ring er would it be:: is it easier for you to speak in Italian (.) and then we we don’t get mixed up? [(find the) word] sometime you know why? because er:: I have the habit to:: speak er half and half Right And sometime I confuse but… Right Sometime I feel like I want to:: speak English and sometime in Italian (.) when I: don’t (.) I really don’t know (.) English words (.) I find it (using) to: speak Italian To speak Italian alright (.) I’m just wondering whether while we’re here whether it’s easier to speak in Italian Tutto il [tempo Lei intende] no? vuol parlare sempre in italiano (.) e io traduco e così… All the [time she means] right? would you mind speaking Italian all the time (.) and I translate so… [yeah yeah yeah yeah] okay Because otherwise it gets a little bit complicated [Ye]ah [E-​] e-​exactly and er… Yeah We can understand that (.) so like misunderstandings can arise Yes

What the interpreter proposed is the so-​called stand-​by mode of interpreting (see e.g. Angermeyer 2008:  390). In this mode, the primary participants speak their ‘shared’ language and the interpreter is on stand-​by, interpreting intermittently when the need

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emerges. Whereas this mode acknowledges the range of resources some participants can bring with them to the interaction, it can lead to injustices if imposed at times selected by the institutional users, as shown in the studies on court interpreting by Nakane (2010) set in Japanese courts and Du (2015), whose study focuses on a bilingual hearing in South China. In both studies, the judges’ assumptions on language proficiency, the degree of proficiency required and lack of attention to a complex linguistic make-​up resulted in injustice. In Du’s (2015) study, the defendant’s mother tongue was Hakka, a dialect, and the hearing was adjudicated in Putonghua, which is considered the national standardised spoken language. Whereas interpretation of the defendant’s utterances into Putonghua was requested, the interpreters were not required to interpret utterances in Putonghua into Hakka. A study by Monteoliva-​García (2017, 2020) explored video-​recorded police interviews with suspects using stand-​by interpreting. In the interviews, all participants shared the responsibility of initiating interpreter participation, including the interpreter herself, following different cues and criteria. The interpreter reacted when miscomprehension or lexical deficits were observable, whether in the body language or in verbal actions by the suspects, who sought interpreter participation to address production deficits. Police officers, too, prompted the interpreter when they observed miscomprehension, and routinely in the most formal phases, including the delivery of the caution. The example below (Monteoliva-​García 2017a: 212) shows the interpreter (right column) reacting to a gaze shift and a prompt by the detainee (middle column) and the detainee responding directly in English to the interviewer (left column): (3) Interview 1. Questioning Phase [00:24:05-​00:24:20]. Unit 564. 565. 566.

567.→ 568.

POLICE OFFICER(S) So, for drugs OR for your clothes. ((nodding: ºOkayº)), okay. ((/docs)) ((/dp1)) When was the last time you wrapped up drugs with this thread? [((/int, /dp1)) [((/int, /dp1))

569. 570. 571.

((nodding: Two days ago.))

DETAINED PERSON 1

INTERPRETER

Yeah, I-

((/int: Mmh?)) [((/po1)) [((/po1))

Two days ago.

¿Cuándo fue la última vez [que envolviste drogas [con esa::: eh hilo? When was the last time [that you wrapped up drugs [with tha::t erm thread?

Hm.

As shown above, this under-​researched and ‘atypical’ format changes the demands of interpreting not only regarding the stand-​by mode of the interpreter and the interactional dynamics, but noticeably because one of the main tasks of the interpreter on stand-​by becomes monitoring the communication process. Another emergent and atypical interpreting mode that results from language transparency is ‘adversarial interpreting’ (Kredens 2017). This label applies to contexts in which two interpreters, often sourced by opposing parties in a case, participate in an interpreter-​ mediated encounter. Drawing on interview transcripts and surveys with interpreters, Kredens (2017) observes that, as in stand-​by interpreting, monitoring becomes a highly 508

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salient task. The interpreter who is not institutionally ratified monitors and/​or challenges the other interpreter’s output. This monitoring/​challenging task can improve accuracy through corrections and by offering support, but it can also have a negative impact upon interpreters’ self-​perception and, if used as a tactical mechanism to identify fault, it can affect the monitored interpreter’s performance and credibility, as well as interpreting quality. This resonates with Ng’s (2013) study of what she labels the ‘atypical bilingual courtroom’, where jurors, lawyers and other participants with bilingual skills are able to monitor and indeed challenge the interpreters’ output and change the interpreting dynamics. With regard to police officers’ views on interpreting, Gibbons (2001: 443) reports that in New South Wales the police were found to be reluctant to use interpreters, for a number of reasons, including delay, financial considerations and the perceived negative effects of interpreter mediation (impeding police officers’ reading of non-​verbal signals and the suspect’s gaining of extra time to answer questions). Gibbons identifies past ‘gross under-​ use’ of interpreters by NSW Police. A new version of the force’s Code of Practice was subsequently produced on the basis of input from a range of people, including Gibbons. It reads: ‘Use an interpreter when someone cannot understand and speak the English language well enough to enable them to fully understand and fully reply to questions. If in doubt, get an interpreter.’ (Gibbons 2001: 444, emphasis added for this chapter.) Gibbons further makes the point that even apparently clear-​cut instructions, for example on how to question suspects, often fail because they lack explicitness. Clearly this was the case in Beck v. Sager (1979), where even the defendant failed to realize that he did not understand the whole purpose of the police procedure. The point is that communication is a continuum from unattainable perfection to total non-​communication. As the final NSW Police Code of Practice cautions: ‘Do not presume that people understand even the most simple [sic] questions’. This means that even the most competent interpreter cannot necessarily overcome a lack of comprehension on the part of the suspect. Gibbons makes the point that yes/​no questions are not a good way of checking comprehension. In fact, he argues that encouraging narrative accounts of a sequence of events when interviewing (rather than ‘interrogating’) suspects is more likely to prove effective (Gibbons 2001: 446). Gibbons also suggested to the New South Wales Police that the new Code of Practice include a reference to the new NSW Procedures for Evidence Act, which is far more comprehensive and considerably more explicit. With regard to criteria for using an interpreter, the latter reads: Use an interpreter if the person (suspect or witness) you are interviewing: is unable to communicate in English; has a limited understanding of English; is more comfortable communicating in their own language. NB: Just because someone can speak English to do everyday tasks does not mean they can cope with the added stress of a police interview. (Gibbons 2001: 445) As Russell (2000) shows, when the caution is being administered by English police officers, they are supposed to check that the second-​language speaker has understood its implications, by paraphrasing the caution and lowering the register. However, as she points out, the catch is that the police, being untrained in linguistics, are often unable to make the switch from the ‘legal’ caution to the ‘in your own words’ version. As a result, as Russell says, ‘the burden for lowering the register falls squarely, if not fairly, upon 509

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the interpreter’. The drawback, of course, is that interpreters manage this with varying degrees of success, depending, of course, upon their competence and experience, but also upon their own understanding of the caution, particularly as many interpreters are simply native speakers of their language and are as untrained as the officers themselves (Russell 2000: 42–​43). The whole process is therefore fraught with dangers, as testified to by the number of cases in which the defence claims that the defendant failed to understand the administration of the caution or Miranda rights and expert witnesses testify on the issue (see Berk-​Seligson 2000). Even when, as Rock (2007) points out, the police have made other language versions of the caution available in written and sometimes spoken versions (2007: 145), firstly not all languages are covered, and secondly without the presence of an interpreter there is nobody to act as intermediary between the second-​language speaker and the duty officer in order to clarify implications and ask for rights to be enforced. The research-​informed Guidelines for Communicating Rights to Non-​ Native Speakers of English in Australia, England and Wales, and in the USA published by the Communication of Rights Group (2016) comprise a comprehensive set of recommendations related to the wording of rights and their communication to non-​ native speakers of English.

Sourcing interpreters Police forces have three main ways to source interpreters, if they do not have within-​force individuals able to act as interpreters. There may be a professional association of police interpreters, a register of qualified interpreters, either public or held by the police, or the provision of interpreters may be outsourced to an agency. In the Republic of Ireland, for example, the latter arrangement is applied to the entire police force, the Garda. An April 2009 article in the Irish Times reported a highly negative assessment of the interpreting services provided to the Irish police, which since January 2009 had been outsourced to agencies on the basis of tender. The resultant selection of interpreters was so poor that not only were their overseas criminal records not checked, but some reportedly lacked basic accreditation and language proficiency. To cap it all, a Chinese interpreter hired to assist in interviewing a suspect was found to be an illegal immigrant. Across the water, a decade later, the picture is just as gloomy. Outsourcing to private companies has become the norm in Britain throughout the criminal justice system, including the police. In the second decade of the 21st century, there has been a much-​criticized switch to the privatisation of public sector interpreting. The upshot is the awarding of a single interpreting contract to a commercial agency that supposedly can save the government vast sums of money. In practice, the result is that rates paid to interpreters drop, qualified competent interpreters refuse to work for agencies, and agencies preferentially use unqualified individuals. The upshot is a deterioration in the quality of interpreting. In a British parliamentary debate (March 11, 2009), the government representative stated: Police forces are outsourcing their requirement for interpreters as a pragmatic approach because they need to progress investigations. They have to get the balance right, to make sure that investigations are carried out fairly, with a high level of proof, and to make sure that people are not spending time in custody unnecessarily. We must all recognise that those issues are difficult to balance, while ensuring that we maintain the quality of interpreting. (Hansard, 11 March 2009: Column 136WH, online) 510

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As in the court system, as conditions worsen, fewer experienced interpreters are prepared to do police work, and good interpreters have boycotted the new system. The resulting shortfall is filled by people who have no interpreting qualifications and no interpreting experience and are simply speakers of the foreign language in question. Inevitably the quality of interpreting for the police is adversely affected.

Transcript issues So far, this chapter has focused on common law systems encountering second-​language speakers outside the courtroom. Komter (2002) explains how in Dutch trials, suspects are confronted with written versions of statements they made to the police and the investigating judge earlier in the criminal law process. These statements are supposed to be written down as far as possible in the suspect’s own words, but they are in fact the police officers’ written versions of what was said in the interview. They are simultaneously reports of previous talks held in the police interrogation room and part of the interaction in the courtroom, both of which are conducted for a different purpose. Thus, suspects are held accountable for what they supposedly told the police, and if they challenge the record, judges can rebut their protests by pointing out that they themselves had provided the information in question to the police. The implications where a third party, the interpreter, was present in the police interview room and where either the same or another interpreter subsequently mediated the courtroom interaction can be imagined. Since police interrogations are not usually audio-​or video-​recorded in the Netherlands, and because the records are made by the police themselves, Komter (2002) indicates, it is impossible to prove what the suspect actually said to the police at the time. A related problem exists in England, where  –​although interviews with suspects are routinely tape-​recorded –​only monolingual (English) transcripts of interpreter-​mediated interviews are prepared by the police and may have to be subsequently (back)translated into the second language for the benefit of the non-​English-​speaking suspect. This kind of document, normally sourced by the suspect’s lawyers, poses interesting strategic questions per se, but is fraught with problems when, as is commonly the case, the translator has no access to the original recordings and relies solely on the police transcript, which may in turn be inaccurate or incomplete. In such cases, due to the almost infinite number of linguistic permutations available, the back-​translated version in the suspect’s language is highly likely to differ, perhaps significantly, from the actual message that they uttered. If a second-​language speaker is confronted with what he supposedly said at a police interview, in a variation on ‘Chinese whispers’ it is highly likely that anything the interpreter in the second language produced will differ, and often significantly, from what was actually said at the police interview. The only way to avoid such issues is to insist on obtaining an acoustically clear tape recording of everything said in both, without any overlapping material and accompanied by an accurate transcript. The following transcribed and translated excerpt is from a videotape of the police questioning a mother in a baby abuse case (State of Delaware v. Lizbeth Rivera in Superior Court, New Castle County 2005): (4) Suspect:Que no lo, que no lo agarrara así, porque yo luego lo agarré por el bracito. No fue a propósito, pero, lo agarré por el bracito, y ella me dijo, ‘No lo agarres así que eso, esto, a lo mejor, tú agarrándolo así, tú le pudiste hacer eso, las…los…’ 511

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Literal translation:That I shouldn’t, that I shouldn’t grab him up like that, because then I did grab him up by his little arm. It wasn’t on purpose, but I picked him up by his little arm, and she said to me, ‘Don’t pick him up like that, since that, this, maybe you picking him up like that, you could do something to the, the…’ Interpreter:(Over suspect’s words) Don’t pick him up like that. So she yanked him by one arm. And she…Okay…This lady told her, saw her picking her up the baby up, and told her don’t, don’t pick the baby up like that. You’re going to hurt the baby like that. The interpreter (a police officer) uses the third person (she) instead of the first (I), completes an incomplete statement, changes intensity (from ‘grab’ to ‘yank’), changes a possibility into a certainty (‘could’ to ‘going to’), does not reproduce repetitions (agarrar is once rendered as ‘pick up’, once as ‘yank’), fails to render a diminutive (bracito is rendered as ‘arm’, not ‘little arm’), omits material (‘it wasn’t on purpose’), renders a pronoun (ella) as a noun (‘this lady’), renders something less specific (‘you could do something’) with a more specific formulation (‘you’re going to hurt the baby’), changes the order of phrases and modifies the wording (starts with ‘Don’t pick him up like that’, when this is in fact material towards the end of the suspect’s version). In sum, this is an unprofessional performance which in fact led to no charges being brought.

Lawyer–​client interaction The lawyer–​client consultation meeting is likely to pose fewer problems for the interpreter. The context is not as formal as that of the police interview and certainly more relaxed than emergency situations, prisons or probation offices, with the goals of the parties common rather than divergent. Most problematic seem to be the usual pitfalls of legal-​lay communication; as Gibbons (2003:  172) notes, ‘much lawyer-​client interaction is spent negotiating ways round this lack of shared [legal] knowledge’. Even more effort has to be expended when second-​language speakers are involved, because of the need to explain legal concepts that do not necessarily exist in the clients’ culture. Most second-​language speakers are unable to pay for legal representation and have to rely on state-​provided solutions. This has obvious consequences for power issues in lawyer–​client interactions. Additionally, because providing state-​sponsored legal aid is not as well remunerated as representing individuals of independent means, solicitors working with second-​language speakers may have limited financial resources, which in turn could have a negative impact on the quality of the interpreting. In England there is no requirement for solicitors to use accredited interpreters and as a result law firms may choose cost, as a primary consideration when sourcing interpreters, at the expense of quality. When it comes to the interaction between lawyers and interpreters, a revealing study by Foley (2006), who investigated perceptions of duty and partiality among the two professions, found that the two groups ‘have markedly different cultural notions as to who their client is (and whether duties are owed and to whom)’ (2006:  99). While the lawyers spoke of ‘a delicate balancing act’ between their duties to their client, to the court and to the profession, some of the interpreters rejected the notion of a ‘client’, and others said that even if they did have a client  –​be it the second-​language speaker, the court, the police or the lawyer –​they owed no duty to them in the sense that lawyers did. Ahmad (2007: 1002), a lawyer, sees the interpreter’s presence as ‘inject[ing] the subjectivity of a third person  –​her thoughts and feelings, attitudes and opinions, personality and 512

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perception –​into what previously had been the exclusive province of the lawyer and client’ and addresses his colleagues thus: Once we acknowledge the subjectivity that inheres in interpretation, we can move in one of two directions: either to squelch that subjectivity and attempt to force the interpreter back into the fictive box of technology; or to embrace the subjectivity, draw it out further, scrutinize it rigorously, and engage it dialogically. Most lawyers, and the legal system as a whole, attempt the former. I argue unambiguously for the latter. (Ahmad 2007: 1003) Baixauli-​Olmos (2017) reports on pre-​trial lawyer–​client encounters in prison settings and explains that they tend to be particularly complicated due to their more practical and confrontational nature, and that a high degree of stress and lack of will or ability to communicate can make these encounters particularly challenging. Finally, the difficulties faced by defendants working with lawyers are exemplified by the English case of Iqbal Begum. After Mrs Begum had been sentenced to life imprisonment for murdering her husband and had served some five years in prison, her conviction was appealed, on the grounds that she had pleaded guilty without understanding with what she was charged. In point of fact, it turned out that there had been no effective communication between her and her legal representatives from the very beginning, since she did not understand the individual engaged to interpret at the pre-​trial and trial stages. She had remained silent throughout the entire time that she was in custody, even in sessions with her legal representatives. In ruling that the trial had been a nullity, since no proper plea had been made, the appellate court observed that unless a person fully comprehends the charge which that person faces, the full implications of it and the ways in which a defence may be raised to it, and further is able to give full instructions to solicitor and counsel so that the court can be sure that that person has pleaded with a free and understanding mind, a proper plea has not been tendered to the court. (Iqbal Begum (1991) 93 Cr.App.R. 96 at 100)

Probation offices In many jurisdictions around the world, individuals convicted of a relatively minor crime may be placed under probation supervision and thereby avoid incarceration, provided that they complete a course of action intended as punishment and designed to prevent them from re-​offending. This may involve community service work, completion of a drug rehabilitation programme, finding a job or staying away from known criminals. Imposed by the court, such measures are enforced by probation officers, who meet their supervisees on a regular basis throughout the probation period. Particularly important is the first of such meetings, where conditions of the court order are explained and provisions made for them to be adhered to. At this early stage effective communication plays a particularly important role because, if the offender misunderstands the probation conditions and breaches the order, he or she may have to return to court and end up in prison after all. This is illustrated by the case of Alex Ramirez, a Mexican immigrant to the USA. On 13 April 2006, in the Superior Court of New Jersey, Ramirez, having pleaded guilty 513

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to violating probation, said in his defence that an important reason for the violation was his inability to communicate with his probation officer. It is sobering to read the judge’s response to Ramirez: Now, so let me understand this. Not only do we have to let him come into the country illegally and stay here, not only do we have to provide him with public assistance, not only do we have to provide him with free health care, not only do we have to provide him with a free attorney when he gets in trouble, now he wants a bilingual probation officer, because otherwise it’s inconvenient for him. (www.leagle.com/​decision/​infdco20120417b20) Probation supervision meetings are interesting from a linguistic point of view as they seem to occupy middle ground between legal and ‘lay’ language. The probation officer’s primary aim is determined by legal requirements, but to achieve it certain communicative goals have to be pursued with only limited use of specialised discourse. The institutional is thus combined with the interpersonal, a situation with potentially adverse effects for the judicially unversed offender: what seems like a friendly chat can in fact have serious legal repercussions. All this means that the interpreter must be sensitive to even the slightest changes in register and respond accordingly, because, when used in a legal context, certain lexical items take on new meanings. In England, when a police officer uses the verb ‘caution’ at the beginning of an interview with a suspect (‘I’m going to caution you now’), the most frequently encountered definition (‘warn or advise’) has little to do with the legal meaning of ‘formally inform one of one’s legal rights and consequences of one’s decision to withhold information from the interviewing police officers’. Another interesting aspect is the seemingly limitless semantic scope of the supervision interview. While interpreters can expect some legal terminology, the relatively unstructured nature of the interaction is conducive to the emergence of unexpected topics with their domain-​specific vocabulary. Fairly frequent are for example medical terms, whose accurate rendition is essential if the probation officer is to make a fully informed decision about the offender’s ability to perform certain actions. This can be illustrated with an example from a supervision meeting interpreted by one of the present authors. When the offender was asked a routine question about health issues claimed to be preventing him from undertaking community work at a building site, he answered with the story, complete with specialised medical vocabulary, of a meniscus cartilage tear he had suffered several years before. Another surprise afforded by probation supervision meetings may be the necessity to switch modes of interpreting. In many probation offices in the UK for example, prior to starting community service, offenders are asked to watch health-​and-​safety videos. Given the related temporal and technical constraints, simultaneous interpreting may then be the best option. Finally, sight translation –​that is delivery of a spoken version of a written text, provided on the spot without any preparation –​is routinely used when the content of a form filled in by probation officers with input from the supervisees needs to be relayed back to them.

Prisons Interpreting in prison settings is arguably the most underexplored topic in the literature, with few but notable exceptions. Baixauli-​Olmos (2013, 2017) and Martínez-​Gómez (2014, 2018) have explored interpreting in prison settings through different lenses, and 514

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documented the need for training, provision and professionalization in this domain. Apart from discussing the problems of interpreter-​mediated communication in correctional institutions in Brazil, Martínez-​Gómez (2014) provides a comprehensive overview of prison language policies and national legal instruments in 40 countries around the world. The study highlights the good practices existing in Australia and California, as well as in England and Wales, in particular because the systems rely primarily upon external interpreters rather than using inmates as interpreters, they have translated materials available in different languages and they require interpreters to meet a set of requirements, even if modest, to work in prison services. On the face of it, by the prison stage of the law enforcement chain, second-​language speakers, already familiar with the role of the interpreter, should cause few problems. Nevertheless, prolonged isolation in a linguistically alien environment often means that inmates treat interpreter-​mediated visits not only as a welcome change in the daily routine, but also as an opportunity to interact with someone of the same or similar cultural background (see also English, Chapter 29, this volume). Viewed as an ally, a confidant, the interpreter is then erroneously expected to take on roles outside of the professional remit (Morris 1999). An inmate may address him or her directly with questions regarding the latest news, or ask for a message to be passed on to someone outside. Linguistically, the problems are similar to those characteristic of probation supervision meetings, with the notable difference that inmates with long sentences gradually learn the language of the jurisdiction, including prison argot, which they may use when code-​switching. Not infrequently, they also attempt to ask or answer some of the questions themselves, still relying on the interpreter for more complex meanings and legal jargon. The spatial conditions of the prison domain and its functioning shape communication practices, including multilingual ones. Over the past decade, videoconference interpreting has made it possible to provide interpreting between the courtroom and correctional facilities (Braun and Taylor 2012; Fowler 2013) although, as mentioned above, not without risks. Baixuali-​Olmos (2013) explored the impact that contextual conditions have upon the prison interpreter’s role and communication. Drawing on input from interpreters, inmates, prison managers and workers from the USA, UK, Australia, Argentina and Spain, he identified prison interpreting as being largely shaped by tight security, spatial restrictions, time constraints and delay. Poor audio quality is another problematic issue he raised. There is no doubt that extralinguistic factors play a significantly greater role in the prison setting than elsewhere. The negative impact of the physical environment, the discomfort of the entry procedure, and contact with potentially dangerous individuals can all contribute to the interpreters’ increased stress levels (as can some aspects of the interaction itself) and, consequently, affect the quality of the job. Another relevant aspect of prison interpreting is its provision. The studies conducted to date reveal that, in most countries, interpreting is provided primarily by inmates or at times officers for inmates (Martínez-​Gómez 2014, 2015b). In some countries, training initiatives and a degree of organization are available for bilingual inmates. Baixauli-​Olmos (2013) observed that, whereas most interpreters who work in prisons provide interpreting in encounters of a legal nature, half of the inmates reported having interpreted in training and social services sessions. Martínez-​Gómez (2015b) also found that external interpreters were brought in almost exclusively for lawyer–​client interactions. In her study of prison interpreting, Martínez-​Gómez (2015a) analysed adherence to norms and users’ perceptions and experts’ evaluations. Her corpus comprised 19 prison 515

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interviews between an inmate and either a psychologist or an educator mediated by an interpreter. Both good practice and risks in the type of interpreting provided by inmates were observed. While some inmates deployed effective strategies to solve communication problems and to clarify cultural terms, accuracy issues affected message transfer in various ways. Partial translations, omissions and impressions added by some of the interpreters themselves, at times acting as advocates of the other inmate and at other times even revealing information obtained outside the event, were observed in the inmates’ interpretations. Finally, a rarely mentioned aspect of prison interpreting is the influence of the culturally conditioned stigma of imprisonment. Inmates from some cultures, when confronted with an interpreter, who they assume shares the same values, may try and exculpate themselves to the interpreter for fear of losing face. In such situations the inmate’s visitors are mere hearers and the interpreter becomes the addressee of the message, to use Hymes’s (1977) terms. Needless to say, in such cases the presence of the interpreter affects not only the dynamics of the conversation, as is normally true of any interpreter-​mediated exchange anyway, but also its content.

Conclusions There is basically nothing new about the issues of interpreting in non-​court settings in the early 21st century. Technology can sometimes offer solutions which, although not necessarily perfect, nevertheless enable interpreters to assist in communication where otherwise nothing could be done. However, the need for competent interpretation remains as vital as ever. Having an incompetent telephone interpreter mediate between prisoner and counsel is potentially worse than having no interpreter at all. In today’s cash-​strapped situation, the efficient use of resources is vital. Bowing to the pressure to outsource and award a contract for the provision of interpreters in the legal system to the cheapest bidder with no attempt at quality control is often the opposite of a wise allocation of resources. Employing adequately trained civilian staff to source quality interpreters would be a time-​and money-​efficient use of resources. Interpreters should be viewed as a quality resource which must be sourced appropriately for the particular task to be dealt with, not as faceless voices to be bought in bulk through for-​profit companies who treat interpreters as commodities to be exploited in order to maximize their revenues, not to serve the ends of justice. The adoption of legislative instruments such as the EU Directives, which are binding on all EU national governments, should contribute to the adoption of mechanisms to regulate recruitment, training, organization, working conditions, sourcing of interpreters and, importantly, quality control, to safeguard the fairness of the proceedings and serve the ends of justice. Their transposition and implementation, though, are proving complex and controversial (Gialuz 2019, Katschinka 2014, Ortega-​Herráez and Hernández-​Cebrián 2019). Ortega-​Herráez and Hernández-​ Cebrián (2019) illustrate striking differences and gaps in several member states in relation to the establishment of national registers and codes of ethics as part of the quality control mechanisms contained in Directive 2010/​64/​EU. The equal access principle, which has increasingly come to underpin the modern criminal justice system, requires legal systems to expand their frameworks of reference beyond the narrow view, so that linguistic equality must also include such matters as pre-​sentencing reports and correctional programmes. To expect interpreters to undertake costly training and then not be appropriately compensated is unrealistic. 516

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The future, if not exactly bright, seems quite promising. In England and Wales for example, thanks in no small measure to the rapid growth of forensic linguistics and its more and more visible social presence, some police forces are beginning to recognise and respond to at least some of the problems discussed here, although the outsourcing phenomenon, with its negative ramifications, is a worrying trend in various jurisdictions. The perspective of the legal profession, however, is still one of impractical expectations, with the interpreter viewed as a passive, machine-​like entity. This kind of perception is not new. In 1979 in United States v. Anguloa the court instructed the jury following the replacement of an incompetent interpreter that ‘[a]‌n Interpreter really only acts as a transmission belt or telephone’; a former Australian Supreme Court judge, in turn, stated that ‘[t]he interpreter should look upon himself rather as an electric transformer, whatever is fed into him is to be fed out again, duly transformed’ (Wells 1991, in Hale and Gibbons 1999: 207). As a result, the tacit assumption in the legal system has been that the interpreter’s version is always a faithful reflection of the original. Meanwhile, a more fitting metaphor of the interpreting process in legal and forensic contexts is possibly that of a shattered mirror: the contours, shapes and colours can still be discerned in the fragmented reflection while some fine, but potentially crucial, details may be missing because of the cracks. Some of the damage is inevitable: typological differences between languages and the presence of language-​specific pragmatic assumptions mean that it may be simply impossible to reproduce some meanings successfully. There is then an unavoidable tension between the law needing absolutes and meaning being inexact. However, as demonstrated in this chapter, there are a number of extralinguistic factors that result from work-​related pressures, disparate expectations, ignorance and inadequate professional practice, which, unlike the linguistic issues, could be addressed by institutional, or possibly even legislative, solutions for all stages of the judicial process, minimising the distortion in the semantic mirror.

Notes 1 www1.nyc.gov/​assets/​nypd/​downloads/​pdf/​public_​information/​language-​access-​plan-​aug-​2018. pdf (accessed 16 February 2019). 2 See e.g. the US Department of Homeland Security LEP Resource Guide for Law Enforcement and the Vera Institute Translating for Justice executive summary, www.dhs.gov/​sites/​default/​files/​ publications/​lep-​resouce-​guide-​law-​enforcement_​0.pdf (accessed 18 February 2018)  and www. lep.gov/​resources/​vera_​translating_​justice_​final.pdf (accessed 18 February 2018), respectively.

Further reading Berk-​Seligson, S. (2000) ‘Issues in pre-​trial phases of the judicial process’, Forensic Linguistics: The International Journal of Speech, Language and the Law, 7(1): 213–​238. Colin, J. and Morris, R. (1996) Interpreters and the Legal Process, Winchester, UK: Waterside Press. Cooke, M., Eades, D. and Hale, S. (eds) (1999) Forensic Linguistics, 6(1) (special issue devoted to interpreting in legal contexts). Morris, R. (1995) ‘The moral dilemmas of court interpreting’, The Translator, 1(1): 25–​46. Nakane, I. (2014) Interpreter-​ Mediated Police Interviews:  A Discourse-​ Pragmatic Approach, Basingstoke: Palgrave Macmillan.

Legal sources Beck v. Sager [1979] RTR 475. Iqbal Begum (1991) 93 Cr.App.R. 96. 517

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State of Delaware v. Lizbeth Rivera in Superior Court, New Castle County (2005). State of New Jersey v. Alex Ramirez, 04-​06-​1127 (2006). United States v. Anguloa, 598 F2d 1182 No. 78–​1183 (1979).

References Ahmad, M.I. (2007) ‘Interpreting communities: Lawyering across language difference’, UCLA Law Review, 54(5): 999–​1086. Angermeyer, P.S. (2008) ‘Creating monolingualism in the multilingual courtroom’, Sociolinguistic Studies, 2(3): 385–​403. Baixauli-​Olmos, L. (2013) ‘A description of interpreting in prisons: Mapping the setting through an ethical lens’, in C. Schäffner and K. Kredens (eds), Interpreting in a Changing Landscape: Selected Papers from Critical Link, 6:  45–​60. —​—​—​(2017) ‘The development of prison interpreting roles:  a professional ecological model’, Revista Canaria de Estudios Ingleses, 75: 65–​87. Balogh, K. and Salaets, H. (2015) Children and Justice:  Overcoming Language Barriers, Cambridge-​Antwerp-​Portland: Intersentia. Berk-​Seligson, S. (2000) ‘Interpreting for the police: Issues in pre-​trial phases of the judicial process’, Forensic Linguistics, 7(2): 212–​235. —​—​—​(2002) ‘The Miranda warnings and linguistic coercion: the role of footing in the interrogation of a limited-​English speaking murder suspect’, in Janet Cotterill (ed.), Language in the Legal Process, London: Palgrave: 127–​146. —​—​—​ (2009) Coerced Confessions:  The Discourse of Bilingual Police Interrogations, New  York: Walter de Gruyter. Böser, U. (2013) ‘So tell me what happened! Interpreting the free recall segment of the investigative interview’, Translation and Interpreting Studies, 8(1): 112–​136. Böser, U. and LaRooy, D. (2018) ‘Interpreter-​ mediated investigative interviews with minors’, Translation and Interpreting Studies. The Journal of the American Translation and Interpreting Studies Association, 13(2): 208–​229. Braun, S. (2014) ‘Comparing traditional and remote interpreting in police settings:  Quality and impact factors’, in M. Viezzi and C. Falbo (eds), Traduzione e interpretazione per la società e le istituzioni, Trieste: EUT Edizioni Università di Trieste: 161–​176. Braun, S. and Taylor, J. (eds) (2012) Videoconference and Remote Interpreting in Criminal Proceedings, Cambridge/​Antwerp: Intersentia. Coldrey, J. (1987) ‘Aboriginals and the criminal courts’, in K.M. Hazlehurst (ed.), Ivory Scales: Black Australia and the Law, Canberra:  Australian Institute of Criminology www.aic.gov.au/​ publications/​archive/​archive-​126 (accessed 23 July 2020). Communication of Rights Group (2016) Guidelines for Communicating Rights to Non-​ Native Speakers of English in Australia, England and Wales, and the USA www.linguisticsociety.org/​sites/​ default/​files/​Communication_​of_​rights_​language.pdf (accessed 23 July 2020). Du, B. (2015) ‘The silenced interpreter: A case study of language and ideology in the Chinese criminal court’, International Journal for the Semiotics of Law-​Revue internationale de Sémiotique juridique, 28(3): 507–​524. Eades, D. (1994) ‘A case of communicative clash:  Aboriginal English and the legal system’, in J. Gibbons (ed.), Language and the Law, London: Longman, 234–​264. Foley, T. (2006) ‘Lawyers and legal interpreters. Different clients, different culture’, Interpreting, 8(1): 97–​104. Fowler, Y. (2013) ‘Business as usual? Prison video link in the multilingual courtroom’, in C. Schäffner and K. Kredens (eds), Interpreting in a Changing Landscape: Selected Papers from Critical Link, 6: 225–​248. Gallai, F. (2013) ‘“I’ll just intervene whenever he finds it a bit difficult to answer”: Exploring the myth of literalism in interpreted interviews’, Investigative Interviewing:  Research and Practice (II-​RP), 5(1): 57–​78. Gialuz, M. (2019) ‘The implementation of the directive on linguistic assistance in Italy, between changes to the code of criminal procedure and case-​law resistance’, in T. Rafaraci and R. Belfiore (eds), EU Criminal Justice, Cham: Springer, 27–​41.

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Gibbons J. (2001) ‘Revising the language of New South Wales police procedures: Applied linguistics in action’, Applied Linguistics, 22(4): 439–​469. —​—​—​ (2003) Forensic Linguistics:  An Introduction to Language in the Justice System, Oxford: Wiley-​Blackwell. Hale, S. and Gibbons, J. (1999) ‘Varying realities: Patterned changes in the interpreter’s representation of courtroom and external realities’, Applied Linguistics, 20(2): 203–​220. Hale, S., Goodman-​Delahunty, J. and Martschuk, N. (2018) ‘Interpreter performance in police interviews. Differences between trained interpreters and untrained bilinguals’, The Interpreter and Translator Trainer, 13(2), 107–​131. Heydon, G. and Lai, M. (2013) ‘Police interviews mediated by interpreters:  An exercise in diminishment?’, Investigative Interviewing Research and Practice, 5(2), 82–​98. Hymes, D. (1977) Foundations in Sociolinguistics, University of Pennsylvania Press. Ikane, J. (2007) ‘Problems in Communicating the Suspect’s Rights in Interpreted Police Interviews’, Applied Linguistics, 28(1): 87–​112. Katschinka, L. (2014) ‘The impact of Directive 2010/​64/​EU on the right to interpretation and translation in criminal proceedings’, in C. Falbo and M. Viezzi (eds), Traduzione e interpretazione per la società e le istituzioni, Trieste: EUT Edizioni Università di Trieste. Komter, M.L. (2002) ‘The suspect’s own words:  The treatment of written statements in Dutch courtrooms’, Forensic Linguistics, 9(2): 169–​192. Kredens, K. (2017) ‘Making sense of adversarial interpreting’, Language and Law /​Linguagem e Direito, 4(1): 17–​33. Lai, M. and Mulayim, S. (2013) ‘Interpreter linguistic intervention in the strategies employed by police in investigative interviews’, Police Practice and Research:  An International Journal, 15(4): 307–​321. Martínez-​Gómez, A. (2014) ‘Criminals interpreting for criminals:  Breaking or shaping norms?’, Jostrans–​The Journal of Specialised Translation, 22: 174–​193. —​ —​ —​(2015a) ‘Interpreting in prison settings:  An international overview’, Interpreting, 16(2): 233–​259. —​—​—​ (2015b) ‘Prison Settings’, in F. Pöchhacker (ed.), Routledge Encyclopedia of Interpreting Studies, London and New York: Routledge. —​—​—​(2018) ‘Language, translation and interpreting policies in prisons:  Protecting the rights of speakers of non-​official languages’, International Journal of the Sociology of Language, 251: 151–​172. Mayfield, K. (2016) The Issues and Challenges Surrounding Interpreter-​ assisted Investigative Interviews of Victims and Witnesses, Masters’ Dissertation, London Metropolitan University. Mayor, M.J.B. and del Pozo Triviño, M. (2015) ‘Legal interpreting in Spain at a turning point’, MonTI. Monografías de Traducción e Interpretación, 7: 41–​71. Monteoliva-​García, E. (2017a) The Collaborative Construction of the Stand-​by Mode of Interpreting in Police Interviews with Suspects, unpublished PhD thesis, Edinburgh: Heriot-​Watt University. —​—​—​(2017b) ‘La relevancia de las secuencias de interpretación en entrevistas policiales con interpretación en stand-​by’, Revista de Llengua i Dret, 68: 100–​116. —​—​—​(2018) ‘The last ten years of legal interpreting research (2008–​2017). A review of research in the field of legal interpreting’, Language and Law /​Linguagem e Direito, 5(1), 38–​61. —​—​—​(2020) ‘The collaborative and selective nature of interpreting in police interviews with stand-​ by interpreting’, Interpreting: Online-​First Articles. Morris, R. (1999) ‘The gum syndrome:  Predicaments in court interpreting’, Forensic Linguistics, 6(1),  6–​29. Moser-​Mercer, B. (2003) ‘Remote interpreting:  Assessment of human factors and performance parameters’ http://​aiic.net/​ViewPage.cfm/​article879 (accessed 23 May 2009). Mulayim, S., Lai, M. and Norma, C. (2014) Police Investigative Interviews and Interpreting: Context, Challenges, and Strategies, Boca Raton, FL: CRC Press. Nakane, I. (2007) ‘Problems in communicating the suspect’s rights in interpreted police interviews’, Applied Linguistics, 28(1): 87–​112. —​—​—​(2010) ‘Partial non-​use of interpreters in Japanese criminal court proceedings’, Japanese Studies, 30(3), 443–​459. —​—​—​(2011) ‘The role of silence in interpreted police interviews’, Journal of Pragmatics, 43(9), 2317–​2330. 519

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32 Experts and opinions In my opinion Malcolm Coulthard

Prof Meadow wrongly stated in Mrs Clark’s trial in 1999 that there was just a ‘one in 73 million’ chance that two babies from an affluent family like hers could suffer cot death. The actual odds were only one in 77. (The Guardian, 15 July 2005)

Introduction The vast majority of witnesses who give evidence in both civil and criminal cases have some personal involvement and their role is to recount facts and personal experiences relevant to the case. However, there is a second category of witness, the expert witness, who has no personal involvement and whose role is to help the court by giving evidence, based on their professional expertise, about crucial and often contested facts –​ be it the time and manner of death, footprints, DNA traces or, in the case of the forensic linguist, the identity of speakers in recorded interactions, or the authorship of written texts, or the meaning of particular words or phrases in a piece of communication. Few experts are engaged full-​time on court work. In the main, they are professionals across a wide range of disciplines –​ archaeologists, doctors, dentists, engineers, research scientists and of course linguists and phoneticians. I know of no forensic linguist and only a very small number of forensic phoneticians who are employed full-​time on casework; the majority are academics who undertake casework occasionally and rarely go to court; most of them average fewer than ten cases a year (see Clark and Kredens 2018). In many jurisdictions the role of the expert ends with the submission of the report, because the triers-​of-​fact are legal professionals who work mainly from written evidence. However, in some jurisdictions the expert is required to give evidence orally and in person and this can be a stressful experience. As Shuy (2002: 3–​4) observes: ‘For those who have never experienced cross-​examination, there is no way to emphasise how emotionally draining it can be. … Testifying is not for the weak at heart’. Nor indeed for the weak at stomach –​one of my former colleagues eventually gave up acting as an expert document

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analyst after some 25 years, because he could no longer face the vomiting which preceded many of his appearances in the witness box. Giving evidence can also be profoundly frustrating for the academic expert. As Maley comments, in an excellent paper in which she examines linguistic aspects of expert testimony, expert witnesses, particularly if they are new and inexperienced, tend to be quite unaware of the extent to which shaping and construction of evidence goes on. … All too often they emerge frustrated from the courtroom, believing that they have not been able to give their evidence in the way they would like and that their evidence has been twisted and/​or disbelieved. (Maley 2000: 250) They are frustrated, even though as experts they are generally allowed speaking turns that are, on average, some three times longer than those of ordinary witnesses (Heffer 2005). In the past 30 years, there has been a significant growth in the frequency with which courts in a number of countries (sadly, predominantly English-​ speaking, although Portugal and Spain are notable exceptions to this rule) have called upon the expertise of linguists. The cases range from:  determining whether a Greek doctor said ‘can’ or ‘can’t’ (Baldwin and French 1990); through disputes about the meaning and ownership of the morpheme ‘Mc’ in a trademark case (Shuy 2002); and the degree of similarity in pronunciation and therefore the confusability of two trademarks (Gibbons 2003); and the opacity of individual words in jury instructions (Levi 1993); to who was the original author of translations of particular words and phrases in a plagiarism case (Turell 2004); accusations of police fabrication of whole texts in two murder cases (Coulthard, Johnson and Wright 2017); and the meaning of urban dialect terms in text messages plotting a murder (Grant 2017). Many more examples of expert linguistic evidence can be found in Section II of this volume, particularly the chapters by Butters, Dumas, English, Jessen, McMenamin and Watt and Brown, as well as in Coulthard, Johnson and Wright (2017, see particularly ­chapters 6 and 7). Usually the linguist uses standard analytic tools, although few cases require exactly the same selection from the linguist’s toolkit. However, occasionally, cases raise new and exciting questions for descriptive linguistics, which require basic research, such as how can one measure the ‘rarity’, and therefore the evidential value, of short sequences of words (see below) or of shared hapaxes, that is words which only occur once in each text (Woolls and Coulthard 1998), or the reliability of verbal memory (Coulthard, Johnson and Wright 2017: 117–​120) or how to calculate the probability that one of a group of potential authors was the actual author of a particular set of email messages (Wright 2013). Once the analysis has been completed, the expert is faced with two communicative problems: firstly, how can s/​he best explain the analysis and express the derived results in a report written for an audience of legal professionals; and, secondly, if later called on to give oral evidence in court for a jury trial, how can s/​he cope with the unusual interactional rules and communicate successfully with the lay audience? All experts face these challenges, but expert linguists have two additional and unique problems. Firstly, lawyers and judges are also professionally and centrally concerned with the detailed analysis of language and thus regard themselves as language experts who may therefore believe that they do not need outside help from linguists; and secondly, all native speakers are also, in some sense, experts on their native language. So, for these reasons, it is 524

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very difficult to call a linguist to give evidence on word meaning, because courts are centrally concerned with two kinds of meaning: technical and common sense. The technical meaning of a word or phrase is a specialised predefined legal meaning, which can vary significantly from the denotative meaning of the word or phrase in non-​legal settings (see detailed treatment of these concepts in Chapters 6 and 38, in this volume, by Hutton and Gries). For example, the British Road Traffic Act (1972 c.20 s.82) requires the use of specified lights on vehicles during the ‘hours of darkness’. However, the meaning of the phrase ‘hours of darkness’ is not negotiable, that is, it is not something that someone accused of a lighting offence can try to define to his or her advantage, with or without the help of a linguist, by using a dictionary or even a corpus. The Act itself defines ‘hours of darkness’ as the time ‘from half-​an-​hour after sunset to half-​an-​hour before sunrise’. So, whether the accused considered it to be dark or not dark at the time of the offence is, legally, totally irrelevant. On the other hand, there is common sense meaning, which is what a given set of jury members, having being nominated as representatives of the common man, collectively think a word means –​so, again, there is no need to call a linguistic expert on meaning. Indeed, juries in many countries have traditionally been denied access to dictionaries and there are cases where jury members have been reprimanded for smuggling in a dictionary or more recently for consulting an online version. In 2007, for example, a court overturned a Kentucky man’s rape conviction when it was discovered that his jury had looked up the definition of ‘rape’ in the dictionary. Webster and Oxford don’t require ‘penetration’ for something to be considered rape, but Kentucky law does. Despite these restrictions, Solan (1998) argues that there is still a significant role for the linguist, which is to discover, explain and elucidate for the judge and jury facts about language and usage as a result of which they will have the same knowledge and understanding as the linguist and so be then able to make linguistically informed decisions. In Solan’s words: my linguistic training has made me more sensitive to possible interpretations that others might not notice and I can bring these to the attention of a judge or jury. But once I point these out and illustrate them clearly, we should start on an equal footing. (Solan 1998: 92) So, for instance, linguists have been allowed to give evidence about textual ambiguity (Kaplan et al. 1995 and Prince 1981). To rephrase Solan’s observation, linguists are experts not only in the nature of interpretation, but also in the nature of linguistic encoding. One British example of an expert sensitising the lay audience, in this case three Appeal Court judges, comes from my own evidence in the appeal of Robert Brown. Brown claimed that a monologue confession attributed to him had in fact been elicited by question and answer and then transformed by the interviewing police officers into monologue form and presented as if it were his dictated statement. As one part of my evidence in support of Brown’s claim, I focused on the two clauses: I was covered in blood, my jeans and a blue Parka coat and a shirt were full of blood. To a linguist it is clear that the phrasing of the subject of the second clause, ‘my jeans and a blue Parka coat and a shirt’ is most unnatural; no one would refer to an item of their own clothing with the indefinite article ‘a’ once they had begun a list with the possessive 525

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determiner, ‘my’. The most likely use of ‘a’ in this context would be to distinguish between ‘mine’ and ‘not-​mine’. For example, the utterance ‘I looked round the room and I saw my jeans and a blue Parka coat and a shirt; they were full of blood’ would be perfectly natural in a context where some of the clothes belonged to someone else, but this was not the meaning intended in this narrative clause, where all the clothes were supposed to belong to the speaker. The phrase ‘my jeans and a blue Parka coat and a shirt’ could, of course, occur in a falsified statement as the result of the careless conversion of a sequence of short questions and answers into monologue form. One can easily imagine how this could have happened in this case by looking at an actual question and answer sequence taken from the record of a preceding police interview with Brown: Police What were you wearing? Brown I had a blue shirt and a blue parka. In this context the use of the indefinite article is normal and natural –​ as noted above, when items are introduced for the first time, the indefinite article is the usual choice. Once the oddity of the phrase in the questioned monologue and the occurrence of a similar phrase in the unchallenged interview had been pointed out to the Appeal Court judges, they were as competent as any linguist to draw inferences from the linguistic oddity. Another of Solan’s points is that, although juries and judges may well be able to analyse individual words, phrases and even sentences as well as any professional linguist, they may have problems analysing longer documents: Of course, a jury can read the document[s]‌. … But not all jurors, without help, can focus on a phrase in paragraph 24 of a contract that may have an impact on how another word should be interpreted in paragraph 55. (Solan 1998: 94) In the Brown appeal already referred to, in order to make a different point it was important for me to draw the attention of the judges to two pairs of phrases occurring in both the disputed statement and the unchallenged interview record: i) ii)

Statement: Interview: Statement: Interview:

I asked her if I could carry her bags she said ‘Yes’. I asked her if I could carry her bags she said ‘yes’. I picked something up like an ornament. I picked something up like an ornament.

Linguists of most persuasions are in agreement that the likelihood of two speakers independently producing exactly the same phrasing reduces dramatically with the length of the expression, as also does the likelihood of the same speaker formulating two identical phrasings on different occasions. However, this ‘linguist’s knowledge’ does not coincide with lay belief –​ in fact, there is a common misconception that people can indeed remember stretches of their own and others’ contributions to conversations word-​for-​word and then report them verbatim later. Listening in to people talking on public transport, where conversations are recounted ‘verbatim’ –​‘and I said…’ ‘and she said…’ –​quickly confirms this belief. When faced with the problem of convincing the Appeal Court judges of the evidential significance of identical expressions occurring in supposedly independently produced verbatim records of separate interactions, I chose the following procedure. 526

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Firstly, I searched for occurrences of the sequence ‘I asked her if I could carry her bags’ in a Google database consisting at the time of some six billion documents. I used them to demonstrate to the judges that the longer a sequence the less likely it is to have been produced before and that even comparatively short sequences of words can be unique encodings, that is can be words in sequences that no one has ever produced before. The results at the time of writing the report were as follows: Table 32.1  Word sequence length and frequency Sequence

No. of Google Occurrences

I asked I asked her I asked her if I asked her if I I asked her if I could I asked her if I could carry I asked her if I could carry her I asked her if I could carry her bags

2,170,000 284,000 86,000 10,400 7,770 7 4 0

I used these examples to argue that, if there was not a single Google instance of anyone else having produced this nine-​word sequence, the chances of the even longer sequence ‘I asked her if I could carry her bags she said “yes” ’ occurring twice in different documents was infinitesimal –​unless, of course, one sequence had been derived or copied from the other, which was the conclusion I hoped they would draw. When I set out to write this chapter in 2009 for the first edition of the Handbook, I re-​ checked the Google figures reported above and found, to my horror, that Google now listed six instances of the phrase for whose uniqueness I had argued in court. However, as the adage goes, ‘it is the exception that proves the rule’. A website had been set up devoted to Robert Brown’s case (sadly, the website no longer exists); and it carried the disputed statement, so one of the instances was the original. Three of the other instances were in internet versions of Coulthard (2004), an article I had written about the case; the fifth example came from Coulthard and Johnson (2007) where I had also quoted the phrase; and the final instance was in a PowerPoint presentation located on a Dutch university webpage, which quoted the example from my article. In other words, all six instances were quotings of the same single formulation which remained a unique encoding. As I write today (05/​12/​19), a Google search discovered 913 examples of the phrase, but Google chose to show only a three-​page selection with a total of 28 examples, on the grounds that all the other examples were identical textualizations from different documents. To my relief all 28 of the selected examples were quotations of the original.

Giving evidence in court Giving evidence successfully in court is a skill not easily acquired and this can be a surprise to the academic expert witness who is usually skilled in explaining and arguing in public. For this reason, ever more frequently, intending experts are seeking professional training to enable them to cope more successfully with cross-​examination, but even experienced experts can still struggle with two courtroom-​specific interactional 527

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conventions. The first is the suspension, for the lawyer, of the Gricean conversational maxim of quality, that is ‘do not say what you believe to be false’, in a situation in which the experts themselves have been required to commit themselves explicitly, by oath or affirmation, to telling the truth. Novice academic experts may be deceived into thinking that they are still in an academic environment and that, if they are sufficiently coherent and persuasive, they can convince the cross-​examiner of the correctness of their opinion. The lawyer, of course, is well paid not to be convinced, or at least not to admit that s/​he has been convinced. The second convention, which disorients all witnesses, expert and lay alike, is that, whilst the examining lawyer is in one sense both the speaker and the addressor, or, as Goffman (1959: 79) puts it, ‘the author of the sentiments that are being expressed and the words in which they are encoded’, the court convention is that s/​he is actually acting as a spokesperson for the court and simply asking questions on its behalf. The physical consequence of this is that the witness is expected to treat the judge(s), and the jury if there is one, as addressee(s) and therefore to look at and direct answers to them and not the lawyer who is asking the questions. This can be particularly difficult in some courts, where the physical layout places the lawyer, judge and jury in such positions that the witness cannot face all, and sometimes not more than one at the same time. Thus, having turned to look at the speaker/​lawyer who is asking the question, the witness may fail to turn back to direct the answer to the real addressee(s) and judges can and do become irritated. As far as the presentation of content is concerned the oddity is that, while the expert is the creator and holder of the information, it is the lawyer who controls what is communicated (or not) and in what sequence. The expert can only respond to the lawyer’s questions and cannot introduce information that has not been requested, however important s/​he considers it to be. Thus, an expert witness may feel they are participating, with growing horror, in the mangling of their evidence, with points picked, apparently at random, from their closely argued report and some not even mentioned. In jury trials, in jurisdictions where only what is said in court counts as evidence, the jury will not have access to the expert’s written report. So, experts must try to retain as much control as possible over their evidence, preferably by getting permission to make a pre-​prepared presentation with minimal interruption, although there are still many courts where the necessary facilities do not exist. The only time I have felt satisfied after giving evidence in court was when I was allowed to talk, with minimal interruptions, to a set of PowerPoint slides.

The expert linguist For linguists wanting to move into expert witness work, the criteria vary from country to country. Until recently, Australia and Britain shared essentially the same position, that it is the expert, rather than the method they employ, that is recognised and so courts allowed evidence from anyone considered to have ‘specialised knowledge based on … training, study or experience [provided that the evidence was] wholly or substantially based on that knowledge’ (Australian Evidence Act 1995 s.79). Usually, once an expert had been accepted by one court, s/​he would be accepted unchallenged by other courts at the same level. In the US, by contrast, the focus has long been much more on the method the expert used, its reliability and the reproducibility of the results. See Solan (Chapter 22, this volume) for a detailed discussion of both the origin and the nature of the Daubert standard for evaluating evidence and the role of the judge as gatekeeper. 528

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However, in 2008, the British government appointed a former Police Detective Chief Superintendent as the first Forensic Science Regulator. His brief was to ‘operate independently to ensure that quality standards apply across all forensic science services’. A year later the Regulator published a consultation paper, which recommended that an accreditation system be set up based on internationally recognised ISO standards and be assessed by a UK Accreditation Service (UKAS). At the same time the UK Law Commission also published a consultation paper on the admissibility of expert evidence, in which they observed ‘We believe the current approach …. is in need of reform’ (Law Commission 2009: iii). In their opinion, The criminal courts have … adopted a policy of laissez-​faire. In effect [they] permit the adduction of any expert evidence, so long as it is not patently unreliable, (Law Commission 2009: 22) The solution the Law Commission went on to propose was the creation of a new statutory test for determining the admissibility of expert evidence in criminal proceedings, quite similar to the Daubert test, discussed in detail in Solan’s chapter in this volume. However, to the surprise of many, the Ministry of Justice responded, in late 2013, that it did not intend to act on the majority of the recommendations. Nevertheless, the following year the independent Lord Chief Justice issued a Practice Direction (see Ward 2015 for a discussion) that introduced an admissibility test that was recognizably derived from the Daubert test. There are four Daubert criteria with which to evaluate ‘scientific-​ness’: 1. 2. 3. 4.

whether the theory … has been tested; whether it has been subjected to peer review and publication; the known rate of error; and whether the theory is generally accepted in the scientific community. (509 US at 593 as quoted in Tiersma and Solan 2002: 224)

The problem for forensic linguists is criterion 3, ‘the known rate of error’ –​that is what is the chance that an opinion might be wrong? So, where does this leave the forensic linguist? On the positive side, Tiersma and Solan (2002) note that ‘courts have allowed linguists to testify on issues such as the probable origin of a speaker, the comprehensibility of a text, whether a particular defendant understood the Miranda warning’, and in authorship cases where conclusions depend on observations about the frequency or rarity of particular linguistic features in the texts under examination, [even] though many linguists would have considerable difficulty in stating a ‘known rate of error’. It is for this very reason that many linguists, who previously would have given an opinion, now choose to restrict their role to that of educator or teacher or, to use Solan’s term, ‘tour guide’. While, as noted above, a lot of linguistic evidence cannot be appropriately evaluated in terms of probability, some, like authorship attribution, can be, except that most established linguists still do not have the necessary training in statistics to be able to do so and, even if they did, there were not, until recently, appropriate statistical tools. And also, there are great dangers when the statistically unsophisticated use probabilities to convey opinions. Experts have been known to say they are 99% or even 99.99% certain when they had made no mathematical calculations at all. Lawyers have asked me in court if I was 90% or 95% or even 99% certain when I had reported no statistical calculations. As we saw in 529

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the quotation at the head of the chapter, in a case where it was indeed possible to calculate a probability, Professor Meadows misunderstood the underlying principles of the test he was using and overstated the probability by almost a million times, claiming there was only one chance in 73 million instead of one chance in 77. A true cautionary tale.

Communicating expert evidence Until recently the majority of forensic linguists and phoneticians were unable to express their findings statistically in terms of mathematically calculated probabilities and so expressed them as a semantically encoded opinion. Indeed, some experts simply expressed their opinion without giving any indication to the court of how to evaluate its strength, or of how their opinion fitted with the two legally significant categories of ‘on the balance of probabilities’ and ‘beyond reasonable doubt’. Other experts used a fixed semantic scale which they attached as an Appendix to their report to enable the reader to assess their degree of confidence in the opinion expressed. In my own first reports on authorship, in the early 90s, I used the eleven-​point scale of opinions detailed below, adapted from a scale used at the time by many members of the International Association of Forensic Phonetics:

5 4 3 2 1 0 -​1 -​2 -​3 -​4 -​5

Most positive ‘I personally feel quite satisfied that X is the author’. ‘It is in my view very likely that X is the author’. ‘It is in my view likely that X is the author’. ‘It is in my view fairly likely that X is the author’. ‘It is in my view rather more likely than not that X is the author’. ‘It is not possible to express an opinion’. ‘It is in my view rather more likely than not that X is not the author’. ‘It is in my view fairly likely that X is not the author’. ‘It is in my view likely that X is not the author’. ‘It is in my view very likely that X is not the author’. ‘I personally feel quite satisfied that X is the not author’. Most negative

However, in 1999 Ton Broeders, a highly regarded Dutch phonetician, questioned this practice and suggested that experts in using degrees of probability, are actually making categorical judgements, i.e. are really saying yes or no. Even if they use a term like probably (not), I think they are subjectively convinced that the suspect did or did not produce the sample material. (Broeders 1999: 237) Broeders went on to observe that the choice of a given degree of likelihood on such a scale is irremediably subjective and experience-​based, which is why two experts might reach opinions of differing strengths based on exactly the same data. Even so, he stressed that a subjective judgement should not be condemned simply because it was subjective; he concluded that ‘the crucial question is not whether [it] is subjective or objective, but whether it can be relied on to be correct’ (Broeders 1999: 238). 530

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Nevertheless, there was already, among experts across a series of disciplines, growing opposition to the use of semantic scales, for three reasons. Firstly, how could one be sure that judges and juries would attach the same meanings to the labels as did the experts who had chosen and applied them? Secondly, at the end of a criminal trial, the triers-​of-​fact themselves are not allowed the luxury of degrees of confidence; they have to work with a binary choice of Guilty or Not Guilty. And thirdly, and much more seriously, Broeders (1999) and later Rose (2002), writing about the reaching and encoding of opinions, noted that one can offer an opinion on two things: either on the probability of a Hypothesis –​so in linguistic cases, for example, on the hypothesis that the accused is the speaker/​author –​ given the strength of the Evidence; or on the probability that the Evidence would occur in the form and quantity in which it does occur, given the two Hypotheses that the accused is and also, crucially, that the accused is not the speaker/​author. And both Broeders and Rose strongly recommend the second option. Rose quotes Aitken (1995:  4) in arguing that the former type of opinion, which, he says, is tantamount to deciding on the likelihood of the accused being guilty, is actually the exclusive role of the judges of fact and for this reason all responsible experts should confine themselves to talking only about the likelihood of the evidence. Rose supports his argument by pointing out that no expert can make an estimate of the likelihood of guilt or innocence on the basis of the linguistic evidence alone; only those with access to all of the available evidence can assess the value of each of its pieces. And even then, there could be other pieces of evidence that are missing which would have shown that despite the strength of the available evidence, the accused was not guilty. I cite an example of this from the work of a forensic handwriting colleague. He once concluded, after exhaustive comparisons, that it was very likely on the basis of the evidence he had analysed that a disputed signature on an Irish Will, which had been written with a ballpoint pen, was genuine. But then, and fortunately before committing his opinion to paper, he realised that the will was dated before the invention of ballpoint technology! Similarly, Hollien (2002) reports a case where he was fully convinced, after a detailed comparison of the phonetic evidence, that a voice, which had been tape-​recorded making a threatening phone call, was that of the accused. The similarities between the samples were so marked that he felt able to discount a single dissimilarity; that was until the twin brother of the accused appeared in the witness box and Hollien realised that the threatening voice was actually that of the brother. Broeders and Rose both go on to argue that not only does an approach which focuses on the probability of the evidence have logic on its side, it also has the added advantage that it enables the probability to be expressed mathematically rather than semantically. Essentially the method involves calculating the likelihood that for example a text would be in a particular form if a suspect had and crucially also had not sent it. Suppose we have a questioned text message which includes several examples of the abbreviation ‘ill’ for ‘I will’. Let us imagine that we discover, after analysing a sample of attested texts, which had been sent by the owner over the previous three days, that in 100% of the messages where ‘I will’ could have occurred she had used the form ‘ill’. In other words, if she had written the text under consideration and followed her normal practice she would almost certainly have chosen to use ‘ill’. (Of course, whatever the statistics of previous use, a language user always has the freedom to make an atypical choice –​sometimes deliberately for the forensically important purpose of disguise.) Imagine that we also discover that in a representative sample of text messages produced by the general population the abbreviation ‘ill’ also occurs, although only 10% of the time. So, if this particular text had not in fact been sent 531

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by the suspect there is still a 10% chance that it would include the ‘ill’ abbreviation. So, how do we assess the evidential strength of this finding? Simply by dividing one likelihood percentage by the other, i.e. 100%/​10% to get a ratio of likelihoods of 10. In other words, it is 10 times more likely that a text message would use the ‘ill’ form if it were produced by the suspect than if it had been produced by some other person selected at random from the comparative group. Coulthard (2004), Grant (Chapter 34, this volume) and Grieve et al. (2019) all suggest that language users are distinguished one from another by characteristic, but differing, preferred linguistic selections and co-​selections. In other words, candidate author A may not simply use the abbreviation ‘ill’ on all occasions, but may use ‘com’ for ‘come’ and ‘b’ for ‘be’ exclusively as well and is thus distinguishable from candidate author B who uses ‘I will’, and ‘come’ exclusively and ‘be’ and ‘b’ apparently interchangeably. A major advantage of the method of expressing the weight of evidence statistically, by means of likelihood ratios, is that it allows the expert to take account of co-​selections by combining the ratios of several independent linguistic choices together and thereby produce a composite likelihood ratio. Independent likelihood ratios can be combined to make this composite ratio by simple multiplication and all ratios which are greater than 1.0 will increase the overall likelihood ratio, while any ratios of less than 1.0 will reduce it. Let’s take as an example the single text message from a real case ‘ill com. b ther n n owa’ (‘I’ll come. Be there in an hour’). We had already calculated above that it was 10 times more likely that a text produced by this suspect would include ‘ill’ than one produced by the comparative group. We may find that ‘com’ and ‘b’ although used frequently by the suspect are also quite common abbreviations in the general population and thus produce low likelihood ratios of 2.0 and 3.5, but when these are combined by multiplication with the likelihood ratio of 10 already calculated for ill, they generate the much higher ratio of 70: 10 × 2 × 3.5 = 70 So, now after including all three features, we can say that we would be 70 times more likely to find these three abbreviations co-​occurring in a text message if the accused had sent it than if some other texter selected at random from the relevant population had sent it. However, let us not forget Hollien’s dissimilar feature, which he chose to ignore. One strong argument in favour of the likelihood ratio approach is that it also allows the easy incorporation of counter indications. Experts using the ‘evidence-​to-​evaluate-​the-​ hypothesis’ approach have to decide ad hoc what weight to give to any evidence which does not support the indication of the majority of the features analysed –​should they, for example, allow such evidence to reduce their opinion by one or two degrees of certainty or perhaps by none at all. By contrast, with a likelihood ratio approach, any feature which occurs less frequently in texts that the suspect wrote than in those produced by members of the general population, will simply reduce the likelihood ratio. So let us now also consider the features ‘ther’, ‘n’, ‘n’, ‘owa’ each of which the suspect almost never abbreviates in this fashion –​we must be wary because these could be features of deliberate disguise introduced by the suspect –​although a few of the general population do use these abbreviations. So, we now have to include four negative likelihood ratios of 0.75, 0.80, 0.95 and 0.66, respectively. The overall likelihood ratio will now be reduced to 26.33. 70 × 0.75 × 0.80 × 0.95 × 0.66 = 26.33 532

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In other words, a consideration of all the linguistic evidence in this single text message shows that we are now 26 times more likely to find a message in this form if the accused had sent it than if a member of the general population selected at random had. This is all well and good, but the interpretation rather than the calculation of a likelihood ratio is not quite so simple for the jury who will probably never have even met the concept. It is certainly true that, as Broeders (1999: 230) expresses it, ‘to the extent that the likelihood ratio exceeds 1 the evidence lends greater support to the [prosecution] hypothesis, [while] if it is [less] than 1, it supports the alternative hypothesis’. However, as we have noted above there is a very real concern among judges about whether a lay jury can actually cope with likelihood ratios and whether to admit them simply introduces even more confusion. Although the expert may well have accurate figures in his report, as noted above the jury do not get to see the report. And so most lawyers are not happy working with real probabilities rather than the loosely employed 95% and 99%. And, anyway, as we have already noted, at the end of the day, the jury has to reach a semantically encoded decision of ‘(not) guilty’ using the semantic criterion of ‘on the balance of probabilities’(for civil trials) or ‘beyond reasonable doubt’ (for criminal trials) which do not themselves have defined likelihood ratios. As a concession, in the absence of agreed semantic labels for likelihood ratios, some experts have been willing to ‘translate’ their figures into everyday situations for the jury, so Professor Meadow (referred to in the chapter-​heading quotation) on one occasion characterised the rareness of an event by comparing it to the chances of backing long odds winners in a major horse race and on another used the highly persuasively translation ‘one sudden infant death (SID) in a family is a tragedy, two is suspicious and three is murder unless proven otherwise’. So, where do we go from here with likelihood ratios, then? Rose (2002: 62) says that, although he personally does not recommend it, some experts have attempted to solve the interpretation problem by collapsing likelihood ratios into five semantically labelled groupings: Table 32.2  Suggested semantic labels for likelihood ratios Likelihood ratio

Semantic gloss

10,000+ 1,000–​10,000 100–​1,000 10–​100 1–​10

Very strong Strong Moderately strong Moderate Limited

Interestingly, in 2015 the European Network of Forensic Science Institutes published the ENFSI Guideline for Evaluative Reporting in Forensic Science (2015) in which they not only argued for expressing evidence through likelihood ratios but also recommended using exactly the same set of ‘translations’ that had been suggested by Rose 13  years earlier. These are now used by many European forensic phoneticians, though so far by very few forensic linguists worldwide. Even so there remain two major doubts. Firstly, after rejecting a scale of opinions expressed semantically, we have ended up with a scale of likelihoods expressed 533

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semantically, although admittedly, in this case, if two experts agree on the linguistic facts to be considered and the reference population, they will necessarily agree on the likelihood ratio too. However, the same problem remains of whether juries can and will interpret the semantic expressions of the ratios as the expert intended, even though there are now only five. Secondly, we don’t yet know how appropriate the labels are as glosses for the ratios, even though the category cut-​off points are numerically neat. In principle though, the judicial system should be attracted by the fact that likelihood ratios derived from a variety of types of evidence can be combined to produce a composite likelihood ratio. In an ideal Rosean world, juries would have a statistician to help them weigh all of the likelihood evidence before converting it, instead of converting each piece of evidence semantically and trying to put the semantically coded evidence together. Also, unlike any individual expert, the jury would be able to take account as well of prior odds, such as how many possible suspects there are. If there are five suspects, then before any evidence has been considered, the odds that one of them is guilty are 1/​4 = 0 .25, if there are only two suspects the odds are 1/​1 = 1. Despite strong academic support in some disciplines and among some forensic linguists for the use of raw likelihood ratios (see Morrison 2011), it may be a long time before they are generally accepted in courts, if ever. The Times (9 May 1996: 36) reported a Judicial Opinion in an Appeal Court judgment (R v. Adams) where, in the original trial, a statistician had been allowed to instruct the jury about both Bayesian theory and underlying likelihood ratios and then how to create and sum the ratios in order to produce a composite ratio. The Appeal Court judges ordered a retrial and observed that, although the likelihood ratio ‘might be an appropriate and useful tool for statisticians … it was not appropriate for use in jury trials, nor as a means to assist the jury in their task’. After a second trial in which the same expert was allowed to instruct a different jury, there was a second appeal, at the end of which the judges opined: Introducing Bayes’ Theorem, or any similar method, into a criminal trial plunges the jury into inappropriate and unnecessary realms of complexity, deflecting them from their proper tasks. Reliance on evidence of this kind is a recipe for confusion, misunderstanding, and misjudgement. (www.herkimershideaway.org/​writings/​bayes.htm) And that, for the moment, is the situation in the British courts. So, what can and should the forensic linguistics community do now? In 2007 a group of UK forensic phoneticians produced a position statement on expressing opinions (French and Harrison 2007), in which they noted that while in principle they accepted the desirability of considering the task of speaker comparison in a likelihood ratio (including Bayesian) conceptual framework … the lack of demographic data, along with the problems of defining relevant reference populations [were] grounds for precluding the quantitative application of this type of approach in the present context. (French and Harrison 2007: 142) For this reason, they reset the goal of the expert analysis as that of assessing whether a particular questioned voice fitted the description of the suspect voice. The assessment method they propose is a two-​stage process. First, the analyst assesses the voice in terms of the compatibility of its features with those of the suspect voice. At this stage there are 534

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three possible outcomes, a negative decision that the two voices are ‘not compatible’ or ‘insufficient evidence to proceed’, in which two cases the voice is excluded from further consideration, or ‘compatible’. A compatible decision essentially means that it is impossible to exclude the voice as a potential match. There now follows a second stage, in which the degree of compatibility is assessed in terms of the distinctiveness of the shared items. This is measured on a five-​point scale ranging from ‘not distinctive’ to ‘exceptionally distinctive’. As Rose and Morrison observe ‘it is implied that the likelihood that the samples have been produced by [the] same speaker will be greater if their shared cluster of features is distinctive or unusual’ (Rose and Morrison 2009: 142). When I acted as an expert witness in the David Hodgson murder trial, which is discussed in detail, with the presentation of much of the relevant text message data, in Grant (Chapter 34, this volume), I used the approach suggested by French and Harrison. Using examples, I first argued that the questioned text messages were incompatible with the style of the female owner of the mobile phone from which they were sent. I then argued that the choices that were atypical of her style were collectively distinctive and compatible with those of the suspect. I was fortunate to have been also provided with text messages written by the suspect’s daughter, which were also compatible, although to a lesser extent, with the suspect messages. So, the linguistic evidence identified two potential authors who shared distinctive choices with the messages, but one of whom shared more choices. However, other non-​linguistic evidence available to the jury, though not to me, when I undertook the analysis, about when and from where the messages were texted and where the suspect and his daughter were at the two times, then ruled out the daughter as a candidate sender. So, we now have a situation where many phoneticians and linguists are aspiring to use likelihood ratios, but are actually using a method which does not even set out to provide the statistical evaluation which Daubert sees as essential for a scientific approach. There are three ways forward for the linguistic community. Firstly, as it is already acknowledged that some experts are more experienced and more skilful than others, it would be possible to introduce a system of blind testing of individual experts and publish known error rates for experts rather than for the methods they use; indeed Solan (Chapter 22, this volume) has suggested such an option. Secondly, the creation of more and larger databases. For a long time there have been very large corpora initially set up to help dictionary makers and linguists but specialised corpora designed for forensic purposes are rare. However, Kris Kredens at the Aston University Institute for Forensic Linguistics has a currently restricted, but in the longer-​term accessible, corpus of posts to internet discussion fora, including Mumsnet, totalling over three billion words. At the same time, the Aston Institute is also setting out to create a very large Forensic Linguistic Database containing other forensically useful and accessible corpora. These resources will enable linguists to derive more reliable population statistics and, in some areas at least, to start producing likelihood ratios. Thirdly, more research into other statistical methods for evaluating the significance of candidate author data, of the kind reported by Grant (Chapter 34, this volume), Grieve et al. (2019) and Koppel et al. (2008), will provide a securer foundation for opinions. See Chapter 43, this volume, for a discussion.

The responsibility of experts In many jurisdictions, particularly those with investigating magistrates and judges, an expert is retained and paid by the court, even if one or both sides have previously commissioned their own experts. I was involved as one of four experts in a case that was 535

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tried in Poland, concerning the alleged plagiarism by owners of a Polish English language School of language teaching books whose copyright was owned by an English company. The court appointed three experts, whose joint report made virtually no reference to the four separate reports that had been produced pre-​trial by the experts commissioned by the plaintiff and the defence. The court experts simply submitted, as their joint report, an independent evaluation of the data on which the judges subsequently based their judgment. In the Anglo-​American system experts are almost always retained and paid by one side, but even so, legally, their first responsibility is to the court. Lawyers, of course, do their best, and usually with some success, to incorporate the expert into their ‘team’ and thereby elicit the most positive report possible. In addition to their report, British experts are also required to retain all working notes and drafts of the report which can be requested by the court or the opposing expert. This is admirable practice, although not always well-​received in an adversarial system and therefore it can lead to lawyers phoning experts to ask for a verbal report on progress, in order to avoid the creation of ‘unhelpful’ reports which might prejudice the case. In the British criminal system, there is also a rule, which some see as an unfair bias, that the prosecution, although not the defence, must disclose all expert reports they have commissioned, even if they are not supportive of their case. In another attempt to counter the presentation of partial or unintentionally biased evidence, experts in Britain have, since 2007, been required to state explicitly in their written reports that they are fully aware that a) their primary duty is to the court, b) they must, in giving their evidence, make the court aware of any counter-​evidence in the data they have analysed and c) they must inform the court immediately if, at any time in the future, they find it necessary to revise their evidence. In the Hodgson case already referred to above the cross-​examining barrister made sure that I was given adequate time and ‘assistance’ to make the court aware of all the linguistic counter-​evidence to the prosecution hypothesis; I was therefore able to talk about the texts produced by the daughter as being compatible but sharing fewer of the distinctive choices. Paradoxically this was very useful in the long run because, following the conviction of the accused, the defence lodged an appeal, solely on the grounds that the linguistic evidence was too novel to be admitted. But the appeal was dis-​allowed because the judges found that I had made very clear the limitations as well as the strengths of the linguistic evidence and that the jury would therefore have been able to assess the weight of my evidence (R v Hodgson [2009]).

Further reading Aitken, C. (1995) Statistics and the Evaluation of Evidence for Forensic Scientists, Chichester: John Wiley. Argamon S.E. (2018) ‘Computational forensic authorship analysis: Promises and pitfalls’, Language and Law-​Linguagem e Direito, 3(2): 7–​37. Grant, T. (2017) ‘Duppying yoots in a dog eat dog world, kmt:  Determining the senses of slang terms for the Courts’, Semiotica, 216: 479–​495.

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Journal of Law and Policy (2013) 11(2) (special Issue with papers from the Authorship Attribution Workshop). Redmayne, M. (2001) Expert Evidence and Criminal Justice, Oxford: Oxford University Press. Tiersma, P. and Solan, L. (2002) ‘The linguist on the witness stand: Forensic linguistics in American courts’, Language, 78: 221–​239.

Legal sources R v. Hodgson [2009] EWCA Crim (31 March 2009) 742.

References Aitken, C. (1995) Statistics and the Evaluation of Evidence for Forensic Scientists, Chichester: John Wiley. Baldwin, J. and French, P. (1990) Forensic Phonetics, London: Pinter. Broeders, A.P.A. (1999) ‘Some observations on the use of probability scales in forensic identification’, Forensic Linguistics: International Journal of Speech, Language and the Law, 6(2): 228–​241. Clarke, I. and Kredens, K. (2018) ‘“I consider myself to be a service provider”: Discursive identity construction of the forensic linguistic expert’, International Journal of Speech, Language and the Law, 25(1): 79–​107. Coulthard, M. (2004) ‘Author identification, idiolect and linguistic uniqueness’, Applied Linguistics, 25(4): 431–​447. Coulthard, M. and Johnson, A. (2007) An Introduction to Forensic Linguistics: Language in Evidence, London: Routledge. Coulthard, M., Johnson, A. and Wright, D. (2017) An Introduction to Forensic Linguistics: Language and Evidence, London: Routledge. European Network of Forensic Science Institutes (ENFSI) (2015) ENFSI Guideline for Evaluative Reporting in Forensic Science http://​enfsi.eu/​wp-​content/​uploads/​2016/​09/​m1_​guideline.pdf (accessed 21 July 2020). French, P and Harrison, P (2007) ‘Position statement concerning use of impressionistic likelihood terms in forensic speaker comparison cases’, International Journal of Speech, Language and the Law, 14(1): 137–​144. Gibbons, J. (2003) Forensic Linguistics:  An Introduction to Language in the Justice System, Oxford: Blackwell. Goffman, E. (1959) The Presentation of Self in Everyday Life, New York: Doubleday. Grant, T. (2017) ‘Duppying yoots in a dog eat dog world, kmt:  Determining the senses of slang terms for the Courts’, Semiotica, 216: 479–​495. Grieve, J., Clarke, I., Chiang, E., Gideon, H., Heini, A., Nini, A. and Waibel, E. (2019) ‘Attributing the Bixby Letter using n-​gram tracing’, Digital Scholarship in the Humanities, 34(3): 493–​512. Heffer, C. (2005) The Language of Jury Trial:  A Corpus-​Aided Analysis of Legal–​Lay Discourse, Basingstoke/​New York: Palgrave Macmillan. Hollien, H. (2002) Forensic Voice Identification, London: Academic Press. Kaplan, J.P., Green, G.M., Cunningham, C.D. and Levi, J.N. (1995) ‘Bringing linguistics into judicial decision making:  Semantic analysis submitted to the US Supreme Court’, Forensic Linguistics: International Journal of Speech, Language and the Law, 2(1): 81–​98. Koppel, M, Schler, J. and Argamon, S. (2008) ‘Computational methods in authorship attribution’, Journal of the American Society for Information Science and Technology, 60(1): 9–​26. Law Commission (2009) The Admissibility of Expert Evidence in Criminal Proceedings in England and Wales, Consultation Paper 190 www.lawcom.gov.uk/​docs/​cp190.pdf (accessed 19 July 2020). Levi, J. (1993) ‘Evaluating jury comprehension of the Illinois capital sentencing instructions’, American Speech, 68(i): 20–​49. Maley, Y. (2000) ‘The case of the long-​nosed Potoroo:  The framing and construction of witness testimony’, in S. Sarangi and M. Coulthard (eds), Discourse and Social Life, London: Longman, 246–​269. Morrison, G.S. (2011) ‘Measuring the validity and reliability of forensic likelihood-​ratio systems’, Science & Justice, 51: 91–​98 537

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Prince, E. (1981), Language and the Law:  A Case for Linguistic Pragmatics, Working papers in Sociolinguistics, Austin: Southwest Educational Development Laboratory, 112–​160. Rose, P. (2002) Forensic Speaker Identification, London: Taylor & Francis. Rose, P. and Morrison, G.S. (2009) ‘A response to the UK position statement on forensic speaker comparison’, International Journal of Speech, Language and the Law, 16(1): 139–​163. Shuy, R.W. (2002) Linguistic Battles in Trademark Disputes, Basingstoke/​New  York:  Palgrave Macmillan. Solan. L. (1998) ‘Linguistic experts as semantic tour guides’, Forensic Linguistics, 5(2): 87–​106. Tiersma, P. and Solan, L. (2002) ‘The linguist on the witness stand: Forensic linguistics in American courts’, Language, 78: 221–​239. Turell, T. (2004) ‘Textual kidnapping revisited: The case of plagiarism in literary translation’, Speech, Language and the Law, 11(1): 1–​26. Ward, T. (2015) ‘An English Daubert? Law, forensic science and epistemic evidence’, The Journal of Philosophy, Science & Law, 15: 26–​36. Woolls, D. and Coulthard, R.M. (1998) ‘Tools for the trade’, International Journal of Speech, Language and the Law, 5(1): 33–​57. Wright, D. (2013) ‘Stylistic variation within genre conventions in the Enron email corpus: Developing a text-​sensitive methodology for authorship research’, International Journal of Speech, Language and the Law, 20(1): 45–​75.

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33 Forensic stylistics The theory and practice of forensic stylistics Gerald R. McMenamin

Introduction The purpose of this chapter is to outline the theory and practice of forensic stylistics as a technique that utilizes the linguistic analysis of writing style for the purpose of authorship identification. For more detailed treatments of the same subject matter, I refer the reader to McMenamin (2002, 2017). As in most of my previous work on forensic stylistics, I  write for readers of varying backgrounds, so linguists may simply want to skip over sections whose purpose they recognize to be foundational.

Language and linguistic stylistics Language is the internal system human speakers and writers acquire and use to communicate. A dialect is a variety of language that appears when a defined group of speakers develops consistent patterns of language use, called ‘class characteristics’ in forensic science. An idiolect (Bloch 1948: 7) is a variety of language developed by the individual speaker as a uniquely patterned aggregate of linguistic characteristics observed in his or her language use, called ‘individual characteristics’ in forensic science. For further development of the concept of the idiolect see, for example, Coulthard (2004), Guy (1980), Hockett (1958), Penny (2000) and Tagliamonte (2012). Linguistics is the study of the nature and development of the internal system of language as well as of the ways language is used in all its communicative contexts. One area of linguistics that is necessary for the understanding of stylistic analysis is the study of linguistic variation. William Labov was the first of many researchers to have succeeded throughout the last half century in identifying the forces that lead to linguistic diversity and relating them to the basic system of language as it is affected by non-​linguistic events (Labov 2002). With respect to group diversity, the individual creates his or her systems of verbal behavior to resemble those of the groups he or she identifies with, what Labov (2002: 19) refers to as ‘the general tendency towards accommodation and the pressure of community norms.’ One can then examine factors that may cause group (and I would add, 539

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individual) divergence from the norm, that is, change away from the community norm. Labov (2002: 19) indicates that language diversity can be the result of the need for distinctiveness, breaks in communication networks, and the individual’s process of language acquisition and learning. Style is seen as that part of human behavior that reflects individual variation in activities that are otherwise invariant. Fashion is a good example of style because, while most elements of dress are common to a group, structured as they are by social convention (e.g. ‘What not to wear!’), individual variation is tolerated, accepted and even encouraged. In much the same way, the elements of language that are common to all members of a speech community are what enable communication, while linguistic style is the result of what an individual selects to use from the array of linguistic options available to his or her own group or, for that matter, to other groups of speakers. Interestingly, by the way, the clothes–​language analogy is also used in the other direction, that is, language as a basis for understanding personal style. Recall the ‘sartorial eloquence’ metaphor in Elton John’s lyrics: You’ve a certain sartorial eloquence And a style that’s almost of your own William Labov (2002: 8) distinguishes between customs (stable forms) and fashions, ‘forms that change rapidly within and across generations.’ Citing Katz and Lazarsfeld (1955), Labov (2008: 2) says ‘[c]‌hange and diffusion of fashions —​in clothing and cosmetics —​ appears to be closer to linguistic change and diffusion than any other form of linguistic behavior.’ A professional American work environment requires business attire for men, with its conventional invariants of shirt, tie, suit, shoes etc. All these elements of dress will nonetheless demonstrate endless variation in their cut, size, shape, color, quality, cleanliness and result in the unique sartorial ensemble of every given man in that work place. The development of such style in children and adults is related to the ongoing acquisition of personal criteria for making individual choices, a lifelong process of learning and development. Style in all realms of human activity is acquired early by children, and once acquired has significant staying power. Style in language is not always unambiguously defined. Style in spoken language is linguistic variation that is directly related to the social context of conversation. Style in written language reflects both a writer’s conscious response to the requirements of genre and context as well as the result of his or her unconscious and habituated choices of elements of grammatical form and communicative function, which are acquired through the long-​term, experiential process of learning to write and writing. Style is in part, then, the sum total of the recurrent choices the writer makes in the process of writing. Recurrent refers to those choices that become subconscious habits of choice, that is, repeated selection of one form over other available forms. And choices can be described as points on a continuous norm, ranging from variations within a norm (favor/​favour) to deviations from a norm (They know it./​They knows it.). Stylistics is the study of style in language. Traditionally, the focus of literary stylistics was the aesthetic quality of expression or the prescriptive conformity of language to the rules of grammatical correctness and social propriety. Linguistic stylistics, in contrast, is the scientific interpretation of style markers as observed, described and analyzed in the language of groups and individuals.

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Style markers are the observable result of the habitual and usually unconscious choices an author makes in the process of writing. As mentioned above, there are two general types: 1. 2.

Choice of optional forms: I give you my heart. /​I give my heart to you. /​I give to you my heart. Deviation from a norm: I am working today. /​I’m working today. vs. I be working today.

For further discussion of the nature and occurrence of style markers, see McMenamin (1993: Appendices 1 and 2, 2001, 2017). An example of the identifying value of a regional class-​feature was observed in a recent judicial matter involving the occurrence of competing standard forms of the imperfect subjunctive in Spanish, historical vestiges of alternate forms that emerged in the transition from Old to Modern Spanish, which now both occur in the subordinate clauses of modern Spanish: (1) (2)

El El The

público público crowd

esperaba esperaba hoped

que que that

ella ella she

cantase. cantara. would sing.

This case included hundreds of Ecuadorian writings, all of which contained only the cantase form for the imperfect subjunctive, as in (1) above. However, among these writings was an expert report whose authorship was questioned. This lengthy report suspiciously contained only a few -​ase forms of the imperfect subjunctive, with most instances being the -​ara form, as in (2) above. This led the analyst to formally question the geographical provenance of the questioned report. After some litigation, the true authors of the expert’s report came to admit to a Mexican American source in a three-​step writing process: construction of the original report in English, in the U.S.; translation of this English report to Spanish by a U.S. Mexican American translator who consistently used the -​ara form; then submission of this Spanish translation, with minimal revision, to the Ecuadorian court as the report of the Ecuadorian expert, who would have used the -​ase form had he authored the document. Details of the authorship evidence related to the regional and individual variation in this matter are presented in McMenamin (2017: 75, 177–​203). In contrast to the variation of standard features like those in the Spanish case, class features commonly appear as deviations from a norm such as those observed in careless or under-​educated writers, e.g., spellings like corperate for corporate, or the mixing-​up of homonyms such as its/​it’s, effect/​affect, or their/​there as in this example: (3) a questioned letter and (4) known writings from a possible writer of (3). (3) Q1:10 Q1:12 Q1:15 Q13:24 (4) K12:11 K26:11 K32:12 K54:16

Questioned letter … submitting there full Application … … as part of there D/​A … … as part of there paperwork … … bells on there cats … Known writings … I am answering there question … … to seek their approval … … forwarded there letter to you … … on there Companies involvement … 541

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Interestingly, the group characteristics of a spoken dialect may also appear in the writing of speakers of a particular linguistic variety. For example, different words may be homophonous in certain social or regional dialects, and therefore the written form of one may replace the other in the written language, as may be seen in the use of then for than in (5). (5) Questioned Author 1:15 Known Author 1 16:14 Known Author 2 10:11 10:19 12:24 12:40 13:19

…more valuable then the Santa Cruz property …keep her there any more than a couple of days. …and took more then what was distributed to her. …‘the San property is more valuable’ then the Santa Cruz property. …in any one other then her the statements… …he would be more then happy to discuss the matter… …took care of her mother more then what she did.

Individuating features are also commonly observed, although these are not necessarily unique to a writer. For example, the following Questioned and Known examples in (6)  share the unmotivated insertion of capital letters. While the limited data does not support a systematic analysis of what may motivate the use of capitals here (e.g., capitalization of content words), the presence of intra-​text capitals is one of the features that constitute a defining set of characteristics of this author’s individual writing style. (6) Questioned 001 005 013 025 068 Known 004 015 042 049 118 120

The no Good degenerate scum… In this Video we see The bad Luck to get screwed over The Thugs are in the Area around A Misrepresentation in regards to Cant Recall the member No Response from him He Maliciously Calls the cops While I Get Replaced he No Way they build careers What is the World coming to when

The analysis of style is carried out using one or a combination of three models outlined by Wachal (1966: 4): resemblance, consistency and population. The so-​called resemblance model is used when external factors so narrowly limit candidate authors that the authorship task is to exclude or identify just one or a few suspect writers. For example, an ex-​ husband trying to gain custody of his children who denies writing letters defaming his former wife; in addition to him being the only person with knowledge of the events related in the letters, the language of his Known writings resembled that of the letters. The consistency model is used to determine if various writings were produced by the same author. 542

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This can be the principal task in cases involving a group of writings, one or more of known authorship but others of questioned authorship. Establishing the internal consistency of a group of writings is frequently the first step in a resemblance case when external circumstances do not demonstrate common authorship of a body of questioned writings. The population model is occasionally used in forensic contexts when the pool of candidate authors is large, that is, not limited to just one or two suspect writers. In this instance, the resemblance model is used repeatedly on one possible author after another until all are excluded. For example, a California governor once received a letter describing the in-​office sexual escapades of the director of a large state agency. (The letter even contained an elaborate drawing of the red-​velvet covered Victorian style couch in his office!) The writings of all employees in the office were analyzed to systematically exclude all (but one) as the letter writer. In the above discussion of models of analysis for questions of authorship, I have used the terms Questioned and Known. In the forensic sciences, there is a bullet, fingerprint, blood stain, fiber, email etc., whose origin is questioned. The case only becomes viable if and when a possible reference source for the questioned item, that is, a gun, fingerprint, DNA sample, piece of clothing, computer etc., is found and associated with a possible suspect. The same requirements must be met in the linguistic analysis of style: a Questioned writing, one whose authorship is in doubt or unknown, vis-​à-​vis Known exemplars, i.e., writings attested to have been produced by one or more possible authors.

The description of style The description of style, often referred to as the qualitative analysis of style, is the first step in the analysis of style. Qualitative inquiry is rigorous if conditioned by careful framing of research questions, systematic observation, data that are the direct outcome of observation, reliable methods of description and analysis, valid interpretation of results, and a statement of the basis for every conclusion (Johnstone 2000). Qualitative evidence is also generally more ‘demonstrative’ than quantitative results, meaning the use at trial of documents, charts and diagrams to illustrate testimony of the expert witness, which is presented to prove or disprove allegations of authorship. The demonstrability of the evidence should not be ignored, even given the strength and importance of quantitative findings, because it is the view of many forensic analysts that qualitative findings appeal to the nonmathematical, but structured, sense of probability held by judges and juries (Cohen 1977). Measurement of style follows in as much as quantification is based on the description and classification of identified linguistic elements. The most important step for systematic observation in both the description and subsequent measurement of linguistic variation is the identification of the linguistic variable, that is, the isolation of structural or functional linguistic units that carry significance with respect to group or individual writing style (Labov 1966a). Preferred variables, as articulated by Labov (1966b:  6) are those that are high in frequency (i.e., meaningfully quantifiable), immune from conscious suppression, codable, and widely distributed throughout a particular population. The variable is a class of variants ordered along a continuous dimension as determined by extralinguistic variables, such as particular individual authors, and is referred to as a style marker in authorship studies. The linguistic variant of a given variable is a particular instance of the variable, and a shift in the distribution of variants reflects a change in extralinguistic factors affecting the variable (Labov

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1966b:  15), which is different authors if applied to stylistic analysis. Labov indicates further: The variable is of course an abstraction. In actual texts, we meet with variants only. However, the move from variant to variable is the basic step which must be taken here. It implies that the speech performance of the individual or group is best explained through the assumption of an underlying linguistic continuum, in which categories form, reform and dissolve. (Labov 1966b: 21)

The measurement of style While qualitative and quantitative factors influence stylistic analysis, it is my position (as expressed above) that linguistic assessments of style precede their expression as numerical values and are often a more realistic representation of the facts. If description is not viewed as the input to measurement, the analyst risks considering the occurrence of any one variant of a variable to be a random event, when he or she knows that it is or could be in fact systematically conditioned. Labov (2008: 2) articulates this simply as ‘the assumption is that the distribution of its variants is of linguistic interest.’ The measurement of variation in written language is then an important complement to description and is necessary when using the occurrence of linguistic units to draw conclusions relative to authorship. Quantification of data makes decision-​making related to hypothesis testing easier and more precise, and it meets linguistic and judicial criteria for scientific findings and evidence. Various researchers are working on aspects of the quantification of textual elements, especially those related to the selection and significance of style markers. See, for example, Davis (1990), Eddington (2015), Scrivner and Díaz-​Campos (2016) and Rico-​Sulayes (2011). I also outline basic tests used to evaluate the significance of the relationship of variables across comparison writings:  frequency distributions, standard error of difference, t-​test, analysis of variance, proportion test, chi square, coefficient of correlation, and probability of occurrence calculations (McMenamin 2002: 138). In my view, the most promising quantitative approach for stylistics involves the analysis of corpus data from reference corpora specifically designed for their appropriateness in establishing norms that are related to the linguistic variables (style markers) of the writings to be studied. This is because, as Labov (in Gordon 2006: 33) says, ‘… I would develop an empirical linguistics based on what people actually say.’ With the advent of computer analysis and increased digital storage capacities, corpus linguistics is now commonly used for the empirical investigation of language form and function. There are two approaches to corpus linguistics: studies that motivate the design and development of a particular corpus, and inductive studies prompted by the language observed in the corpus itself (Biber 2009). The linguistic corpus is a collection of samples of real language, designed according to certain contexts of writing: writer, topic, purpose, intended reader, genre and medium of communication. The corpus serves as the empirical basis for the identification and analysis of linguistic units and sequences of units. It also serves to establish characteristic patterns of one linguistic variety versus another (Bennett 2010). The use of a linguistic corpus represents a methodology introduced to the forensic analysis of authorship by Malcolm Coulthard (1994a: 30), who proposed that a questioned 544

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writing be analyzed with reference to a language-​appropriate, case-​specific corpus that is designed and constructed for comparison purposes. For the specifics of this approach see Coulthard (1994a) or a summary in McMenamin (2017: 146). Coulthard’s concept of the use of a reference corpus has been made concrete by a number of subsequent studies designed to specify how to make a data-​driven analysis possible. For example, Nini and Grant (2013) start out to describe a methodological impasse in the study and practice of linguistic authorship attribution. They describe the strengths and weaknesses of two distinct methodologies (‘cognitive’ vs. ‘stylistic’), first by maintaining that the two approaches have complementary theoretical strengths, and second by explaining in detail how differences might be bridged using Systemic Functional Linguistics (e.g. Halliday and Matthiessen 2004). The authors’ theoretical proposal, coupled with their initial efforts (‘empirical exploration’) to move from theory to practice, show real promise. In my view, the strengths of their study are twofold. First, the authors carefully describe the two distinct approaches (although in my view they overstate the strengths of the so-​called ‘cognitive’ method). Second, they clearly explain how the development of data-​driven computational methods, such as Principal Component Analysis, may well lead to a more objective method of authorship analysis that could be applied to every case, while still requiring that the identification of a set of predetermined authorship markers be founded on the data of each case.

Forensic stylistics Forensic linguistics encompasses applications of linguistic analysis in forensic contexts, for example, voice analysis, translation and interpretation, dialect identification, discourse analysis and authorship identification, to name a few. Linguists study the habitual variation inherent in the language of any given speaker/​writer by observing samples of their spoken and written language. The array of the individual’s patterned uses of language can be described as a unique set and thereby used to identify the language of that writer. When this approach is applied to specimens of written language in dispute, the analysis of linguistic variation is often referred to as forensic stylistics. At this point, it is important to distinguish between linguistic stylistics and document examination. The focus of forensic stylistics is on the consistent, variable, idiosyncratic use of language as such. The focus of forensic document examination is on handwriting, typewriting, computer-​generated documents, paper, ink etc. While there is some overlap between these two fields of inquiry (e.g. typing habits that reflect underlying language patterns), their practitioners find little practical difficulty keeping these two modes of inquiry separate. Cases of questioned authorship typically present the linguist with a questioned writing to be first contrasted (for possible exclusion of the author) then compared (for possible identification of the author) to a set of exemplar writings known to have been written by a writer suspected of authoring the questioned material. The author’s style is exhibited in a writing sample large enough to demonstrate the individual variation present in the underlying linguistic patterns internal to the habitual language used by the author. Individual differences in writing style are related to individual choices of alternative forms made available to the writer by the large stock of linguistic alternatives held in common by all the speaker/​writers of the author’s defined group, that is, of his or her speech community. Thus, individuality in writing style results from a given writer’s own path to language

545

McMenamin QUESTIONED Z odiac

Q Zodiac 4:16 "right"

KNOWN Arthur L. Allen

K Allen 2:5 “Leigh”

Q Zodiac 7:12 "right"

Q Zodiac 8:6 "night"

Q Zodiac 12:5 "night"

Figure 33.1  Spelling: separation of graphemic units in digraph -​gh-​

acquisition and by his or her unique position within the group, as represented by an aggregate set of habitual linguistic choices that he or she individually makes. Case examples of variables to make the concept of style marker clear: Case 1: This is a spelling example (Figure 33.1) resulting from work done for David Fincher’s 2007 film, Zodiac, about an unidentified serial killer in Northern California in the late 1960s. The issue is not one of misspelling, but instead of physical separation of the diagraph -​gh-​ in words like rig ht and nig ht. Fincher suspected a man named Arthur Allen as the writer of the threatening letters sent by the serial killer calling himself the Zodiac. Although this and other features were suggestive of authorship, no conclusion was possible due to the paucity of Known writings from the now-​deceased Allen. Case 2: This punctuation example (Figure 33.2) comes from a criminal matter related to a ‘peeping tom’ who wrote letters to his victim in addition to spying on her through her bedroom window. In the Questioned as well as the Known writings, numerous unmotivated parentheses appear around underlined words. These words, however, are not parenthetical to their respective sentences. The writer appears to be using parentheses in conjunction with underlining as a means of placing emphasis on these words. (Fewer examples are presented than appeared in both sets of writings due to the excision here of the most offensive expressions.) Case 3: This was a matter of adult siblings in dispute among themselves over their mother’s Will. The son who lived closest to his mother was suspected by his siblings of having created a new Will with added provisions favoring only him. Known typed writings of the deceased mother demonstrated an invariable pattern in the use of end-​quotes: quote

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KNOWN Writings of Suspect

KS 1-9

KS 1-11

KS 2-4

KS 2-8

QUESTIONED Writings

Q 2-4

Q 7-2

Q 7-9

Figure 33.2  Punctuation: unmotivated parentheses

marks enclosing stated words and phrases appear with punctuation inside the quotes, while quote marks used for emphasis appear with punctuation outside the quotes. In contrast, the punctuation in the Questioned writings as well as in the Known writings of the suspect son occurs only inside the quote marks in all cases. (Only a few illustrative examples are provided in Figure 33.3 of the many that occurred for each pattern.)

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KNOWN WRITINGS of Deceased Mother End-quotes used for statements 232 479 511 531

, wrote a terse/“Is this yours?” and sent it to her chagrine off the line, get off the/line.” The electricity was develop for some tools from the house!” He was a new hired man, no and put some more peas on it.” My father did not smoke, an

End-quotes used for emphasis 520 569 715 742

ing B E E R. (Idaho was“dry”, Wyoming "wet) I was so su ather always went “first-class”. Even on a short train trip er she ran so did the “Indian”. He at last caught up with Idaho was “dry”, Wyoming “wet”. My mother worked for Presby

KNOWN WRITINGS of Suspect Son End-quotes used for statements 65 71 545

88 you repeatedly cried “Wolf!” to/your family and friends, the/former love of your life,” James D. Flinner, of various Instead of saying, “How nice!” Marie deftly inserted her/fi

End-quotes used for emphasis 15 67 90 94

s for his “final arrangements.” Linford. Your “other brother,” t, and the “love of your life,” Avenue, the Winterland “cabin,”

Previously, Ernest/had writt Floyd Whiting, as usual, did James D. Flinner,/suffered at the house at 1940 Juniper St.

QUESTIONED WILL End-quotes used for statements 50 mind, but I can make YOU mind!” Starting I 1984 I had orgina 66 man said,“The buck stops here.” I also have to/cite the old 168 might as well have the game.” From what I am able to piece End-quotes used for emphasis 124 245 309 326

and/a Ph.D. from this “school,” evidently without having tak pregnant with her “love child.” We were living in Laramie in Floyd for this absurd “advice,” and he gently reminded Lloyd and me about her “situation.” Larry himself told me next to

Figure 33.3  Punctuation: end-​quote marks

In the same case, the spelling of already vis-​à-​vis all ready also varied between the suspect son, his mother and her purported Will, as can be seen in the data of Figure 33.4. Case 4: This was a matter involving an estranged married couple, each saying the other wrote certain damaging letters. These data represent variable use of the relative pronoun who/​whom in the letter-​salutation, ‘To whom it may concern.’ The Questioned writings (Figure 33.5) contained the subject form who, but the writings of the wife demonstrated a patterned use of the object pronoun whom.

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KNOWN WRITINGS of Deceased Mother 47 47 84

get to work. Since Erne was all ready fit to be tied to be tied because we hadn’t all ready left for Laramie, I were Dorothy/Sayres I would all ready have the solution to

KNOWN WRITINGS of Suspect Son 209 295 312 565

by 1997 she estimated he had already extracted his “1/3” two required meetings have already been held. All of the since Tom Long’s law firm was already engaged with the legal /stopped. It also makes the already unpleasant job for the

QUESTIONED WILL 06 18 36

seems to be over. We had already been thoroughly soaked be stopped. It also makes the already unpleasant job for the at 22 months of age, Judy was already bossy. Our second/

Figure 33.4  Spelling: already

Q U EST IO N ED

KN O W N

Q1:2

KMP6:7

Q2:2

KMP8:2

KMP16:6

KMP23:7 KMP26:5

Figure 33.5  Word formation: to who it may concern vs. to whom it may concern

Case 5: This case involved two employees who were both suspected of defrauding their company. Writings (Figure  33.6) related to the fraud demonstrated similarities (use of which for who) to the writing of one employee and differences from that of the other (use of who for who). Case 6: In this matter, it was claimed that certain speakers who shared a first language other than English had together concocted a Will for a decedent whose native language was English. The writer(s) of the Questioned Will shared the same variation in sequencing tenses as the suspect authors of the Known writings (Figure 33.7). Case 7: A woman’s existing Will directed her estate to her daughter. After the death of the testatrix, a more recent Will appeared, naming her husband as beneficiary. The data presented differences in the positioning of objects within a sentence. Three possibilities for sequencing the indirect object (IO) and direct object (DO) in English are shown in (7). 549

McMenamin QUESTIONED Letter 0391 0535 0797 1010

another guy from outside the company which left because of fra he accused of my service director which had recruited me for by some one from outside the company which was fired after two mon that involved a closer (Marvin Finch) which he was accused of steal

KNOWN Writing of Suspect #1 3335 3390 3645

general manager with other associates who have the willingness to deals, however, there are those who you haven't talked to th and bring a qualified individual who has no interest but to p

KNOWN Writing of Suspect #2 3804 4161 4278

find out from an outsider (customer) which has no relationship with Steven Bernthal ... June 29th 2005 which leased a car on June an application of Mr.. Mario Ponce which purchased a 2001 model

Figure 33.6  Syntax: impersonal relative which for personal who or whom

KNOWN Writings 1:8 1:17 1:18 1:23 2:17 2:18

I told him that I am a very good cook and James kept ... asking me when am I coming back. He was saying that he is very attracted to me he promised that he will help me look for a job He told me that he will make a Will which He added that all I had to do is love him.

QUESTIONED Writings 1:16 1:18 1:25 2:8 2:28 2:34

I made sure that she will be taken care of just in case if I died. Frank told me they got engaged and their church wedding will be next year He also said that he has a Will that says he called Cela his wife, because that’s what she is to him He said she is the only one that is worth of it. he said that his Will is perfectly good

Figure 33.7  Syntax: sequence of tenses: main clause (past) followed by subordinate clause (present)

(7) Variation #1 Variation #2 Variation #3

I S I S I S

give V give V give V

John IO my estate DO to John to + IO

my estate. DO to John. to + IO my estate. DO

Corpus analysis would likely prove the third variation to be the most marked, and possibly to be a more formal form appropriate to the writing-​context of a Will. In this case (Figure  33.8), the Questioned Will demonstrates the marked Variation #3 (with one occurrence of the less formal Variation #2); the Known existing Will contains only Variations #1 and #2; and the Known writings of the suspect author (the husband) contain scores of instances of Variation #3 (and some of Variation #1). 550

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QUESTIONED Will QW1:3 QW1:9 QW1:13

I ... give and bequeath all personal property ... to my husband Will Smith .... I ... give and bequeath to my daughter Clarice Smith, nothing. I give to my nephew Marvin Lipp one hundred thousand dollars.

KNOWN Existing Will EW1:7 EW2:2 EW2:7 EW2:16 EW3:4

I give and bequeath all tangible property ... to my daughter. All the rest ... I give to my daughter. It is my wish that she provide my husband a monthly allowance. I specifically give all of the powers enumerated to my Executrix. I hereby give my fiduciaries the power to allocate the expenses ....

KNOWN Suspect Writer KS389:24 KS39:6 KS297:10 KS302: 11 KS348:12

Please send to me, a copy of any letter you send. ... she will return to the front office, the telephone and the fax machine. I ... give to my accountant freedom to .... I ... give to my beloved husband authority to .... The management company will send to you the money for ....

Figure 33.8  Syntax: order of indirect and direct objects within the sentence

Limitations of forensic stylistics Linguistic limitations to the theory and practice of forensic stylistics have been identified in recent years and have long been studied in authorship attribution research (McMenamin 1993, 2002, 2017). Directly confronting such limitations provides direction to the ongoing development of stylistic analysis and of forensic authorship analysis. Specific concerns presently center around four principal objections, each of which will be articulated and considered in turn. Objection 1: The selection of variables used for comparison and contrast of styles is arbitrary and subjective. The criteria for selection of style markers do not appear to be specified or justified. The selection of stylistic variables is based on the theory of variation analysis initially proposed by William Labov as far back as 1966, and further developed by very many others over a half century. I refer the reader to the discussion of the linguistic variable in The description of style section of this chapter. To be yet more specific, Labov (2008: 3) outlines the process for defining the linguistic (dependent) variable: Step 1. Notice variation: alternative ways of saying the same thing. Step 2. Define the envelope of variation: the largest environment in which the variation occurs. a. Accompany reports of occurrences of a variant with reports of all non-​occurrences. b. Set aside neutral cases:  environments where it is not possible to distinguish variants. c. Note exclusions: individual items that behave in idiosyncratic fashion. Step 3. Define the (independent) constraints on the variable (e.g. writing context or author).

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Objection 2: The frequency of occurrence of stylistic variables is not well defined, resulting in analytical methods that do not include rigorous statistical analysis of texts. Frequency of occurrence is, in fact, well defined if one follows the steps just outlined for coding variants of style variables. Successful statistical approaches to the general and forensic analysis of style go back decades (e.g. McMenamin 1993, 2002; Grant 2007; Grant and Baker 2001). Over the past decade, there has been significant research on the theory, description and measurement of style variables. Here are a few examples that combine new approaches:  Nini and Grant (2013) propose a theory and method of authorship attribution based on concepts such as codal variation in Systemic Functional Linguistics. Queralt (2015) proposes the creation of a Base Rate Knowledge and the implementation of Likelihood Ratios. Celestino de Aleida (2015) examines group vs. individual features of style. Zhang (2016) examines qualitative and quantitative elements of discourse analysis for authorship attribution of Chinese texts, including e-​texts and typescripts. Ishihara (2017) describes an experiment in forensic text comparison using the likelihood ratio framework in which authorship attribution is modeled on stylometric features of words and characters. Grant and MacLeod (2018) propose a model for understanding the relationship between language and identity that bridges the gap between viewing language as a product of sociolinguistic experiences and membership in particular identity categories, and seeing language as a resource to be drawn on for the performance of particular identities. Perkins and Grant (2018) examine the use of interlingual identifiers for forensic authorship analysis and native language influence detection by focusing on the practical applications of L1 identifiers by a human analyst in investigative situations. Objection 3: Given that reference to a linguistic norm is needed for the analysis of linguistic variation, a norm that is inaccessible for any reason weakens the analysis. Recall that style variables fall at some point on the continuum of the norm. For convenience, variation is seen as one of two types: deviations from a norm or variations within a norm. The clear cases, those possibly not requiring reference to a corpus, are variables that are prescriptive errors, that is, deviations from the conventions of an established norm. However, many useful style markers represent variation within a norm, that is, multiple error-​free ways of saying the same thing. It is here that corpus-​based determination of style-​marker significance is important. In actual fact, the continuum of what variation falls within a norm or outside it is so fluid that the distinction is of little analytical importance. Any systematic variation has potential significance. Another seldom-​mentioned linguistic limitation of current practice in authorship attribution is the occasional inability to clearly differentiate between group and individual variation, commonly referred to in the forensic sciences as class vs. individual features. A corpus-​based approach to style markers that will first identify group variables makes it then possible to assign remaining variables to the set of individuating style markers (i.e. those associated with identification of the individual author) based on relative frequencies of occurrences of identified linguistic variables. With respect to the need to refer to a community norm in order to establish individual variation, it has long been clear that such work is indispensable to successful stylistic analysis. Labov (1966b: v), for one, clearly makes this case: ‘The central finding of sociolinguistics is that the community is the stable and systematic unit, and that the behavior of individuals cannot be interpreted without prior knowledge of the community pattern.’ And, as already mentioned above, Labov ‘… would develop an empirical linguistics based on what people actually say’ (Labov 1966a: 11). 552

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Recognition of the need for a reference corpus does not mean that establishing a norm for any given analysis is in any way easy. The corpus for a given case should match as much as possible the context of writing of the text(s) under scrutiny, meaning that an ad hoc corpus may have to be assembled in the event that one enabling a pares cum paribus analysis does not already exist. Other more detailed outlines of the need to use bottom-​up approaches to stylistic analysis, such as tools from corpus linguistics to describe and establish group norms in particular cases, are to be found in Coulthard (1994a), McMenamin (2004 and 2017) and Solan and Tiersma (2004). Objection 4:  The relative significance of stylistic variables cannot be determined, because it is not yet possible to determine levels of conscious intervention as stylistic choices are made in the writing process, assuming that the most telltale markers are those least consciously used. It would, of course, be very useful to find a method to test a writer’s level of consciousness at any given point in the writing process. However, we can use what we know to be obvious: ‘Whether metacognitive activity operates at the conscious or subconscious level depends on the nature and complexity of the writing task as well as on the experiential and knowledge base of the writer,’ (Montague 1990:  30). Additionally, a performance approach to the observation and analysis of writing behavior appears to be as adequate as it is for the description of spoken language. Labov’s research related to levels of style (casual to formal) has demonstrated that variation is more consistent in casual speech, so this may be a place to do research on writing, that is, attempting to study an individual’s writings that are grouped by level of attention paid to the process of writing itself or to other aspects of the writing context that would result in text that is formal (more conscious) or casual (less conscious). Legal limitations to forensic stylistics relate to the standards for the admissibility of scientific evidence. Forensic stylistics presents no real limitations in countries or venues that rely on a ‘general acceptance’ test like that first laid out in the U.S. by the District of Columbia Court of Appeals in Frye v. United States (1923), wherein expert opinion based on a scientific technique was admissible if the technique was generally acceptable in the relevant scientific community. However, starting with the U.S. Supreme Court’s decision in Daubert v. Merrell Dow Pharmaceuticals (1993), the reliability of scientific evidence in federal and many state venues is now to be judged on five specific factors: 1. 2. 3. 4. 5.

whether the theory or technique can be tested; whether the theory or technique has been subjected to peer review and publication; the known or potential rate of error; the existence of standards controlling the operation of the technique; and general acceptance in the relevant scientific community.

Stylistic analysis stands up to the Daubert criteria (Coulthard 2004; McMenamin 2004), although the research area of immediate need is the establishment of error rates for stylistic analysis. However, the fact that forensic stylistics meets to a greater or lesser extent all but one Daubert criterion makes the technique reliable and acceptable even while error-​rate research is being done. In fact, in the later decision of Kumho Tire v.  Carmichael (1999), the U.S. Supreme Court emphasized flexible application of the Daubert criteria as opposed to rigidly applying any particular Daubert factor in a given case. 553

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However, this does not mean that judicial criteria external to the academic discipline of forensic linguistics, such as those set out in Daubert, cannot provide impetus for improvement in the methodology of forensic stylistics. On the contrary, many have correctly observed that pressure from Daubert will likely increase the number and variety of quantified approaches in forensic authorship analysis. However, I  see the increased rigor of quantification as second in importance to the resolution of another thorny problem: the reconciliation of two distinct approaches to the identification of style markers. If the judicial requirements are to be fully realized, that is, (1) having standards controlling the analysis of style and (2)  achieving general acceptance of forensic stylistics in the scientific community (linguistics), it will be necessary to find a middle ground between those who pre-​select style markers for analysis, based on criteria established without reference to the instant writings, and those who hold that the style markers used for analysis of a particular set of writings must be first observed as possible linguistic variables in those very writings. I have previously referred to these respective approaches as ‘top-​down’ vis-​à-​vis ‘bottom-​up.’ My position is known: the basic data for linguistic analysis is what users of language do, that is, language as produced by speakers and writers as they communicate with each other. Therefore, objective stylistic analysis of language structures is to be based directly on the language being observed and analyzed. Such a data-​driven approach precludes the introduction of language features (variables) predefined for other analyses. Some consequent advantages to this bottom-​up approach are (1) the analyst can take full advantage of all variation presented, (2) it may be easier to separate variation related to authorship from that resulting from genre or context of writing, and (3) high levels of variation may make it possible to work with shorter samples. This position is applied in one way by a number of analysts (e.g. Grant, Chapter 34, this volume) that, as long as the variables are demonstrably discriminating and applied in the same fashion to all writings under study, they can be used as reliable style markers. The obvious value of this approach is that, if and when the ultimate list of diagnostic variables is discovered for a particular context of writing within a given speech community, it can be universally and reliably applied by any analyst. It is my view that the identification of a context-​free set of style markers is not presently a realistic goal for forensic stylistics. Consider forensic sciences such as DNA profiling, ballistics, fingerprints, footwear or tire track impressions, forensic anthropology, archaeology, geology, entomology, odontology, pathology, toxicology or psychology. DNA profiling, used to identify individuals on the basis of varying sequences of DNA, is the only forensic science that I am aware of that is able to pre-​specify those polymorphic loci on the genome that will apply in every laboratory case. Yes, DNA is a lot like language: compared to what all individuals share, very little of our DNA or language varies from person to person. However, in contrast to such results in biochemistry, it is not possible to determine what linguistic elements (what on the genome of linguistic competence –​just allow the metaphor!) will present variation without first observing the language in question. While I  do not expect that a functional short-​list of reliable style markers for any given language will be found soon, I am certain that further research will identify a middle ground between these two positions. Putative limitations of forensic stylistics are imagined limitations articulated by linguists who write or speak with an agenda toward something other than that of usual scientific inquiry. For example, a linguist who once testified that the generally accepted methods of stylistics are not based on well-​established theoretical principles, proposing instead 554

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a theoretical position viewing linguistic variation as a feature of linguistic performance, simply overlooks what has been long-​established as the inherent variability of language (McMenamin 2001). Such a position cannot be taken seriously because it reflects woefully inadequate knowledge of variation theory and analysis, that is, seeing language as inherently possessing ordered heterogeneity. This approach to variation was articulated early on by Weinreich, Labov and Herzog: The key to a rational conception of language change –​indeed of language itself –​is the possibility of describing orderly differentiation in a language serving a community. … nativelike command of heterogeneous structures is not a matter of … ‘mere’ performance, but is part of unilingual linguistic competence. (Weinreich, Labov and Herzog 1968: 101) It has also happened that the expert linguist simply asserted this position in a case rather than empirically proving it, even simultaneously resorting to arbitrary ad hominem arguments in the often strained adversarial context of the courtroom. Such behavior threatens the admissibility of any and all linguistic evidence more than the method being argued for or against ever could. Other cases of imagined limitations are associated with linguists who are distracted by irrelevant issues, for example the strongly stated objection by Crystal (1995: 382) that if he were dead he would be turning over in his grave because his published theory of style was being applied to written language, to the momentary exclusion of spoken language. A more serious artificial limitation occasionally emerges in the rare expert linguist whose arrogance simply does not allow for an approach other than the one he or she proposes. See, for example, a discussion related to this problem in McMenamin (2001), wherein I examine an approach to authorship analysis whose proponent rejects hundreds of studies over a century of previous work in stylistics as unscientific and irrelevant to current theory and practice. Science by nature allows for simultaneous study and testing of multiple hypotheses, without regard to the burning desire of one researcher or other to be right, or to the external (e.g. legal) need for immediate methodological agreement and procedural standards. As I have said elsewhere (McMenamin 2017), the tail of the law need not wag the dog of scientific linguistics. It is also my belief that objections to stylistic analysis have possibly been occasioned by analysts’ inability to separate science from business. For example, a researcher may develop what appears to be an interesting method of authorship identification. However, if he or she neglects to present the work to the ‘relevant scientific community’ in such a way that it can be peer-​reviewed and replicated, and even goes so far as to limit its use by obtaining a patent on the method, such actions speak to a reversal of expected priorities that puts personal pecuniary interests before a commitment to scientific inquiry.

Conclusion Neither the more important challenges for forensic stylistics, like quantification and style-​marker identification, nor the mere pesky problems related to the occasional misguided analyst have to stand in the way of progress. The research needed to strengthen the science is clearly specified here and elsewhere for anyone who takes it up. However, the condition for doing the research necessary to meet any of these challenges is cooperation, 555

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and, as Atul Gawande observes, when there is a mixture of views within communities of researchers and professional practitioners, it is the collaborative leaders of the particular scientific community who set the norms and thereby define the character of the community: [those] that set norms encouraging the free flow of ideas and collaboration, even with competitors, produced enduringly successful communities, while those that mainly sought to dominate did not. (Gawande 2009: 42)

Further reading Coulthard, Malcolm (2004) ‘Author identification, idiolect and linguistic uniqueness’, Applied Linguistics, 25(4): 431–​447. —​—​—​(1994) ‘On the use of corpora in the study of forensic texts’, Forensic Linguistics:  The International Journal of Speech Language and the Law, 1(1): 27–​41. Grant, Tim D. (2005) Authorship Attribution in a Forensic Context, unpublished PhD Dissertation, University of Birmingham, Birmingham. Kniffka, Hannes (2007) Working in Language and Law: A German Perspective, New York: Palgrave Macmillan.

References Bennett, G.R. (2010) Using Corpora in the Language Learning Classroom:  Corpus Linguistics for Teachers, Ann Arbor: University of Michigan Press. Biber, D. (2009) ‘Corpus-​based and corpus-​driven analyses of language variation and use’, in Bernd Heine and Heiko Narrog (eds), The Oxford Handbook of Linguistic Analysis, Oxford:  Oxford University Press, 159–​192. Bloch, B. (1948) ‘A set of postulates for phonemic analysis’, Language, 24(1): 3–​46. Celestino de Almeida, D. (2015) Análise forense de autoria textual: estilos sociais e individuais, PhD abstract in Language and Law|Linguagem e Direito, 2(2): 127–​129. Cohen, L. (1977) The Probable and the Provable, Oxford: Clarendon Press. Coulthard, M. (1994a) ‘On the use of corpora in the analysis of forensic texts’, Forensic Linguistics, 1(1): 27–​43. —​ —​ —​(2004) ‘Author identification, idiolect and linguistic uniqueness’, Applied Linguistics, 25(4): 431–​447. Crystal, D. (1995) ‘Review of Forensic Stylistics’, Language, 71(2): 381–​384. Davis, L.M. (1990) Statistics in Dialectology, Tuscaloosa: University of Alabama Press. Eddington, D. (2015) Statistics for Linguists:  A Step by Step Guide for Novices, Newcastle upon Tyne: Cambridge Scholars Publishing. Gawande, A. (2009) ‘The cost conundrum’, The New  Yorker, Annals of Medicine section, 1 June: 36–​44. Gordon, M.J. (2006) ‘Interview with William Labov’, Journal of English Linguistics, 34(4): 332–​351. Grant, T. (2007) ‘Quantifying evidence for forensic authorship analysis’, International Journal of Speech, Language and the Law, 14(1): 1–​25. Grant, T. and Baker, K. (2001) ‘Identifying reliable, valid markers of authorship:  A response to Chaski’, Forensic Linguistics, 8(1): 66–​79. Grant, T. and MacLeod, N. (2018) ‘Resources and constraints in linguistic identity performance: A theory of authorship’, Language and Law|Linguagem e Direito, 5(1): 80–​96 Guy, G.R. (1980) ‘Variation in the group and the individual:  The case of final stop deletion’, in William Labov (ed), Locating Language in Time and Space, New York: Academic Press, 1–​36. Halliday, M.A.K. and Matthiessen, C. (2004) An Introduction to Functional Grammar, London: Arnold. Hockett, C.F. (1958) A Course in Modern Linguistics, New York: Macmillan.

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Ishihara, S. (2017) ‘Strength of forensic text comparison evidence from stylometric features:  A multivariate likelihood ratio-​based analysis’, The International Journal of Speech, Language and the Law, 24(1): 67–​98. Johnstone, B. (2000) Qualitative Methods in Sociolinguistics, New York: Oxford University Press. Katz, E. and Lazarsfeld, P. (1955) Personal Influence, Glencoe, IL: Free Press. Labov, W. (1966a) ‘The linguistic variable as a structural unit’, Washington Linguistics Review, 3: 4–​22. —​—​—​ (1966b) The Social Stratification of English in New York City, Washington, D.C.: Center for Applied Linguistics. —​—​—​(2002) ‘Driving forces in linguistic change’, International Conference on Korean Linguistics, Seoul National University, 2 August 2002 www.ling.upenn.edu/​~wlabov/​Papers/​DFLC.htm (accessed 18 July 2020). —​—​—​(2008) ‘Quantitative reasoning in linguistics’, notes for course Linguistics 563 www.ling. upenn.edu/​~wlabov/​Papers/​QRL.pdf (accessed 18 July 2020). McMenamin, G.R. (1993) Forensic Stylistics, Amsterdam: Elsevier. —​—​—​(2001) ‘Style markers in authorship studies’, The International Journal of Speech, Language and the Law, 8(2): 93–​97. —​—​—​ (2002) Forensic Linguistics: Advances in Forensic Stylistics, Boca Raton: CRC Press. —​—​—​(2004) ‘Disputed authorship in U.S. law’, International Journal of Speech Language and the Law, 11(1): 73–​82. —​—​—​ (2017) Introducción a la lingüística forense: un libro de curso, Fresno: The Press at California State University. Montague, M. (1990) Computers, Cognition, and Writing Instruction, Albany: State University of New York Press. Nini, A. and Grant, T. (2013) ‘Bridging the gap between stylistic and cognitive approaches to authorship analysis using Systemic Functional Linguistics and multidimensional analysis’, The International Journal of Speech, Language and the Law, 20(2): 173–​202. Penny, R. (2000) Variation and Change in Spanish, Cambridge: Cambridge University Press. Perkins, R. and Grant, T. (2018) ‘Native language influence detection for forensic authorship analysis:  Identifying L1 Persian bloggers’, The International Journal of Speech, Language and the Law, 25(1): 1–​20. Queralt, S. (2015) ‘Pilot study for the evaluation of linguistic evidence in forensic text comparison by the creation of a Base Rate Knowledge and the implementation of Likelihood Ratios’, PhD abstract in Language and Law|Linguagem e Direito, 2(2): 123–​125. Rico-​Sulayes, R. (2011) ‘Statistical authorship attribution of Mexican drug trafficking online forum posts’, International Journal of Speech, Language and the Law, 18(1): 53–​74. Scrivner, O. and Díaz-​Campos, M. (2016) ‘Language variation suite: A theoretical and methodological contribution for linguistic data analysis’, Linguistic Society of America Proceedings, 1 http://​dx.doi.org/​10.3765/​plsa.v1i0.3734 (accessed 18 July 2020). Solan, L.P. and Tiersma, P. (2004) ‘Author identification in American courts’, Applied Linguistics, 25(4): 448–​465. Tagliamonte, S.A. (2012) Variationist Sociolinguistics:  Change, Observation, Interpretation, Oxford: Wiley-​Blackwell. Wachal, R.S. (1966) Linguistic Evidence, Statistical Inference and Disputed Authorship, unpublished PhD dissertation, University of Wisconsin. Weinreich, U., Labov, W. and Herzog, M. (1968) ‘Empirical foundations for a theory of language change’, in W.P. Lehmann and Y. Malkiel (eds), Directions for Historical Linguistics, Austin: University of Texas Press, 95–​195. Zhang, S. (2016) ‘A study on authorship attribution of Chinese texts based on discourse information analysis,’ PhD Thesis abstract in The International Journal of Speech, Language and the Law, 23(1): 147–​150.

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34 Text messaging forensics Txt 4n6: idiolect-​free authorship analysis? Tim Grant

Introduction Danielle Jones disappeared on 18 June 2001; she has not been seen since and her body has never been found. Within hours of her disappearance two text messages were sent from her phone which, the police suspected, might have be written by her uncle, Stuart Campbell. In the first case of its type to reach the UK courts, Malcolm Coulthard offered a linguistic analysis which showed that the messages were unlikely to have been written by Danielle. Stuart Campbell was convicted of Danielle’s murder on 19 December 2002 at least in part because of the linguistic evidence. In a parallel case, Jenny Nicholl disappeared on 30 June 2005. Once more Malcolm Coulthard was able to offer a linguistic analysis suggesting that she was unlikely to have texted the final messages sent from her phone and that her lover, David Hodgson, was one of a small group of possible authors. Hodgson was convicted of Jenny’s murder on 19 February 2008. Further evidence of the potential utility of forensic linguistics in the examination of text messages was provided in 2007 when I was given permission to carry out a survey of mobile telephone seizures by the Northamptonshire Police, a medium-​sized semi-​rural force, located in the East Midlands of the UK and covering about 900 square miles and a population of 640,000. The police in the UK have powers to seize mobile phones and the information they obtain ranges from the location of the phone at any particular time, to the call record and details of the SMS text messages sent and received. I was given access to all 186 phones seized during a three-​month period, from which a total of some 10,000 text messages were recovered. Further analysis of the case files showed that for only 12 of these phones was there any suspicion that the owner had not sent all of the messages. Perhaps unsurprisingly in none of the cases was a forensic linguist employed to resolve these potential disputes. However, the degree of actual and potential investigative interest in the authorship of text messages appears to be growing and this raises some very real theoretical and methodological problems, not least whether such short and fragmentary texts are amenable to any form of authorship analysis.

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Coulthard makes the strong claim that The linguist approaches the problem of questioned authorship from the theoretical position that every native speaker has their own distinct and individual version of the language they speak and write, their own idiolect, and … this idiolect will manifest itself through distinctive and idiosyncratic choices in texts. (Coulthard 2004: 432) Even if the first claim here, that every speaker has their own idiolect, can be sustained, there is no necessary implication from it that an individual’s idiolect will be measurable in every text produced by that person, whatever its length. It would be perfectly rational to hold Coulthard’s view and to also hold that a substantial and varied body of text would be required before manifest idiolectal features became noticeable or measurable. Coulthard’s working definition of the idiolect as a ‘distinct and individual version of language’ only becomes useful to the authorship analyst if an idiolectal feature repeats itself, either within one text or across several texts by the same author. In the context of text messaging it may be that individual messages are considered too short to allow the possibility of idiolectal analysis, but conversely it may be possible to analyse idiolect in text messages by examining many messages written by the same individual. Further to this, although Coulthard claims his definition to be a ‘theoretical position’, a distinction must be made between observation and theory. On the one hand, there is the observation of features that might comprise an idiolect, that is to say idiolectal analysis requires an empirical study that produces evidence of consistency and distinctiveness. On the other hand, a linguistic theory of idiolect is required, which would provide explanation of any empirical evidence. The analysis of authorship may depend conceptually on theories of idiolect as distinctive versions of language but practically and methodologically authorship analysis depends on the facility to detect consistent patterns of language use. If consistent patterns can be detected, then the next step will be to determine how distinctive any such patterns are. Practical authorship analysis may depend less on a strong theory of idiolect than on the simple detection of consistency and the determination of distinctiveness. The principal theoretical question this chapter addresses is whether authorship analysis can be valid as the mere detection of degrees of consistency and the determination of degrees of distinctiveness, or whether in its practical application it must rest implicitly or explicitly on a particular and strong theory of idiolect. Consistency and distinctiveness may, of themselves, be evidence that an idiolect exists, but they do not constitute an explanatory theory of idiolect. In this theoretical sense, authorship analysis based only on consistency and distinctiveness can be considered idiolect free, or at least idiolect light. Below, following a theoretical discussion of different theories of idiolect and their explanatory usefulness, a method will be demonstrated that measures consistency and distinctiveness in text messaging authorship analysis. The chapter then concludes with a discussion of whether such an analysis in fact depends upon or requires the practitioner to subscribe to a theory of idiolect, and whether one particular theory of idiolect has advantages over any other.

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Authorship analysis and theories of the linguistic individual Current work in forensic authorship analysis has tended to polarise between those who argue that work on authorship requires a strong understanding of the cognitive mechanisms of textual production on the one hand (Chaski 2001; Howald 2009), and on the other those who believe a stylistic understanding of language production is sufficient to explain authorial consistency and distinctiveness (McMenamin 2001). This debate has proved important in the United States Court system. Howald (2009) supporting Chaski’s (2001) position, argues that stylistic approaches to authorship analysis are theoretically weak and therefore should fail the legal admissibility tests applied by the American courts. Some of this debate seems to rest on alternative conceptions of the idea of the linguistic individual and indeed on different theories of idiolect.

Cognitivist theories of idiolect A set of theories of idiolect (which I shall refer to as cognitivist theories) suggest that individual language production is largely determined by linguistic competence. Competence is conceptualised here as the cognitive capacity of an individual to produce language and as such is reflected in linguistic performance. If one holds a cognitivist view of the linguistic individual then one good approach for authorship analysis involves trying to measure their cognitive capacity. Such approaches analyse particular aspects of language that are well explained by cognitive models of language production: aspects such as syntactic complexity or measures of the mental lexicon. It is possible in a general sense to measure such features and demonstrate variation between authors and groups. For example, quantitative and computational linguists can, at least with longer texts, describe mathematically features of individuals’ language production in terms of word frequency distributions (Baayen 2001; Holmes 1998; Grant 2007), syntactic structures (Chaski 2001; Spassova and Grant 2008) and other observable markers of authorship. The successful employment of these approaches in the resolution of authorship attribution problems does in fact depend upon, and thus demonstrate, degrees of consistency and distinctiveness. However, the cognitivist theories of language production upon which these approaches rest do not of themselves explain consistency within an author’s textual production, nor distinctiveness between any two authors. To have a well worked out theory of language production is different in this sense from having an explanatorily strong theory of idiolect. A theory of idiolect must provide an explanation as to why one individual’s production is consistent across texts, and must also explain why that individual’s language is distinctive as compared with that of other individuals. Cognitivist theories may be better at explaining consistency within an individual’s textual production but it is more difficult to elaborate cognitive explanations of distinctiveness between individuals. In describing language production systems cognitivist theorists tend to assume minimal individual differences or assume that differences between individuals are relatively uninteresting. A good example of this cognitivist reduction in interest in individual linguistic variation is Chomsky’s move from his earlier interest in the dichotomy between competence and performance to his later, allied but distinct theoretical dichotomy between internal and external language; L-​I and L-​E, respectively (Chomsky 1985). Theories of language competence can incorporate the possibility of variation between individuals; however, the more recent dichotomy between L-​I and L-​E holds less explanatory power in this respect. In these theories, theoretical primacy is given to understanding individual internal 560

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language capacity, L-​I, rather than the less essential L-​E, where distinctions between natural languages and their variants are seen as rather uninteresting. The research focus is not on differences between different individuals’ L-​I (arguably there are none) but rather on what is common to all individuals in L-​I. This theoretical work is one of the foundations for the development of cognitive science in the late 1980s and early 1990s and cognitive science has in turn informed the more recent biologically focused project of cognitive neuroscience. Where cognitive linguists proposed information processing models or architectures for language production the neuroscientists looked to realise these models in terms of particular brain locations and processes. In order to understand the implications of this to forensic work, we need to trace a brief history of an area where cognitive psychologists and neuroscientists have made some progress in explaining just one small part of language production. One such area is child language acquisition and a small part of this literature focuses on the way children learn irregular past tense verbs, which is sometimes said to demonstrate a U-​shaped learning curve. Initially children produce these irregular forms accurately, for example, English ‘went’ as a past tense for ‘go’ and ‘was’ for ‘is’. In the next stage of learning, however, children appear to unlearn these verb forms now creating errors such as ‘goed’ or ‘wented’. This stage represents the ‘dip’ in the U-​shaped learning curve. In the final stage of learning, representing a rise out of the learning curve dip, children’s performance improves again and they begin to use the correct forms for irregular past tense verbs again. Beretta et al. (2003) examined alternative cognitive models attempting to explain this U-​shaped learning curve. Some cognitive models propose a rule-​based system whereby the first language learner produces regular verbs using a stem+ed production model and there is also an entirely separate part of the model devoted to simply memorising the small number of irregular verbs (e.g. Pinker and Ullman 2002). This type of model is referred to as a ‘rules plus memory model’ and it is argued that the developmental interaction between these two elements can explain the U-​shaped learning curve. A  less recent and entirely different model, based on neural networks, is provided by Rumelhart and McClelland (1986), who argue that associative learning alone can account for the U-​shaped learning curve. Their model contains only a single processing network and is unified in the sense that regular and irregular forms are learnt in a single system. These two models both appear to accurately explain the observable data but, at this stage in the historical development of the field, they both faced the same reasonable criticism; this is that although each model was conceived to be consistent with experimental results, there is no strong sense in which they could have claimed to be real. That is to say, neither model could claim to be related either to the biological foundations of language production, or to the social reality of language use. Choosing between two models that are both consistent with the available experimental data is entirely arbitrary. The solution to this problem came with the development of brain imaging techniques over the last ten years. This has made real the understanding that there are very specific brain locations through which different aspects of language are produced. In the case of learning past tense verbs, Beretta et al. (2003) report the discovery that the production of regular and irregular verbs actually occurs at two separate brain locations. This new evidence can provide a reason for choosing Pinker’s rules plus memory model over Rumelhart and McClelland’s associative model with its implication of a single structure. Developments such as these in cognitive neuroscience have important implications for discussions of idiolect, which, in turn, are important for work in authorship analysis. With regard to idiolect, the main implication is that, just as we as a species share biological 561

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structures, so too do we share brain structures in language production. The general focus of cognitive neuroscience is not on variation between individuals, but on shared commonalities. If I as a speaker of English have two neurological structures for the production of past tense verbs then so too will you. Adopting a cognitive view of language production tends to make the explanation of idiolectal variation more difficult rather than easier. Of course, it is not impossible to develop a cognitive neuroscience of idiolectal variation. Just as we recognise minor biological differences between individuals, so we may argue for similar individual differences in cognitive structures. To ignore cognitive neuroscience in discussions of idiolect would be reckless, but it is extremely difficult to use this body of work to explain actual individual differences between texts written by the same or different authors. By contrast stylistic theories of idiolect can and indeed do explain individual differences between authors.

Stylistic theories of idiolect Forensic stylistics is sometimes seen as being in opposition to more cognitivist approaches to idiolect. From the cognitivist perspective, it has been suggested that those who take a more stylistic approach to authorship analysis have a weaker theory of idiolect and that the variables used are not on as solid a foundation in terms of linguistic theory (Howald 2009). Proponents of the more stylistic approaches naturally take issue with such an evaluation, arguing that theories of stylistic variation are essential to understanding differences that occur between individuals (McMenamin 2002). My argument is that understanding language variation stylistically, as the interaction between habit and context, does not imply a lack of linguistic theory so much as an alternative linguistic theory. Stylistic and variationist theories of language are less focused on providing species-​wide explanations of language production than on developing explanations as to how and why language varies and/​or remains constant across sociolinguistic contexts. Such an approach may in fact be able to provide a better explanation of variation between individuals than cognitivist approaches. Individuals will have different linguistic experiences and these will be revealed in their language production. This is not idiolect-​free authorship analysis, but rather authorship analysis which has a different conception of the nature of idiolect. Johnstone (1996, 2009), studying the language of Barbara Jordan, and Kredens (2002, 2003), studying the language of Morrissey, separately describe the consistency of individual linguistic stance across texts, contexts and indeed a lifetime of textual production. In these detailed descriptions, it is possible to draw some individual historical and social explanations for consistent features of language use. For example, Johnstone (1996: 155) concludes of some low-​level aspects of Barbara Jordan’s style that her language reflects ‘her disregard for appearances, and her lifelong refusal to adapt to social expectations about how a southern black woman should live and behave’. In other words, Johnstone is arguing that Jordon’s language draws upon her individual social history and upon a construction of herself as a participant in that history. Such case studies are invaluable in demonstrating the development and persistence of a linguistic individual across a variety of sociolinguistic contexts. Perhaps even more important for theories of idiolect and for forensic authorship analysis such insights allow us to develop explanations for the specifics in an individual’s style. In this respect, one possible criticism of these studies might be their choice of interesting individuals; Johnstone’s case study of Barbara Jordan, a United States political figure famous for her oratory, and Kredens’ case study 562

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of singer-​songwriter Morrissey, known for his imaginatively gloomy lyrics, are together somewhat elitist choices, perhaps unrepresentative of the average language user. Both individuals may in different ways be aiming to project a particular persona through their public language and have the talent and linguistic skill to achieve this. These concerns aside, the approach taken by both Johnstone and Kredens suggests that individuals taking a constant or repeated linguistic stance can create stylistic traits, which in turn can be construed as the creation of a linguistic individual. In so far as these stylistic approaches only identify consistent and distinctive features of linguistic output for an individual, they fare no better than cognitivist approaches in suggesting a strong theory of idiolect. There is, however, rather more of an attempt at explanation for the creation of a linguistic individual amongst these theorists and in particular a live debate as to whether the intersection of sociolinguistic factors determine a linguistic individual (as discussed by Kredens 2002) or whether an individual’s history and context are resources which can be drawn upon, a position preferred by Johnstone (1996, 2009). One advantage of this idea –​that we might draw upon our individual sociolinguistic resources in the creation of a linguistic persona –​is that it allows for the additional possibility that we might also draw upon other language resources. In particular, it is possible to speculate that a linguistic individual might draw upon a combination of sociolinguistic resources and cognitive resources. Accepting that an idiolect may not be determined by either cognitive capacities or sociolinguistic history, but that each may provide resources and constraints in the creation of a linguistic individual, suggests the possibility of a more unified theory of idiolect.

A unified approach to the linguistic individual Coulthard (2004) demonstrated just how individual an apparently everyday utterance can be. Using a series of Google searches, he shows how the apparently everyday phrase ‘I asked her if I could carry her bags’ is probably a unique utterance. He points out that at each stage in the construction of the phrase from a one-​word utterance, to a two-​, three-​, four-​and eventually nine-​word utterance it increases in rarity to become apparently unique. He suggests ‘I asked her’ may be a pre-​formed idiom, and so too, ‘if I could’ but where these appear together to form, ‘I asked her if I could … ’, this showed only 7,740 Google hits in 2004. There is apparently a fairly open choice as to the verb which might follow this construction. In Coulthard’s example, the word ‘carry’ is used and shows its rarity by scoring only seven Google hits. A range of alternative words might have replaced it. These include ‘take’, ‘hold’, ‘bring’ etc. One idiolectal question is why one individual would use ‘carry’, whilst another individual might use ‘bring’. Work on lexical priming offers one answer to such a question. Hoey’s (2005) work on lexical priming is situated firmly in a corpus-​based tradition and yet aspects of lexical priming have long been researched by cognitive psychologists interested in the mental lexicon. Hoey’s work concentrates on collocation, and details how one word primes the occurrence of its collocates. Although Hoey is not, in this work, interested in theories of idiolect he does discuss how such collocates emerge and from this one can infer how priming and collocation can spread from one individual to another and how an individual’s own language can be affected by these collocational pressures. In contrast, cognitive psychologists’ interest in priming has been experimental, and has described systematic patterns in reaction time as to how a word’s frequency, rarity and semantic relation affects our ability to recognise or recall it (e.g. Sloboda 1986). These two 563

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perspectives on lexical priming might be seen as coming together in the developing interest of the cognitivist neuroscientists in the malleability or plasticity of the brain. Recent work in cognitive neuroscience considers not only the cognitive structures common between individuals but also how the brain is altered by environmental stimuli. Greenfield (2008) describes the plasticity of the brain to external stimuli. At a gross level this can be illustrated by the example of how London taxi drivers, who have to memorise ‘the Knowledge’ of the driving geography of London before obtaining a license, develop an expanded area of the hippocampus. A more linguistic example might include evidence that bilinguals develop different parts of their brain to speak their different languages (e.g. Ibrahim 2008). Using evidence such as this Greenfield elaborates a description of the mind as the ‘personalisation of the brain’ by individual external stimuli each making tiny incremental changes to neuronal activity and structure. Extrapolating from such a model it is possible to conceive the beginnings of a theory of idiolect as the personalisation of the language systems by exposure to differing linguistic stimuli. One potent force of such personalisation would be the statistical weight of collocation. My exposure to a certain variety of language containing one set of collocates would be different from my neighbour’s and this personalisation would gradually cause individual differences in our language production. Idiolectal consistency and variation would draw on both the resource of my cognitive capacity for language production and also the complexity of my personal sociolinguistic history. According to this potential theory of idiolect, the cognitive capacity is itself structured but malleable and the sociolinguistic history is realised in incremental changes to that neuro-​cognitive capacity. In conclusion, theories of idiolect cannot merely notice consistent and distinctive features of the language of an individual. They should also attempt to provide explanations for these facts. We have seen that although cognitivist theories can provide convincing explanations for some aspects of language production these theories hold less power in and of themselves in explaining individual variation. Conversely, while stylistic approaches to the linguistic individual do concentrate on providing explanations for language variation between individuals, they are perhaps less interested in explaining how these might be realised psychologically. I  have speculatively indicated a possible future path which might help these different and sometimes competing theories of idiolect to provide complementary explanations for the construction of an individual. The question that remains is how far these theoretical discussions of idiolect can or should impact on forensic authorship analysis.

Text messaging authorship analysis In the two text messaging cases referred to at the beginning of the chapter, the problem brought to the linguist by the police was to determine which of two authors was more likely to have written a series of messages. In forensic casework, this is perhaps the most common type of problem, at least when the linguist is commissioned by the police. Typically, by the time the police approach a linguist they will have identified a suspect and are trying to build an evidential case to put to the suspect in interview. In the Danielle Jones and the Jenny Nicholl cases, the question put was whether it was more likely that the queried messages were written by the suspect or by the supposed victim. The police investigators may have, or believe they have, other non-​linguistic evidence that makes the possibility of a third unknown person already very unlikely or even impossible. It is of course possible to write a conditional opinion of the sort that, if it is known that one of 564

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the two candidate writers did write the questioned text message, then of these two X is a more likely author than Y. Clearly, however, such a conditional opinion is not ideal. In the UK system the expert works for the court even if instructed by the police and it would be better practice ethically and methodologically to step back from the expectations of the police and truly account for the possibility of other potential authors. This raises the question of how rare one person’s text messaging style might be, or even whether it could be unique. The issue of linguistic distinctiveness between individuals has two levels, which may be independent. If it can be demonstrated that the suspect exhibits a consistent style in text messaging and also that the victim has a consistent but different style then the first level of distinctiveness will have been proved. I shall refer to this as pair-​wise distinctiveness and I  will argue that answering this question does not depend upon a strong theory of idiolect, but only upon the degree of consistency of style within each author and the difference which is demonstrable between them. To this extent, any such analysis might be characterised as idiolect-​free authorship analysis. The second possible level of distinctiveness, however, may have more profound implications for theoretical discussions of idiolect. This would occur if one person’s text messaging style can be said to be distinctive, unusual or even unique against a reference population of text messages. This I shall refer to as population-​level distinctiveness. As we shall see, it is possible to explore questions of consistency of style and both pair-​wise and population distinctiveness using statistical methods. These methods were in fact developed in forensic psychology for the investigation of serial crime (e.g. Bennell and Canter 2002; Woodhams and Toye 2007). The issue of consistency is also one of degree and has to be judged in the context of pair-​wise as well as population-​level distinctiveness. In a recent text messaging case in which I was involved, the linguistic issue involved determining which of two people was the more likely writer of a sequence of 20 text messages. For each writer I was provided with about 200 messages of known authorship. Within this known set, some features appeared to be absolutely consistent and absolutely discriminating. For example, every time Author A used the word ‘don’t’ they spelt it ‘dont’, i.e. without the apostrophe. In contrast, every time Author B used the word ‘don’t’ they used the abbreviation, ‘dnt’. Other features demonstrated only degrees of consistency; Author A, for example, always used the standard spelling, ‘just’, while Author B used ‘just’ about one-​third of the time, ‘jst’ two-​thirds of the time. The spelling ‘jst’ in a particular message obviously contains some authorship information but it can be argued that, in the context of pair-​wise distinctiveness, so too does the spelling ‘just’. This spelling is more consistent with author A than B. Calculating the degree to which this can be used in determining an opinion, however, requires statistical sophistication (see Lucy 2005 for a good introduction on the application of Bayesian inferencing to resolving this sort of problem). In the Jenny Nicholl murder case, Coulthard took a more traditional descriptive linguistic approach. He initially analysed a series of messages known to have been written by Nicholl and later also a series of messages known to have been written by Hodgson. From this examination, he identified nine low-​level stylistic features that were seen to discriminate between the text messaging styles of the two possible authors. Some of these messages are now in the public domain including 11 known to have been written by Nicholl (reproduced in Table 34.1) and seven known to have been written by Hodgson (reproduced in Table 34.2). A further complication with Hodgson’s messages was that two of the messages were produced on request in a police interview thereby giving Hodgson 565

Grant Table 34.1  Known messages of Jenny Nicholl Sum black+pink k swiss shoes and all the other shit like socks.We r goin2the Indian.Only16quid.What u doin x Yeah shud b gud.i just have2get my finga out and do anotha tape.wil do it on sun.will seems keen2x Shit is it. fuck icant2day ive already booked2go bowling. cant realy pull out. wil go2shop and get her sumet soon.thanx4tdlin me x No reason just seing what ur up2.want2go shopping on fri and2will’s on sun if ur up2it Sorry im not out2nite havnt seen u 4a while aswel.ru free2moro at all x No im out wiv jak sorry it took me so long ive had fone off coz havnt got much battery Only just turned my fone.havnt lied bout anything.no it doesnt look good but ur obviously jst as judgmental than the rest.cu wen I cu&I hope its not soon I havnt lied2u.anyway im off back2sleep I know I waved at her we wer suppose2go at4but was a buffet on later on so waited.anyway he had a threesome it was great cu around Im tierd of defending myself theres no point.bye Happy bday!will b round wiv ur pressent2moz sorry i cant make it2day.cu2moz xxx

Table 34.2  Known messages of David Hodgson has he got his phone on him ave dun he aint got it he will b in witherspoons she in got puddings and tissues in me pnckets.ave2 hope he rings b4 he goes up back in 30 put it on at 3.30 at 150 ok and top on at 4.45 but dont put glass lid on just the suet ok and the spuds separate

Table 34.3  Two messages elicited during a police interview HI JENN TELL JACKY I Am KEEPING My PhONE of because I am living in Scotland with my boyfriend I mite be in trouble with my dad myself. DaDs going to kill me I told him I was leaving Keswick why Does he hate me everyone hates me in RICHMOND you are the only mate I have got Have to go see you. Hi jenn tell jacky i am keeping my phone of because i am living in Scotland with my boyfriend i might be in trouble with dad myself dads going to kill me i told him i was leaving Keswick why does he hate me everyone hates me in Richmond you are the only mate i have got have to go see you

the opportunity to deliberately disguise his style (Table  34.3). Finally, there were four questioned messages (reproduced in Table 34.4). Example features used by Coulthard in this case include the abbreviation ‘im’ for ‘I am’ and a lack of a space after using ‘2’ for ‘to’ (both used by Nicholl and not Hodgson) and the use of ‘me’ and ‘meself’ rather than ‘my’ and ‘myself’ (used by Hodgson and not Nicholl). He judged these to be consistently used by each of the two candidate authors. Coulthard was the only linguist to give evidence at trial and his opinion was careful and correct. He was able to say that the suspect messages were inconsistent with the described

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Text messaging forensics Table 34.4  Questioned messages Thought u wer grassing me up.mite b in trub wiv me dad told mum i was lving didnt giv a shit.been2 kessick camping was great.ave2 go cya Hi jen tell jak i am ok know ever 1s gona b mad tell them i am sorry.living in Scotland wiv my boyfriend. shitting meself dads gona kill me mum dont give a shite.hope nik didnt grass me up.keeping phone of.tell dad car jumps out of gear and stalls put it back in auction.tell him i am sorry Y do u h8 me i know mum does.told her i was goin.i aint cumin back and the pigs wont find me.i am happy living up here.every1 h8s me in rich only m8 i got is jak.txt u couple wks tell pigs i am nearly 20 aint cumin back they can shite off She got me in this shit its her fault not mine get blame 4evrything.i am sorry ok just had 2 lve shes a bitch no food in and always searching me room eating me sweets.ave2 go ok i am very sorry x

style of Jenny Nicholl. His conclusion with regard to Hodgson was measured. He gave the opinion that ‘Linguistic features identified in Mr Hodgson’s and the suspect texts are compatible with their having been produced by the same person’ and when pressed at trial he emphasised that Hodgson was one of a group of possible authors, and that the linguistic evidence could not go further than that (personal communication). The description of the consistencies in style and this pair-​wise distinctiveness contributed to the case which convinced the jury to convict David Hodgson of Jenny Nicholl’s murder and an appeal on the grounds that the linguistic evidence was unsound failed. One challenge for forensic authorship analysts when considering text messages is to adopt something like the approach demonstrated in Coulthard’s method and expression of opinion and to develop this approach further. In particular, comparisons between authors could be enhanced if the descriptive methods used by Coulthard can be developed to enable the quantified comparison of degrees of consistency and distinctiveness. Fortunately, forensic linguistics can borrow from its sister discipline of forensic psychology to achieve this aim.

Forensic psychology and case linkage work Forensic psychologists have been involved in developing methods to determine whether a particular crime is an independent event, or alternatively, whether it is in fact part of a series of linked crimes committed by the same offender. This work, known as case linkage, typically relies on the statistical or computational analysis of offenders’ behaviours in databases of offences and depends upon the twin principles of behavioural consistency and behavioural distinctiveness. The parallels with authorship analysis as described are clear. These case linkage principles have been investigated and demonstrated across a series of types of crime including car crime (Tonkin et  al. 2008), commercial burglary (e.g. Bennell and Canter 2002; Woodhams and Toye 2007), sexual crime (e.g. Santtila et al., 2005b; Woodhams, Grant and Price 2007), arson (Santtila et al. 2005a) and murder (Salfati and Bateman 2005) and a theoretical discussion exploring the nature of behavioural consistency in forensic work is beginning to be well developed (Woodhams and Toye 2007; Woodhams et al. 2007b). Methods taken from this body of work can be adapted and applied to text messaging authorship analysis. Instead of scoring the presence and absence of crime scene behaviours, we can score the presence and absence of stylistic features.

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Statistical consistency and distinctiveness Returning to the Nicholl case, these methods can be exemplified even with the relatively small number of publicly available text messages. Because of the small number of messages, it is a simple matter to code each text as having or lacking each of the features noticed by Coulthard. The presence of each feature in each text message is scored as a one and its absence is scored as a zero. This creates an array of zeros and ones for every message sent. An example is shown as Table 34.5. Using these representations, pairs of messages can then be compared for similarity or dissimilarity using a binary correlation analysis called Jaccard’s coefficient. Jaccard is a statistical tool for measuring the degree of similarity. It produces results ranging from zero to one, with zero indicating total dissimilarity and one indicating identity. For the purposes of this worked example, I wish to follow Coulthard’s analysis and this produces a slight peculiarity in results. Coulthard’s method is to use reciprocal coding to create a series of contrasts, for example Nicholl’s use of ‘im’ with the suspect’s ‘I am’, and this produces two coding columns that indicate the presence of ‘im’ in some of Nicholl’s messages but none of Hodgson’s whereas for ‘I am’ the reverse pattern is true. This choice of features, along with the small number of messages, together produces the mathematical effect of reducing some of the Jaccard scores to zero and this in turn requires the use of one-​sample t-​tests (with a test score of zero) to make some of the comparisons. This, however, does not affect the theoretical or practical implications of the method more generally. Calculations for both t-​tests and Jaccard coefficient will be performed by most statistics programs (such as SPSS) and described in their manuals and help files and also in most introductory text books on statistics (e.g. Dancey and Reidy 1999). One feature of Jaccard which is crucial for both the analysis of text messages and for its parallel use in criminal case linkage is the fact that the occurrence of two absence scores, two zeros, has no effect on the overall similarity metric. A writer may be consistent in their preference of ‘im’ over ‘I am’ but this consistency will not be revealed in every message. In a similar vein in crime analysis, the absence of evidence of the carrying of a weapon at a scene is not evidence of its absence from that scene and Jaccard allows for this. Having calculated Jaccard’s coefficient between pairs of messages it is very straightforward to statistically demonstrate consistency of style and pair-​wise distinctiveness Table 34.5  Example coding of text message got puddings and tissues in me pnckets.ave2 hope he rings b4 he goes up back in 30 im 0 I am 0 am not/​I’m not 0 aint 0 ive 0 ave 1 my 0 myself 0 me 1 meself 0 of 0 off 0 to=2-​space 0 to=2+space 1 cu 0 cya 0 fone 0 phone 0 shit 0 shite 0 b4 1 before 0

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between authors. To demonstrate the degree of consistency in Nicholl’s messages using this coding system it is possible to take all of Nicholl’s 11 messages and pair each message with every other. This produces 110 pairs and subsequently 110 Jaccard scores (mean = 0.23, SD  =  0.20). A  similar process can be carried out with Hodgson’s seven messages creating 42 Jaccard scores (mean = 0.11; SD = 0.19). Removing the messages that Hodgson produced at interview leaves 20 Jaccard scores and raises the mean Jaccard score slightly and reduces the standard deviation (mean = 0.15; SD = 0.12). If we move to examine all the pairs of messages where each pair contains a Nicholl text and a Hodgson text, the Jaccard scores fall to zero for each and every one of these possible between-​author pairs. (Included in this analysis are those text messages elicited from Hodgson during police interview.) This zero score is a representation of the difference in style between Hodgson and Nicholl. It is atypical to score zero, rather than a low decimal close to zero, but as commented above this is at least in part an artefact of using Coulthard’s features which result in reciprocal coding. The zero result perhaps argues for a broader description of the messages than the nine features chosen by Coulthard for their absolute discriminatory power. Nevertheless, the zero score makes the point statistically that Coulthard was making descriptively; Nicholl’s and Hodgson’s texts are demonstrably stylistically distinct from one another. We have demonstrated that pair-​wise distinctiveness exists in this case. It is possible to reinforce this assertion by statistical testing. The appropriate test is a one-​sample t-​test and this shows a significant reduction in similarity when messages paired between the two authors are compared with Nicholl’s within-​author pairs (t(109) = 12.02, p < 0.01, Cohen’s d = 1.55). There is also a significant reduction in similarity when the between-​author pairs are compared with Hodgson’s within-​author pairs (t(41) = 3.79, p < 0.01, Cohen’s d = 0.81). Collectively these results demonstrate statistically consistency of style within the text messages of Nicholl and consistency in the style within the text messages of Hodgson and also distinctiveness between the two styles. Thus far, only texts of known authorship have been examined. The forensic questions require consideration of the questioned messages. When these questioned messages are paired with Nicholl’s messages these mixed pairs are shown to be significantly less similar than the Nicholl-​only pairs of messages (t(145) = 9.38, p < 0.01, Cohen’s d = 1.41). In contrast to this result there is no significant reduction in similarity when pairs of texts known to have been written by Hodgson are compared with pairs with one Hodgson text and one questioned message (t(62) = 8.36, p = 0.41, Cohen’s d = 0.14). In summary, Nicholl’s and Hodgson’s styles each demonstrate a degree of internal consistency and distinctiveness from one another. Nicholl’s texts can also be shown to be distinctively different from the questioned texts but Hodgson’s texts cannot. This statistical demonstration of pair-​wise distinctiveness and its post hoc application to Coulthard’s case supports but adds little evidential weight to Coulthard’s own descriptive analysis. Being able to measure consistency and distinctiveness is a methodological advance in that it allows some quantification of stylistic distance between groups of texts and thus some quantification of probabilities that one group of texts is inconsistent with another. The method, however, is intended to address only pair-​wise distinctiveness. This distinctiveness can be shown to exist irrespective of whether there is any strong explanation for it and in this sense the method might be said to be idiolect free. The pair-​wise approach, does, however, suggest a further method for demonstrating population-​level distinctiveness. The forensic psychology studies investigate which sets of features are most discriminating at a population level (e.g. Woodhams and Toye 2007) and 569

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a similar analysis can be carried out on text messaging features. Such an analysis would help determine empirically which sorts of features are most useful in idiolectal discrimination. Such an empirical finding might then have theoretical implications. For example, it might be shown that in text messaging a tendency for abbreviation is more generally discriminating between authors than the use of grammatical ellipsis. If such a finding arose, it would provoke questions as to why one type of feature might show more between-​ author variation than another. This is just one aspect of the considerable further work to be carried out on these techniques and some of it is already underway. A  general description of computer-​ mediated communication  –​text messages, micro-​blogs (e.g. Twitter) or instant messaging –​is already developing (e.g. MacLeod and Grant 2012) and this is already proving useful in exploring the population-​level questions. In addition, the statistical techniques used in case linkage are also under rapid development, not least with the creation of a taxonomic similarity measure (Woodhams et  al. 2007a) developed in relation to sexual crime. The application of this taxonomic similarity to text messaging forensics is also being explored. In spite of the speed of development, it is already possible to reflect on the implications of methods such as these for understandings of idiolect and of the role of idiolectal theories in forensic casework.

Implications for theories of idiolect As we have seen, it is possible to construct a method for authorship analysis based on stylistic variation. The steps which comprise this method can be clearly described and followed to produce replicable results on the same data set and can also be applied to different data sets. The method primarily demonstrates that different authors can be consistent and distinctive in their style of textual production. This does not mean that individuals are absolutely consistent; language is naturally variable. Neither does it mean that every author will be consistent in the same way. This method allows for and detects the fact that one author may be consistent in, for example, a form of abbreviation, whilst another author may tend to punctuate in an idiosyncratic manner. This is a strength of this method and it is a contrast with more traditional stylometric approaches. The stylometric approaches tend to carry with them the assumption that a ‘good’ marker or feature of authorship is one which will show between-​author variation and within-​author consistency across a sample of authors (e.g. Chaski 2001; Grant 2007). Examples of such stylometric markers might include measures involving word frequency distributions, frequency of use of functional words, or measures of syntactic structures. Many stylometric approaches are very successful in dealing with longer texts written in standard language variants but they do tend to struggle with the short and fragmentary language of text messaging. Using the technique described here, it is possible to demonstrate not only consistency but also to show pair-​wise distinctiveness between text messages by two authors. Observation of stylistic consistency and distinctiveness in this way is good evidence that idiolect exists. Observation that the writings of some, many or most authors can be discriminated using stylometric markers of authorship is also good evidence that idiolect exists. As I  have argued above, however, mere observation and description of consistency and distinctiveness is not a theory of idiolect. Theories have to have explanatory power. Any investigation limiting itself to observation and description of consistency and distinctiveness in authorship style might fairly be considered idiolect-​free authorship analysis. 570

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It is possible to draw separate parallel conclusions outlining the possible contribution to a theory of idiolect of both the stylistic and the cognitivist stylometric approaches to authorship analysis. Using a more stylistic, sociolinguistic or variationist approach in observing specific features of a particular author’s language we may be able to explain some of those features by appealing to that author’s social and linguistic background. The use of ‘me’ for ‘my’ in a text message might, for example, be explained in terms of the dialect background and pronunciation of that writer. Such specific explanations, however, may not always be available to us. Why a second individual with a similar social and geographic background, and perhaps with a similar pronunciation, chooses to follow the more standard spelling may well seem inexplicable. At a general level, however, we can provide some explanation of stylistic variation between individuals. This explanation rests on the fact that individuals vary in their social and linguistic history, and in their lexical priming, and this produces variation in the sociolinguistic resources upon which they draw for language production. Using a more stylometric approach in observing specific features in an individual’s language may not commit one to an interest in cognitivist theories of language production but many stylometric measures will be based on insights derived from such theories. To claim that a measure is based on a cognitive or neuropsychological understanding of language production does not of itself explain between-​author variation in that measure. Without relying on sociolinguistic explanations, why two individuals with similar cognitive and neurological structures vary in such a measure may well seem inexplicable. At a general level, however, we can provide some explanation of cognitive variation between individuals. This explanation rests on the fact that individuals may show some variation in their biology, but there will also be variation in sociolinguistic history and thus in lexical priming, and this produces personalisation of the neurological and cognitive resources upon which they draw for language production. With regard to theories of idiolect, I  would argue that consistency and pair-​wise distinctiveness are matters of empirical observation upon which forensic authorship analysis can rely. Any such comparison must be based in sound methods that can convincingly demonstrate the degrees of consistency and distinctiveness found in a particular comparison of texts known to have been written by the authors but the results of such comparison have little to contribute to theoretical discussions of idiolect. Such matters of fact do not of themselves explain idiolect. The possibility of pair-​wise distinctiveness, wider distinctiveness or even population-​level distinctiveness, however, does seem to demand some explanation. To the extent that it can be shown that one individual’s language is measurably unique in the population of all language users, this is, or would be, an astounding fact. Even less extreme individual linguistic distinctiveness demands a combination of cognitive and social investigation and demands a combination of cognitive and social explanations. Observable individual linguistic uniqueness demands a theory of idiolect.

Postscript –​Txt4n6 ten years on Hodgson was convicted in 2008 and appealed his conviction in 2009, on the basis that Coulthard’s linguistic evidence was untested (R v Hodgson [2009]). The full appeal judgment, however, was not available until after the book had gone to press. In turning down the appeal the judgment notes that: 571

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The judge reminded the jury in terms that [Coulthard] was not saying that in his opinion the applicant had written the texts, merely that he could have done, as could a number of other people. [§62] and that The professor responded [in cross examination] that the applicant’s style seemed consistent with his having been the author, but he was not saying that the applicant was the author. [§64] and that Ultimately this was always a matter for the jury to determine the authorship of the suspect text messages and they would have taken into account all the evidence in the case. [§65] Coulthard’s reliance in his evidence on the ideas of consistency and compatibility, his discussion of issues of distinctiveness and, further to this, his avoidance at trial of the temptation to make a strong attribution all combined to render his evidence and the overall conviction of Hodgson judged safe at appeal. These issues are all picked up further in Grant and MacLeod (2020, ­chapter 6) and of particular importance is this last issue. Framing authorship work as analysis of consistency and distinctiveness leaves the question of attribution to the finder of fact, in Hodgson’s trial, the jury. It is my view that not only is this correct as a matter of jurisprudence and as a matter of forensic decision-​ making, it is also correct in terms of our understanding of the linguistics of the individual and the extent of within-​person linguistic variation. Grant (2012) reprises the question of whether the identification of consistency and distinctiveness are sufficient for linguistic authorship analysis and does so in the context of the Birks murder case and suggests a protocol for working on cases such as these. In addition, Grant and MacLeod (2018, 2020), writing in the context of examining identity disguise by online undercover police officers, discuss further the nature of linguistic online identities and propose a more detailed theoretical framework for understanding the idea of an author. In this theoretical context, Johnson and Wright (2017) pick up an interesting point which could be developed further –​that some authors may be more distinctive than others. Once stated this may seem a somewhat obvious point, but it is enormously important and often unnoticed in academic discussions. Just as with person description, where identifying a 195cm tall man with a flaming red beard is easier than discriminating a more non-​descript character, so too distinguishing two authors who have relatively non-​descript writing styles will always be a harder task than if one of them has unusual style markers. To the extent that stylometric approaches are based on population-​ level distinctiveness they are less likely to be interested in or take account of this sort of variation in potential individuation. This observation needs more empirical and theoretical discussion. In this context it is perhaps notable that detailed description of particular individuals tends to focus on professional communicators rather than the man or woman in the street. Thus Johnstone (1996) discusses as a linguistic individual the style of the former Texas State Senator Barbara Jordan, and Kredens (2002) examines the performer Morrissey in terms of his idiolect. There is now exciting work by Kredens et al. (2019)

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examining tens of thousands of linguistic individuals and addressing these issues, and I for one await the full findings with interest. One advance suggested in this chapter that has been taken up and developed recently is the use of the presence/​absence of features rather than feature counts in the determination of authorship. Grieve et al. (2019) comment that traditional stylometric methods tend to fall below a 500-​word threshold and so they adopt a presence/​absence approach applied to n-​grams for their analysis of the Bixby letter. Interestingly, as a measure of similarity and difference they prefer to use the overlap coefficient rather than the Jaccard method –​ mostly as this is less sensitive than Jaccard to difference in text length, an issue that is less important in the comparison of SMS messages with one another than in a comparison of the short Bixby letter with mostly longer documents. A final suggestion I  made towards the end of the chapter can also be addressed by Kredens and colleagues’ new project. This is the question of whether there are types of linguistic or stylistic features which are generally discriminating when moving from population-​level feature analysis to comparison of a small number of individuals. Thus I ask above whether an empirical study might allow it to be shown that ‘a tendency for abbreviation is more generally discriminating between authors than the use of grammatical ellipsis’. The informally reported results so far (in Kredens et al. 2019) seem to suggest that there is no set of generic types of feature like this and if this is true this has implications –​which will unroll over the next ten years –​for both practical forensic authorship analysis work and for the development of ideas about the linguistic individual.

Further reading Grant, T. (2012) ‘TXT 4N6: Method, consistency, and distinctiveness in the analysis of SMS text messages’, Journal of Law and Policy, 21(2): 467–​494. Grant, T. and MacLeod, N. (2018) ‘Resources and constraints in linguistic identity performance–​a theory of authorship’, Language and Law/​Linguagem e Direito, 5(1): 80–​96. —​—​—​ (2020). Language and Online Identities: The Undercover Policing of Internet Sexual Crime, Cambridge: Cambridge University Press. Grieve, J., Clarke, I., Chiang, E., Gideon, H., Heini, A., Nini, A. and Waibel, E. (2019) ‘Attributing the Bixby Letter using n-​gram tracing’, Digital Scholarship in the Humanities, 34(3): 493–​512. Johnson, A. and Wright, D. (2017) ‘Identifying idiolect in forensic authorship attribution: An n-​ gram textbite approach’, Language and Law/​Linguagem e Direito, 1(1): 37–​69.

Legal sources R v. Hodgson [2009] EWCA Crim (31 March 2009) 742.

References Baayen, R.H. (2001) Word Frequency Distributions, Dordrecht: Kluwer Academic Publishers. Bennell, C. and Canter, D. (2002) ‘Linking commercial burglaries by modus operandi: Tests using regression and ROC analysis’, Science and Justice, 42: 153–​164. Beretta, A., Campbell, C., Carr, T.H., Huang, J., Schmitt, L.M., Christianson, K. and Cao, Y. (2003) ‘An ER-​fMRI investigation of morphological inflection in German reveals that the brain makes a distinction between regular and irregular forms’, Brain and Language, 85: 67–​92. Chaski, C. (2001) ‘Empirical evaluations of language-​ based author identification techniques’, Journal of Forensic Linguistics:  The International Journal of Speech Language and the Law, 8(1): 1–​65. Chomsky, N. (1985) The Logical Structure of Linguistic Theory, Chicago: University of Chicago  Press.

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Coulthard, M. (2004) ‘Author identification, idiolect, and linguistic uniqueness’, Applied Linguistics, 25: 432–​447. Dancey, C.P. and Reidy, J. (1999) Statistics Without Maths for Psychologists, London: Prentice Hall. Grant, T. (2007) ‘Quantifying evidence for forensic authorship’, The International Journal of Speech, Language and the Law, 14(1): 1–​25. —​—​—​(2012) ‘TXT 4N6:  method, consistency, and distinctiveness in the analysis of SMS text messages’, Journal of Law and Policy, 21(2): 467–​494. Grant, T. and MacLeod, N. (2018) ‘Resources and constraints in linguistic identity performance–​a theory of authorship’, Language and Law/​Linguagem e Direito, 5(1): 80–​96. —​—​—​ (2020) Language and Online Identities: The Undercover Policing of Internet Sexual Crime, Cambridge: Cambridge University Press. Greenfield, S. (2008) ID: The Quest for Identity in the 21st Century, London: Sceptre. Grieve, J., Clarke, I., Chiang, E., Gideon, H., Heini, A., Nini, A. and Waibel, E. (2019) ‘Attributing the Bixby Letter using n-​gram tracing’, Digital Scholarship in the Humanities, 34(3): 493–​512. Hoey, M. (2005) Lexical Priming. A New Theory of Words and Language, London: Routledge. Holmes, D.I. (1998) ‘The evolution of stylometry in the humanities’, Literary and Linguistic Computing, 13(3): 111–​117. Howald, B.S. (2009) ‘Authorship attribution under the rules of evidence: Empirical approaches in the layperson legal system’, Speech, Language and the Law the International Journal of Forensic Linguistics, 15: 219–​247. Ibrahim, R. (2008) ‘Performance in L1 and L2 observed in Arabic-​Hebrew bilingual aphasic following brain tumor:  A case constitutes double dissociation’, Psychology Research and Behaviour Management, 1: 11–​19. Johnson, A. and Wright, D. (2017) ‘Identifying idiolect in forensic authorship attribution:  An n-​gram textbite approach’, Language and Law/​Linguagem e Direito, 1(1): 37–​69. Johnstone, B. (1996) The Linguistic Individual:  Self Expression in Language and Linguistics, Oxford: Oxford University Press. —​—​—​(2009) ‘Stance, style, and the linguistic individual’, in A. Jaffe (ed.), Sociolinguistic Perspectives on Stance, Oxford: Oxford University Press, 29–52. Kredens, K. (2002) Idiolect in Authorship Attribution, Folia Linguistica Anglica, Lodz:  Lodz University Press. —​—​—​(2003) ‘Towards a corpus-​based methodology of forensic authorship attribution:  A comparative study of two idiolects’, in B. Lewandwska-​ Tomaszczyk (ed.), PALC’01:  Practical Applications in Language Corpora, Frankfurt am Mein: Peter Lang. Kredens, K., Pezik, P., Rogers, L. and Shiu, S. (2019) –​‘Toward linguistic explanation of idiolectal variation –​understanding the black box’, paper presented at the 14th Biennial Conference of the International Association of Forensic Linguists (peer-​reviewed). Lucy, D. (2005) Introduction to Statistics for Forensic Scientists, London, Wiley. MacLeod, N and Grant, T. (2012) ‘Whose Tweet? Authorship analysis of micro-​blogs and other short-​form messages’ http://​publications.aston.ac.uk/​id/​eprint/​19303/​1/​Authorship_​analysis_​of_​ micro_​blogs_​and_​other_​short_​form_​messages.pdf (18 July 2020). McMenamin, G.R. (2001) ‘Style markers in authorship studies’, Forensic Linguistics:  The International Journal of Speech Language and the Law, 8: 93–​97. —​—​—​ (2002) Forensic Linguistics –​Advances in Forensic Stylistics, Boca Raton, FL: CRC Press. Pinker, S. and Ullman, M.T. (2002) ‘The past-​tense debate:  The past and future of past tense’, Trends in Cognitive Sciences, 6: 456–​463. Rumelhart, D.E. and McClelland, J. (1986) ‘On learning the past tenses of English verbs’, in D.E. Rumelhart and J. McClelland (eds), Parallel Distributed Processing Volume 2, Cambridge, MA: MIT Press, 216–​271. Salfati, C.G. and Bateman, A.L. (2005) ‘Serial homicide: An investigation of behavioural consistency’, Journal of Investigative Psychology and Offender Profiling, 2: 121–​144. Santtila, P., Fritzon, K. and Tamelander, A.L. (2005a) ‘Linking arson incidents on the basis of crime scene behaviour’, Journal of Police and Criminal Psychology, 19: 1–​16. Santtila, P., Junkkila, J. and Sandnabba, N.K. (2005b) ‘Behavioural linking of stranger rapes’, Journal of Investigative Psychology and Offender Profiling, 2: 87–​103. Sloboda, J. (1986) ‘Reading a case study of cognitive skills’, in A. Gellatly (ed.), The Skilful Mind, Oxford: Oxford University Press, 39–49. 574

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Spassova, M.S. and Grant, T. (2008) ‘Categorizing Spanish written texts by author gender and origin by means of morpho-​syntactic trigrams’, conference Curriculum, Language and the Law, Dubrovnik. Tonkin, M., Grant, T. and Bond, J.W. (2008) ‘To link or not to link:  A test of the case linkage principles using serial car theft data’, Journal of Investigative Psychology and Offender Profiling, 5: 58–​77. Woodhams, J., Grant, T.D. and Price, A.R.G. (2007a) ‘From marine ecology to crime analysis: Improving the detection of serial sexual offences using a taxonomic similarity measure’, The Journal of Investigative Psychology and Offender Profiling, 4: 17–​27. Woodhams, J., Hollin, C. and Bull, R. (2007b) ‘The psychology of linking crimes: review of the evidence’, Legal and Criminological Psychology, 12(2): 233–​249. —​—​—​(2008) ‘Incorporating context in linking crimes: An exploratory study of situational similarity and if-​then contingencies’, Journal of Investigative Psychology and Offender Profiling, 5: 1–​23. Woodhams, J. and Toye, K. (2007) ‘An empirical test of the assumptions of case linkage and offender profiling with serial commercial robberies’, Psychology, Public Policy, Law, 13: 59–​85.

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35 Plagiarism Evidence-​based detection and analysis in forensic contexts Rui Sousa-​Silva

Introduction It is still a common misconception that plagiarism is essentially an academic issue and that, outside the academy, plagiarism is only a problem when literary or scientific publications are involved (in which case it is less a problem of plagiarism than of copyright infringement). However, in recent years high-​profile cases involving politicians and famous journalists have shown that plagiarism is not a ‘mere’ academic problem. The case of German Defence Minister, zu Guttenberg, who was accused in 2011 of plagiarism in his doctoral thesis and eventually had to resign is a case in point, as is the case of the former German Education Minister Annette Schavan, who in 2013 was found to have improperly reused more than 130 passages in her doctoral thesis; she consequently had her title revoked and also resigned. More recently, João Bernardes, mayor of a Portuguese municipality, was accused of plagiarism in his doctoral thesis. An expert concluded that the thesis had copied significantly from other sources; in the accusation, the Prosecutor’s Office claimed that the mayor took someone else’s texts and passed them off as his own, by merely introducing small changes to conform with a recent spelling reform, replacing verbs with nominalisations, changing the gender of some words or replacing verbs, changing the word order and omitting parts of the original texts. In February 2020 Bernardes was fined 5,000 EUR. Internationally renowned journalists have also been involved in plagiarism scandals. In 2011, Johann Hari, former journalist of The Independent, was accused of plagiarising quotes from interviews given to other journalists and passing them off as coming from his own interviews. He was asked to return the Orwell Prize, which he had been awarded in 2008, was suspended from The Independent and eventually resigned. Earlier, in 2003, The New  York Times was involved in a scandal when one of its most distinguished journalists, Jayson Blair, was also accused of plagiarism. Similarities were found between a story Blair had written and an article authored by reporter Macarena Hernandez, published one week earlier by San Antonio Express-​News. Blair eventually resigned and his case (which is recounted in the documentary A Fragile Trust: Plagiarism, Power, and Jayson Blair at The New York Times) was widely used to discuss the boundaries 576

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of ethics, deontology and malpractice in journalism. These cases show that plagiarism can and does have serious consequences in non-​academic contexts and impacts on people’s lives. However, the borders are often blurred, and different disciplines adopt different positions about plagiarism  –​court decisions are often made up of significant amounts of unacknowledged text and TS Eliot, when accused of plagiarism in one of his poems, argued that any well-​read person would recognise the extract and so acknowledgement was not necessary. So what in one context/​genre might be considered plagiarism may be perfectly acceptable in another setting. The blurred borders may be problematic in cases of news plagiarism, where writers often claim that what they do is report facts, and facts are not subject to plagiarism. This chapter examines what the practice actually entails, focusing on lexical, grammatical and textual features that contribute to making texts linguistically similar enough to be considered plagiarism.

Defining plagiarism Coulthard, Johnson and Wright (2017) offer a definition of plagiarism, stating that the type of plagiarism linguists are competent to deal with is the ‘theft, or unacknowledged use, of text created by another’ (177). In order to be considered plagiarism, a disputed text needs to meet a minimum of two criteria (individually or cumulatively): that the plagiarist reuses someone else’s text, while either (a) not citing the real sources (i.e., by omitting the references), (b) including citations but in a way that fails to clearly identify the text (or parts) of the text that belong to the plagiarist or to the sources, or (c) citing the sources ambiguously, so that the reader takes the text to belong to the plagiarist and to the author cited in the text at the same time. Take for example the sentence in Extract (1), which is correctly attributed: (1) Any linguistically based investigation of plagiarism is based consciously or unconsciously on the notion of idiolect. (Coulthard et al. 2017: 177) Any of the alternatives in table 35.1 will be a form of plagiarism. ‘Intentionalist’ approaches, which take into account the plagiarist’s intention to deceive, are backgrounded by Coulthard et al. (2017) because intention can be hard to demonstrate in practice. Legal definitions do, however, include intention in the equation; Garner (2009) defines plagiarism as the ‘deliberate and knowing presentation of another person’s original ideas or creative expressions as one’s own’ and earlier Ascensão (1992: 65) maintained that plagiarism is not a mere copy, but rather a more insidious act, because it appropriates the creative essence of the work (its originality), by taking on a different form or shape. The question, then, is to what extent linguists can provide a definition of plagiarism that suits, not only the academic, but also the legal requirements where they are a forensic issue. Just as in some criminal cases establishing the degree of intentionality behind the possible criminal act is crucial to determining the seriousness of the offense, so too the most serious form of plagiarism is when it is intentional, i.e. when the plagiarist acts either deliberately to deceive readers, or knowingly, where the plagiarist, despite not acting deliberately, does not take action to prevent the deception (for example, when a student takes

577

Sousa-Silva Table 35.1  Criteria to be considered plagiarism (a)

Lack of acknowledgement

Any linguistically based investigation of plagiarism is based consciously or unconsciously on the notion of idiolect.

(b)

Unclear acknowledgement

Any linguistically based investigation of plagiarism, whether it is plagiarised translation, translingual plagiarism or plagiarism by paraphrase, is based consciously or unconsciously on the notion of idiolect, and this has an impact on the analysis of academic and non-​academic plagiarism alike. (Coulthard et al. 2017)

(c)

Ambiguous acknowledgement

This chapter argues that any linguistically based investigation of plagiarism, whether it is plagiarised translation, translingual plagiarism or plagiarism by paraphrase, is based consciously or unconsciously on the notion of idiolect, and this has an impact on the analysis of academic and non-​academic plagiarism alike. (Coulthard et al. 2017)

notes but ignores the source and later believes the text to be his/​her own). Establishing the degree of intention, however, can be tricky, and of course any attempt by linguists to determine the plagiarist’s intention is focused less on the psychological, than on the linguistic intention (which is made evident mostly by the lexico-​grammatical changes adopted). The linguist’s role consists of analysing the texts, identifying the strategies used to plagiarise and determining whether such strategies involve an effort by the plagiarist to obfuscate the texts (in which case it is intentional or negligent), or whether they accidentally produced plagiarising text (in which case it is not intentional). The greater the effort to manipulate the text by introducing textual alterations, the more likely it was intentional, and this information is of help to the trier-​of-​fact, as it gives evidence on whether the text meets the criterion of originality. The term ‘plagiarised’ is frequently used to refer to the derivative text, which is misleading because it is the original that has been plagiarised. Therefore, in this chapter, the term ‘plagiarising’ will be used to refer to the derivative text (the ‘predator’), and the term ‘plagiarised’ to refer to the original text (the ‘prey’).

The linguistic analysis of plagiarism and textual similarity Copy-​and-​paste, re-​arrangement, insertion, omission, rewriting and patchwriting have been identified as the main strategies used by plagiarists in academic settings (Howard 1999; Pecorari 2003), although the same strategies are used in non-​academic settings, as the examples presented by Coulthard et  al. (2010) and the Bernardes case demonstrate: minor changes in spelling, verb substitution, word reordering, omission, among others. Therefore, from the perspective of the linguistic detection and analysis of textual similarity and plagiarism, whether a suspect text is academic or non-​academic is irrelevant.

Verbatim copying The most evident, blatant plagiarism strategy is literal, word-​for-​word copying, where the plagiarist –​whether due to laziness, sloppiness, time pressure or other –​copies and pastes text directly from a single source, or several sources, and reuses it with little alteration.

578

Plagiarism

The Iraq Dossier case, which is perhaps better known as the ‘dodgy dossier’, illustrates this point well. In February 2003, shortly before the Iraq War, the British government presented a report to the United Nations, Iraq –​Infrastructure of Concealment, Deception and Intimidation, said to be based on intelligence material, which claimed that Iraq had weapons of mass destruction. The document was later found to have been substantially plagiarised from a freely available recently published academic article by then graduate student Ibrahim al-​Marashi, from California, USA, entitled Iraq’s Security and Intelligence Network: A Guide and Analysis. Extract (2), reproduced from the Iraq Dossier, illustrates how the document reproduces long excerpts of text from al-​Marashi’s article, using verbatim copying (italics is used to indicate text that was reproduced verbatim –​in this case everything). (2) The operations of Special Security are numerous, particularly in suppressing domestic opposition to the regime. After its creation in 1984, Special Security thwarted a plot of disgruntled army officers, who objected to Saddam’s management of the Iran-​Iraq War. This is the most effortless form of plagiarising, but also the easiest to detect:  any text similarity detection tool, sophisticated or unsophisticated, is able to identify this sort of plagiarism, or, if the source text is known, a direct comparison between the suspect and source texts can even be established using the ‘compare documents’ function available in common text processing software (the computer user equivalent of the compare documents commands in systems like UNIX or Python, an alternative that is probably preferred by tech-​savvy users).

Copying with alterations Verbatim, word-​for-​word plagiarism, however, is rarely the only or main strategy used, because plagiarists now know that it is easily detected. A blog post published on a Brazilian website on how to plagiarise without being caught recommended, above all, that blatant plagiarism should be avoided, because such instances are easily identified; the ultimate recommendation was ‘not to be lazy at the time of being lazy’. (Interestingly, the post was later removed.) The first recommendation, which is also the most commonly used strategy, is to make alterations in syntax (e.g. by rearranging words or sentences), vocabulary (e.g. by replacing words with synonyms, hypernyms, hyponyms or semantically related words) and referencing (e.g. by using excerpts of copied text alternately, or misattributing texts). Paraphrasing, when done efficiently, can also be used effectively to plagiarise, but since proper paraphrasing involves a deeper rephrasing that goes beyond the types of alteration identified to retain the meaning, while using a new form, and requires more time and effort, its use as a plagiarism strategy is uncommon. The ‘dodgy dossier’ includes several examples of textual alterations. As discussed by Coulthard et  al. (2017:  183), some of these consist mostly of changing the American spelling of the four words rumors, preempted, coordinating and programs to British English:  rumours, pre-​empted, co-​ordinating and programmes; however, other types of alteration are also made. In Figure 35.1, bold indicates text that has been replaced or re-​ written; strikethrough text is used for omissions; and italics indicate re-​arrangement of text across different sentences.

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Sousa-Silva

Iraq’s Security and Intelligence Network: A Guide and Analysis

Iraq –​Infrastructure of Concealment, Deception and Intimidation

General Intelligence is roughly divided into a department responsible for internal operations, coordinated through provincial offices, and another responsible for international operations, conducted from various Iraqi embassies.

Al-​Mukhabarat is roughly divided into a department responsible for internal operations, co-​ ordinated through provincial offices, and another responsible for international operations, conducted from various Iraqi embassies.

Its internal activities include:

Its internal activities include:

1) monitoring the Ba’th Party, as well as other political parties;

• Spying within the Ba’th Party, as well as other political parties;

2) monitoring other grass roots organizations, including youth, women and union groups;

–​

3) suppressing Shi’a, Kurdish and other opposition;

• suppressing Shi’a, Kurdish and other opposition;

4) counterespionage;

• counter-​espionage;

5) targeting threatening individuals and groups inside of Iraq;

• targeting threatening individuals and groups inside Iraq;

6) monitoring foreign embassies in Iraq;

• spying on foreign embassies in Iraq and foreigners in Iraq;

6) monitoring foreigners in Iraq; and

–​

7) maintaining an internal network of informants.

• maintaining an internal network of informants.

Its external activities include:

Its external activities include

8) monitoring Iraqi embassies abroad;

• spying on Iraqi diplomats abroad;

9) collecting overseas intelligence;

• collecting overseas intelligence;

10)  aiding opposition groups in hostile regimes;

• supporting terrorist organisations in hostile regimes;

11) conducting sabotage, subversion, and terrorist operations against hostile neighboring countries such as Syria and Iran;

• conducting sabotage, subversion, and terrorist operations against neighbouring countries such as Syria and Iran;

12) murder of opposition elements outside of Iraq;

• murder of opposition elements outside of Iraq;

13) infiltrating Iraqi opposition groups abroad;

• infiltrating Iraqi opposition groups abroad;

14) providing disinformation and attempts to exploit or use Arab and other media; and

• providing dis-​information and exploitation of Arab and other media;

15) maintaining an international network of informants, using popular organizations as well such as the Union of Iraqi Students.

• maintaining an international network of informants, using popular organisations as well such as the Union of Iraqi Students.

Figure 35.1  Comparison of paragraphs from an academic article and the British government document

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Plagiarism

The discriminating power of lexical similarity Word reordering is a strategy frequently used by plagiarists because retaining the words of the original, while changing their order, requires minimal effort but has a significant potential to deceive computational systems. The examples of re-​arrangement in the ‘dodgy dossier’ shown in Figure  35.1 are very simple, but in extreme cases of extensive re-​arrangement, with substantial syntactic alteration and in large volumes, detection systems based on the identification of identical strings are ineffective. When sequences of words are broken into short chains, such systems classify the text as original. This procedure is logical, since, as Coulthard (Chapter  32, this volume) argues, the longer a sequence of words the more likely it is to be a unique encoding, and therefore not to be produced independently on two different occasions. Therefore, to detect instances of plagiarism where the word order has been significantly altered, the methodologies and systems adopted need to be agnostic to word order. It is generally accepted in linguistics that, whereas function words are used to connect the content words, content is mainly carried by lexical vocabulary. Consequently, when rearranging the word order, function words change significantly, but the lexical items used to convey the meaning are more likely to be retained and/​or paraphrased. The solution to detecting instances of plagiarism involving re-​arrangement is thus comparing the amount of overlapping lexical vocabulary among suspect texts. Johnson’s (1997) original approach, in her analysis of suspected plagiarism among three student texts, demonstrates the robustness of this method. Suspicion of plagiarism was raised while reading the work submitted for grading, as three of the essays in particular showed strong similarities, and especially identical uncommon vocabulary (in addition to quoting from the same sources). Table  35.2 presents an illustrative example of the textual overlap among the three student essays (reference to the students as A, B and C in the original was replaced with the invented names Bill, Bob and Barry in Coulthard et al. 2010): The amount of textual similarity (14 identical words within a single sentence, shown in bold) between Bill and Bob’s extracts is compelling evidence that they could not have been produced independently. As Coulthard et al. (2017) highlight, a certain degree of similarity is expected of two authors writing on the same topic, but not an identical set of lexico-​grammatical choices, including not only the uncommon words used, but also the collocations. The analysis of plagiarism in Barry’s text, however, is more challenging, because the amount of overlapping text is much lower (only six shared words); the longest string of text overlapping with the texts produced by Bill and Bob is a mere four running words  –​which, by quantitative standards, is hardly meaningful. However, a minimally attentive reading of the texts shows a substantial amount of similarity, which is crucial in cases of plagiarism, because, as Woolls (2010) demonstrated, measuring the identity between texts is not sufficient, and instead a more fine-​grained measure of similarity is needed. The solution advanced by Johnson (1997) addresses this requirement well, as it focuses on an analysis of the shared vocabulary, irrespective of where it was used in the text (hence disregarding strings or sequences of words as a measure of similarity). In interviews, the students denied the charge of plagiarism, and claimed that the similarities were the result of discussing the assignment among themselves and consulting the same reference books, which led Johnson into investigating how much similarity could be expected from texts on the same topic but produced independently.

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Sousa-Silva Table 35.2  Textual overlap between Bill, Bob and Barry Bill

Bob

Barry

It is essential for all teachers to understand the history of Britain as a multi-​ racial, multi-​cultural nation.

In order for teachers to competently acknowledge the ethnic minority, it is essential to understand the history of Britain as a multi-​racial, multi-​ cultural nation.

It is very important for us as educators to realise that Britain as a nation has become both multiracial and multicultural.

Table 35.3  Similarity and uniqueness of voice in six student essays as percentages (reproduced from Coulthard et al. 2010)

Lexical hapaxes as a % of total   lexical items Unique lexical tokens as a   % of tokens in file Shared lexical types/​tokens   as a % of total tokens

Bill

Bob

Barry

Gill

Gerry

George

79.7%

76.4%

81.9%

82.1%

77.9%

75.0%

16.6%

15.3%

39.1%

61.1%

54.3%

54.4%

12.5%/​49.3%

2.6%/​17.9%

A crucial methodological question in cases of plagiarism is:  how can an acceptable degree of similarity be determined –​or, in other words, how can the linguist establish a threshold beyond which similarity is no longer adequate, and thus becomes plagiarism? The solution that Johnson found to address this methodological challenge was to randomly select another group of three students (C1, C2 and C3, later renamed Gill, Gerry and George) who had been given the same task, and then use their assignments as a control group. This approach allows a comparison of degrees of similarity, while discounting lexical choices due to topic and hence likely to occur anyway. Table 35.3 shows a comparison of similarity and uniqueness across the six student essays that is focused, not on identical strings of text, but rather on the use of shared unique lexical vocabulary (called lexical hapaxes: nouns, verbs, adjectives and adverbs), and degree of overlap in the vocabulary that was used only once by the suspects –​none of which depends on the word order used. Table 35.3 shows that while variation in the percentage of lexical hapaxes is not significantly different across the authors in the suspect and the control group, a significant difference was found in the number of unique lexical items used by each writer as a percentage of the total number of tokens. In addition, while a small number of unique lexical items is found in the three suspects’ essays (indicated by the relatively small percentages in the columns related to Bill, Bob and Barry), each of the writers of the control group (Gill, Gerry and George) makes an idiosyncratic use of their vocabularies. Their uniqueness (and hence their originality) –​and conversely the lack of originality in the writers in the suspect group  –​is foregrounded when the amount of shared lexical types and tokens is calculated as a percentage of the total vocabulary. As the percentages in the last row illustrate, whereas the writers in the control group shared only 17.9% of lexical items, the suspect texts shared 49.3% (i.e. almost half of the lexical items), which ultimately shows that the suspect texts could not have been produced independently. This supported the 582

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author’s claim that the similarities among the three texts were not merely the result of the suspects discussing the topic and using the same reference books, but were rather the product of collusion.

Plagiarism and translation Plagiarism detection and analysis can be challenging in cases of monolingual plagiarism, where a measure is established of the similarity between two or more texts produced in the same language, especially when sophisticated strategies such as deep re-​arrangement are used. However, the analysis is made considerably more difficult when the comparison involves translated texts, as the translation procedure adds at least another layer of complexity and obfuscation. Jones (2009) reports that one of the creative methods devised by his students (native speakers of English) to plagiarise was to use machine translation as an obfuscation technique, by translating a text originally written in English into another language (usually French), and then back-​translating it into English (sometimes more than once) to change the wording of the original, effortlessly, and consequently deceiving similarity detection software. Translation can be involved in plagiarism in two different ways:  when one translated text copies from another translation in the same language (plagiarised translation), or when one text borrows from a source in another language by translation (translingual plagiarism).

Plagiarised translation Although literary translations are usually granted the same protection as literary works, because they too are considered literary works, in practice literary translations are very difficult to protect, for two reasons. Firstly, a translation is constrained by the original, and hence is expected to reflect, at least in part, the form and contents of the original work. In cases of plagiarism, this is particularly complex because two translations of the same original would necessarily share more lexical items than two different author texts written on the same topic. Secondly, the more faithful a translation is to the original, the more difficult it is to assert its originality  –​although this is less problematic in the case of literary translations, where the translator is usually allowed some creative freedom. Notwithstanding, cases of plagiarism involving literary translation are not rare, and one of these cases is discussed by Turell (2004). In 1993, the Spanish writer Vázquez Montalbán was accused and later found guilty of having plagiarised and incorporated into his translation of Shakespeare’s Julius Caesar words and phrases from an earlier translation published in 1987. The crucial question, actually considered by the Supreme Court, was to what extent a translation can be sufficiently original to be granted intellectual property rights and protection, a question which cannot be answered without determining how dissimilar two texts must be to be considered original. To answer this question, Turell started by establishing the baseline degree of similarity in overlapping vocabulary (which, given the constraints imposed on translations by the original, necessarily needs to be set higher than that expected from two texts on the same topic). To establish this baseline, the author used four Spanish translations of Julius Caesar. In addition to the translations of Pujante (1987) and Vázquez Montalbán (1988) –​the plagiarised and the plagiarising texts, respectively –​Turell used two other earlier translations, one by Astrana Marín (1961) and another one by Valverde (1968). This allowed her to compare the four translations, and each pair of translations, and establish the baseline for shared 583

Sousa-Silva Table 35.4  Comparisons between four translations Criterion

% shared vocabulary No. of shared hapaxes No. of shared hapax phrases

Non-​suspect comparisons

Suspect comparison

Val–​As

Pu–​Val

V.Mon–​Val

V.Mon–​As

Pu–​As

V.Mon–​Pu

64.3 393 31

67.3 432 46

67.7 445 46

73.5 668 47

75.3 698 48

83.9 1094 164

vocabulary, shared once-​only words and shared once-​only phrases. Table  35.4 presents a summary of her findings. The middle columns show the five, non-​suspect pair-​wise comparisons: Valverde (Val) –​Astrana Marín (As); Pujante (Pu) –​Valverde (Val); Vázquez Montalbán (V.Mon) –​Valverde (Val); Vázquez Montalbán (V.Mon) –​Astrana Marín (As); Pujante (Pu) –​Astrana Marín (As); the last column shows the comparison between the plagiarising (Vázquez Montalbán) and plagiarised (Pujante) texts. The comparison between the translations of Vázquez Montalbán and Pujante shows percentages several times higher than those holding between any of the other pairs in all criteria: 11.4% greater percentage of shared vocabulary than next largest, 56.7% greater number of shared hapaxes and 241.6% greater number of shared hapax phrases (Pujante –​ Astrana Marín).

Translingual plagiarism However, translation can also be employed to plagiarise. In 2007, a journalist from the Portuguese quality newspaper Público was accused of having plagiarised source texts in English, including from Wikipedia and the New Scientist, in her report on sunscreens published in the newspaper’s Sunday supplement. Suspicion was raised by a reader, who felt that he had read the same text elsewhere. The newspaper (which dedicated a webpage to the case) initiated an investigation. When interviewed, the journalist initially denied the charges, on the grounds that she had cited her sources and that in news pieces, unlike in academic work, it is impractical to cite all the sources at all times because it makes the text unreadable. The text in her article was grammatically correct, although the syntax was typical of English. (Incidentally, the news piece was published with a small portion of the text in English, actually reproduced from Wikipedia, which helped detect the plagiarism; when asked for an explanation, the journalist apologised and said that, indeed, she had forgotten to translate it and that the proofreaders had accidentally missed it.) The question is: did the journalist actually plagiarise? Translation was one of the strategies suggested on the Brazilian website mentioned earlier. It consists of searching for materials (online) in another language, translating them and passing them off (in whole or in part) as one’s own. This strategy is argued to be effective, especially because the likelihood of it being detected by similarity detection software is virtually nil; although some commercial software producers have already announced the deployment of beta versions that are used as a test bed, so far the computational approaches have shown limited success. However, this limited success can be improved by approaching instances of such plagiarism as a linguistic rather than a computational problem. A  method grounded in linguistic analysis shows potential (Sousa-​ Silva 2014) to detect translingual plagiarism. 584

Plagiarism

It is reasonable to expect that the type of translation used by translingual plagiarists will not typically be high-​quality human translation, but the product of machine translation engines, whether that plagiarism is a result of time pressure, mental fatigue, lack of academic writing skills or simply laziness (Dias and Bastos 2014). This is because machine translation is able to perform the task quickly and cost-​free and, even if the translation produced is not perfect, it will still allow the plagiarist to get the gist of the text and subsequently improve it, by revising and editing. Anyone who has attempted a translation task will know how hard it is, even for trained translators, to (re-​)write a text in another language while retaining the meaning(s) of the original without ‘compromising’ the translation, by leaving hints of the fact that it is a translation. Machine-​translated texts in particular are often permeated with non-​standard linguistic forms and ‘indices of foreignness’ that violate the target language standards at all levels, including morphology, syntax, semantics, pragmatics and/​or discourse, and which result from interference (Weinreich 1953) and interlingual influence (Selinker 1972), and hence ‘read like a translation’. Take Extract (3): (3) The third virtual European summit in two weeks this Thursday was trying to agree on a joint declaration for a ‘coordinated strategy’ that would restore the continent’s social, economic and industrial normality once the pandemic was overcome. This sentence, borrowed from a non-​ English language newspaper and subsequently machine-​translated into English, although comprehensible, clearly reads like a non-​native text, and a native speaker of the language of the original will certainly be able to identify the language of the source (you can find the answer to this challenge at the end of the chapter), as research into Native Language Identification, NLID, demonstrates (Perkins and Grant 2018). This is because, as any empirical attempt at machine translation will show, although machine translation engines have improved significantly over the years, and now handle vocabulary and terminology very well, their ability to handle grammar and especially syntax is not (yet) entirely satisfactory. Consequently, these engines tend to carry over common linguistic forms to the target language where they are less common. This is the case of passive structures, which are far more common in English than in say French or Portuguese. Such transfers can be used as ‘indices of foreignness’ that not only raise suspicion that a text may have been plagiarised from another language, but also indicate the language (family) of the original text. These aspects, together with considerations of (mis)interpretation of the source text, terminology and named entities and punctuation, can be used as markers to detect and investigate translingual plagiarism, while at the same time providing clues of directionality to establish which text is the plagiarising and which is the plagiarised. The methodology proposed for detecting instances of translingual plagiarism requires only a few simple steps: 1. Take a (suspect) text written in Language A (the source language); 2. Identify linguistic items in the text that may function as indices of foreignness (and that are typical of Language (family) X); 3. Machine-​translate the suspect text from Language A to Language X; 4. Search strings in the translated text that are marked; 5. Remove function words and use the lexical items of those strings as keywords; 6. Search those keywords using a search engine.

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Sousa-Silva Table 35.5  Comparison of textual similarity in translingual plagiarism PT

A chave deste novo autobronzeador está num extracto de plantas chamado forskolina que, nas experiências da equipa, protegeu ratinhos sem pêlo de radiação ultravioleta e permitiu-​ lhes desenvolver um bronzeado natural, estimulando os seus melanócitos (…)

PT-​EN

The key to this new self-​tanning is a plant extract called forskolin that the experience of the team, protected hairless mice to ultraviolet radiation and allowed them to develop a natural tan by stimulating their melanocytes (…)

EN

The key chemical, a plant extract called forskolin, protected mice against UV rays and allowed them to develop a natural tan by stimulating pigment-​producing cells called melanocytes.

(The fourth step is not mandatory, but it increases search efficiency as it narrows down the volume of text to search online.) The more fluent the machine-​translated text, the more likely it is that the text was originally produced in Language X; since surface structures are often missed or transferred incorrectly by machine translation engines, an acceptable degree of fluency at this level means that the structures of the suspect text are mainly identical to the ones of Language X. If, however, the machine-​translated text is odd or lacks fluency, it is likely that the suspect text is either original, or has been translated from a language other than Language X. In this case, the analyst can investigate other target languages (Y, Z). Table 35.5, from the Portuguese sunscreens article, illustrates this method. The first row (PT) is the text in Portuguese, the second row (PT-​EN) is a machine-​ translated version of the Portuguese text and the third row (EN) is the original in English. Bold is used to mark the identical, overlapping text, italics is used to highlight similar text and sequences of running words are underlined. This illustrative example shows that in cases of translingual plagiarism it is common to find a high degree of lexical overlap; 20 out of a total of 27 words and 13 of 19 lexical items of the original are identical to the machine-​translated sentence (which means that 74% and 68.4% of the tokens and lexical tokens of the original sentence are reproduced in the translation). This method demonstrates the potential to provide good results, both from an investigative and evidential perspective. The analysis of the comparison of the entire machine-​translated version of the plagiarising text and the plagiarised, calculated over the total number of tokens in the machine translation that overlap with the original text, showed a textual overlap of almost 70%. One assumption underlying the detection and analysis of translingual plagiarism is that, although the plagiarising text is an edited version of the machine translation of the original, edits turn out not to be substantial. Although this is predictable, especially after experience with the analysis of academic plagiarism, the case of news plagiarism shows that the strategies/​behaviours of translingual plagiarists in non-​academic texts are not significantly different, even when performed by professional writers.

Textual overlap and plagiarism It is a common misconception to associate plagiarism and its degree of seriousness with textual overlap (i.e., the amount of text reused from the source), and even those software packages that are top-​ranked by Internet search engines when searching for ‘plagiarism detection software’, such as iThenticate, Turnitin or Duplichecker, are able at most to detect identical or similar excerpts of text –​which is not necessarily plagiarism. 586

Plagiarism Table 35.6  Comparison of the syntax that is copied into which lexical substitutions are made Text 1

It is essential for all teachers to understand the history of Britain as a multiracial, multi-​cultural nation.

Text 2

(…) it is essential to understand the history of Britain as a multi-​racial, multicultural nation.

Text 3

(…) it is vital for teachers and associate teachers to ensure that popular myths and stereotypes held by the wider community do not influence their teaching.

For example, a text where a student, for lack of academic writing skills, over-​depends on secondary sources and cites a large amount of text will produce a large volume of textual overlap, but no plagiarism (at most, the student will be penalised for lack of independence or authority). Additionally, the raw percentage of textual overlap, although an appealingly easy measure, can hardly be considered a reliable indication of plagiarism; not all words are equal, and some excerpts of text are more original than others. This is the case of neologisms, which can often be found in literary contexts. An illustrative example is the term ‘Thinkpol’, used by George Orwell in his Nineteen Eighty-​Four novel to refer to the ‘Thought Police’. This demonstrates that a word can be unique, and consequently how the criterion of originality is not dependent on the volume of text. As the results of the analyses conducted by Johnson (1997) and Turell (2004) have shown, establishing originality and uniqueness is crucial in plagiarism cases. Therefore, what is relevant quantitatively is not so much the percentage of shared tokens or even shared types  –​not the least because these will also include grammatical items, which are highly likely to occur anyway  –​but rather once-​only lexical items and once-​only collocations and phrases. Importantly, however, regardless of the volume of overlap and similarity, the linguistic analysis of the operations performed in the text strengthen the evidence of plagiarism. As Johnson (1997) found in her analysis of suspected plagiarism among three student texts, all the three student essays showed a strong grammatical parallelism, demonstrating that it is the syntax that is copied into which lexical substitutions are made (Table 35.6). It is adj. (for noun phrase) to verb +

object that clause

(texts 1 & 2) (text 3)

Turell (2004), also, highlighted the relevance of using linguistic knowledge and expertise at all levels (phonological, morphological, syntactic, semantic, pragmatic and discourse levels) and contexts of language variation to conduct a sound, evidence-​based analysis of plagiarism. One example is how the plagiarising text reproduces a mistake from the original translation: Shakespeare’s phrase ‘Good Morrow, Brutus’, which was translated by the standard, unmarked ‘Buenos días, Bruto’ (‘good day’) by both Astrana Marín and Valverde, was however misunderstood by Pujante, who translated the phrase as ‘Buenas noches, Bruto’ (‘Good evening/​night’). This mistake was copied to the plagiarising translation.

Computational plagiarism detection The technological developments of the last decades, and especially the massification and globalisation of the Internet, have raised new challenges for plagiarism detection. Before the emergence of an online world, plagiarism involved typing (or writing) the source 587

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text, character by character. Plagiarising, thus, required more effort from the plagiarist but also knowledge and skill from the plagiarism detectors, as they would need to recognise and then find the plagiarised source(s). This often leads to the assumption that the volume of plagiarism is greater now (Carroll 2005), but this has not yet been proven and it is more likely that plagiarism is simply more easily detected. While, on the one hand, more information is more readily available in easily copiable electronic form, on the other, as Coulthard et al. (2017) argue, the tools that help plagiarists also help detectors of plagiarism. Therefore, plagiarism detection methods cannot operate independently of computational systems, given the huge volume of exploitable electronically encoded texts available worldwide, and the plagiarists’ creative strategies, including mix-​and-​match techniques that combine different sources. Computational approaches to plagiarism detection are usually based on one of two methodological approaches: external plagiarism detection and intrinsic plagiarism detection (Potthast et al. 2009). Most software packages used to determine the degree of similarity or identity between a suspect text and its sources operate by comparing the suspect text against texts available externally, usually online. This is the procedure adopted by major commercial systems, such as Turnitin, SafeAssign or Urkund, with minor or major differences in the algorithms. Simply put, this method works by scanning the texts and applying computational string-​matching techniques to identify longer or shorter strings (words, phrases, sentences or paragraphs) that have been either copied and pasted verbatim, or alternatively altered, more or less extensively. Computer systems that use the external approach tend to perform well in identifying identical strings of text, but work less well when the plagiariser introduces significant changes. The more extensive the alterations, the harder the computational detection is, until the point where it becomes impossible. Of course, the latter is very unlikely as for most plagiarists plagiarism is a way of saving time, and making a text detection-​proof can be very time-​consuming. Woolls (Chapter 36, this volume) illustrates how detecting plagiarism based on overlapping vocabulary is difficult, because the similarity between two sentences can be measured in several different ways, and the detection is even more difficult when the plagiarist copies from multiple sources. This results in an overall small volume of overlap, but a considerably higher similarity with each individual text, which requires using the paragraph or even the sentence as the unit of analysis to establish the comparison. Therefore, understanding the operation of the software in relation to the specific case is essential to measure the degree of similarity of a suspect text. Computational systems based on external comparison do not necessarily operate by comparing a suspect text against sources available online. Some software, such as CopyCatch (Woolls 2002), works locally, by comparing a suspect text against previously selected sources, in much the same –​although more sophisticated –​way as the ‘compare documents’ function of text processors. This can be particularly important in forensic contexts, where the linguist may be wary of uploading the suspect texts (often sensitive information) online for comparison against texts indexed and available on the Internet. Intrinsic systems aim to assist the detection of instances of plagiarism in cases where the reader, intuitively suspecting that the text has been copied from other sources, is however unable to find sources for comparison. The methodological procedure adopted in this case consists of a stylistic analysis of the suspect text to identify style shifts and stylistic inconsistencies that can account for the lack of originality. This approach has enormous potential and can be extremely valuable in investigative settings, where suspicion of plagiarism cannot be confirmed (or rejected) by establishing a direct comparison against 588

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the sources. Nevertheless, applying the method can be problematic in forensic cases: by not identifying the original source(s) from which the suspect text was taken, the expert analysis lacks the evidential value required to demonstrate the copying. Additionally, in cases of academic plagiarism, text reuse is sometimes considered a form of authorship (Robillard 2008) resulting from the (novice) writers’ learning from their sources, so, shifts in style and stylistic inconsistencies are predictable. Therefore, any intrinsic analysis, valuable as it may be, should be used with caution, especially in forensic contexts.

Detecting contract cheating The latest developments in the technologies used to detect similarity across different texts, and the plagiarists’ perception that copying from other sources can now be easily detected by any of the diverse detection tools used by institutions worldwide, has led to a new business model:  contract cheating. Contract cheating  –​also known as ‘essay purchase’, ‘essay-​for-​hire’, ‘pen for hire’, ‘cuckoo essays’ or ‘imposter essays’, among others –​consists of purchasing tailor-​made university coursework (usually from a website) and submitting it as one’s own for assessment. Although this is a type of plagiarism, in that in its most basic form it consists of passing off someone else’s work as one’s own, it differs from traditional plagiarism in that the plagiarist’s sole input is payment. This form of cheating has been a major concern, especially among universities and teaching staff across countries like the UK, USA, Canada and Australia, where companies operating online daringly advertise their services in the vicinity of (and sometimes in) university premises. The UK Quality Assurance Agency (QAA) describes contract cheating as a growing threat to UK higher education, while admitting that the real statistics are unknown (Quality Assurance Agency 2016). One of the main threats identified is those companies’ claims that ‘plagiarism free’ essays are guaranteed. Although textual reuse by suppliers of essay mills is to be expected, QAA’s concern is highlighted by the fact that, since universities across the UK had already implemented tried and tested plagiarism detection procedures that falsely give an aura of protection, the prospects that plagiarism detection services can fail to detect plagiarism in purchased academic work are a major challenge. Plagiarism in general and contract cheating in particular are both authorship problems, which can be addressed by adopting forensic authorship analysis methods and techniques, but while plagiarism is traditionally approached by establishing a comparison between the plagiarising and the plagiarised texts to determine whether the plagiarising texts could have been produced independently, texts purchased from essay mills require a stylistic approach. The principles of ‘idiolect’ (Coulthard 2004) and ‘idiolectal style’ (Turell 2010), which are now generally accepted in the forensic linguistics community as markers of authorship, are crucial to detecting contract cheating: given the assumption that each speaker or writer has their own version of the language that they speak or write, and that this version reflects on the idiosyncratic choices made, then a stylistic analysis (McMenamin 2002, Chapter 33, this volume) can be used to identify shifts in the writing style of the author that may be indicative of third-​party authorship. Nevertheless, a stylistic analysis of purchased essays is very demanding methodologically. Firstly, substantial volumes of text known to have been previously written by the student are required, which in theory is easy given the amount of text produced by a single student throughout their university degree; but in practice, it is not guaranteed that all previous submitted work was produced by the student, unless it was produced in class or exams, without access to 589

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cheating resources. Secondly, as students learn how to write academically with the authors that they read and review (Angèlil-​Carter 2000), shifts in style are predictable even when students don’t plagiarise, not to mention that an author’s writing style is expected to evolve as the writer matures (especially in academic contexts), meaning that substantial style changes are likely to occur across different years. Given the methodological challenges underlying contract cheating, a fair and effective detection of purchased essays cannot be conducted by purely automated systems because the linguistic input required is very high; hence future approaches will be more appropriately addressed by adopting computer-​ assisted forensic linguistic detection.

Final remarks Despite the growing interest worldwide in forensic linguistics, plagiarism detection remains a relatively low-​profile and under-​researched area, which may be due to three general assumptions: the first is that plagiarism is a mere academic, rather than forensic, issue; the second is that detecting plagiarism is straightforward, because a simple text comparison suffices to establish whether a writer has plagiarised from other sources; the third is that existing sophisticated plagiarism detection software is able to detect plagiarism reliably. These assumptions are not only outdated, but also completely wrong. Plagiarism is indeed a predominantly academic problem, which may be because academic work is more carefully scrutinised than non-​academic texts, but it is also a non-​academic one. Secondly, automated similarity detection systems are incomparably more effective than humans in checking suspect texts against huge online resource databases and identifying strings of text that are similar or identical, but caution is required when analysing the comparison results returned; in addition to the thresholds given –​which virtually all software companies underline should be interpreted carefully before making decisions –​ some of these software programs (maybe victims of their own success) now return results based, sometimes almost exclusively, on comparisons with the most recent instances or databases, which may well not be the source used by the plagiarist. As a result, not only is the plagiarising text often attributed to secondary, rather than primary, sources (e.g. a plagiarist lifting directly from Coulthard is identified as having lifted from another student lifting from Coulthard), but also different strings of text within the same paragraph are attributed to different authors, when in fact the paragraph has been taken from a single source. Moreover, as technologies evolve, the perceptions of plagiarists change and so do the strategies adopted to plagiarise, which –​based on the extraordinary creativity of plagiarists –​raises new challenges for detection and analysis. The perception that plagiarism is now easily detected by software available globally has also given rise to new business models of contract cheating –​companies (frequently run from low-​income countries) who employ or deceive often highly qualified people to write academic work on demand, conforming to the required module specifications, which are sold to students who can afford them. This new form of plagiarism has raised concern worldwide and, as with ‘traditional plagiarism’, an efficient and effective means to fight it requires more than pure computational search and match approaches; it requires the input of linguists. To test the reader’s skills, this chapter contains a plagiarising sentence, which the reader is challenged to find. Ultimately forensic linguists are the experts who are able to provide evidence-​based reports on their findings, which is crucial in both academic and legal contexts.

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Further reading Pecorari, D. (2008) Academic Writing and Plagiarism: A Linguistic Analysis, London: Continuum. Sousa-​Silva, R. (2014) ‘Detecting translingual plagiarism and the backlash against translation plagiarists’, Language and Law /​Linguagem e Direito, 1(1), 70–​94. —​—​—​(2019) ‘Plagiarism across languages and cultures:  A (forensic) linguistic analysis’, in S. Brunn and R. Kehrein (eds), Handbook of the Changing World Language Map, Cham: Springer International Publishing, 1–​ 21 https://​doi.org/​10.1007/​978-​3-​319-​73400-​2_​191-​1 (accessed 27 March 2020). Woolls, D. (2012) ‘Detecting Plagiarism’, in L. Solan and P. Tiersma (eds), The Oxford Handbook of Language and Law, Oxford: Oxford University Press. Retraction Watch –​ https://​retractionwatch.com (accessed 27 March 2020).

Answers to the challenges In this chapter the reader was faced with two challenges:  1) identify the source language of the translated news sentence reproduced in Extract (3) and 2) identify the plagiarising sentence in the chapter. Once you have reached your conclusions, read our commentary below.

1 . The translated sentence was borrowed from the original article published in the Spanish newspaper El País: ‘La tercera cumbre europea virtual en dos semanas trataba este jueves de pactar una declaración conjunta por una “estrategia coordinada” que recupere la normalidad social, económica e industrial del continente una vez superada la pandemia’ (https://​elpais.com/​economia/​2020-​03-​26/​el-​plan-​de-​reactivacion-​enfrenta-​a-​la-​ue-​en-​su-​ mayor-​crisis-​sanitaria.html accessed 27 March 2020). 2. The last sentence of the introduction, ‘This chapter examines what the practice actually entails, focusing on lexical, grammatical and textual features that contribute to making texts linguistically similar enough to be considered plagiarism’, was borrowed from Coulthard et al. (2010: 525): ‘In this chapter we examine what the practice actually entails, focusing on lexical, grammatical and textual features that contribute to making texts linguistically similar enough to be considered plagiarised’.

References Angèlil-​Carter, S. (2000) Stolen Language?: Plagiarism in Writing, Harlow: Longman. Ascensão, J. de O. (1992) Direitos de Autor e Direitos Conexos, Coimbra: Coimbra Editora. Carroll, J. (2005) Institutional issues in deterring, detecting and dealing with student plagiarism, report prepared for JISC https://​pdfs.semanticscholar.org/​b455/​33626debaf4ae5debafcfcf834922e17 43d1.pdf (accessed 31 January 2020). Coulthard, M. (2004) ‘Author identification, idiolect and linguistic uniqueness’, Applied Linguistics, 25(4): 431–​447. Coulthard, M., Johnson, A., Kredens, K. and Woolls, D. (2010) ‘Four forensic linguists’ responses to suspected plagiarism’, in M. Coulthard and A. Johnson (eds), The Routledge Handbook of Forensic Linguistics, Abingdon, Oxon; New York, NY: Routledge, 523–​538. Coulthard, M., Johnson, A. and Wright, D. (2017) An Introduction to Forensic Linguistics: Language in Evidence, London and New York: Routledge. Dias, P.C. and Bastos, A.S.C. (2014) ‘Plagiarism phenomenon in European countries: Results from genius project’, Procedia –​Social and Behavioral Sciences, 116: 2526–​2531. Garner, B.A. (2009) Black’s Law Dictionary, 9th edn, St. Paul, MN: West. Howard, R.M. (1999) Standing in the Shadow of Giants:  Plagiarists, Authors, Collaborators, Stamford, CT: Ablex Publishing Corporation. Johnson, A. (1997) ‘Textual kidnapping  –​a case of plagiarism among three student texts?’, The International Journal of Speech, Language and the Law, 4(2): 210–​225. 591

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Jones, M. (2009) ‘Back-​translation: The latest form of plagiarism’, in The 4th Asia Pacific Conference on Educational Integrity, Wollongong, 1–​7. McMenamin, G.R. (2002) Forensic Linguistics: Advances in Forensic Stylistics, Boca Raton, FL and New York: CRC Press. Pecorari, D. (2003) ‘Good and original:  Plagiarism and patchwriting in academic second-​ language writing’, Journal of Second Language Writing, 12(4): 317–​345 https://​doi.org/​10.1016/​ j.jslw.2003.08.004. Perkins, R. and Grant, T. (2018) ‘Native language influence detection for forensic authorship analysis: Identifying L1 Persian bloggers’, International Journal of Speech Language and the Law, 25(1): 1–​20. Potthast, M., Stein, B., Eiselt, A., Barrón-​Cedeño, A. and Rosso, P. (2009) ‘Overview of the 1st international competition on plagiarism detection’, in B. Stein, P. Rosso, E. Stamatatos, M. Koppel and E. Agirre (eds), SEPLN 2009 Workshop on Uncovering Plagiarism, Authorship, and Social Software Misuse (PAN 09), 1–​9, Valencia http://​ceur-​ws.org/​Vol-​502 (accessed 23 July 2020). Quality Assurance Agency (2016) Plagiarism in Higher Education:  Custom Essay Writing Services: An Exploration and Next Steps for the UK Higher Education Sector. Robillard, A.E. (2008) ‘Situating Plagiarism as a Form of Authorship: The Politics of Writing in a First-​Year Writing Course’, in R. Howard and A. Robillard (eds), Pluralizing Plagiarism: Identities, Contexts, Pedagogies,1st edn, Portsmouth: Boynton/​Cook, 27–​42. Selinker, L. (1972) ‘Interlanguage’, International Review of Applied Linguistics, 10: 209–​241. Sousa-​Silva, R. (2014) ‘Detecting translingual plagiarism and the backlash against translation plagiarists’, Language and Law /​Linguagem e Direito, 1(1): 70–​94. Turell, M.T. (2004) ‘Textual kidnapping revisited: The case of plagiarism in literary translation’, The International Journal of Speech, Language and the Law, 11(1): 1–​26. —​—​—​(2010) ‘The use of textual, grammatical and sociolinguistic evidence in forensic text comparison’, The International Journal of Speech, Language and the Law, 17(2): 211–​250. Weinreich, U. (1953) Languages in Contact, London/​The Hague/​Paris: Mouton. Woolls, D. (2002) ‘Copycatch Gold, a computerised plagiarism detection program’ www.cflsoftware. com (19 September 2019). —​—​—​(2010) ‘Computational forensic linguistics: Searching for similarity in large specialised corpora’, in M. Coulthard and A. Johnson (eds), The Routledge Handbook of Forensic Linguistics, Abingdon, Oxon; New York, NY: Routledge, 576–​590.

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36 Computational forensic linguistics Computer-​assisted document comparison David Woolls

Introduction This chapter is unusual in the Handbook because I am not a practitioner either of law or of forensic linguistics. Rather, I  am the creator of software programs that are used in those fields and increasingly in non-​forensic settings. Another unusual feature is that the programs, while being founded on solid linguistic principles, are generally used by non-​linguists, who are specialists in other fields. The programs which were the subject of my chapter in the first edition (e.g. CopyCatch Investigator (Woolls 2020)) are still in daily use and have been the foundation for non-​forensic implementations as diverse as patent searching and medical literature discovery. What such users need to be able to see is marked-​up texts showing similarities between a chosen document and millions of other similar documents, two million for the British Universities and Colleges Admissions Service (UCAS) (see Sentence similarity below), or 31  million as is the case with the PubMed reading application launched in March 2020 (see Other applications below). As the principles remain the same as ten years ago, I  start by re-​iterating these, before reporting on the developments in use over the last decade.

Computational forensic linguistics In the first edition I  described computational forensic linguistics as a branch of computational linguistics, a discipline which has its roots in the 1950s, when computers first entered the commercial and academic world. However, as things have evolved, I believe it is more accurate to describe it as a branch of forensic linguistics. That is to say, it is a computerisation of what forensic linguists do, in a way that allows the detailed comparison they undertake in small data cases to be performed at speed and with high accuracy across very large sets of data. This is different from using very large corpora to generate information about general, genre or register usage norms as reported elsewhere in the Handbook. But, although they can handle large datasets, all the programs discussed below specialize in comparing the content of one document with another. What none of them require, though, is a set of keywords to get them going. This is a direct result of their origin in 593

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plagiarism detection, where the users of the program have no idea whether, where or what words might be indicative of malpractice, so the programs have to check each content word (i.e. not the grammar/​function words) in one document for their presence in another document, and assess whether that shared presence occurs in such a way as to raise suspicions about independent production. And in fact they do this by comparing each sentence in document A with each sentence in document B, since there is no expectation, even where the documents are answering the same question or have the same function, that the sentences in two documents will be in the same order. Nor, indeed, is it the case that words in a sentence will be exactly the same or appear in the same order. The use of computers for collusion detection was reported by Johnson (1997), closely followed by Woolls and Coulthard (1998). Woolls (2003) explores the development and expansion of such tools, and Woolls (2006) addresses the work along with wider aspects of plagiarism and its detection. In this area it is not sufficient to report that two documents are similar to each other, because the user often already knows or suspects this to be the case. What s/​he needs to know is where exactly in the document the similarities appear and how to evaluate them as unremarkable or significant. The discussion below works with single sentences to explore the complexity of language, and details what has to be taken into account in designing computer programs that will provide accurate and comprehensible results for the human reader, while keeping in mind that documents are made of sentences, so full documents can always be compared.

Sentences We will start with the part of academic life which is most necessary for students in terms of acquiring a degree, but least looked forward to by their lecturers. That is the marking of large numbers of essays on the same subject. The lecturer needs to read every sentence of every essay and evaluate it, and the overall effect of all the sentences in answering the question, in order to give each essay a mark. What keeps them awake during this process is that each student will be answering the question in a different way, depending on their grasp of the subject, their understanding of the significant elements of the question and their background vocabulary and writing style. Interestingly, what human readers are mysteriously capable of doing is recognizing that they have read a particular paragraph, sentence or phrase before, even if they had started marking the set of essays two days earlier and what they are just reading is the 45th essay. What they might not be able to recall is which of the previous 44 contains the similarity, and we will come back to that problem. Even more impressive is lecturers’ ability to recognise material copied from textbooks or electronic material provided to students which they have not read for some time and then being able to find not only the source but the place in the source where the sentences can be found. Accurately performing the same task without any knowledge or experience of the subject matter is what a computerised document reader is designed to do. Finding exact matches of whole sentences or even short sequences of words is relatively simple. Finding amended material is less simple but is the core of what the programs do. In order to successfully compare any two documents, there need to be elements that are potentially present in both. As far as sentences are concerned, these elements are primarily words and punctuation. The single, very famous, sentence that I focus on below is taken from the opening of Pride and Prejudice by Jane Austen. I use it to demonstrate the elements that can be used by a computer program for the purposes of similarity searching. In doing so, it might at times appear that I am stating the obvious but, as nothing is obvious 594

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to a computer program, it is important to start at this very basic level. What will become evident is that the computational treatment of texts is a matter of deciding what best to include in order to approximate to what humans generally do intuitively when they read a text. Here is the sentence: It is a truth universally acknowledged, that a single man in possession of a good fortune, must be in want of a wife.

Sentence structure The first thing to note is that the author has conveniently divided this sentence into three parts, by the use of the commas. We refer to these parts as chunks, which might be a traditional clause or phrase, or it might be a whole a sentence. The term ‘chunk’ has its roots in psycholinguistics. Miller (1956) reported that we could hold around seven items in short-​term memory. Spoken ‘sentences’, that is connected sections of speech all of which are required for the listener to make sense of what the speaker is referring to, are frequently much longer than seven in terms of words, of course. Jane Austen’s sentence is 23 words long with three conceptual units of six, ten and seven words. Because of the short recall length, each of these smaller chunks must make sense in themselves so they can be encapsulated and fed into the next chunk, and in this way, we can make sense of it. In fact, in speech we are assisted by rhythm, intonation and frequently, though not always, visual clues. Where we have written data, we can use the words that identify the conceptual boundaries to break up any stream of words into shorter segments. In the sentence above, the words , and would fulfil that role when listening to it rather than reading it. From a linguistic perspective, we employ the work of Fries (1952) who was interested in describing the structure of English in order to provide non-​native speakers with a description and a highly organised sequence of exercises to teach them how the language worked. He had decided that teaching traditional formal grammar was not helpful to the rapid acquisition of conversational language skills. He covertly recorded telephone conversations and set himself the task of identifying what he called the ‘minimum free utterances’ that resulted in a response and then describing their components and extensions, not in the terms of traditional grammar, but into what he called classes. These, by definition, were generally short stretches of words. The classes were numbered based on their relative frequency of occurrence and their position in the resultant utterances, which were not called sentences. Although it goes against the spirit of his exercise, Class 1 words loosely approximate to nouns, Class 2 to verbs, Class 3 to adjectives and Class 4 to adverbs. As all the recordings were of conversations, which don’t include punctuation, no boundary markers are included in his examples, other than initial capitalisation of the utterances. It will be seen that this corresponds with what we have in Austen’s sentence; a 6-​word ‘truth’, a 10-​word ‘problem’ and a 7-​word ‘resolution’. That this is only one way of expressing the plot of the whole novel is the same issue as the multiple ways of answering an essay question. But in an essay the presentation of the question and the potential solution is done using short or segmented sentences, so we can expect to find the similarity between two documents at that level. The interest for computational sub-​sentence analysis is that Fries also identified a relatively small number of words, which clearly did something to introduce, organise and/​or link the free utterances. These he named function 595

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words as a consequence. He further subdivided this list into their different functions. The words of interest are those that signal boundaries to the reader/​listener, since a list of such words can be used to segment the text rather than using the punctuation kindly provided by Austen. If we apply them to the sentence below, a music review that is a sentence that is both unpunctuated and with some unconventional spelling, we get the following chunks (indicated by forward slashes that were not in the original): this is a good song /​i like it /​i think that it has some potential for the radio /​the singer is great /​i like the singer alot /​and the vocals are great too /​this is a hot song /​that can actually make it somewhere /​but u would have to push this song 4real (Author’s data) Notice that there are nine chunks, the longest of which contains ten words, and the boundary words are in initial position: this, I, the, and, that, but. The artist reading this review will be in no doubt that the writer likes the song, and, according to Fries’s theory, will be able to separate the various comments quite readily by the signals of the boundary words. This illustrates both the utility of Fries’ function words and has three concepts –​ positive evaluation, identification of potential and a need to promote the song–​which can act as a memorable summary to fulfil Miller’s criterion.

Identification of words Knowing that we can divide texts into sentences and sentences into chunks, that brings us to words. What can a computer program do with words? First, it can divide each sentence into its component words by identifying items that have spaces on either side. This, however, isolates some ‘words’ that look like non-​words to a human reader, because of the punctuation that is attached to them: for example and . We now see that there is a need to give the computer a list of punctuation items plus an instruction to remove them from the front and back of the ‘words’ it has found. However, it is usually not desirable to simply ignore the punctuation. Indeed, some programs treat individual items of punctuation as ‘words’ in their own right. And, of course, the punctuation placed around the word ‘words’ in the preceding sentence, was used to indicate that it was not being employed in its normal meaning, so perhaps ‘words’ in this case should be considered to be a separate wordform from words. Once we have isolated the words, they can be organised into alphabetical order. In computer terms this would actually mean that, of the words in our illustrative sentence, would come first in the list, because capital I and lower-​case i have different numerical values. So, if we want a true alphabetical list we need case-​insensitive ordering, which means treating both and as the same letter, either by making all words upper case or all words lower case.

Measurements and patterns Now we can do other things with our list of words –​we can measure the lengths of the words in characters and we can count the number of times each word occurs. For example, the shortest word in our sentence is with just one character and it occurs four times. A  computer can easily sort the words in any combination of alphabetical, length and frequency order. Or again, we can get the computer to look for patterns. In the Austen 596

Computational forensic linguistics Table 36.1  Word ending lists for all four main lexical classes Some Noun endings Some Verb endings Some Adjective endings Some Adverb endings

-​s, -​es, -​ure, -​ry, -​ance, -​ment -​ed, -​es, -​s, -​en, -​ing, -​ise, -​ize -​ish, -​al, -​ous, -​ic, -​ary, -​ful -​ly, -​ward, -​where

sentence there is one obvious pattern –​the sequence appears twice –​and one perhaps less obvious pattern also appears twice, where the x represents the word possession in the first case and want in the second and the y represents good fortune in the first case and wife in the second. Winter (1994) describes such a pattern as a matching contrast relation realised by repetition by replacement, which indicates that possession and want are in an antonymic relationship in this particular sentence. There is another pattern which humans are able to observe, but which cannot be directly identified by a computer without some knowledge of word classes. It is possible to attempt to replicate the human observation of patterns in a computer program. The primary pattern here is followed by a noun –​which is itself followed by another short word or other more complex patterns. One frequent modification to the base pattern is the presence of one or more adjectives before the noun, and another is an adverb preceding the adjectives. Humans learn this and other patterns either from reading and listening or from formal lessons in grammar. We cannot readily give computers this knowledge, but we can provide lists of common endings for all four main word classes and indicate which patterns are equivalents. Examples of the components of such lists are included in Table 36.1. A pattern rule for a noun phrase might therefore be: a [adverb] [adjective] noun (where the square brackets indicate optional inclusion).

Classification A computer can only simulate learning at best, but it is possible to identify, for almost any language, those whole words that perform functions and to identify those beginnings and endings of words that act as markers of word classes. Using such lists, combined with fundamental rules, computer programs have been written that can fully parse sentences with a very high degree of accuracy (see for example the free CLAWS parser at http://​ucrel.lancs. ac.uk/​claws/​). In my programs I have taken a simpler approach using an extended list of function words (commonly called a Stop List) and treating all other words as content words, that is words whose meaning is organised by the function words and which can frequently be classified by their endings, using the word-​endings list. Computers can also learn the probability of the ordering of such words and parts of words, to deduce what sort of word might fill the gap, if the program cannot find it within the dictionary it is using. This learning, based on probability of co-​occurrence, is what has enabled considerable advances to be made in the area of machine translation, text-​to-​ speech and speech-​to-​text which are now commonplace in smartphone apps. Given such lists of function words and word endings, computers can also split sentences or complete documents into their broad compositions. The 450-​strong function word list that I  use frequently accounts for over 50% of a full text. Our illustrative 23-​word sentence has 13 function words and ten content words, that is, 57% function words.

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Comparing sentences Now we have seen the complexity of what is going on in a single sentence and how computers can be programmed to recognise this, we need to address how we go about comparing two sentences. This requires the introduction of two concepts used throughout the comparison methodology described below. The first concept is called fuzzy matching. If we want to identify similarity rather than identity, we need to be able to specify that the two sentences under consideration form some sort of match, even if not all their words are identical. This facility is present in the Advanced Search features of web search engines, where the searcher can explicitly include or exclude certain words from the search. This is called Boolean searching, because Boolean logic always produces a true or false result for a condition; either a word is there, or it isn’t. This works well when the user knows, or thinks they know, what words might be of assistance in obtaining better search results, but, when there are large numbers of sentences to compare, it is not possible to specify particular words for each of them, so the comparison has to be performed in a fuzzy way. That is, as long as a certain number or percentage of words are present in both sentences, that pair will be considered to be a potential match. The second concept is that of the chunk referred to above. We can, of course, use all the words in a sentence and find out how many of them are present in both, but some sentences are quite long and complex and other comparison cases include examples where there is a long stream of words containing no punctuation or capitalisation. The classic case of very long sentences is the Claims Section of a patent application. By law, each claim has to be a single sentence. As claims are central to the future effectiveness of a granted patent, patent attorneys attempt to squeeze as much detail as possible into each claim, so a ‘sentence’ can often run to several lines. This is achieved by the use of the semicolon, which is not seen as a sentence boundary by patent law, nor indeed in linguistics by many descriptions of what constitutes a sentence. This is not too difficult to handle, of course, as long as the users of the software program have no objection to it breaking a string of words before reaching a ‘normal’ sentence boundary, that is, when it encounters a semicolon. And as we have seen, we can break unpunctuated material into chunks by using the function words that specialise in doing just that for our ears and eyes.

Sentence similarity Here is an illustration of how this helps us with comparison. This is a second music/​song review by the same person who wrote the first one, this time already broken into chunks. 1. 2. 3. 4. 5. 6.

i like the guitar i think that this song is really good i think that it has some potential i think that it has alot of potential but u have to really push this song that may make this song get somewhere

The chunks need rearranging to show the matching between review 1 and review 2, as in Table 36.2. In a commercial system, the order of the originals would be preserved and a

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Computational forensic linguistics Table 36.2  Similarity (italics), difference (plain text) and identity (bold) in two reviews Chunk

Review 1

Chunk

Review 2

1.1 1.2 1.3

this is a good song i like it i think that it has some potential for the radio the singer is great i like the singer alot and the vocals are great too this is a hot song that can actually make it somewhere but u would have to push this song 4real

2.2

i think that this song is really good

2.3 2.4

i think that it has some potential i think that it has alot of potential

2.1

i like the guitar

2.6

that may make this song get somewhere but u have to really push this song

1.4 1.5 1.6 1.7 1.8 1.9

2.5

system of cross-​referencing similar to that shown in the table would be used to identify which chunks the system had recognised as matching. This example shows the complexity involved in comparing a single stream of words. 1. The repetition in 2.3 and 2.4 shows the need for a decision about whether to show matches once or twice. Chunk 2.3 matches the first part of 1.3 exactly, so might be considered to have priority over chunk 2.4, but this requires a rule for the program to apply. 2. We also need to consider the direction of comparison. From shorter to longer would give 2.3 a score of 100%, from longer to shorter 70% (seven out of ten words matched in 1.3). 3. And we need to consider whether we are going to include function words. If we decide not to, from shorter to longer would give 2.3 a score of 100% (think, has, potential), from longer to shorter 75% (three out of four words matched in 1.3). 4. Matching on particular functions may be helpful. There is match of modal use in 1.8 and 2.6, with in the former being replaced by in the latter. In Table 36.2, the important point for a document comparison system is that the search terms are generated by the program reading document 1 and extracting all the words used by the writer of that document, then using that vocabulary to examine all the sentences in the historical set and identifying that the ones shown as document 2 are related by those terms. The ability to identify for users which documents match and where they match is one of the major functions of a computerised document comparison program. For example, it solves the problem of knowing which essay a lecturer has read before, and where the similar sentence(s) are in that essay, mentioned above. There is no input required from the user of the program at this stage. The sentences match and there are sufficient of them to indicate that the documents match as well. In the CopyCatch Investigator (Woolls 2020) program used by UCAS, the Open University and other commercial users, there are three major parameters that the administrators can set. One is the minimum number of words that match in a sentence, so that short sentences are not arbitrary matches, the second is the percentage similarity, referred to in the text above, and the third is the minimum number of sentence matches within a document before a report is made. This avoids the over-​reporting of documents with very few sentence matches. The program finds all 599

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sentence and document matches every time, so this is a user-​determined facility. But users cannot affect the words, with the exception that, if they know that some content words are non-​discriminatory, they can enter them onto an exclude list. UCAS exclude career and university for example, but only a few others. Returning to the Austen sentence, but this time considering similarity to an invented version, such as: ‘A man who possesses a fortune needs a wife’, we need to decide whether this has a degree of similarity to our original sentence. The new sentence falls into two chunks and in Table 36.3 we can see that it is certainly not completely different, in terms of the words themselves, at least, after the first six words of the original. I start from the fundamental premise that the relation between any two sentences is scalar; i.e. identity means 100% similarity; completely different means 0% similarity. But when we consider actual sentences it is more complicated than simply looking for the presence or absence of identical words. Table 36.3 shows the matched components, recording the running total of matches, from identical upwards, in column 2 and calculates the similarity percentages at each stage. Column 3 calculates from the perspective of the new nine-​word sentence, and column 4 from the perspective of the Austen 23-​word original. Columns 5 and 6 show the word counts and percentage calculations from the perspective of the Austen sentence when only the ten content words it contains are used for comparative purposes. As can be seen, there are 13 different possible measurements for this sentence alone, ranging from just 17% if we only include exact matches with all the words that Jane Austen used in her sentence, to 100% if we measure from the perspective of the new sentence and include all partial similarity and repeated matching. Table 36.3 shows that variation in what might be classed as similar is the crux of the issue for any measurement of similarity at sentence level. A  decision mechanism needs to be built into a computer program to allow it to perform reliable and consistent comparison. I use the principles of 1. excluding around 450 function words from the initial comparison because their structural function makes them a requirement in sentences, so co-​occurrence of the function words themselves is frequently not an indicator of similarity; 2. assuming that any sentence with more than 50% of the content words matched in some way warrants being considered a candidate for similarity;

Table 36.3  Measuring similarity Match type

Running total of words matched

Exact repetition (a, man, fortune, wife) Exact repetition including   all 3 instances of a Lemma (possess*) Synonym (in want of/​needs) Composite (who possess*)

4 6 7 8 9

600

% match in new

% match in original

Running total of content words matched

% match in original

44% 67%

17% 26%

3

30%

78% 89% 100%

30% 35% 39%

4 5

40% 50%

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3. including the function words in the final presentation, as shown in the review example, Table 36.3 above, because the structural similarity is part of what makes the sentences similar; 4. performing all comparisons from the shorter sentence to the longer. We are still left with the linguistic fact that it is evident that the two sentences are far from equivalent semantically, as the list below shows. 1. there is no initial evaluation of the truth of the bare statement, 2. a single man and a man are not necessarily equivalent, and certainly not here, because a married man is clearly not in need of a wife, 3. there is no stated requirement for the fortune to be a good one, 4. and the modality of must be is omitted. So, in this sense, they might be considered to be completely different despite all the words in common. But it is possible to get from the long version to the short one, and with a little imagination from the short to the long, so the sentences might well be considered similar. Whether it makes any sense to have a percentage attached to the similarity is also questionable, as you will have realised by now.

Reordering The above discussion has so far looked only at direct matching at the lexical level while retaining the word order. The actual situation is more complex, since changing from the active to the passive, at least in English, always changes the word order and introduces at least one additional word, with the reverse obviously being true. Consider the simple proposition ‘Dogs chase cats’. This is generally true. ‘Cats chase dogs’ may or may not be true, but it certainly doesn’t mean the same thing, whereas ‘Cats are chased by dogs’ does, even though there are more words and ‘chase’ and ‘chased’ are not identical. Most sentences are not as short as this, of course, but most sentences are composed of phrases and clauses which can be this short and so the combination effect of identity/​difference and word order can result in quite a few problems for a computer program. This is especially the case where ‘are’ and ‘by’ in the above example appear on a function word list, so would not immediately be taken into account at the comparison stage, leaving the different word order as a puzzle for the program with no functional assistance to resolve it. However, there is another feature of written language that is helpful to the computational cause. The recognition of lexical similarity between what one is reading and what one has read before is so surprising that we frequently go back and check, and in the majority of cases are correct in our recognition and can identify a prior source for that sentence. How we as humans do that over time and with much other reading in between is outside the scope of this chapter. But computers can be given a large number of texts and the task of exhaustively comparing them, and then simply highlighting where similarity exists, for humans to subsequently make a decision. This is how the majority of the comparison programs I have built work.

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Document similarity I have concentrated on sentence similarity, partly because that is the central component of the work described and partly because complete documents are clearly composed of sentences. But documents can be compared directly. Documents that share a lot of sentences will also share a lot of words, and documents that share a lot of words also share a lot of characters. Computers can do this sort of comparison at high speed for very large numbers of documents and various measures are available to allow the vocabulary similarity of two documents to be established, all of which are intended to return higher scores for related documents. Such scoring methods sit behind most information retrieval methodologies where a set of documents needs to be identified as a potential source for answers to queries, for de-​duplication of results, as found at the end of some Google searches where the content of the results returned is so close as not to be considered valuable. They are also used in identifying near duplicates, where some minor modification has been made, which may in fact be a major modification to the sense or application of the document. Changing into obviously radically changes a sentence containing those words, for example.

Hapax legomena In addition, when comparing documents through the occurrence and frequency of words, it becomes apparent that words that are both shared and infrequent, particularly those that only occur once (also called hapax legomena), are prime candidate indicators of a relationship between the two documents, and especially so if the two documents are of similar length. And the greater the number of shared hapax legomena, the more significant the finding becomes (see Johnson 1997, for example, on hapax legomena and plagiarism). This feature is the result of the way we write. For example, in an essay, even one as long as 4,000 words, a word frequency count normally shows that between 60% and 70% of the content vocabulary items used occur only once and a further 15% occur only twice. And comparing the word lists of two independently produced documents on the same subject will normally show a great deal of difference in those words which occur only once or twice. These are quite straightforward measures, but there are clearly more complex ways of achieving such comparisons. The problems arise when only parts of documents are being used and, in particular, single or small sets of sentences. This the central reason for my decisions to use sentences as the unit of comparison and always do that comparison from the shorter to the longer.

Paraphrase Finally, I  need to point out what is very difficult for computers to handle, even with a thesaurus. Here is another of my versions of Austen’s sentence. ‘Everyone agrees on one thing about rich bachelors. They really should get married.’ Now, this is not as beautiful or well constructed as the original, but it might be considered to say much the same thing. However, while it preserves some element of the evaluation of the statement and the modality of the suggested answer to the implied problem, it has not a single word in common with the original and consists of two sentences rather than one. The complete absence of lexical matching and the use of a very compact expression ‘rich bachelor’ in

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place of nine words, ‘a single man in possession of a good fortune’, which has the effect of switching the effective word order as well, sets a very difficult task for computational comparison. And of course, paraphrase is encouraged by teachers and is often not considered to be plagiarism. The missing element for a computer program, when compared to a human reader, is that the human reader would undoubtedly recognise the dependence if they knew the original or had the words in front of them. Any computer program based on word similarity would completely miss the semantic match.

Summary Given that the foregoing has largely been concerned with showing the complexity of sentence comparison, and particularly the last paragraph pointing out that extensive paraphrase will defeat the sort of comparison described in this chapter, one might wonder whether a detection program actually works. We can give an affirmative answer to that in the detection sphere, not only from the longevity of use of the programs mentioned, both within and outside academia, but from human nature. Someone plagiarising will be doing it because they either lack the time or the inclination to produce novel material themselves. They may seek to conceal the extent of the copying by making some alterations, but extensive alteration requires a reading and re-​interpretation of each sentence. Doing that for a whole essay is hard work, which is presumably what a plagiarist is averse to. An MA student at Birmingham asked if she could use CopyCatch as the subject of her dissertation, by attempting to defeat it by rewriting a 4,000-​word essay. She had full use of the program while doing this and understood how it worked. She reported that it had taken her four times as long to do the rewrite and that her best efforts only reduced the similarity for the 100% she started with to 85%. That is one reason it works. When considering collusion, students deciding to collude are attempting to restrict their individual workloads, so again are only likely to make minimal effort to conceal the similarity of the sections which the other colluder has supplied. Finally, because the program does not require preservation of word order within sentences or sentence order within documents, changing tense, nominalisation and distributing material into/​among different paragraphs doesn’t work as a concealment strategy in either plagiarism or collusion.

Program Development Jangle While the base of comparison has remained substantially the same, as language structure doesn’t move very fast, techniques other than proportional lexical similarity have been developed, of which the statistics-​based Jangle (Woolls 2020) program the author developed for Johnson and Wright (2014) and Wright (2014) is one such. Jangle stands for Jaccard n-​gram Lexical Evaluator and introduces the concept of the n-​gram to the sort of comparison described above. Character n-​grams are much used in automatic authorship identification programs, the n standing for a number of consecutive characters in a text, usually ignoring word or sentence boundaries. They have been demonstrated to work very well, particularly 3-​grams and 4-​grams. This is probably because they reflect, in English at least, the differential use of words by their endings such as those in table 36.1 above, along with other distinguishing features such as the short auxiliary and modal words.

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Jangle, in contrast, makes use of word n-​grams and does so within the constraints of sentence boundaries, because Wright (2014) was interested in whether the use of particular forms of expression by the 176 different authors in the Enron dataset he was using would distinguish them from each other. He settled on the Jaccard similarity coefficient for the identification of the level of overlap between two texts sharing the same word sequences, but in different proportions. The formula divides the number of shared sequences by the total number of such sequences used by both authors. This has proven reliability in comparing the substantial sets of data available to Wright (2014) and Johnson and Wright (2014). Their methodology was to identify the 2-​gram, 3-​gram, 4-​gram etc. sequences used by each author in the set of emails for each, take a sample of one of the authors and compare the n-​grams used in that sample with their use in the balance of the author under consideration and the full sets of all the others. The hypothesis was that the balance of the set from which the sample had been taken would look more like the sample than any of the others. That is, the author had distinctive patterns which were not shared or were shared in different proportions by the others. The task confronting them was that to do this comparison for even a subset of the 176 authors and to do it multiple times with different samples or different sample sizes and with different n-​gram lengths was daunting at the very least and impossible in any sensible time frame. The second, and no less important issue, was identifying and collecting what these sequences actually were. Getting a computer to find and calculate the similarity coefficient is straightforward, but Johnson and Wright needed to know what they were, so that they could use them for investigating reference corpora with such tools as Wordsmith (Scott 2020) (see also Wright, Chapter 37, this volume). The solution provided allowed Wright (2014) to:  select a set of authors; set an n-​ gram length from 1 to 10; set a sample size in percentage terms, with a default of 20%; press a button to get the ranked results, hopefully with the author of the sample clearly distinguished at the top of the list; and to view the actual n-​grams and their use by the selected author and all the others in the chosen set. Each search result could be saved and each press of the button chose a different random set as the sample. Cross-​validation, as it is called, is an important requirement of demonstrating that a set of features really is distinctive; if you get the same results a large number of times it demonstrates the distinctiveness of the features for a given pair of authors. This automated identification of a feature set, dispensing with the need for training datasets, is another thing that marks the operation of the system encapsulated in Jangle from the use of feature sets reported elsewhere in the Handbook (e.g. Grieve and Woodfield, Chapter 40, this volume). It can be used to decide quickly if there is a difference between just two authors and where any difference is located, to inform decisions about whether widening the search to other techniques might be valuable. Jangle has recently been acquired, along with a number of other forensic tools, by the Aston University Institute for Forensic Linguistics (AIFL).

Authorship attribution Jangle only represents one highly focused approach to computer-​assisted authorship identification. As it is perhaps the most significant and successful area of development in the past ten years, it is valuable to outline the central methodology employed. For a very thorough overview, detailed examples and a consideration of fundamental requirements of any methodology, see Juola and Ainsworth (2019). The predominant methodology for assigning authorship to unknown texts is to identify a set of features common to many 604

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authors and to use those to discover the distinctive or widely varying use of such features in the known writings of the candidate authors. In common with many forensic linguistic tasks, the number of candidates for writing threats, potentially faking suicide notes or authoring a book is normally relatively small. The common feature most widely used is the top 50 or 100 function words for a given set of representative texts. This latter point is important as different registers or genres may well have distinctive frequencies of use of even the most frequent of function words. For example, while always comes at or very near the top of a list of function words in written material this is not the case in transcripts of spoken material, where personal pronouns, and in particular , will generally be much higher up the frequency table, if not actually top of the list. Once such a list is settled on, as wide as possible a selection of known writings from potential authors is collected and the relative frequencies of use of the common words identified. Ideally, at least some of the terms will result in a clear division between the known authors. Finally, the unknown text is added to the set and its location on the comparative graph identified. Again ideally, the unknown material will happily settle among those of one author rather than the other(s) and an opinion can be formed as to who is the true author, which only assumes that the candidates were appropriate. This is not the only test that can be performed, of course. Juola (2020) has four examples, including probably his most famous, the identification of Robert Galbraith, author of The Cuckoo’s Calling, as the pen name of J.K Rowling. He describes using a function word list, average word length, overall vocabulary and word bigrams and testing all of these using the statistical technique k-​NN (nearest neighbours). When Rowling came top or second in all four tests it became clear that of the four candidates being tested, she stood out significantly. Unusually, being a living author, she was able and brave enough to confirm that this was indeed the case. (It is unusual because many of the cases reported are historical with all candidates long deceased.) Juola, of Duquesne University, Pittsburgh, is the prime mover in testing the many methods and software implementations of those methods and is well worth reading, particularly for his proposal of a protocol for methodologies (Juola 2015).

Other applications As mentioned in the introduction, there are other applications of document comparison which have grown from the forensic tools developed. This section provides a short review of two such tools with which I have been involved. The first, patent searching, has some forensic applications, since patents are legal documents and are enforceable in law. Corporations owning a large number of patents usually have one section specialising in oppositions. Their job is to maintain and protect the integrity of the company’s patents, so they search for either potential breaches of an existing patent by competitors or for patents in their own fields which they can claim should not have been granted on the grounds of the existence of prior art not accounted for by the patent examiners at the time. Such oppositions generally start with a review of the claims of the patents in the fields, but in common with almost all search systems, patent search portals work with keywords, but leave the user with the task of working out which of the patents returned might actually be in breach of one of the patents held. This is very similar to the plagiarism detection problem in that the user has no idea what might be good terms to search and requires very precise locations within the matches found, in order to be able to assess the potential opportunity or indeed requirement for opposition. The program returns a set ranked by descending vocabulary similarity to the initial patent claims. It uses word bigrams as the 605

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primary way of increasing potential relevance. This is particularly helpful in patent claims because the requirement is for explicit full repetition of terms, so acronyms or pronouns are very rare. This is not only helpful but makes patents a very unusual and distinctive text type. The operational difference from detection is that the search is for similarity to idea or implementation rather than disguised copying, identified by common contextual terminology, describing the construction or implementation processes of whatever the patent attorneys have decided to call the invention. Patent attorneys are known to be fond of obfuscation, e.g. calling a spade a soil turning utensil, but they also have to give a clear description of what an invention is actually for, and there is less scope for creative vocabulary there, a fact that the program exploits. The second application is in the field of searching medical journal publications, so not a forensic application at all. PubMed (https://​pubmed.ncbi.nlm.nih.gov/​) is the repository for the abstracts of pretty well every journal publishing in the broad field of medicine. It currently holds over 31 million abstracts. There is a related but smaller repository for full articles not behind firewalls, PubMed Central (www.ncbi.nlm.nih.gov/​pmc/​), a substantial number of which are fully open access. Here the task is to take any document and compare it with a curated subset of potentially relevant articles. Because of the quantity of abstracts, such subsets are generated with a broad keyword search, but the subsets themselves are searched using full documents, abstracts, project proposals or similar material, again providing a ranked list, with the ranking showing the similarity to the starting document, and again generating the search terms from the search document. At the time of writing an application centred on a subset containing the terms coronavirus and covid-​19 and SARS-​CoV-​2 is in use on the web at this address: elute.info. This latter work comes into the same broad area of investigative forensics as undertaken by Grieve and Woodfield (Chapter 40, this volume) in that it is not commissioned, although it shares with most of the rest of the programs described above the fact that the investigation can be, and frequently is, conducted by field specialists rather than professional linguists.

Conclusion I have explained that for both creators and users of computational forensic linguistic tools it is necessary to have a very clear understanding of the limitations which inevitably surround attempting to use a machine to provide the equivalent of a human reader’s capabilities. The strengths are clearly the ability to handle very large quantities of data and the speed of processing of the texts, without mental fatigue and with consistent application of the rules. The weaknesses come from the complexity of the concept of similarity and the fact that any computer program can only be an approximation of what human readers can recognise and handle with ease. Computer programmers believe that strong visual presentation such as in the comparison of the ‘dodgy dossier’ (see Sousa-​Silva, Chapter 35, this volume) allows the end users of the output to recognise true similarity and gain insight into why programs have selected and marked sentences as showing similarity when it is sometimes less obvious at first reading.

Further reading Journal of Literary and Linguistic Computing (a general source of computational applications to literature and linguistics). Abney, S.P. (1994) Parsing by Chunks www.vinartus.net/​spa/​90e.pdf (accessed 31 March 2009) (an implementation of chunks for grammatical parsing). 606

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Brazil, D. (1995) A Grammar of Speech, Oxford: Oxford University Press. Sinclair, J.McH. and Mauranen, A. (2006) Linear Unit Grammar: Integrating Speech and Writing, Studies in Corpus Linguistics 25, Amsterdam: John Benjamins (detailed illustrations of chunks being used in grammars). Woolls, D. (2012) ‘Detecting plagiarism’, in L. Solan and P. Tiersma (eds), The Oxford Handbook of Language and Law, Oxford: Oxford University Press. See also Computational Forensic Linguistics.ppt on the accompanying website (www. forensiclinguistics.net/​).

References Ainsworth, J. and Juola, P. (2019) ‘Who wrote this?: Modern forensic authorship analysis as a model for valid forensic science’, Washington University Law Review, 96(5): 1159–​1189. Fries, C.C. (1952) The Structure of English, New York: Harcourt, Brace and Company Inc. Johnson, A. (1997) ‘Textual kidnapping:  A case of plagiarism among three student texts’, International Journal of Speech, Language and the Law, 4(2): 210–​225. Johnson, A. and Wright, D. (2014), ‘Identifying idiolect in forensic authorship attribution’, Language and Law /​Linguagem e Direito, 1(1): 37–​69. Juola, P. (2015) ‘The Rowling case: A proposed standard analytic protocol for authorship questions’, Digital Scholarship in the Humanities, 30(1): 100–​103. —​—​—​(2020) ‘Authorship studies and the dark side of social media analytics’, Journal of Universal Computer Science, 26(1): 156–​170. Miller, G.A. (1956) ‘The magical number seven, plus or minus two: Some limits on our capacity for processing information’, Psychological Review, 63(2): 81–​97. Scott (2020) Wordsmith Tools. Version 8.0. Lexical Analysis Software Ltd. Winter, E. (1994) ‘Clause relations as information structure:  Two basic structures in English’, in M. Coulthard (ed.), Advances in Written Text Analysis, London: Routledge, 46–​68. Woolls, D. (2003) ‘Better tools for the trade and how to use them’, International Journal of Speech, Language and the Law, 10(1): 102–​112. —​—​—​(2006) ‘Plagiarism’, in K. Brown (ed.), The Encyclopedia of Language and Linguistics, 2nd edn, vol. 9, Oxford: Elsevier, 621–628. —​—​—​ (2020) CopyCatch Investigator and Jangle, Elute Intelligence Ltd. Woolls, D. and Coulthard, R.M. (1998) ‘Tools for the trade’, International Journal of Speech, Language and the Law, 5(1): 33–​57. Wright, D. (2014) Stylistics Versus Statistics: A Corpus Linguistic Approach to Combining Techniques in Forensic Authorship Analysis Using Enron Emails, PhD thesis, University of Leeds http://​ etheses.whiterose.ac.uk/​8278/​ (accessed 18 July 2020).

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Section III  

New directions

37 Corpus approaches to forensic linguistics Applying corpus data and techniques in forensic contexts David Wright

Corpora in forensic linguistics Corpus linguistics is ‘the study of language based on examples of real life language use’ (McEnery and Wilson 2001:  1), with the examples collected, stored and analysed as a corpus (pl. corpora). Corpora can run into millions or even billions of words, and therefore require the use of specialised software to quantitatively and qualitatively analyse them. Corpus linguistics is a set of methods and procedures that can be applied in the analysis of a range of texts and contexts that forensic linguists may be interested in examining. Since the advent of modern-​day corpus linguistics, many fields have benefited from its ability to identify patterns in text, add evidence to support qualitative analyses and explore large datasets in ways not previously possible. However, uptake in forensic linguistics has been relatively slow. This is likely due to a number of factors, not least the fact that the types of data that forensic linguists work with are often not in abundance. Whether it is courtroom or police interview transcripts, or evidential texts such as text messages, emails, letters or threats, the data (at least in most parts of the world) is scarce, and many researchers spend years to source and collect precious datasets, often after developing close working relationships with organisations or individuals who have access to data that are otherwise in short supply. Some of the earliest and most seminal work in forensic linguistics is corpus-​based. In the work which coined the term ‘forensic linguistics’, Svartvik (1968) used a corpus approach to analyse a set of disputed witness statements in a murder case. Similarly, in his analysis of the Derek Bentley statement, a watershed case for forensic linguistics, Coulthard (1994) used specialised corpora of ordinary witness statements and police statements, along with the much larger spoken element of the COBUILD corpus, to question the authorship of Bentley’s disputed statement. With a few notable exceptions, including early adopters of corpus techniques such as Kredens (2002) in authorship analysis and Cotterill (2003) and Heffer (2005) in courtroom discourse analysis, there was relatively little corpus-​linguistic 611

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work in forensic linguistics in the 20  years since Coulthard (1994). The second decade of the 21st century, however, has seen a healthy increase in the amount of corpus-​based forensic linguistics work across a range of research areas. Such work has demonstrated three affordances offered to forensic linguistics by corpus approaches: (i) they allow for new perspectives on familiar genres, (ii) they offer possible solutions to methodological challenges, and (iii) they open up brand new avenues for research. In terms of new perspectives, corpora and corpus methods have allowed for new approaches to familiar types of discourse in forensic linguistics. For instance, corpus linguistics has expanded the horizons of work in legal language, and the collection and analysis of large datasets of legal language have provided new insights to our understanding of legal texts. An example is Goźdź-​Roszkowski and Pontrandolfo’s (2017) collection of research investigating phraseology, lexical bundles and formulaic sequences in monolingual, multilingual and translated legislative and judicial discourses (see also Finegan and Lee, Chapter 4; McAuliffe, Chapter 5, this volume). Similarly, qualitative work in courtroom discourse has been augmented by the quantitative analysis made possible by corpus techniques, as in the examination of important high-​frequency individual words and their usage across single trials or a number of trials (e.g. Tkačuková 2015; Szczyrbak 2016). In addition, corpora have been built and analysed which comprise some of the more underexplored aspects of trial discourse, such as closing arguments or summing up (e.g. Johnson 2014; Felton Rosulek 2015; Matoesian and Gilbert, Chapter 16, this volume). Corpus linguistics can also provide new solutions to existing methodological challenges in forensic linguistics. One such area is statutory interpretation, where corpus techniques provide a transparent and rigorous alternative to the traditional reliance on judge’s intuition, dictionaries and etymology (e.g. Lee and Mouritsen 2017; Solan and Gales 2018; Gries, Chapter 38, this volume). Corpus linguistics has also been harnessed in authorship analysis research as a means by which to combine elements of existing stylistic and stylometric approaches, in terms of supporting or explaining statistical results of authorship attribution with a qualitative examination of author style (e.g. Wright 2017; Nini 2018). Meanwhile, Grant (2017) demonstrates how using a corpus method can be a valuable strategy in determining the meaning of slang words. The building and analysis of certain types of corpus have made available, for the first time, new datasets and investigations into areas of forensic linguistics not previously possible. One notable example is the digitisation and online publication of The Old Bailey Proceedings (1674–​1913) which has given rise to new insights into the historical courtroom (e.g. Archer 2014; Johnson 2018). Similarly, there now exist analyses of previously unexamined genres, such as malicious and threatening communications (e.g. Gales 2015), trolling (Hardaker, Chapter 42, this volume) and online grooming (e.g. Chiang and Grant 2017). Drawing on three case studies, this chapter aims to support the integration of corpora and corpus techniques into forensic linguistics by discussing some of the important considerations in building and designing forensic corpus data and demonstrating the ways in which established corpus-​linguistic techniques can be used in the analysis of such data.

Three case study corpora The three corpora drawn on in this chapter (Table  37.1) are ‘specialised’ corpora (Flowerdew 2004: 21) in that they all represent specific but different text-​types, they each comprise data from a particular discourse community and they were all collected to help answer precise research questions and aims. However, some readers may not consider 612

Corpus approaches to forensic linguistics Table 37.1  Details of three case study corpora used in this analysis Seduction Forum Corpus (SFC)

Adolescent Harassment Reports (AHR)

Enron Email Corpus

Method of collection

Data scraped from web using Python script

No. of texts No. of tokens Public domain

25,788 posts 26,527,412 Yes

Dataset collected through a web-​based app accessed by participants 61 reports 1,512 No

Data released online, collected and pre-​processed 63,369 emails 2,462,151 Yes

these corpora to be ‘forensic’. They do not consist of legal texts nor are they of texts or genres at any stage of the legal process, such as police interviews or courtroom talk, and they are not illegal or illicit texts and they do not constitute evidence in criminal or civil proceedings. They are, however, bound by their shared aim of improving ‘the delivery of justice through language analysis’ (MacLeod and Grant 2017: 173): • The ‘Seduction Forum Corpus’ (SFC) was collected to examine the discourses of resistance and sexual consent in a specialised online community, and to determine whether language used within this community constitutes the incitement of violent offences against women and girls. • The ‘Adolescent Harassment Reports’ (AHR) corpus was gathered to provide some initial insight into the street harassment experienced by young people aged 11 to 15 in England, in terms of what happened and how they responded. • The ‘Enron Email Corpus’ is used to develop new methods of authorship analysis that attempt to combine quantitative and qualitative approaches to analysing authorial style. Despite their shared aims, the three corpora diverge from one another in various ways. The differences in the means by which these data were collected, their size and composition and the necessary ethical considerations represent important points when sourcing and building forensic corpora.

Corpus collection The internet provides a rich set of possible data sets for forensic linguists. The SFC and the Enron Email Corpus both already existed online, but were sourced in different ways. The SFC is made up of an entire discussion forum from the online ‘Pick-​Up Artist’ community, a community committed to studying and applying the art of pick-​up and seduction. The forum is a popular one but has been given a pseudonym in this chapter to protect the identities of the forum members (discussed in more detail below). The data were collected from the forum using GNU wget web-​scraping scripts, and saved as .json and .txt files. Meanwhile, the Enron Email Corpus was originally released into the public domain in 2003 by a federal judge as part of a database of 1.6 million documents following a criminal investigation surrounding the bankruptcy of the company. The corpus used here draws on that collected and prepared by Carnegie Mellon University (Cohen 2009) and contains emails sent by 176 Enron employees and is stored as individual emails and author sub-​ corpora in .txt format. Both SFC and the Enron corpus required some pre-​processing 613

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and ‘cleaning’ before they were suitable for their respective (forensic) purposes. With both corpora, duplicate texts, web-​associated HTML tags and unwanted metadata were all removed, leaving only the text and metadata that were relevant and useful for the analysis. In contrast, the texts in the AHR corpus were collected directly from adolescents who, as part of a project on street harassment (Betts et al. 2019), were invited to report any experiences of harassment they had in a given six to eight-​week period by using a web-​ based app. The respondents were asked a series of multiple-​choice questions about their experiences and were given the opportunity to describe the event(s) in their own words in a free-​text comment box.

Corpus size The corpora also vary in size. The SFC is the largest at over 26 million tokens, followed by the Enron Email Corpus at almost 2.5 million, with the AHR corpus at only 1,500. The latter may be seen to be pushing the boundaries of what can be considered a ‘corpus’ as it contains fewer words than are demanded by many undergraduate essays. But given that a corpus is a ‘collection of texts’ stored electronically (Baker 2006: 48), the collection of 61 reports satisfies this criterion. This does, however, raise an important question to consider when building a corpus for forensic purposes –​how big should a corpus be or, perhaps, how small can it be? There is no straightforward answer to the optimum size of a corpus; rather, its size will be determined by a combination of the research questions being asked of it and restrictions of practicality. For example, the purpose of building the SFC was to observe discourses within the Pick-​Up Artist community, and therefore any corpus used needed to represent at least one part of this community. At the same time, given its online nature, there were no restrictions on how much could be collected. In contrast, the size of the Enron corpus is limited to the number of emails in the original set released by the courts, and so the corpus was collected in its entirety to obtain any and all available data for each author. The AHR corpus was collected with the aim of learning as much as possible about children’s experiences of harassment, and its collection was determined by practical restrictions such as access to participants, the willingness of participants to volunteer their experiences and the time-​consuming nature of collecting such data.

Ethical considerations Given the nature of the field, it is likely that forensic linguists will be attracted to data that is sensitive in some way, and for which there are likely to be important ethical and privacy considerations. This is true of all three case study corpora. First, and most straightforwardly, while the names and company email addresses of employees in the Enron corpus are visible, there is no other personally identifiable information included such as addresses or social security numbers, and Enron employees were able to request the removal of any emails from the dataset before it was released by FERC. At the time of collection, the forum from which the SFC is taken does not require registration to view posts; it is entirely accessible for the public to view online in the clear web (as opposed to the ‘dark’ web) and is indexed by major search engines. Therefore, although the members of the forum cannot give informed consent to the use of their posts, given that the forum is in the public domain it is not likely that they expect their posts to be hidden or private. Nevertheless, in the preparation of this corpus for analysis a series of additional steps have been taken to protect the identities of the forum users. The name ‘Seduction Forum Corpus’ omits the 614

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actual name of the forum, posts will be presented without usernames and any googleable verbatim quotes or extracts from the forum will be avoided. Lastly, when collecting the AHR corpus, as with any fieldwork methodology, consent was obtained from participants. Because the data was being collected from people under the age of 18, consent was also obtained from the headteacher of the schools that were part of the project, and letters were sent to the children’s parents to inform them of the study and to invite them to inform the schools if they did not want their child to participate in the research.

Applying corpus techniques The core tools, techniques and principles of corpus linguistics can be applied to each of the three case study corpora. The analyses here draw on five core principles of corpus linguistics:  keywords, collocates, concordances, word clusters and part-​of-​speech tagging. Each of these techniques is applied to one of the three corpora to demonstrate how they reveal different things about the data and can help provide answers to forensically relevant research aims. The corpus software used for this analysis is Wordsmith Tools version 7 (Scott 2016).

Keywords, collocates and concordances Pick-​Up Artists and their practices have been described as ‘a movement that teaches men to assault and harass women’ (Ratchford 2017), and the techniques used in achieving sexual ‘success’ with women have been determined as moving from ‘a seduction script, focused on conversation and comfort, to a more aggressive and coercive approach reflecting characteristics of a rape script’ (Denes 2011: 418). The analysis of this corpus seeks to identify whether any of the discourse present in SFC constitutes the incitement of sexual violence against women. At over 26-​million words, finding an appropriate place to start with an analysis of the SFC poses a formidable task. This is especially true for a corpus and a discourse community that the researcher is not familiar or acquainted with. Doing a direct search for specific words (e.g. ‘rape’) risks missing more important and pervasive words and themes in the data and, in this case, overlooks the potentially indirect nature of inciteful language. A keyword analysis, however, can be a valuable first step in probing very large corpora, providing an overview of the lexical composition of the corpus and identifying words that are suggestive of potentially meaningful patterns and that offer routes for further exploration (Archer 2009: 2). Although a straightforward frequency list will invariably be dominated by grammatical words, and even the most common lexical words may not reveal anything meaningful about the discourse under examination (Baker 2006: 123), a keyword analysis identifies words ‘whose frequency is unusually high in comparison with some norm’ (Scott 2016). These words often reflect the main concepts, topics or themes in a text or corpus. Table 37.2 shows the top 50 keywords emerging from the SFC when compared against the 450 million-​token Corpus of Contemporary American English (COCA) (Davies 2012). A number of semantic and grammatical categories emerge from the top 50 keywords into which almost all of the words can be grouped, and which help the analyst characterise the nature and content of the corpus. First, a wide variety of pronoun forms appear as keywords, including first person (I’m, I’ve, me, I’d, I’ll), second person (you’re, you’ll, you’ve) and third person (it’s, she’s, her, he’s, they’re) pronouns. The proliferation 615

Wright Table 37.2  Top 50 ranked keywords in the Seduction Forum Corpus (using log-​likelihood) N

key word

Freq.

%

N

key word

Freq.

%

1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25

i’m girls it’s girl i’ve you’re game her she’s guys me my that’s fuck shit women bang i’d chick get guy chicks i’ll there’s date

81659 107658 74304 96673 43897 40562 78865 267993 31512 53882 171663 185770 26392 28342 29159 75120 21518 17900 18914 108182 39365 16740 14742 12746 24778

0.31 0.41 0.28 0.36 0.17 0.15 0.30 1.01 0.12 0.20 0.65 0.70 0.10 0.11 0.11 0.28 0.08 0.07 0.07 0.41 0.15 0.06 0.06 0.05 0.09

26 27 28 29 30 31 32 33 34 35 36 37 38 39 40 41 42 43 44 45 46 47 48 49 50

they’re pussy sex fucking tinder he’s you’ll you’ve beta ass dude lol fucked dating am getting ltr dudes banged gonna what’s banging pretty alpha text

11480 11723 26460 14800 9960 9157 7881 7742 8946 11343 8941 7071 8179 11492 30738 29871 5815 6370 7001 5726 5780 6948 20979 7575 14369

0.04 0.04 0.10 0.06 0.04 0.03 0.03 0.03 0.03 0.04 0.03 0.03 0.03 0.04 0.12 0.11 0.02 0.02 0.03 0.02 0.02 0.03 0.08 0.03 0.05

of personal terms is reflective of the involved and personal narrative registers represented in online texts of these kinds, particularly given that Pick-​Up Artist forums are regularly used by members to share their tales of sexual encounters with women and to give advice, as in (1). (1) My first bit of advice is that you don’t show your feelings for this girl. If you really want to do this river walk then fine, but you better get the kiss. I get the romantic vibe you’re trying to create, but get her back to your place afterwards. Second, besides the third person pronouns she and her, there are other keywords which refer to females (girl(s), women, chick(s)) and other men (dude(s), guy(s), alpha, beta), which reflect the purpose of the SFC. Finally, a semantic category of keywords which emerges contains those words related to dating and sex, the main topic under discussion in the forum, and these reflect a preoccupation with sexual conquest (game, fuck(ing), fucked, pussy, sex, ass, bang(ing/​ed), date, dating, tinder, ltr, text). Some of these terms are community-​specific, such as the acronym ltr which stands for long term relationship. Keywords are generally content words (Baker 2006: 127), and so it is notable that her, a function word, is the eighth keyword in SFC. Bearing in mind the aim of this analysis is to examine potentially inciteful discourses, the markedly high frequency of her warrants closer attention. A collocation analysis identifies which words commonly co-​occur with a 616

Corpus approaches to forensic linguistics Table 37.3  Most frequent L1 verb and R1 noun collocates of her in SFC L1 Collocates

R1 Collocates

N

Word

Freq.

N

Word

Freq.

1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20

tell get told let give make see fuck take ask bang asked call met have text like keep took want

5231 4787 4607 2944 2741 2625 2564 2499 2272 2229 1684 1678 1575 1564 1452 1358 1257 1129 1124 1054

1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20

number friends friend face place ass phone body pussy mind head life hand boyfriend eyes hair mouth name parents family

3583 3147 2363 1934 1796 1624 1553 1288 1272 1202 1139 1093 1072 1006 937 906 865 818 700 677

word under examination, and analysing these collocates can provide an insight into the contexts in which it is used and the discourses of which it is part. Her serves grammatically as both the object in a clause (e.g. I saw her) and as a determiner within a noun phrase (e.g. I saw her face). A frequency analysis of the collocates immediately before and after her reveals which verbs most frequently affect her, and which nouns are most commonly premodified by her (Table 37.3). The lexical verbs of which her is most commonly the object in SFC can be organised into material processes (get, let, give, make, fuck, take, bang, met, keep, took), verbal processes (tell, told, ask(ed), call, text) and mental processes (see, like, want). Some of these verbs are unsurprising given the nature of the forum, as they relate to communicating, meeting or sexual involvement with women and girls (e.g. call, text, met, like, fuck, bang). However, investigating some others more closely reveals some more malicious discourse. The most common material process get, for example, shows how the get + her collocation gives rise to some particularly predatory discourses: 1 2 3 4

If I get her alone with me, it’s in the bag. Always in busy places, the gym, get her drunk, get physical, get her home. Even if she tells me she just wants to be friends, I try to get her drunk and isolated. I was thinking go to the hotel, get her drunk and try and get her to an empty room.

These concordance lines show get + her in context and represent common patterns in the use of this collocation in SFC. Namely, there is evidence here of forum members advising each other to make women vulnerable before making sexual advances towards them by 617

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getting them alone, drunk or both. Get her drunk and get her alone occur 69 and 42 times respectively in SFC, suggesting that isolating and lowering the inhibitions of their female ‘targets’ is considered a helpful step in their pursuit of sexual gratification. Similarly, make as the sixth most frequent L1 verb collocate is used within some patterns of unambiguous physical and sexual manipulation in which men advise each other to force women to behave in certain ways for their own sexual benefit: 1 2 3 4 5 6 7

I’m sure I can make her do whatever I want with time. Make her do the sluttiest, most degrading shit you can imagine when you see her. Make her do anal or get the fuck out. I usually make her suck my dick while she’s doing all that. I get hard and make her suck my dick. Then I bang her as the television plays. Then you can make her your sex slave, for you and only you. But in the bed room you can make her your whore.

At the very least, this sample of concordance lines provides an insight into the male-​ dominated, patriarchal and misogynistic ideologies that underpin much of the discourse in the SFC. Forum members are encouraged to act as though women are their property, their ‘sex slave’ and ‘whore’. Related to this are the examples from the corpus in which forum members appear to be encouraging other members to make women and girls perform certain sexual acts. Such acts are either packaged in vagueness, such as ‘make her do whatever I want’ or can be explicit and specific such as ‘make her do anal’ and ‘make her suck my dick’. The specific choice of the pattern make her is notable insofar as it denotes force and exclusive male agency in causing something to happen, which in turn raises questions over consent in such circumstances. Shifting attention to the R1 collocates of her, in which her is a determiner, the most dominant category of noun in SFC is words referring to various parts of the body: face, ass, body, pussy, hand, eyes, hair and mouth. While attention may be more immediately drawn to those sexualised body parts (i.e. ass, body, pussy), those which are less overtly related to sex are in fact used as part of highly sexualised discourses: 1 2 3 4 5 6 7 8

Do me a favour and spit in her face if you ever get a chance. Then put your dick in her face and tell her what you want her to do. I shoved her face in my crotch and she gave me a blow job. Make out and then push her head toward your cock. Just shove your dick in her mouth and tell her whatever you think she wants to hear. How about grabbing her by her hair and shoving your cock in her mouth? I choked her and pulled her hair hard enough so that it really hurt. Don’t forget to pull her hair and choke her.

Face, head, mouth and hair appear a combined total of 4,844 times as immediate R1 collocates of her. These words alone are relatively innocuous, but as even the very small sample of concordance lines here show, they are used within wider discursive patterns in SFC which show aggressive and abusive behaviours towards women and girls being recommended and encouraged. This includes the suggestion of forcing women to engage in sexual acts. One final her body-​part collocate worthy of note here is hand, which appears with a frequency of 1,072. A concordance analysis reveals a pattern of behaviour reported by 618

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forum members in which they force a woman’s hand to touch their penis, or wherein they advise such a course of action in the pursuit of sexual intercourse: 1 2 3 4

You have to take her hand and put it on your cock. I take her hand and put it on my dick. I basically push it as far as she will go. Just before she resists just take her hand and put it on your dick. Ten mins later take her hand and put it on your dick.

Forcing someone to engage in sexual activity in this way, without consent, amounts to sexual assault and therefore the encouragement to do just that amounts to incitement to commit a sexual offence. The forensically motivated aim of this analysis was to identify whether there are discourses present in SFC which represent incitement of violence against women and girls. Although it has only been possible here to scratch the surface of a 26-​million-​word corpus, the analysis has demonstrated the ways in which keywords, collocations and concordances are useful tools for the analyst in probing and navigating a large and unfamiliar dataset. Importantly, her and subsequent collocates are unremarkable words at first glance, but a closer inspection of how these words and collocates are used within this community has revealed patterns of predatory and potentially abusive discourses emerging from the forum, glorifying sexual aggressiveness, and in which violent sexual offences against women and girls seem to be reported, encouraged and incited.

Part-​of-​speech tagging Often the types of corpora that forensic linguists are able to collect and analyse are much smaller than the 26-​million words of the SFC. That is the case with the AHR corpus, which contains 61 reports of harassment experienced by young people aged between 11 and 15, and totals only 1,512 words. Even with such a small amount of data, there are techniques from corpus linguistics that can expedite useful analytical procedures that would be time-​consuming to perform manually. Part-​of-​speech (POS) tagging is one such technique, in which automated software is used to ‘tag’ each word in a corpus for its part of speech (or ‘word class’). This subsequently renders the corpus searchable by grammatical patterns as well as lexical ones, and because POS tags appear at much higher frequencies than individual lexical items, this can be particularly useful for smaller datasets with fewer overall tokens. The AHR corpus was collected with the aim of understanding the types of street harassment young people experience and how they respond to it. Central to this analysis, therefore, are the verbs which are prevalent in the reports submitted. The AHR corpus was tagged using the free-​to-​use browser-​based CLAWS tagger (Garside and Smith 1997). Despite having an accuracy rate of 96–​97% (Garside and Smith 1997:  119), the tags assigned to each word in the AHR corpus were manually checked for accuracy, given that some of the reports included non-​standard spellings. An example of a POS-​tagged report is shown in (2) (PNP stands for personal pronoun, CJC for conjunction, AV0 for adverb and PRP for preposition; all the V codings are for verb forms). (2)

They_​PNP stopped_​VVD and_​CJC beeped_​VVD and_​CJC looked_​VVD then_​AV0 waved_​VVN at_​PRP me_​PNP

619

Wright Table 37.4  Types of harassment expressed by verbs in the AHR corpus Harassment type

Freq.

Verbs

Involving vehicle

29

Verbal interaction

25

Being watched Non-​verbal interaction

15 12

Being followed Physicality

9 5

beeped, stopped, slowed, turned (around), drove, speeding, horned, honked, driving, cycled, curbed. said, called, shouted, laughing, asked, whispered, told, shouting, say, lafed, convincing, calling. looked, stared, watching, took, videoing, papped, staring. smiled, waved, stuck, shrugged, showed, pulling (faces), pointing, pointed, whistled. followed, follow, following, cornering, coming, chased. grabbed, yanked, threw, hit.

In the 60-​tag set used in CLAWS, there are 25 different verb tags, all of which begin with ‘V’. Therefore, a wildcard query for ‘V*’ was run in Wordsmith Tools to identify all of the verbs present in the reports. While the verbs in the reports which have subjects other than the young people reflect the types of harassment they were victim to, the verbs for which they are the subjects indicate what the victim themselves did before, during and after the harassment incident. The corpus query found 137 different verbs in the corpus, totalling 341 tokens. These verbs were then divided into those for which the young people themselves were the subject and those for which they were not. The verbs for which the young people themselves were not the subject were manually categorised according to the different types of harassment to which they related (Table 37.4). Note that the original spellings of words have been preserved in the table and in the reports presented here. The harassment type most commonly reported in the free-​text comments are incidents involving people in cars beeping at the children, slowing down or stopping (3). These are closely followed by incidents with some verbal interaction between the harasser and the child (4). This often involves the child being called names and men initiating a dialogue with young girls, complimenting them and inviting them into their cars. Next are types of harassment that do not involve any verbal interaction, in which children are watched, stared at and pictured/​videoed by someone on a mobile phone (5), or smiled, waved or pointed at (6). In a small number of cases, children are followed, chased and even cornered by their harassers (7), while acts of physical aggression are relatively rarely reported by children (8). (3) (4) (5) (6) (7) (8)

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we crossed the road and the guy beeped his horn and stuck his middle finger up. I was walking to my friends house and I got horned at and I looked and two guys (men) asked me ‘how old are you babe? It made me feel completely disgusted. I was with my sister and a friend, we were sitting at the back of the bus and was stared at a while after this fat dark skin male took out his camera and started videoing us we covered our faces and moved the [sic] reported his actions. A taxi driver was driving past then he slowed down and did a creepy smile at my face. I was in a shop in [the town] and this man started staring at me and my frinds [sic] and when we were about to leave he started to get his things and he started to follow us we ran away and we lost him. I was followed and once touched on my boobs and so people was laughing at me, I felt scared about it. And I was scared that they would take me.

Corpus approaches to forensic linguistics Table 37.5  Verbs attributed to themselves in young people’s reports of harassment in AHR corpus Young person’s actions

Freq.

Verbs

Before event

28

walking, going, sitting, waiting, riding, left, leave, crossed, talking.

Response to event

26

ran, walked, moved, went, run, move, lost, cycling, covered, said, shouted, call, spoke, reported, rang.

Although there is a growing understanding of the types of stranger or street harassment that adult women are most often victims of (e.g. Kearl 2010), much less is known about the harassment experiences of adolescents. The results from this analysis therefore, albeit of a relatively small sample of reports, provide some important initial insights into the most common patterns of street harassment that young people are victim of. Indeed, it is perhaps notable that such clear patterns of harassment emerge even though the sample of reports is so small. At the same time, although there has been a good deal of research attention on the interactional and behavioural techniques and strategies adult women use to cope with or respond to stranger harassment (e.g. Fairchild and Rudman 2008), there is less clarity on what resources young people rely on when faced with street harassment. An analysis of the verbs present in the AHR corpus for which the young people themselves are the subject provides some answers to this (Table 37.5). The young people reported themselves as subjects of verbs both before and after the harassment event. Those verbs reported before young people are harassed provide us with the immediate setting of the incident, and they almost all see the young person (and often their friends) walking or going to and from school, the shops or each other’s houses, as in (9). (9)

I was walking to school and out of my bag and some man grabbed it

By contrast, there is more variation in verbs used in the reports after the harassment and these reflect the young people’s responses to what they had experienced. Most often, they took passive or evasive action, including running, moving or walking away (10), which is in line with existing research on women’s coping strategies for stranger harassment (Saunders et  al. 2017). However, in addition to these passive strategies, children also report taking more active measures, including confronting their harassers (11), telling their parents (12) and, in a very small number of cases, informing the police (13). Previous research has found that these active strategies are less frequently employed by adults in response to harassment for fear of escalating violence or being disbelieved. (10) (11) (12) (13)

I was in a shop in [the town] and this man started staring a me and my frinds [sic] and when we were about to leave he started to get his things and he started to follow us we ran away and we lost him. ther was car on rode and he wasent moveing so I went behind it to corss and it nearly ran me over so I cross and sed what the hell man and he stered and lafed and drove away. When me and my best mate was walking some man in a car went by us, turned around and came back to follow us in his car. He said ‘How old are you’ my mate said ‘why’ and he said your beautiful so then I rang my mum and we tried running away. I was with my sister and a friend, we were sitting at the back of the bus and was stared a while after this fat dark skin male took out his camera and started videoing us we covered our faces and moved then reported his actions. 621

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These findings provide new and valuable information on the types of street harassment young people experience in England and how they tend to linguistically and behaviourally react and respond. From a forensic linguistic point of view, this not only addresses an offence of (linguistic) harassment that has traditionally been overlooked by the field, but in practical terms it can inform education, policy and legislation regarding how best to protect vulnerable victims from harassment. This was a small sample, but the use of POS tagging revealed patterns in the discourse that were integral to providing initial answers to the research questions posed, that is the types of harassment experienced and the responses to it. POS tagging provides forensic linguists with an additional ‘layer’ of corpus-​derived results that go beyond straightforward lexical patterns and can be applied to a dataset of any size.

Collocation profiles and word clusters Quantitative approaches to authorship analysis that rely on feature sets at the lexical level distinguish authors and texts from one another by comparing the relative frequencies with which they use particular words or word combinations. In turn, the attribution of questioned texts to a given author is made on the basis of how closely the relative frequency of these features in the questioned texts matches that of a given known or training sample. Such an approach relies on a very narrow view of linguistic variation; the frequency with which an author uses a particular word (or set of words) does not account for differences in how they use those words or word combinations, which may be very distinctive. A corpus approach can bring to light stylistic differences between authors that may be overlooked by purely quantitative methods. Content words have typically been avoided as style markers in quantitative, stylometric authorship analyses, as they are generally considered to be indicators of topic rather than authorial style. Despite the promising results of studies which have drawn on content words as well as function words (e.g. Jockers and Witten 2010), function words have largely been relied on for lexical-​level authorship analysis. However, in a case of disputed email authorship within a company, Coulthard (2013) reports that distinctive use of content words, and in particular register-​related content words, were useful in determining authorship. Drawing on the Enron Email Corpus, the analysis that follows shows that by using a corpus-​linguistic approach, content words can be central to the investigation of idiolect. The specific word that is the focus of this analysis is deal. The word deal is embedded in the community register of Enron, as it relates to the core business of Enron as an energy trading company. Deal in this context refers to the verb sense: ‘to carry on commercial transactions; to do business, trade, traffic’, and the noun sense:  ‘an act of dealing or buying and selling; a business transaction’ (Oxford English Dictionary). The importance of this word in Enron is attested by its frequency. Deal occurs 4,134 times, accounting for 0.17% of the total 2,462,151 tokens and is used by 125 of the 176 authors. Importantly for the purposes of this analysis, the proportion of 0.17% represents our ‘base rate knowledge’ (Turell and Gavaldà 2013) of how frequently deal is used in the Enron population under examination. For context, deal occurs 87,551 times in COCA, accounting for only 0.02% of the 464,020,256 tokens. Authors in the Enron corpus can be distinguished from one another on the basis of how frequently they use deal. For instance, 42 of the 176 authors use deal with a higher relative frequency than that of the 0.17% base rate for the corpus. Amongst those 42 are two traders, Kate Symes and Daren Farmer. Farmer uses deal 286 times in an email set totalling 622

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24,389 words (1.17%). Symes uses deal 682 times in a much larger total email set of 58,577 words (1.16%). Both of these relative frequencies are much higher than the base rate for the corpus, and are in fact the third and fourth highest relative frequencies in the corpus. If two authors who use deal fewer than ten times in much smaller email sets are excluded, Farmer and Symes become the two most prolific users of deal. In terms of frequency alone, there is not much to distinguish between Symes and Farmer. Any approach to analysing authorial style that relied solely on lexical frequency may not distinguish between these two authors, and therefore would not be able to correctly assign any questioned text to either. However, an analysis of how they use the word quickly reveals marked differences. The ‘collocational profile’ (Sinclair 1996) of a word captures the words that are most frequently found in its immediate environment within a given span (in this case a ten-​word span, five words to the left and five to the right). In order to observe differences in the ways in which Farmer and Symes used deal, their collocation profiles can be compared (Tables 37.6 and 37.7). The words that are highlighted in bold are those which do not appear in the collocation profiles of the other author, and even the most cursory glance shows that the two authors tend to use deal in distinctive ways when compared with each other. There is not scope to discuss all the differences here, but a sample has been chosen for closer inspection. One immediate and important difference between the two authors as revealed by their respective collocation profiles is that, whereas Farmer typically uses deal as an object, Table 37.6  L5 to R5 collocational profile for deal in Farmer’s data, Enron Email Corpus (produced using the ‘patterns’ feature in Wordsmith Tools Concord tool) N

L5

L4

L3

L2

L1

Centre

R1

R2

R3

R4

R5

1 2 3 4 5 6 7 8 9 10

the is deal we to for have you volume volumes

the to we you this should changed record and with

the to on can of have is deal price and

the have to on for of pricing change corrected allocated

the this created new to on spot rolled extended term

deal

ticket for to with in has is and the at

to for is the you have should this in under

the cover this is should for deal sitara zero and

the for this to in is be volume are gas

the of deal in you to on meter mtr flow

Table 37.7  L5 to R5 collocational profile for deal in Symes’ data, Enron Email Corpus N

L5

L4

L3

L2

L1

Centre R1

1 2 3 4 5 6 7 8 9 10

to the thanks this kate and in entered deal is

the kate is to and this deal thanks mike was

to the just is and kate not i’ve this deal

the on changed to of in entered is that and

the deal this in peak of last forward and that correct

is has numbers entry and was number in blotter to

R2

R3

R4

R5

been in and is to be the kate that was

changed the to in it on mw is and deal

to the and it is kate thanks as at deal

the to it is and with you kate be for

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Symes’ use of deal is normally as part of a longer noun phrase. For instance, one of Farmer’s patterns which contains distinctive collocates in L1 and L2 position is his repeated use of the I have verb + deal, which he uses 21 times in total, with created sitting in the verb slot most commonly (n=15), as in (14). (14)

Megan, I have created deal # 1075281 to cover a sale from Cleburne to ENA. I also repathed Unify […]

The other six instances see adjusted (twice), taken, extended, rolled and updated filling the verb slot. As the collocation profile shows, Farmer prefers to use some of these other verbs, namely extended and rolled without the auxiliary, which are found five and six times respectively, as in (15). (15)

I rolled deal 150325 for the first 3 days of Jan. I expect this point to be zero for the rest of Jan.

These patterns are not found in Symes’ deal collocation profile and so serve to distinguish Farmer from his colleague. Meanwhile, although Farmer uses deal as the head of a noun phrase, he does so less frequently than Symes. Most typically, he uses new deal (n=13) and spot deal (n=8). However, the adjective + deal pattern is far more characteristic of Symes’ collocational profile. As shown in Table 37.7, peak deal (n=12), last deal (n=9), forward deal (n=9) and correct deal (n=5) constitute her most frequent uses of deal but are not found at all in Farmer’s emails (e.g. 16). (16)

This was a futures contract done by Matt Motley, and I entered the forward deal. I wasn’t aware that futures deals don’t get confirmed. I only knew that when the contract expires, I need to enter a forward deal in EnPower to hold the trader’s position […].

Difference in the collocational profiles of Farmer and Symes can also be observed in the most frequent collocates to the right of deal in the authors’ data. There are major differences in the R1 position, for instance, wherein the only collocate distinctive of Farmer in this position is ticket, which he uses 14 times, as in (17). (17)

Nicole, The correct price is 4.50. I changed the deal ticket.

This use of deal contrasts with Symes’; whereas Famer uses deal as a premodifier for ticket, Symes’ most proliferate pattern is to use deal to premodify number(s), which she uses 57 times, but this pattern is not present at all in Farmer’s data (e.g. 18). (18)

Geir Solberg in Real Time is fixing this right now –​I’ll let you know the new deal number in just a second. Thanks, Kate

Word strings and word n-​grams are now commonly part of the stylometrist’s toolkit when conducting statistical authorship analysis, and such chunking of text in this way will capture an author’s patterns of use of particular words. However, the preoccupation of 624

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such approaches with frequency can overlook author-​distinctive uses at the stylistic level. The corpus-​based concept of collocational profiles offers an alternative perspective on authors’ uses of a particular lexical feature; whereas the frequency with which a person uses a word may not be evidentially significant, the ways in which they use that word may be. As the analysis here has demonstrated, the collocational profiles of deal, an extremely common word embedded within the register of this particular discourse community, can vary greatly between authors (in this case, two people who have the same or a very similar job). Such an approach can unlock the potential for distinguishing between authors using content words, which, notwithstanding their inclusion in word strings, have been ignored by authorship analysts.

Conclusion The techniques demonstrated here are well-​established in corpus linguistics and have been applied in other fields of linguistics for decades. Depending on the nature of the data and the aims of the research, they allow the forensic linguist to explore large, unfamiliar datasets, they offer techniques for enriching smaller datasets to reveal otherwise hidden patterns and they provide a means by which quantitative and qualitative analyses can be combined. However, the types of corpora forensic linguists are interested in are often hard to come by, especially as the field remains pre-​occupied with the analysis of ‘hidden’ genres related to the legal process and criminal evidence. As the field expands, so too will the range of genres and text-​types that fall within the remit of forensic linguists whose aim it is to improve the delivery of justice through language analysis. Indeed, the continued expansion of the field may depend, at least in part, on the broadening of the types of data that are subjected to forensic linguistic attention. None of the three corpora used in this chapter is ‘forensic’ in the traditional sense; yet they all hold potential for improving the delivery of justice, whether by gaining an understanding of the influence of online communication to incite violent offences against women, by protecting young people from street harassment, or developing new methods of authorship analysis to identify or eliminate suspect authors. The broadening of the scope of forensic linguistics opens up the possibility of collecting new and diverse corpora for forensic purposes and, as the recent surge in the use of corpus methods exemplifies, adopting such methods offers exciting and previously unexplored directions for forensic linguistics.

Acknowledgements I would like to thank Ikechukwu Onyenwe for the technical support provided during the collection and preparation of the Seduction Forum Corpus.

Further reading Baker, P. (2006) Using Corpora in Discourse Analysis, London: Continuum. Kredens, K. and M. Coulthard. (2012) ‘Corpus linguistics in authorship identification’, in P. Tiersma and L. Solan (eds), The Oxford Handbook of Language and Law, Oxford:  Oxford University Press, 504–​516.

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Larner, S. (2015) ‘From intellectual challenges to established corpus techniques: introduction to the special issue on forensic linguistics’, Corpora, 10(2): 131–​143. Other chapters in this volume that draw on corpus methods and approaches are: Finegan and Lee (Chapter 4), Gries (Chapter 38), Hardaker (Chapter 42) and McAuliffe (Chapter 5).

References Archer, D. (2009) ‘Does frequency really matter?’, in D. Archer (ed.), What’s in a Word-​list?: Investigating Word Frequency and Keyword Extraction, London: Routledge, 1–​16. —​—​—​(2014) ‘Historical pragmatics: Evidence from The Old Bailey’, Transactions of the Philological Society, 112(2): 259–​277. Baker, P. (2006) Using Corpora in Discourse Analysis, London: Continuum. Betts, L., Harding, R., Peart, S., Sjolin Knight, C., Wright, D. and Newbold, K. (2019) ‘Adolescents’ experiences of street harassment:  Creating a typology and assessing the emotional impact’, Journal of Aggression, Conflict and Peace Research, 11(1): 38–​46. Chiang, E. and Grant, T. (2017) ‘Online grooming:  Moves and strategies’, Language and Law/​ Linguagem e Direito, 4(1): 103–​141. Cohen, W.W. (2009) Enron Email Dataset www.cs.cmu.edu/​~enron/​ (accessed 21 July 2020). Cotterill, J. (2003) Language and Power in Court:  A Linguistic Analysis of the OJ Simpson Trial, Basingstoke/​New York: Palgrave Macmillan. Coulthard, M. (1994) ‘On the use of corpora in the analysis of forensic texts’, Forensic Linguistics. International Journal of Speech, Language and the Law, 1(1): 27–​43 —​—​—​(2013) ‘On admissible linguistic evidence’, Journal of Law and Policy, 21(2): 441–​466. Davies, M. (2012) The Corpus of Contemporary American English: 450 million words,1990-​present www.english-​corpora.org/​coca/​ (accessed 21 July 2020). Denes, A. (2011) ‘Biology as consent: Problematizing the scientific approach to seducing women’s bodies’, Women’s Studies International Forum, 34(5): 411–​419. Fairchild, K. and Rudman, L.A. (2008) ‘Everyday stranger harassment and women’s objectification’, Social Justice Research, 21(3): 338–​357. Felton Rosulek, L. (2015) Dueling Discourses: The Construction of Reality in Closing Arguments, Oxford: Oxford University Press. Flowerdew, L. (2004) ‘The argument for using English specialized corpora to understand academic and professional settings’, in U. Connor and T.A. Upton (eds), Discourse in the Professions: Perspectives from Corpus Linguistics, Amsterdam/​Philadelphia: John Benjamins, 11–​33. Gales, T. (2015) ‘The stance of stalking: A corpus-​based analysis of grammatical markers of stance in threatening communications’, Corpora, 10(2): 171–​200. Garside, R. and Smith, N. (1997) ‘A hybrid grammatical tagger: CLAWS4’, in R. Garside, G. Leech and T. McEnery (eds), Corpus Annotation: Linguistic Information from Computer Text Corpora, London: Routledge, 102–​121. Goźdź-​Roszkowski, S. and Pontrandolfo, G. (2017) Phraseology in Legal and Institutional Settings: A Corpus-​based Interdisciplinary Perspective, London: Routledge. Grant, T. (2017) ‘Duppying yoots in a dog eat dog world, kmt: determining the senses of slang terms for the courts’, Semiotica, 216: 479–​495. Heffer, C. (2005) The Language of Jury Trial:  A Corpus-​Aided Analysis of Legal–​Lay Discourse, Basingstoke/​New York: Palgrave Macmillan. Jockers, M.L. and Witten, D.M. (2010) ‘A comparative study of machine learning methods for authorship attribution’, Literary and Linguistic Computing, 25(2): 215–​223. Johnson, A. (2014) ‘“Dr Shipman told you that …” The organising and synthesising power of quotation in judicial summing-​up’, Language and Communication, 36: 53–​67. —​—​—​(2018) ‘ “How came you not to cry out?” Pragmatic effects of negative questioning in child rape trials in the Old Bailey Proceedings 1730–​1798’, in D. Kurzon and B. Kryk-​Kastovsky (eds), Legal Pragmatics, Amsterdam/​Philadelphia: John Benjamins, 41–​64. Kearl, H. (2010) Stop Street Harassment: Making Public Places Safe and Welcoming for Women, Santa Barbara, CA: Praeger.

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Kredens, K. (2002) ‘Towards a corpus-​based methodology of forensic authorship attribution:  A comparative study of two idiolects’, in B. Lewandowska-​Tomaszczyk (ed.), PALC’01: Practical Applications in Language Corpora, Peter Lang: Frankfurt am Mein, 405–​437. Lee, T.R. and Mouritsen, S.C. (2017) ‘Judging ordinary meaning’, Yale Law Journal, 127(4): 788–​879. MacLeod, N. and Grant, T. (2017) ‘“go on cam but dnt be dirty”:  Linguistic levels of identity assumption in undercover online operations against child sex abusers’, Language and Law/​ Linguagem e Direito, 4(2): 157–​175. McEnery, T. and Wilson, A. (2001) Corpus Linguistics:  An Introduction, Edinburgh:  Edinburgh University Press. Nini, A. (2018) ‘An authorship analysis of the Jack the Ripper letters’, Digital Scholarship in the Humanities, 33(3): 621–​636. Ratchford, S. (2017) ‘I tried to find out if Pick Up Artists are still influential in 2017’, Vice, 25 August www.vice.com/​en_​au/​article/​j55bxd/​i-​tried-​to-​find-​out-​if-​pick-​up-​artists-​are-​still-​influential-​in-​ 2017 (accessed 21 July 2020). Saunders, B.A., Scaturro1, C., Guarino, G. and Kelly, E. (2017) ‘Contending with catcalling: The role of system-​justifying beliefs and ambivalent sexism in predicting women’s coping experiences with (and men’s attributions for) stranger harassment’, Current Psychology, 36(2): 324–​338. Scott, M. (2016) Wordsmith tools version 7. Stroud: Lexical Analysis Software. Sinclair, J.M. (1996) ‘The search for units of meaning’, Textus 9(1): 71–​106. Solan, L.M. and Gales, T. (2018) ‘Corpus linguistics as a tool in legal interpretation’, Brigham Young University Law Review, 2017(6), 1311–​1358. Svartvik, J. (1968) The Evans Statements: A Case for Forensic Linguistics, Gotëborg: University of Gothenburg Press. Szczyrbak, M. (2016) ‘Say and stancetaking in courtroom talk: A corpus-​assisted study’, Corpora, 11(2): 143–​168. Tkačuková, T. (2015) ‘A corpus-​assisted study of the discourse marker well as an indicator of judges’ institutional roles in court cases with litigants in person’, Corpora, 10(2): 145–​170. Turell, M.T. and Gavaldà, N. (2013) ‘Towards an index of idiolectal similitude (or distance) in forensic authorship analysis’, Journal of Law and Policy, 21(2): 495–​514. Wright, D. (2017) ‘Using word n-​grams to identify authors and idiolects: A corpus approach to a forensic linguistic problem’, International Journal of Corpus Linguistics, 22(2): 212–​241.

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38 Corpora and legal interpretation Corpus approaches to ordinary meaning in legal interpretation Stefan Th. Gries

Introduction Legal texts (a constitution, laws/​statutory texts, trusts, contracts, …) serve to provide guidelines regarding which actions/​behaviors are permitted, which are not, and how violating these guidelines can/​shall be sanctioned. This presupposes that the meanings of these texts are (correctly and consistently) interpreted by their readers:  (i) people who are subject to these laws, so they can plan their actions with knowledge of their legal consequences and (ii) legal practitioners, so they can apply the legal texts in concrete situations. When it comes to judges engaged in legal interpretation, we can distinguish very different interpretive methodologies  –​textualism, intentionalism and purposivism  –​but it is probably fair to say that, when it comes to tackling the meaning of a legal text, all judges have more or less adopted a textualist practice of at least starting from the text of the relevant statute(s); as Justice Kagan stated in her Scalia Lecture Series, ‘we are all textualists now’ (https://​youtu.be/​dpEtszFT0Tg?t=508 accessed 16 July 2020). While interpreting the meaning of (a word or part of) a legal text is a function of many things –​e.g., legal canons such as ejusdem generis or noscitur a sociis, a statute’s (pragmatic and historical) context, precedent and, potentially, legislative history –​one of the main components to legal interpretation is the semantic meaning of the text, which, in turn, is a function of the meanings of the words and grammatical constructions (plus the above-​mentioned interpretive rules specific to law). With regard to the semantic meaning of a statute, one of the most important guidelines regarding legal interpretation is the plain meaning rule and the ordinary meaning doctrine that it implies (even though the two notions are not synonyms, see Slocum 2015: 22f.). The ordinary meaning doctrine entails that words not defined in statutes are used in their plain/​ordinary meaning (Scalia and Garner 2012: ­chapter 6; Slocum 2015: sections 1.1, 1.6; Hutton, Chapter 6, this volume.). This approach aims at deferring to the presumed intent of legislators, is compatible with the notice or fair-​warning function of the law, helps assure consistency in legal interpretation and application, and protects reliance interests. 628

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Given the centrality of the ordinary meaning doctrine, it is probably surprising that, ‘[c]‌urrently, the ordinary meaning doctrine is greatly undertheorized’ (Slocum 2015: 30) or even ‘ironically, we have no ordinary meaning of “ordinary meaning” ’ (Lee and Mouritsen 2018:  798). Specifically, legal practitioners and courts face the following interrelated questions (Slocum 2015: 2, ­chapter 3): the constituent question ‘of what makes some meaning the ordinary one,’ and the evidential question ‘of how the determinants of the ordinary meaning of legal texts are identified’; see also Lee and Mouritsen (2018: 798) on the ‘problem of operationalization or measurement.’ Then how do courts deal with the vagueness and ambiguity that is inherent in legal texts? (i)

Judges have relied on their intuition as native speakers: if words not defined in, say, a statute are to be interpreted in their ordinary meaning, then surely judges should be able to rely on their understanding of the term; (ii) Judges have used dictionaries, which have been created externally to the judge and the case at hand and should be authoritative sources regarding word meaning; Slocum (2015:  21) summarizes previous research showing that, while the United States Supreme Court’s use of dictionaries was virtually non-​existent before 1987, now as many as one-​third of statutory decisions cite dictionary definitions (see Mouritsen (2010:  1920) for similar data on both the use of dictionaries and the invocation of the plain meaning rule); (iii) Judges have used the etymology of words, essentially arguing that the contemporary use of a word is based on, or similar to, a word’s (often Latin or Greek) origin; (iv) Combining some of the above, judges have engaged in morphological analysis, as when the majority in State v. Rasabout (2015) parses discharge (v.) into the prefix dis-​and the root charge to argue that discharging a firearm refers to ‘firing one shot,’ not ‘emptying a complete magazine’ (see also Hardaker, Chapter 42, and Hutton, Chapter 6, this volume, for discussion of this case). Unfortunately, all of these practices are even more problematic than they are widespread. Linguists have known for decades and studied extensively the degree to which intuitions about language are often fallible, not shared, and volatile. Speakers are fairly good at determining whether a sentence is grammatical in their native language, but a huge amount of individual variation has been documented already since the 1970s (Labov 1975; Schütze 1993). However, speakers are even worse at determining the commonness of (meanings of) words. Judges sometimes seem to believe that they are experts in language/​linguistics already. Lee and Mouritsen (2018: 866, their emphasis) flatly assert with some bravado that ‘[t]‌he inevitable fact of the matter is that judges and lawyers are linguists’ –​given how much they interpret and write language –​but, just because someone deals with extremely unordinary language (Slocum 2015: 11f.) all day every day, that does not make them an expert on ordinary language. Plus, if all that was needed was good judicial intuitions plus the above tools, then how come even a group of speakers as homogeneous in background and education as nine justices on the Supreme Court of the United States cannot agree on the ordinary meaning of expressions as mundane as use a firearm or carry a firearm? Finally, relying on judges’ intuitions regarding some expressions’ meanings makes jurisprudence rely on something that is volatile, subject to unconscious cognitive heuristics, non-​replicable, non-​transparent, and likely to be ‘off’ when it comes to the ordinary meaning of a phrase (currently or when, say, a statute was enacted). As Lee and

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Mouritsen (2018: 867) state, ‘nothing is statistically worse than one data point –​especially a biased one. The potential for motivated reasoning is evident,’ and ‘the interpretation of statutory language often involves judgments about far smaller distinctions than everyday life demands’ (Solan and Gales 2017: 1333). As for dictionaries, judges are using them for their definitional function (i.e. for what an expression means) and their instantiating function (i.e. for confirming whether a certain meaning has been recognized as valid or is a possible meaning). However, how judges have been using dictionaries is just as problematic as their use of intuition in a variety of ways that are discussed in an exemplary fashion in Mouritsen (2010). A first central ‘meta’-​problem is that courts seem to attribute to dictionaries a third function, namely an ordinary-​meaning identification function. That is, judges use a list of possible senses/​ meanings of a term in a dictionary entry to support claims about its ordinary meaning, although that is not the dictionary’s goal; dictionaries ‘are not in the business of establishing ordinary usage.’ Instead, they seek to ‘instantiate the realm of permissible or possible usage’ (Mouritsen 2010: 1945, my emphasis). Thus, this is a ‘meta’-​problem, because everything else that courts subsequently do with the information from a dictionary is already tainted by that misunderstanding. A second problem aggravating the situation is that courts often commit what Mouritsen (2010: 1036) calls the sense-​ranking fallacy, i.e. believing that the order of senses/​meanings means something (such as attributing more ordinariness to the first-​or earlier-​listed senses than to later ones) even when dictionaries such as Websters Third or the OED clearly state otherwise in their front matters or explanatory notes; and even dictionaries such as the Random House Dictionary, which lists senses ‘generally’ in order of frequency and degree of specialization are not much more suitable for the purposes of identifying ordinary meanings, given that one does not know when the above ‘general’ guidelines are not applied and whether the frequency information that is supposedly adhered to is accurate. As for etymology, a criterion often used based on dictionaries, here, too, courts are employing a criterion that flies in the face of ‘them being linguists.’ As Mouritsen (2010: 1940) succinctly summarizes, ‘[t]‌he notion that we may accept a given meaning as valid simply because its etymology is consistent with our proffered meaning is unsustainable because it would lead to absurd results: December would quite literally mean October, anthology would mean a bouquet of flowers’ –​to explain the meaning of modern-​day carry in English with reference to Latin carum (which means ‘car’ or ‘cart’) as done by Justice Breyer in Muscarello v. United States (1998) is as absurd as it sounds if the stated goal is to characterize the ordinary meaning of the term. Finally, there are more general problems with dictionaries. First, judges can pick whatever dictionary/​dictionaries they wish, which allows them –​even if only unconsciously –​to select a dictionary whose sense divisions and definitions meet a particular purpose: a judge or their clerk(s) working with a dictionary in their chambers can, but need not, conduct an objective, controlled and replicable scientific search for the truth. Second, lexicographers are just as fallible as the rest of us when it comes to the notoriously difficult or even impossible tasks of distinguishing senses of a word or identifying their frequency or obsolescence; as Green (1997, quoted in Mouritsen 2010: 1916) states, ‘dictionaries do not emerge from some lexicographical Sinai.’ Finally, as Mouritsen (2010) argues, given (i) that the opinions individual judges arrive at are usually not independent, (ii) that the decisions lexicographers arrive at are usually not (completely) independent and (iii) dictionaries’ characteristics and their uses by judges, it is far from obvious that an amalgamation of

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‘votes’ regarding the controlling sense of a term (along the lines of the Condorcet Jury Theorem) will lead to the correct outcome. In sum and as Hobbs (2011: 344) concludes, This is not to say that courts should dispense with dictionaries altogether; however, they should be used for their intended purpose, to define technical or unfamiliar words. […] Using the dictionary to define common words is at best unnecessary, and may contribute to strained interpretations of statutory texts by producing meanings that are not ordinary but extraordinary.

Corpus-​linguistic methods and their application to legal interpretation Partially in response to the above-​described facts, the last few years have seen a move towards corpus data in legal interpretation. Following a brief mention in Solan (2005) that corpus linguistics might be relevant to statutory interpretation, the publication of Mouritsen (2010), and Goldfarb’s (2010) brief to the Supreme Court (in FCC v. AT&T Inc. (2011)), this field has been growing via a series of annual conferences at the University of Chicago and especially Brigham Young University (under the stewardship of their Law School and Associate Chief Justice of the Utah Supreme Court, Tomas R. Lee) and has just culminated in Lee and Mouritsen (2018) and several papers in the BYU Law Review. Legal scholars and practitioners are now exploring ways in which corpus-​ linguistic methods may help make legal interpretation more objective, replicable and robust. This section first provides a brief introduction to corpus linguistics and its potential for legal interpretation, before I turn to its main methods and how they have been applied in scholarly work and actual cases.

Corpus linguistics and its potential advantages Corpus linguistics is a scientific discipline at the intersection of linguistics, digital humanities, computer science and statistics/​information theory. It is a branch of linguistics based on the (sometimes highly) statistical analysis of data from a corpus. The notion of a corpus in turn is –​like probably most polysemous words –​a radial/​prototype category with a relatively firmly established center/​core and less central members. A prototypical corpus (i) consists of machine-​readable Unicode text files; (ii) is meant to be representative for a particular kind of speaker, register, genre, variety or language, which means the corpus’s sampling scheme represents the variability of the population it is meant to represent; (iii) is meant to be balanced, which means the sizes of the subsamples are proportional to the proportions of such speakers, registers, varieties, etc. in the population the corpus is meant to represent; (iv) contains data from natural communicative settings, which means the data in the corpus were produced not for the corpus and that their production was untainted by their collection. Thus, it is probably fair to say that the British National Corpus (BNC, www.natcorp. ox.ac.uk/​) represents a prototypical corpus: its most widely used version, the BNC World

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Edition XML, consists of 4,049 XML-​annotated Unicode text files containing altogether approximately 100 million words intended to be representative of British English of the 1990s. Similarly, the Corpus of Contemporary American English (COCA, https://​corpus. byu.edu/​coca/​) is also fairly close to the prototype (although its underrepresentation of truly spoken/​conversational data would give pause to some corpus linguists, and it is a dynamic/​monitor corpus, i.e. it is a corpus whose size is changing over time as new material gets added to it). Corpora can be searched with dedicated corpus software or, better, programming languages such as R or Python to find ‘things’ in corpora; things is deliberately vague because it can refer to anything: letter sequences, morphemes, words, whole phrases, sentences, any kind of annotation (such as part-​of-​speech tagging or lemmatization) etc. That means, in the simplest possible corpus application, one can look for a word or lemma and then, according to Lee and Mouritsen (2018:  831f.), ‘[w]‌hether we regard the ordinary meaning of a given word to be the possible, common, or the most common sense of that word in a given context, linguistic corpora allows [sic] us to determine empirically where a contested sense of a term falls on that continuum.’ That is, corpus analyses inject empirical data and scientific methods into what in a (hypothetical) worst-​case scenario could be non-​transparent, non-​replicable, non-​falsifiable and possibly selective/​biased legal interpretation. (Obviously, the question of whether one wants an objective, empirical and replicable approach to meaning is an entirely different one, and see below for some discussion of criticism leveled against corpus linguistics in the legal domain.) Given the ever increasing size and availability of the internet, the questions might arise to what degree one can consider and use the internet as a whole or Google (either just the search engine or Google Books) as a corpus. Within corpus linguistics, opinions on this are divided, but it is probably fair to say that, while the size of ‘the internet’ or Google Books is certainly an attractive characteristic, using the internet/​Google also comes with many very serious problems, including massive problems regarding representativeness and sampling (Kilgarriff 2007).

Corpus-​linguistic methods Concordances Maybe the most central corpus-​linguistic method is the concordance. In a concordance, each match of a search term –​typically a word –​is shown with a certain user-​defined context (such as a window of n words to the left and right, one or more sentences, the whole paragraph etc.); usually the matches are highlighted, e.g. with bracketing, tabs or other kinds of formatting. These displays are not always easily exploitable, but maximally comprehensive because of how everything the corpus contains about the context of the search term will be provided –​not only linguistic context but also, depending on the annotation of the corpus, for instance who said the search term (to whom), how was it understood (as inferred from an interlocutor’s reaction), how the search term was produced (with disfluencies? with certain voice qualities?) etc. Because of this richness, concordances are usually not analyzed completely automatically but require a human annotator’s attention. In many applications, legal or otherwise, concordance lines are annotated for features of interest, such as senses/​meanings but also lexical, grammatical or other characteristics. 632

Corpora and legal interpretation

For semantic tasks including those of legal interpretation, Phillips and Egbert (2017) distinguish three different kinds of annotation approaches: (i)

a minimalist approach: one only annotates whether each use in one’s concordance instantiates sense1 or sense2 of two relevant senses; (ii) a dictionary-​driven approach:  one annotates in a top-​down fashion each use for which of the senses in one or more dictionaries it instantiates; (iii) the grounded-​theory approach: one annotates in a bottom-​up approach each use for the sense it instantiates, but the senses are developed inductively. Thus, if an analyst changes the sense inventory after having seen the first 100 matches, the first 100 matches need to be revisited to determine whether, now, some of them need to be reclassified. A different analytical procedure, though one that is compatible with the grounded-​ theory approach, is presented in Goldfarb (2017: 1399f.), the so-​called corpus pattern analysis by Patrick Hanks:  concordance lines are first grouped into semantically motivated/​similar grammatical patterns, before a meaning is associated with each pattern based on information from the linguistic context (in particular lexical and grammatical information); see the section on Muscarello v. United States (1998) for an application.

Collocations A second corpus-​linguistic method of overall minor importance is the collocation display, where words co-​occurring with the search term are shown with their frequency of co-​ occurrence; for instance, a collocate display of difference for the Corpus of Contemporary American English shows that between is very frequent around difference (in particular in position R1, one word to the right of difference); similarly a collocate display for the L1 slot of difference restricted to adjectives in that same corpus shows that significant is most frequent directly in front of difference, followed by big or huge etc. Collocate displays seem much easier to interpret because of the focus they appear to provide compared to the apparent noisiness of a concordance. However, because of their lack of context, they often do not allow the finer distinctions legal interpretation may require. For instance, even if significant was indeed the most frequent adjective in front of difference, the collocate display does not allow the analyst to see which of the instances of significant were used with the technical sense ‘statistically significant, i.e.