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Cotterill, Janet, ed. (2002) Language in the Legal Process. Palgrave Macmillan, 288pp, hardback ISBN 0333969022, EUR 103,27,. Process. Announced at http://linguistlist.org/issues/13/13-3371.html
Nele Nivelle, University of Leuven, Belgium
The editor of 'Language in the Legal Process', Janet Cotterill, aims at bringing together in this volume essays of several of the leading researchers in the field of forensic linguistics and language and the law. The contributors originate from six different countries, hence representing six different legal systems, and they all have their specific areas of specialization. As most of the the authors are both academics and are or have been employed as practicioners in the legal process, theory is always sustained by practical evidence. The essays of the contributors are divided up into four parts.
PART I: The Linguist in the Legal Process
Drawing from his wide experience with the interpretation and evaluation of language evidence, Roger W. Shuy describes how linguists can best be of service on this matter in legal processes. He lists points of interest for linguistic analysis of such language material, such as topic analysis, response analysis, ambiguity and inferencing analysis, etc... These points are amply illustrated with authentic transcripts of tape-recorded conversations between a defendant and a confidential informant. The prosecution typically claims these conversations to be incriminating to the defendant. The author stresses the importance of recognizing who introduces possibly incriminating topics into the conversation and of reconstruing the exact meaning of the defendant's utterances, which may be blurred by either informant or prosecution. Shuy further notes that, because of the discomforts of cross-examination of expert witnesses, linguists are usually most helpful to attorneys as consultants.
Malcolm Coulthard examines the nature of written police records of verbal evidence. The Police and Criminal Evidence Act (PACE, 1984) stipulates that the police should, whenever possible, make a contemporaneous audio or video recording of verbal evidence. Before PACE, police records of verbal evidence were often highly inaccurate, either because of lack of tape or video recordings and the officer had to type out a verbatim account afterwards out of memory, or because the officer wilfully altered form or contents of the account, in order for it to better serve its purpose in court, or both. Supported by three cases which predate PACE, and in which judicial sentences were based on linguistic evidence, extracted from police records of statements or interviews, Coulthard shows how lack of coherence in these police recorded texts, e.g. in non corresponding question-answer strains, in misuse of reference words or in unexplainable topic changes, can prove the inaccuracy of those written accounts.
Gail Stygall holds a plea in favour of comprehensible immigration documents. Immigrants turning to America for green cards are being confronted with a highly xenophobic bureaucracy. Applicants are required to read and fill out correctly numerous documents, containing highly formalized language and difficult vocabulary. The author claims that these inaccessible forms result from the fact that immigrants are not politically represented, as they are not allowed to vote. She supports this claim by comparing an immigration document with a government document intended to be filled out by an American citizen, on the topic of simple document design principles. The immigration document indeed scores substantially less on the amount of white space, a clear typeface, the recommended line length and a logical presentation of topics. Stygall further points at complex syntax, maladjusted vocabulary, unclear references and ambiguous meaning of speech acts in immigration documents.
While product liability is a steadily emerging branch in the law, Peter Tiersma observes that legal and government standards concerning product warnings are yet insufficient. The warning standard he aspires to achieve is that of the highest comprehensibility for as many product consumers as possible. In reference to Grice's maxims, he focuses on the appropriate quantity and the relevance of the information presented in a product warning. The author inquires into the possibilities of bilingual warnings, safety symbols and pictograms, therefore relying on findings of expert research and existing judicial rulings on these topics. Tiersma concludes that a warning ideally comprises an imperative constituent, stating what the consumer should do, and an informative one, formulating the imminent dangers of the product.
PART II: The Language of the Police and the Police Interview.
Karen Tracy and Robert Agne chart the potential difficulties police call-takers experience in receiving emergency calls on domestic disputes. These disputes more than often are the result of intricate histories and contain various sensitivities, as reporting one's close relatives is socially regarded to be at least morally dubious. Tracy and Agne list various linguistic markers which foreshadow sensitive issues, based on a corpus study on citizen-police calls about domestic disputes. Furthermore, they describe how the sensitivities themselves are conversationally revealed and managed. Finally, the authors zoom in on how call-takers can be helpful in such cases where police-intervention is not an option.
Alison Johnson's article contributes to the understanding of 'so'-prefaced questions in specialized institutional settings, such as police interviews with child witnesses and adult defendants. An example of a 'so'-prefaced question is ''So you stayed home all night?''. Via elaborate corpus research, the author discerns various meanings and uses for that type of question. She finds that 'so'-prefaced questions can help construct, summarize and organize very young children's often incomplete and incoherent narratives, and that they take on a narrative sequence and organisational importance in the narratives of adolescent witnesses. In interviews with defendants, however, the author records that 'so'-prefaced questions are mainly used to recapitulate and summarize, challenge, and evaluate the defendant's previous statements.
The role of the interpreter in the dynamics of investigative police interviews with suspects is elaborated on in Sonia Russell's essay. An interpreter's intervention in the normal dyadic turn-taking system of an institutional dialogue may have severe consequences for the procedure and final result of the interview. More specifically, the author points out, by means of corpus data, the interpreter's crucial role in handling the occurrence of overlapping turns of the police officer and the detained person. It is often just not possible for the interpreter to remember and translate overlapping information, and interrupting both speech participants, temporarily ignoring one (or even both) of them, or explicitly allowing one of the speech participants to continue (explicit turn allocation), may be to the advantage, or disadvantage, of either party.
Susan Berk-Seligson also comments on the interpreter's precarious position in police interviews with suspects, but she does so in the light of the suspect's Miranda rights. These constitutional rights allot a suspect the freedom not to answer police questions in order to avoid self-incriminating statements. The author describes a legal case in which a murder suspect is officially allocated an interpreter who is also a police officer. In his translations and his behaviour in general, the interpreter, however, obviously maintains the role of police officer, in which he feels more comfortable and powerful. Berk-Seligson exposes the linguistic techniques used by the interpreter to coerce a confession from the suspect, whenever the latter appeals to his Miranda rights.
PART III: The Language of the Courtroom I: Lawyers and Witnesses.
Janet Cotterill addresses the issue of intertextuality in narratives in forensic settings. In these narratives, repetition plays a crucial role, since deviation of other or former narratives may implicate the narrator's incredibility. The latter is illustrated by the trials against O.J. Simpson. In the civil case against Simpson, the defence lawyer demonstrated one of the prosecution's witnesses' incredibility, by citing (parts of) this witness's previous official narrative, and confronting him with his present deviant version of the facts. The author closes on stressing the need for the complexity of narrative voices and versions in forensic settings to be further explored and analysed in future research.
Diana Eades conducts a sociolinguistic study of the cross-examination of young aboriginal people. Aboriginal people tend to make use of ''gratuitous concurrence'', which involves saying ''yes'' in answer to a question, not necessarily to express consent to the proposition at stake, but primarily to show willingness to cooperate in the communicative situation. Firstly Eades enumerates various strategies specifically used to elicit agreement. She goes on to demonstrate how lawyers and police abuse these strategies by purposely misinterpreting the elicited aboriginal's ''cooperative'' agreement as a confirmation of the preceding proposition. The author discusses the case of three young aboriginal boys against six police officers, in which gratuitous concurrence was elicited from the aboriginal teenager witnesses and was afterwards misinterpreted, causing the charges against the defendants to be dropped. Eades warns for the cultural and sociological boundaries of the cross-examination process as used in Australian courtrooms.
Lawrence Solan offers a linguistic approach to the Clinton scandal, in which the former president expressly distinguished between being truthful, but deceptive and being downright dishonest. The American perjury statute states that only people under oath who are knowingly untruthful about any material matter are guilty of perjury. Solan investigates the legal desirability of a law, which does not consider perjurious people under oath who omit relevant information, or make true statements which they know will lead the hearer to draw wrong inferences. The author concludes that the legal system, however, should not be tougher on ''liars''. In defence of this view he refers to the rule of lenity, the often deceptive practices used by lawyers and the problem of judging borderline false records.
Rosemary H. Moeketsi concentrates on the difficulty of interpreting across cultures. She illustrates this with a South African Alternative Dispute Resolution (ADR) case. Whereas a faithful translation of the source message is a preliminary demand of interpreters in judicial settings, the ADR case shows that some interpreters, by lack of proper training or experience or because of emotional involvement, fail to deliver this message, or even worse, give an altogether different translation of the original message. Among the features of inaccurate interpreting the author lists multiple repetitions in the translation, direct transferences from the source message, mere approximations in the translation of the source message, and lexical simplifications in the translation. The interpreter's failure to appropriately communicate culture-sensitive or culture-specific topics, may lead to communication breakdown and severely damage the principle of legal certainty.
PART IV: The Language of the Courtroom II: Judges and Juries.
Out of his wide experience as a judge in bankruptcy cases, Stan Bernstein stresses the need for forensic linguistic research on the topic of administration of bankruptcy cases. He illustrates this claim by describing a dispute which was brought to his court between a native American debtor and a creditor, originating from South Korea, with very limited English skills. They disagreed on whether or not the debtor had given the creditor ''actual notice'' of his bankruptcy. The author raises the question whether the court can or should take into consideration limited English skills of a person involved in the process of a formal judicial proceeding or, alternatively, should there be an objective standard, stating exactly what the meaning and intent of an oral report in formal judicial proceedings is. The latter would, however, inevitably put those citizens who lack proficiency at a disadvantage.
Chris Heffer initiates a comparison of the American and British methods of jury instruction. American, as well as English judges are provided with a body of texts concerning jury instruction on various legal matters, called ''Pattern Instructions'' (Am.) and ''Specimen Directions'' (Gr. Br.) respectively. Whereas American judges, however, are to give a verbatim record of the Pattern Instructions, British judges are allowed a more flexible approach. As complaints on the American jurors' poor understanding of their task are abundant, Heffer inquires into the nature and possibly more fruitful outcome of the British way of jury instruction. On the basis of linguistic features, the author records British judges' inclination to narrativising the instruction, e.g. in personally addressing the jury, making legal terminology more concrete, giving examples, in short, to make the legal language more tangible. The data, Heffer concludes, seem to indicate that English judges manage ''reasonably well'' in communicating jury instructions.
Bethany K. Dumas illustrates the difficulty American judges face in effectively communicating jury instruction by the case of Jacobs v. Johnson. After Jacobs had been found guilty of capital murder, his lawyer questioned whether the jury had understood the intended meaning of several key legal terms, such as ''reasonable doubt'', a ''lesser included offence'', ''mitigating evidence'', etc. The defence lawyer assembled a team of experts who each studied the jury instructions for comprehensibility. They all agreed on insufficient comprehensibility for the jury, and not merely on the basis of intransparent legal terminology. Complex syntax, general vagueness and ambiguity, and possibly suggestive text syntax added to the experts' belief that the jurors did not understand their instructions. The Jacobs case is now pending in federal court.
D�bora de Carvalho Figuieredo in her essay discusses the pedagogical role of the discourse of English legal decisions on rape trials. Over the decades, a gradual shifting interest is found in punishing more in the mind and the social body of perpetrators, instead of in the physical body itself. This ''modern'' disciplinary power is obtained, the author proceeds, by the concepts of hierarchical observation, normalising judgement and examination of both victims and possible or actual perpetrators. She demonstrates in several Reported Appellate Decisions on rape crimes how custodial sentences, in combination with psychiatric and medical follow-up of the perpetrator, can further attempts at normalisation, and how they can set an example and warning for the perpetrator, the society at large, and women and girls in particular. De Carvalho Figuieredo further addresses the issue of infra-penalties, which subjects rape victims to the painful process of having their most intimate private life exposed and judged in a public court.
Exactly how right John Mellinkoff (1963) was in opening his now classic 'The Language of the Law' with ''The law is a profession of words.'' (ib.: vii) is once again plentifully illustrated by the contributions to 'Language in the Legal Process'. The book presents an excellent update of the data in 'Language and the Law', edited by John Gibbons in 1994. A wide range of topics concerning forensic linguistics and language and the law is dealt with by authors who often are or have been involved as expert witnesses in legal cases. The volume hence functions as a good overview of recent research in forensic linguistics and language and the law, both for linguists, interested in this strain of research, and for magistrates, lawyers and whoever else in the course of a legal process may find themselves confronted with or make use of linguistic expert witnesses. Sceptics, who still have their reservations about linguists testifying in court, can find in these essays an accurate account of how the trained linguist's ear may discern the story behind the story (see also Shuy 1993), thus putting another perspective on a case, or how he may expose hidden communication deficiencies, thereby putting otherwise potentially incriminating statements or reactions in their right perspectives.
It is the potentially crucial role the contributors to the volume play through their expertise in the acquittal or condemnation of defendants in the cases described in the essays, that makes this a compelling book to read. Illustrations of courtroom practices give us, as Tiersma puts it, ''a chance to observe legal language in its most dramatic setting'' (1999: 145). Along with this goes that the conclusions, hence, of the different essays do not so much involve theoreticising, as deriving practical implications of the conducted research, potentially leading to a gradual improvement of the aspects of language in the law concerned.
Gibbons, John, 1994. Language and the Law. London and New York, Longman.
Mellinkoff, David, 1963. The Language of the Law. Boston / Toronto, Little, Brown and Company.
Shuy, Roger W., 1993. Language Crimes. The Use and Abuse of Language Evidence in the Courtroom. Oxford UK & Cambridge USA, Blackwell.
Tiersma, Peter M.,1999. Legal Language. Chicago, The University of Chicago Press.
ABOUT THE REVIEWER
Nele Nivelle is a PhD candidate working for the Center of Dutch Legal Language at the University of Leuven. She is currently preparing a dissertation on the use of counterfactual reasoning in legal discourse (supervised by William Van Belle & Willy Smedts). Her main research interests are pragmadialectics, rhetoric, forensic linguistics and cognitive linguistics.
ABOUT THE REVIEWER:
ABOUT THE REVIEWER Nele Nivelle is a PhD candidate working for the Center of Dutch Legal Language at the University of Leuven. She is currently preparing a dissertation on the use of counterfactual reasoning in legal discourse (supervised by William Van Belle & Willy Smedts). Her main research interests are pragmadialectics, rhetoric, forensic linguistics and cognitive linguistics.