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Review of  Language in the Legal Process


Reviewer: Nele Nivelle
Book Title: Language in the Legal Process
Book Author: Janet Cotterill
Publisher: Palgrave Macmillan
Linguistic Field(s): Forensic Linguistics
Book Announcement: 14.1957

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From: Nele Nivelle <nele.nivelle@arts.kuleuven.ac.be>
Subject: Language in the Legal Process


Subject:Review: Forensic Linguistics:Cotterill, Janet, ed. (2002)

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

INTRODUCTION

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

PART I: The Linguist in the Legal Process

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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.

CRITICAL EVALUATION

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

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

REFERENCES

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

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

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

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


ABOUT THE REVIEWER

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



 
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.

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