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Review of  Creating Language Crimes


Reviewer: Kerry Linfoot
Book Title: Creating Language Crimes
Book Author: Roger W. Shuy
Publisher: Oxford University Press
Linguistic Field(s): Forensic Linguistics
Book Announcement: 16.3453

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Date: Sun, 27 Nov 2005 22:30:59 +0000 (GMT)
From: Kerry Linfoot-Ham <knkham@yahoo.co.uk>
Subject: Creating Language Crimes: How Law Enforcement Uses (and
Misuses) Language

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

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

OVERVIEW

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

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

CONTENTS

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

CRITICAL EVALUATION

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

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

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

REFERENCES

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

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

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

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

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

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

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


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


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