Date: Sun, 27 Nov 2005 22:30:59 +0000 (GMT) From: Kerry Linfoot-Ham 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
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.
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.
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.
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.