Lawyers need to know more about language

Note: This post was co-authored with Alexandra Grey.

The Biennial Conference of the International Association of Forensic Linguists (IAFL) was held at RMIT, Melbourne from the 1^st-5^th of July this year. The conference brought together a broad range of researchers from across the globe, interested in a variety of language-related issues in diverse legal contexts. However, despite this diversity, a clear issue emerged amongst the many presentations: the importance of tackling problematic beliefs about language in a format that is accessible and perceived as legitimate by those working in legal settings.

Reading from the introduction of her new book Researching Forensic Linguistics, the immediate-past president of IAFL, Georgina Heydon (RMIT), noted that miscarriages of justice sometimes arise because of “misconceptions about how language works”. Further, while legal professionals may be adept experts in using language, this does not make them language experts in the same way as linguists. This not only means they are “ill-equipped to provide linguistic expertise” but “are also largely unaware that linguistic expertise even exists” (see Ch 1).

Beliefs and misconceptions about language are theorised as “language ideologies” by sociolinguists; they are the “taken-for-granted assumptions about how language works” (Eades 2012, p. 474) which inform the way people like lawyers, judges and police officers conduct their work. Language ideologies help shape the expectations such people have about communication, in ways that may impact their decision-making, such as whether a speaker is proficient enough in a particular language to participate in a police interview or appear as a court witness, or requires an interpreter. Some of the conference presentations directly identified and tackled language ideologies, while many others sought to contribute evidence to correcting them.

For example, a number of presentations dealt with the ways police warn suspects that they have a right to remain silent and that anything they say could be used as part of the evidence against them at trial. This is called a “Miranda Warning” in the United States, and a very similar warning is obligatory in Australia. The various presentations dealing with these warnings tackled beliefs such as the assumption that if an L2 speaker is able to hold a casual, informal conversation, then they have sufficient proficiency to understand such a warning.

Scott Jarvis (University of Utah) presented experimental research that he and colleagues have recently undertaken in the US on the understanding of the Miranda warning. They tested an educated L1 English control group and an equally educated group of L2 English speakers from Arabic and Mandarin L1 backgrounds who all had been graded equivalent to B1 or above on the Common European Framework of Reference for Languages. The inquiry asked participants to write down what they heard with both short and long, simple and common sentences; short, simple sentences including legal terminology; and long, complex sentences including legal terminology. Then the participants heard and paraphrased the stipulated Miranda Warning clause by clause, and finally rated their own confidence in their correctness.

While the L1 English speakers were better than the L2 speakers at writing down all four types of sentence, their correctness dropped markedly on the long, complex, legal sentences, and both L2 groups had decreasing correctness across the four types of sentence, with very low levels of correctness on the long, complex, legal sentences. Jarvis suggests working memory is too strained on these sentences, which suggests that understanding something like a Miranda Warning will be difficult. The Miranda Warning comprehension task bore this out. Very few L1 English speakers were completely correct, with that cohort scoring between 15 and 22 out of 22, with a mean of 18. By contrast, only the highest-scoring of the L1 Arabic cohort scored 15/22, with the mean at 5/22. The highest-scoring L1 Mandarin speakers got 10/22 and that cohort’s mean was 3/22. Jarvis reminded us that in real arrest situations, participants may not be as well educated, and even if they are, stress and other factors are likely to affect comprehension. Nevertheless, the study found that even when participants reported high levels of confidence that they had understood the warning, what they actually understood was often erroneous, including thinking that they did have to answer police questions and that if they chose to have a lawyer present, they would have to arrange it and pay for it themselves

So we can see there is a real problem with assuming that people – even educated L1 English speakers – have the language ability to understand their rights to silence and to have a lawyer present. The consequences of not understanding are high-stakes, including accidentally waiving the right and self-incrimination.

This US study was complemented at the conference by Alex Bowen’s (ARDS Aboriginal Corporation) analysis of Australian police interviews in which investigators attempted to confirm that Indigenous suspects had understood Australia’s equivalent warning. Bowen’s examples demonstrated a wide variety of linguistic techniques police use to try to ascertain understanding, and in some cases showed situations where problematic responses were construed as demonstrating a level of understanding that was not actually apparent from the interaction. Bowen’s work will be further detailed in our next blog post in Language on the Move’s new “Language and Law” forum.

Misalignment or mistranslation of legal/policing terms across cultures was more broadly raised as a key problem in a number of presentations. Many speakers identified unfair outcomes when such problems were assumed not to have occurred because of the presence of an interpreter, or because, sufficient proficiency was incorrectly assumed, e.g. because the interviewee had been understood by the police officer in short exchanges about everyday matters.

Other presentations focused on how people in positions of authority conceptualize and evaluate the level of comprehension of their interlocutors. Although each interlocutor will inevitably draw on their own experiences and assumptions and their interpretation of the specific context in order to understand a concept, the difference in experiences and assumptions and therefore in understanding may not be anticipated or corrected. Laura’s presentation on refugee visa decision-making made a similar point, explaining that decision-makers make evaluative decisions drawing on their own diverse backgrounds (see also “Are we all different in the same way?”).

The participation of third parties can further complicate legal communication processes. For instance, Annie Heini (Aston University) demonstrated that third parties may make a range of choices in how they contribute to police interviews involving minors. These choices may stem, in part, from a lack of clarity and clear guidance about what their role is meant to be. The need for training in other interviewing settings, such as those involved in refugee visa decision-making was highlighted by a number of attendees. Philipp Angermeyer’s (York University) research on the infamous case of Florida v Zimmerman uncovered some of the effects of interview techniques. His presentation demonstrated the detrimental impact that the prosecution’s examination style had on how its own key witness was able to present her narrative in court.

Such training is an area where forensic linguists can play an important role, as Georgina Heydon illustrated. Heydon presented her research into police interviewing styles and the police training she has conducted based on that research. In this area, expert training has the potential to make a huge difference to investigation processes, and ultimately to individuals’ experiences in the justice system.

It is not only in training but also in law reform that forensic linguists are correcting problematic assumptions about language. For example, Ben Grimes (Charles Darwin University) emphasised the current opportunity to expand the contribution of forensic linguistic expert evidence: section 85 of the Australian Evidence (National Uniform Legislation) Act has changed how admissions from defendants are assessed by judges. It shifts the focus from whether the admission was made voluntarily (i.e. the speaker understood the right to silence yet spoke) to whether the statement is reliable. The court, considering reliability can take into account “any … characteristic of the person who made the admission, including age, personality and education”. Where the admission resulted from an interview, the court should also take into account “the nature of the questions and the manner in which they were put”. This allows great scope for linguistic evidence about language variation and other linguistic indicia of (un)reliability, just as linguistic evidence has come into consideration in states of Australia where the common law dictates that admissions be assessed taking into account a speaker’s age and “background” and their understanding of the police caution.

In our blogpost next week, you can read about a case, WA -v- GIBSON [2014] WASC 240, where the judges not only explicitly considered language but also drew on the expert linguistic evidence of longstanding IAFL member, Professor Diana Eades.

In the conference’s last keynote presentation, Janet Ainsworth (Seattle University) referred to the observations by Georgina Heydon with which we opened this blog, reflecting on challenges and opportunities facing Forensic Linguists. She noted that, as courts develop increasingly stringent requirements relating to the admissibility of forensic evidence, forensic linguists need to continue to develop a strong dialogue with the legal profession to explain the value of linguistics and to impress upon them the reliability of qualitative research. She echoed other presenters in underlining the need to continue combating problematic language ideologies, noting the importance of ensuring that our research reaches our target audiences. In this regard, Ainsworth stressed the importance of sharing our research in publications that lawyers and judges read, and communicating it in ways that are accessible to them: this may mean co-authoring with a “native speaker of the language” of the law! Janet accepted that this can be a challenge for linguistic researchers, but she reminded us that we are well-placed to meet the challenge. After all, communication is at the heart of our expertise!

So, while the 14^th IAFL biennial conference was an undisputed success, this final keynote created a call to arms. We scholars in this space need to continue in our efforts to communicate our research accessibly and to share it in places where it is most likely to influence positive change. For the two of us, a similar realisation led us to establish the Law and Linguistics Interdisciplinary Researchers Network earlier this year. We started the group with a foundational symposium and now run a Listserv where members can share news, events, research and questions. We hope to use the Network as a way to “LLIRN” 🙂 to collaborate across disciplines, and as a platform to communicate our research beyond academia. In this way, we hope to play our own role, and facilitate others too, to use linguistics to “make the world a more just and humane place”, in the words of Janet Ainsworth.

By the way, IAFL is considering changing its name! If you find the name good/bad or have a suggestion, you can let us know below or by Twitter @lg_on_the_move, or let them know @_IAFL.

References

Abstracts of all conference presentations are available here.
Eades, D. (2012). The social consequences of language ideologies in courtroom cross-examination. Language in Society, 41(4), 471-497.
Eades, D. (2015). Guidelines for communicating rights to non-natives speakers of English. Language on the Move.
Heydon, G. (2019). Researching Forensic Linguistics: Approaches and Applications. London: Routledge.
Smith-Khan, L. (2017). Are we all different in the same way? Language on the Move.