Speaking of Crime: The Language of Criminal Justice / Edition 1

by Lawrence M. Solan, Peter M. Tiersma

Overview

Why do so many people voluntarily consent to searches by have the police search their person or vehicle when they know that they are carrying contraband or evidence of illegal activity? Does everyone understand the Miranda warning? How well can people recognize a voice on tape? Can linguistic experts identify who wrote an anonymous threatening letter?

Speaking of Crime answers these questions and examines the complex role of language within our criminal justice system. Lawrence M. Solan and Peter M. Tiersma compile numerous cases, ranging from the Lindbergh kidnapping to the impeachment trial of Bill Clinton to the JonBenét Ramsey case, that provide real-life examples of how language functions in arrests, investigations, interrogations, confessions, and trials. In a clear and accessible style, Solan and Tiersma show how recent advances in the study of language can aid in understanding how legal problems arise and how they might be solved.

With compelling discussions current issues and controversies, this book is a provocative state-of-the-art survey that will be of enormous value to legal scholars and professionals throughout the criminal justice system.

Product Details

ISBN-13:	9780226767932
Publisher:	University of Chicago Press
Publication date:	02/01/2005
Series:	Chicago Series in Law and Society
Edition description:	1
Pages:	264
Product dimensions:	6.00(w) x 9.00(h) x 0.90(d)

About the Author

Lawrence M. Solan is the Don Forcelli Professor of Law and director of the Center for the Study of Law, Language and Cognition at Brooklyn Law School. Peter M. Tiersma is professor at Loyola University Law School. They are the authors, respectively, of The Language of Judges and Legal Language, both published by the University of Chicago Press.

Read an Excerpt

Speaking of Crime
The Language of Criminal Justice

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By Lawrence M. Solan Peter M. Tiersma
The University of Chicago Press
Copyright © 2005 The University of Chicago
All right reserved.
ISBN: 978-0-226-76793-2

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Chapter One
Language and the Criminal Law

Language and the criminal law interact in a wide variety of ways. In this book our focus is on some of the more common and obvious illustrations of this interaction. Here we present some introductory examples of the main subject areas of the book: the language of police and suspects in pretrial proceedings, the admissibility of linguistic evidence during trial, and crimes that are committed by language.

The Language of Police and Suspects

Various linguistic issues arise in communication between law enforcement officers and persons suspected of committing a crime. For instance, the language of both police and suspects is relevant in deciding whether someone detained by the police has voluntarily consented to a search:

A police officer believes that a car contains illegal drugs, but does not have probable cause to believe that a crime is being committed. He therefore has no right to initiate a search. He seeks permission to search the car by asking the driver, "Does the trunk open?" The driver opens the trunk, and the officer discovers a large stash of heroin under the back seat. Later, the driver, now the defendant, claims that he could not possibly have knowingly waived his rights because he didn't have any idea that he had the right to say "no" to the police officer. Did the driver voluntarily consent to the search?

It seems incredible that someone who knows that he has contraband in his car would "consent" to allow police officers to search it. Yet that is exactly what happens every day in countless encounters between police and citizens throughout the United States. In chapter 3 we analyze this riddle from a linguistic perspective. We show, using the tools of linguistic pragmatics, that courts are willing to take into account context and other pragmatic information in deciding that the police have indirectly requested that the driver open the trunk and that the owner has indirectly consented to the search, but stop short of using pragmatic information to conclude that the officer indirectly ordered the driver to open the trunk. We explore the implications of this practice on the controversy surrounding racial pro- filing.

Language is also an issue during interrogation. According to the U.S. Constitution, a suspect who invokes his right to counsel may not be further interrogated without his lawyer's presence and agreement:

Police officers are questioning a suspect about a number of burglaries when suddenly they change the subject to a recent stabbing death. The suspect responds: "Wait a minute. Maybe I ought to have an attorney. You guys are trying to pin a murder rap on me, give me 20 to 40 years." Can the police continue questioning him about the murder? In other words, is the suspect merely thinking out loud, or is he invoking his constitutional right to consult a lawyer during interrogation?

Courts frequently hold that such indirect or possibly ambiguous statements do not count as "requests" to have a lawyer present, allowing police to continue their interrogation. Again invoking the tools of linguistic pragmatics, we show in chapter 4 that people very often speak indirectly or somewhat ambiguously in such situations, and explain why they do so. We contrast the courts' attitude toward the language of suspects with their attitude toward the language of the police, where judges are much more accommodating in finding that an officer has made an indirect "request" to conduct a search.

Linguistic issues also arise when police read people their Miranda rights, which advise a suspect of her right to remain silent and to the assistance of counsel. Only if a suspect knowingly and intelligently waives those rights can an interrogation begin:

An individual is arrested and read her Miranda rights. She decides to talk with the police and confesses to the crime. When the government seeks to use the confession against her at trial, her lawyer claims that she did not understand her rights because she is mentally retarded-or a young child-or deaf-or not a native speaker of English. Should the confession stand? How can we tell if the defendant understood the Miranda warnings? What should the standard be for allowing these confessions to be used in court?

We discuss this and similar cases in chapter 5, where we analyze the Miranda warnings and the ability of suspects to understand them. We will see that the average native speaker of English probably grasps the meaning of the warnings well enough. But not everyone is average. Whether juveniles or people who do not speak English well or who have mental problems comprehend the warnings and their implications is a serious concern that relates to the problem of false confessions.

Linguistic Evidence

Another major area of intersection between language and the criminal law is linguistic evidence. In a broad sense, just about any speech or writing could be considered linguistic evidence. We focus here somewhat more narrowly on linguistic issues that have an impact on what evidence should be admitted at trial. We discuss topics such as the ability of witnesses to remember exact words, how well people can identify a person by his or her voice, and whether people can be identified by their writing style.

Once a suspect is charged, he becomes "the defendant." As we have noted, an issue in many cases is the language used either by the police or the defendant in connection with a search or a confession that the defendant later challenges at trial. Sometimes these encounters have been taped, but often they have not. This is unfortunate, because so much rides on the exact words used.

When there is no recording, those involved must testify about their memories of what was said. Consider the following scenario:

A man is accused of bank robbery and is held in jail pending his trial. At the trial, his cellmate testifies, in exchange for a reduced sentence, that the man confessed to him and said that he used the money he stole from the bank to buy new clothes. He cannot remember the defendant's exact words, but is allowed to testify anyway about the gist of the confession. The defense lawyer is unable to cross-examine the cellmate effectively on the language that the defendant used in the alleged confession, because the cellmate never testified to the defendant's actual words. Should the legal system be concerned that there is no record of the defendant's exact words?

We ask that question in chapter 6, where we discuss studies showing that our ability to remember exact words is typically not very good. An exception to the hearsay rule permits witnesses to testify about a party's admission to wrongdoing. The legal system allows such evidence to be admitted on the theory that the adversarial system should be able to root out inaccurate reports of confessions, largely through cross-examination. However, the research on verbal memory suggests that evidence of this sort may actually be less reliable than the system recognizes. We also look at other situations in which lack of access to the words that were actually used may have a significant impact on the administration of justice.

Another problem concerning recollection of linguistic information concerns our ability to identify people by their voices:

A police officer, pursuant to a valid warrant, tapes a brief telephone conversation about a proposed drug deal. Ultimately, the defendant is arrested for having participated in that transaction. The police officer appears in court to authenticate the recording. He testifies that he knows that the voice on the tape was the defendant's because he had interviewed the defendant some three years earlier. How likely is it that he is correct?

Chapter 7 addresses how well we can remember and identify voices. Perhaps not surprisingly, people are not able to remember relatively unfamiliar voices over substantial periods of time. Research has also shown that the reliability of voice recognition is influenced by a variety of factors that courts often fail to recognize.

Chapter 7 also asks whether the legal system should allow the defendant to call an expert to testify about the results of experimental studies into our ability to recognize voices. If lay persons are not particularly good at identifying voices, are there experts in voice identification who are sufficiently skilled to compare the defendant's voice to that on the tape and to issue a reliable opinion as to whether the voices are the same or different? For a number of years, many courts allowed "voiceprint" experts to testify. Currently that practice is less prevalent, but still occurs periodically. We discuss the history of that technology, which we believe is properly excluded by most courts, and bring to light some new approaches that are likely to lead to more reliable results in the future.

Closely related to identifying a speaker is identifying the author of a writing:

A woman is found dead at her home, along with a suicide note. The police suspect foul play. They think her husband killed her and wrote a bogus note. A careful reading of the note shows that it contains certain spelling errors that the husband sometimes makes in writings known to be his, and that the wife did not make those errors in her known writings. How much should we make of this evidence? And should we leave this task to the jury, or should we allow experts to offer opinions on authorship?

Author identification has long been a tool for biblical and literary scholarship. It has recently been used in efforts to solve crimes, such as the Unabomber and JonBenét Ramsey cases. Yet the technique raises serious issues of reliability. For instance, we may not know how frequently spelling errors like those in the above scenario occur in the general population, or whether they occur more frequently among people with a particular educational background. Such questions are the subject of chapter 8.

All of these cases involve evidentiary issues. Some deal with the reliability of lay testimony, some with expert testimony, while others concern both. The law governing the admissibility of lay identification testimony has not changed much over the past half century. We will see that it is, at least to some extent, out of tune with what we now know about people's ability to remember exactly what was said or to identify speakers and authors.

As for expert testimony, there has been a great deal of change over the past few decades, starting with the adoption of the Federal Rules of Evidence in 1975 and followed by a trilogy of Supreme Court decisions in the 1990s regarding the standards for the admissibility of expert testimony in federal courts. We discuss these cases in chapter 2, and later scrutinize several areas of linguistic expertise in light of these important legal developments, pointing out how linguistics and psychology might develop to meet evidentiary standards, and pointing out ways in which the current perspective on evidence may be off the mark.

Crimes of Language

Sometimes crimes are committed through language. There are many such crimes, including solicitation, conspiracy, bribery, fraud, perjury, and making false statements to government officials. In part 4 of this book we will see that just as the police and suspects, in encounters with each other, perform constitutionally relevant acts of speech indirectly, acts of speech intended for bad purposes also tend to be committed indirectly, often to reduce the chance of being caught. Nonetheless, the law generally considers indirect acts good enough to meet the statutory definitions of a crime. Consider this case:

A man whose wife has lupus tells a friend that his wife would be "better off dead," that he needs someone else to "pull the trigger," and that "she needs to die." Did the husband solicit his friend to commit murder, or did he just express some grizzly ideas or vague plans?7

Both a jury and appellate court found that the defendant had solicited his friend to murder the wife. In chapter 9, we explore similar examples and discuss the language that people use to solicit crimes.

Another language crime is threatening people:

A man makes clear his desire to have sex with a woman and tells her, "I don't want to hurt you." She engages in sex with him, but later claims that she did so only out of fears for her safety if she did not. Did she freely consent, or did the defendant threaten her?

A court held the statement not to be a threat, and therefore ruled the sexual encounter consensual. This scenario shows how important inferences drawn from context are in deciding whether an utterance is a threat, as we discuss in chapter 10.

Deciding, as a factual matter, whether an utterance is a threat or solicitation may be difficult under the best of circumstances. People engaging in language crimes typically take care to express themselves in ways that allow them later to deny that they were acting illegally (sometimes called "plausible deniability" when done by politicians). Yet we will see that it can be even harder to decide these issues when people make threats or solicit crimes for political reasons. Is a preacher who proclaims during a sermon that "we will kill" the president really issuing a threat, or is this just political hyperbole?

Perjury is another language crime. Lying is not usually criminal. When it occurs under oath, however, making a false statement may be punishable as perjury:

A general in the National Guard held a party in 1990 to raise funds from other National Guard officers for a political candidate he supported. It is illegal to solicit campaign contributions in this way. An officer who attended the party is later placed under oath and asked if such fundraising occurred at the 1991 party. No such party took place in 1991. The questioner, who misspoke, actually intended to refer to 1990, and there is evidence that the witness understood the question as referring to 1990. The officer says "no." Has he committed perjury?9

We argue in chapter 11 that essential to determining the truthfulness of an answer is the context of the question. The courts in this case held that the officer must have understood the question to refer to 1990, and that therefore he made a false statement, even though his words were literally true. We examine the so-called literal truth defense to perjury and explore its limits, focusing largely on the Clinton scandal. As we will see, President Clinton seems to have been well aware of the literal truth defense and tried his best to answer questions about his relationship with Monica Lewinsky in a way that was literally true, but misleading. How well did he succeed? We show that the answer to that question is far more complicated than commentators on both sides wanted us to believe.

Unlike the other crimes of language, where indirectness is the norm, perjury law looks closely at the "literal" meaning of a defendant's words. The principal reason is that perjury occurs in a courtroom in which the roles of the participants are strictly orchestrated. In that setting it is reasonable to require the lawyers who control the questioning to create a clear record of falsity before perjury liability can attach. Perhaps equally important, holding a person liable for making true, but misleading, answers in a setting where lawyers frequently ask misleading questions tilts the playing field unfairly in favor of the lawyers.

Some Goals and Limitations

Traditionally, the legal system hasn't spent much time asking or trying to answer the questions raised by these scenarios. Part of the reason is simply that lawyers and judges, many of whom are excellent users of language, may not have any particular expertise in the mechanisms that underlie our linguistic abilities. We will see in the next chapter that the field of linguistics has made great progress, especially in the past half century or so, yet many people remain woefully uninformed about the nature of human language. One of our goals, therefore, is to explain some of the basics of language and linguistics to people concerned with the legal system, especially those aspects of language that interact with criminal justice. We devote the first section of chapter 2 to this task.

(Continues...)

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Table of Contents

Acknowledgments
Part I - A Good Time to Study the Language of Criminal Justice
1. Language and the Criminal Law
The Language of Police and Suspects
Linguistic Evidence
Crimes of Language
Some Goals and Limitations
2. Linguistics in the Law
The Subsystems of Language
Word Meaning: Two Ways of Thinking
Discourse and Inferences from Context
Linguistics in the Courts
Linguistics and the Admissibility of Expert Evidence in American Courts
Part II Gathering the Evidence
3. "Consensual" Searches
The Bustamonte Case
Requests versus Commands
Consenting
Racial Profiling
Conclusion
4. Interrogation, Confession, and the Right to Counsel
Invoking the Right to Counsel
The Meaning of "Interrogation"
Interrogation and the Problem of False Confessions
Conclusion
5. Understanding Miranda
The Rise of Miranda
Reading Rights
Suspects with Low Intelligence or Mental Problems
Juveniles
Suspects Whose Native Language Is Not English
Deaf Defendants
How Can Comprehension Be Improved?
Conclusion
Part III - Linguistic Evidence in Court
6. Exact Words
Forget about It: Human Memory for Verbatim Speech
The Legal System's Response: Substance Is Good Enough
Jailhouse Informants
Language Crimes without the Language
Conclusion
7. Who Said That?
Legal Standards for Identifying Speakers
Voice Recognition Research and the Reliability of Identifications
Expert Speaker Identification
Conclusion
8. Who Wrote That?
Hauptmann and the Document Examiners
Leaving It to the Jury
The Return of the Experts?
Some Promise for an Improved Science of Authorship Attribution
Some Easier Cases
Conclusion
Part IV - Crimes of Language
9. Solicitation, Conspiracy, Bribery
Solicitation
Conspiracy
Bribery
10. Threats
What Constitutes a Threat?
Indirect and Ambiguous Threats
Political Hyperbole
Conclusion
11. Perjury
The Bronston Case
Did Clinton Lie?
Perjury and Lying
Conclusion
12. Where Do We Go from Here?
Law Enforcement
Legislatures and the Executive Branch
Courts
Attorneys
Linguists, Psychologists, and Other Scholars
Notes
Index

Editorial Reviews

"An eminently readable overview of what the science of linguistics has to offer criminal law. . . . Any reader interested in the psychology of language—and all lawyers should fall into that class—would be well-served to read this book."

Journal of Criminal Law and Criminology - Kenworthey Bilz

"Speaking of Crime is an engaging, insightful and gracefully written tour of how language and cognitive psychology influence criminal law doctrine and practice. It belongs in the library of anyone who teaches, studies, or practices criminal justice."

Jerome H. Skolnick

"Solan and Tiersma bring a thorough knowledge of the law together with their expertise in the language sciences to a critical analysis of how language is used—and misused—in the criminal justice system. This book is a must for both scholars and practitioners."

Sam Glucksberg

"In this fascinating study, Lawrence Solan and Peter Tiersma lead readers on an intriguing journey into this unexplored terrain. . . . The text focuses on discrete legal issues and seeks to demonstrate for each how the study of language can shed light on the operation of the criminal justice system. . . . The authors' brisk analysis demonstates that incorrect preconceptions or conclusions regarding language often lead to results that are not supported by the evidence. For those convinced of the need to reform the criminal justice system, these observations will provide yet more ammunition, as well as engrossing anecdote.."

Harvard Law Review

"An eminently readable overview of what the science of linguistics has to offer criminal law. . . . Any reader interested in the psychology of language--and all lawyers should fall into that class--would be well-served to read this book."

— Kenworthey Bilz

Journal of Criminal Law and Criminology

"Speaking of Crime deepens our understanding not only of how language and cognition work in the legal system, but also of the nature of erroneous judgments and wrongful convictions in the American criminal justice system. Solan and Tiersma's analysis advances our understanding of how to achieve the system's most fundamental goals—improving the fairness of legal procedures while better separating the innocent from the guilty. This book deserves therefore to be read not only by linguists and criminologists, but also by judges and policy makers."

Richard Leo

"Speaking of Crime introduces insights drawn from linguistics and psychology-of-language research that throw light on a number of issues in our criminal process. It does an excellent job of synthesizing and reviewing the relevant literature and sets out interesting 'true crime' case illustrations of the lessons to be learned from the science of language, many of which have yet to be properly taken into account by the legal process."

Michael Risinger

"An important book in the emergent field of language and the law, Speaking of Crime is essential reading for everyone whose interests intersect these areas: judges, attorneys, legal scholars, and sociolinguists. Solan and Tiersma look at a large number of important cases—from the Lindbergh kidnapping to the Clinton impeachment—to argue that a more sophisticated understanding of the workings of language by the professionals involved might have created very different, and more just, outcomes. Their discussion of the ways in which linguistic analysis affects our understanding of rights, crimes, and verdicts should be read by everyone."

Robin Lakoff

"The basic argument is that scientific research in linguistics, and to a lesser extent in cognitive psychology, can assist law enforcement, attorneys, judges, and juries in arriving at more reliable determinations of guilt and innocence. . . . Reading this book is a good place for students and professionals to begin thinking about how a deeper understanding of the science of language can improve the performance of the criminal justice system."

Law & Politics Review - Mary W. Atwell

The basic argument is that scientific research in linguistics, and to a lesser extent in cognitive psychology, can assist law enforcement, attorneys, judges, and juries in arriving at more reliable determinations of guilt and innocence. . . . Reading this book is a good place for students and professionals to begin thinking about how a deeper understanding of the science of language can improve the performance of the criminal justice system.

— Mary W. Atwell

Law & Politics Review