Vol. 15 No.5 (May 2005), pp.453-456

SPEAKING OF CRIME:  THE LANGUAGE OF CRIMINAL JUSTICE, by Lawrence M. Solan and Peter M. Tiersma.  Chicago:  University of Chicago Press, 2004.  264 pp. Paper  $22.00. ISBN: 0226767930.  Cloth. $55.00.  ISBN: 0226767922.

Reviewed by Mary W. Atwell, Department of Criminal Justice, Radford University.  matwell@radford.edu .

Lawrence Solan and Peter Tiersma bring expertise in both law and linguistics to their appealing study of how language—especially spoken language—influences the application of the criminal law.  The book’s title originally led me to think it was another examination of how the media’s use of language frames debates about crime.  And, although that is also a fascinating topic, this work explores newer ground and offers some explicit suggestions about how scholarship can influence the workings of the justice system.  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.  If criminal justice professionals are better informed about how people use and understand language, they will be better able to sort actual guilt from innocence.   Solan and Tiersma take a positive tone.  They assume that people of good will want the system to work fairly and that some of its failures may be attributed to misunderstanding rather than to ill will, bias, or self-interest.  They also argue that, with the proper information in hand, states and individual agencies can address many of those failures.

The organization of the book is logical.  It begins with an overview of the study of language, follows with particular problem areas for law enforcement, especially consent searches and MIRANDA warnings.  The authors then look at linguistic evidence in courts, and end with an examination of “crimes of language,” such as threats and perjury.  They include a balanced, linguistic rather than political, analysis of whether President Bill Clinton actually perjured himself as his opponents charged in their effort to impeach him.

Without bogging the lay reader down with too much esoteric linguistic science, Solan and Tiersma offer some basic concepts useful to their analysis.  For example, words have both their definitional meaning and their prototypical meaning.  The latter involves a mental model that speakers envision based on their experience with a term.  They also discuss the concept of pragmatics, the notion that situation as well as verbal context provides meaning to a word or phrase, and performatives, words like “promise” that perform the act they identify.  They argue that those who analyze language in making legal judgments should be mindful of theories of conversation, such as the Cooperative Principle which holds that a contribution to a conversation should be consistent with the direction and purpose of the dialogue.  It should be informative and relevant.  Someone trying to get to the heart of a legal matter might ask, “What [*454] meaning of this phrase is consistent with the Cooperative Principle?”

Courts, however, have seldom made use of linguists’ expertise, instead employing them chiefly to testify to the likelihood of confusion in trademark cases or to evaluate the proficiency of non-English speakers.  Clearly the authors believe that the discipline of linguistics is underutilized by the justice system and that criminal processing could benefit considerably by greater use of discourse analysis.  On the other hand, they also argue against the use of “junk” linguistics, including voice recognition and much handwriting analysis.  They support the test of scientific evidence set by the Supreme Court in DAUBERT v. MERRELL DOW PHARMACEUTICALS (1993).  These evidentiary standards include testing, peer review and publication, the known rate of error, and general acceptance in the scientific community.  Linguistic research that meets these criteria should be admissible.

Applications of linguistic analysis to the workings of the criminal justice system provide the essential focus of this book.  Solan and Tiersma argue persuasively that the Supreme Court has upheld a double standard of directness in communication in their rulings on consent searches compared with those on suspects’ requests for attorneys.  The Court has interpreted the most indirect comments from law enforcement officers such as “Does the trunk open?” as a request for consent to conduct a warrantless search.  On the other hand, they have ruled that when a suspect undergoing custodial interrogation asks for a lawyer, he must ask explicitly or his request for counsel need not be acknowledged.  The authors contend that a contextual approach to language will reveal that indirect speech is influenced by the power relationships among the speakers.  A police officer’s “request” may carry a great deal of weight.  A suspect in custody may be overly polite to his interrogators for fear of making his situation worse.  In that situation, he is more likely to speak indirectly by saying “Perhaps I should have a lawyer?”   Awareness of such principles of communication would allow for a more consistent respect for the rights of the accused.

As everyone knows, the MIRANDA decision provides that before a custodial interrogation begins, a suspect must be advised regarding the right to remain silent, the prospect that his statements may be used against him, and the right to an attorney.  The ruling was intended to protect against use of coercion in obtaining confessions, especially as confessions are particularly powerful pieces of evidence.  If a suspect waives the MIRANDA rights and signs a waiver, courts generally accept the confession as voluntary.  But, Solan and Tiersma ask, is it that simple?  Granted one may assume that no reasonable person would voluntarily waive his rights and freely admit to a crime he did not commit.  But what about those who are not the typical “reasonable person”?  What about persons who are mentally retarded or of low intelligence?  Deaf defendants?   Juveniles?  Non-English speakers?  Research has found such persons often show a low level of comprehension of the more abstract concepts included in the MIRANDA rights.  A signed waiver could be based on little or no understanding.  Without independent verification, how can it be [*455] certain that the subsequent confession is valid?  As many other observers have suggested, Solan and Tiersma advocate videotaping interrogations.  The cost is minimal and the procedure would provide a valuable protection against taking advantage of the language deficiencies of vulnerable populations.

The authors express healthy skepticism on the subject of some linguistic evidence in the courtroom.  How is it possible to know whether a witness can remember the exact words spoken by a suspect?  Repeated experiments indicate that memory of words, like eyewitness testimony, may well be unreliable.  Yet courts often seem willing to accept that police officers and even jailhouse snitches can recollect not only the text but the intonation of a statement.  The same caveats apply when considering crimes, such as threats or solicitation, where the words themselves are the illegal act.  Non-expert witnesses are even less successful at recognizing a person’s identity based only on his or her voice, and voiceprint technology has none of the reliability of fingerprint or DNA matching.  Solan and Tiersma argue that if voice recognition is an element in a case, the jury should at least be informed of the rate of error in its application.

The examination of written documents for author identification purposes raises similar issues.  Although handwriting and content analysis are both used as evidence, jurors seldom know what can properly be inferred from the information.  Without expert testimony, they are unlikely to be aware of what percentage of the population uses a particular misspelling, for example.  If it is a common error, it is virtually useless in identifying a specific suspect.

Solan and Tiersma mention several times the conviction of Bruno Richard Hauptmann for the kidnapping and murder of the Lindbergh baby.   Whether Hauptmann was innocent or guilty, it is incontrovertible that two very questionable pieces of evidence counted heavily against him.  Charles Lindbergh testified that after a period of twenty-nine months, he could positively identify Hauptmann as the man whom he had heard, from a distance of 100 feet, say the words, “Hey doctor.  Over here.”  Likewise, handwriting “experts” offered testimony that they could match Hauptmann’s script to the ransom notes.  Neither form of identification was reliable; certainly neither would withstand scientific challenge. Hauptmann might still be convicted today, but Solan and Tiersma would not let such evidence stand without serious scrutiny.

By far the most interesting part of the section, entitled “Crimes of Language,” was the analysis of the perjury charges against President Clinton.  The authors begin by explaining the false statement requirement as defined by the Court in BRONSTON v. US (1973).  If a witness’ response is literally true, but equivocal or evasive, he has not committed perjury.  It is the lawyer’s job to ask the follow-up questions that will clarify the matter and reveal more information.  Bill Clinton, in the authors’ view, used the BRONSTON approach.  He intentionally misled the grand jury about his relationship with Monica Lewinsky but did not make false statements.  The federal prosecutors mischaracterized his statements as [*456] “completely false” and insinuated that the President had committed a crime when he failed to correct his lawyer’s remarks.  The general public also differed in their responses to Clinton’s comments.  Some believed his intent to mislead was the same as lying.  Others did not.  Some believed he lied but that the lying was immaterial.  Solan and Teirsma bring linguistic theory to bear and argue for a critical distinction between lying in ordinary conversation and the “rules of the game” during formal questioning.   In the latter situation, an opposing attorney has the responsibility to press the issue if necessary.  Courtroom questioning is tightly structured and under the supervision of a judge.  A literally true but misleading response is within the legal parameters of the discourse.

Finally Solan and Tiersma offer specific suggestions to use knowledge gained from the study of linguistics to assist in improving the fairness and accuracy of the justice system.  They propose that police encounters with suspects be routinely videotaped, that law enforcement agencies develop special protections when questioning the young, the mentally retarded, non-English speakers and other special populations, that they reduce the use of consensual searches, and that they develop appropriate procedures for voice lineups.  Assuming that the U.S. Supreme Court is not likely at present to be overly concerned with the rights of the accused, they suggest that states, through their courts and/or constitutions, can clarify how a suspect should request assistance of counsel.  In addition, courts can help with the reliability of confessions by refusing to accept those that cannot be corroborated, preferably with a video.  Attorneys should familiarize themselves with the reliability of evidence, from voice identification to confessions by vulnerable witnesses, and be ethical enough not to use it improperly.  Finally, they argue that linguistic experts must follow professional ethics and not overstate the strength of their contributions.

The authors’ recommendations are generally modest, involving incremental change.  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.

CASE REFERENCES:

BRONSTON v. UNITED STATES, 490 US 352 (1973).

DAUBERT v. MERRELL DOW PHARMACEUTICALS, INC., 509 US 597 (1993).

MIRANDA v. ARIZONA, 483 US 436 (1966).

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© Copyright 2005 by the author, Mary W. Atwell.