Legal Linguistics

Lelija Sočanac, School of Law, Zagreb, Croatia

Preview• Law and legal systems• Legal communication: the pursuit of precision• Communication problems in the legal system• Language and power• Telling the story: narratives in the courtroom• Language and disadvantage before the law• Legal translation and court interpreting• Law on language• Linguistic evidence: forensic linguistics

About law• Law provides a framework within which we manage

our daily lives, including our family, housing, transport, study and work• Law represents a society’s value system, imposes

rights and obligations, proscribes and punishes behaviour that goes against a society’s norms; such values are not universal• Law – a system of rules imposed by the state and

enforced by courts

Legal systems• Major elements of modern legal systems: • 1) a code of laws• 2) a court system• 3) the police

Classification of law: public and private• Criminal law (public law) – concerned with crimes such

as embezzlement, robbery, rape, murder; criminal procedure initiated by the prosecution representing the state against an individual defendant

• Civil law (private law) – disputes between individuals (contracts, torts (civil wrongs): negligence, nuisance, defamation, trespass

Major legal systems• Customary law• Civil law• Common law• Islamic law• Hindu law• Chinese law

Traditional law• Law developed long before writing as part of the

regulatory system of societies• Such oral legal systems – predecessors of all modern

legal systems• Customary law – local and fragmented

Oral legal systems• Studied by legal anthropologists• Specific speech roles: litigants, mediator, arguers for a

particular view, an equivalent to a judge (and a jury)• Staged procedures• A set of memorized and quoted precepts or principles

by which cases are argued

Differences between customary law and institutionalized law• Absolute liability: people have full responsibility for

other people present(e.g. if a hunter dies during a hunting trip, the fellow hunters must take responsibility)• Sorcery: placing a curse upon a person or their

possessions – a crime• Magico-religious beliefs: taboos• Accident (the intentions are irrelevant; if one kills a

person by accident it is treated in the same way as deliberate murder)• Legal disputation- handled in ordinary language

Civil law• based on Roman law – the most important

codification: Justinian’s code (Corpus iuris civilis) – adopted by European lawyers, providing ius comune – the common law of Europe written in Latin• the emergence of nation-states – national codes of law

(e.g. Napoleonic Code) • Inquisitorial procedure (judges question witnesses and

examine evidence; much of the evidence – in the written form; judges base their decisions on written evidence and a summary prepared by a court official)

Common law (Anglo-American law)• Developed after the Norman Conquest (1066) – a

centralized system of courts (Royal Courts of Justice); legal languages: Latin and French• Based on judicial decisions which are binding for

future similar cases (precedents)• Adversarial procedure: a ritualized battle between the

prosecution and the defence, trying to prove conflicting cases to the jury• Courtroom proceedings depend predominantly upon

oral rather than written evidence (witnesses are subject to oral examination in court)

Shari’ah law (the Islamic law)• Based on Qur’an, supplemented by Islamic scholarship• In many Islamic societies – not the only system of law

– some have versions of common law or civil law, sometimes with parallel system of Islamic courts which handle family law and moral issues• In other states, the criminal law is a form of Shari’ah,

while contract law has been adapted from Roman law

Law and language• Law – an overwhelmingly linguistic institution• Laws – coded in language and legal concepts are

accessible only through language• Court cases and police interviews take place through

language• Contracts which regulate relationships between

partners, employers and providers of goods and servicees – mainly language documents

Legal communication• Non-verbal semiotic systems• Linguistic systems• Both systems – used to negotiate meaning

Linguistic levels• Pronunciation or writing (grapho-phonic level: letters, gaps

between words, punctuation, capitalization; layout of the page: paragraphs, headings etc)• Morphology: content morphemes, function morphemes• Syntax: productivity, compositionality, recursion

(coordination, embedding)• Semanitcs• Pragmatics (context; immediate (situational), wider (social)• Discourse (coherence, cohesion, genre – discourse type)• Sociolinguistics (register, variation)

Meaning

• 1)propositional meaning, • 2)social/interpersonal meaning and • 3) functional meaning (speech acts)• Negotiating meaning involves a construal

(interpretation) of the social and physical world which is pragmatically related to socio-cultural and physical context

Model of communication

MeaningConceptualInterperso

nalfunctional

Context: 1) immediate and

wider2) Sociocultural

and material

Schemas:Sociocultural

worldMaterial world

Communication systems

VerbalNon-vebal

Meaning• Another aspect is the world-view/knowledge of the

participants in the communication, including their • 1) social schemas and • 2) physical world schemas, • i.e. their pre-existing shared and different

understandings of social and material worlds; • an important part of this knowledge consists of communicative ability

Legal linguistics/Forensic linguistics• Linguistique juridique (jurilinguistique)• Rechtslinguistics• Juryslingwistyka (Polish)• Pravovaia lingvistika (Russian)

Legal linguistics• 1. The study of the language of the law, including the

language of legal documents and the language of courts• 2. The study, the provision and improvement of professional

legal interpreting and translation services• 3. The alleviation of disadvantage produced by language in

the legal process• 4. The provision of forensic linguistic evidence based on the

best available linguistic expertise• 5. The provision of linguistic expertise in issues of legal

drafting and interpretation, including plain language drafting

Legal language

• 1) written: legislation, judgments, contracts, wills• 2) spoken: language of the courtroom, police

investigations, consultations between lawyers and their clients

Legal written texts• Operative documents create or modify legal relations:

legislation acts, orders, statutes), judgments and private documents (contracts, wills)• Expository documents explain the law (a letter to a

client, office memorandum, textbooks)• Persuasive documents – submissions designed to

persuade the court

The move into literacy• The development of literacy – ability to standardize• Standardized ways of performing legal functions, e.g.

drawing up a will• Standardization of the steps through which a legal

function must pass for its completion – development of standard legal genres• Creating a legal register: development, recording and

long-term use and standardization of legal terms

The move into literacy• The process of codification involved the language of

the law moving from largely interactive oral disputes, which operated with language drawn from everyday speech, to a specialized technical style of language, using a full range of resources offered by writing• Written texts – better planned and less dependent on

the context; a continuum from least planned and highly contextualized to most planned and context reduced

Consequences of planning• Increased explicitness in the logical structure• Increased syntactic complexity• A high level of autonomy of legal texts (drafting and

interpretation of legislation): plain meaning rule (textualism)• Emotionally neutral and impersonal tone; more

passives

Effects of standardization• In law, if a form of words is admitted as adequately

meeting a particular legal objective, e.g. a particular wording is accepted in court as constituting a binding promise, which is good reason to reuse the wording for subsequest promises• Once legal actions are committed to paper, they can

be consulted and relevant elements reproduced• Form Books – provide tried and tested forms of words,

which lawyers can piece together to construct operative documents

Effects of standardization• Standard ways of constructing whole legal operative

documents, e.g. a will• Development of standard legal genres• Consistency and conservatism• Persistance of archaic language

Legal transcription – the Interaction of Written and Spoken Language• The move into writing – not just a historical

phenomenon• Most record keeping in legal settings – written, while

most proceedings in common law systems – spoken• It is common for spoken language to be transcribed,

i.e. transformed into written language• A transcript involves the conversion of spoken into

written language: impossible to accurately record all sound details of speech (pitch/intonation, voice quality, accent, pauses, pace)

Legal transcription• Typed police records of interviews• Court records• Most transcripts – heavily weighed towards readability

at the expense of accuracy• Transforming speech into a readable written form can

involve radical change• The recording of speech on audio and video tape,

digital recordings: post-literate communication

The Pursuit of Precision• A significant driving force in the drafting and

interpretation of legal documents• Their complexity – a reflection of the purpose of such

documents: to define and control human behaviour in an unambiguous way• When the pursuit of precision combines with extreme

conservatism and archaism, the result may be language that is at best complex, and at worst arcane and unintelligible to non-lawyers

The Pursuit of Precision• Decontextualization – legal texts should be made clear

and explicit using the internal resources of the text itself• The need for legal documents to be as precise as

possible• Precision – not necessarily extreme clarity – it may

involve some vagueness or flexibility• A main issue in legal interpretation – the ‘fit’ between

an operative document and a particular case

The Pursuit of Precision• The combination of decontextualization and the

attempt to communicate no more and no less than the intended meaning requires that legal texts seek to be completely internally explicit and unambiguous

Precision – legal terms• The technical meaning of words in the Common Law

system has often stablized and clarified through years of interpretation and precedent• However, it is necessary to distinguish between legal

terms which are more accurate or more efficient when referring to legal concepts and in-group language used by lawyers for interpersonal motives (legal jargon)

Legal Lexicon in Common Law• Use of archaic textual deictics (forthwith, hereafter,

herein, thereafter)• Words of Latin (habeas corpus, obiter dicta, ratio

decidendi) or Norman French origin (estoppel, judge, parole, venue)• Terms from different languages which originally

referred to the same concept, such as child (OE), infant (L/F) and minor (L) permit the functional specialization of the terms – different spread of age in this example• Doublets (binomials) and triplets: will (OE) and

testament (L/F); give (OE) devise (F) and bequeath (OE)

Legal Lexicon• Abbreviatons (UN)• Proper names (Anton Piller injunction – order which

allowed the police to enter premises in civil cases; Miranda warning – caution, i.e. the right to silence in the U.S.)• Problems of polysemy• Ordinary words with special meanings –dangerously

misleading (e.g. consideration)• Definitions

Legal Drafting and interpretation• 1) The same meaning the same form principle (e.g. if

the nouns shadow and shade are used in an operative document, they would be expected to refer to different phenomena, rather than being stylistic variants

Canons of construction• Eiusdem generis –when a general term follows a list of

particular terms, the general term only applies to things similar to the particular terms. For example, in the list "sun, moon, and other large objects", the phrase "other large objects" only includes celestial bodies, not houses and elephants• Expressio unius est exclusio alterius:when a legal

document includes a list, anything not in that list is assumed to be purposely excluded • Noscitur a sociis - the meaning of a doubtful word can be

derived from its association with other words – words should be interpreted according to the linguistic and textual context in which they occur

Sentence structure• Placing modifiers next to the element they are

modifying• The linguistic scope (p. 57)• Extreme syntactic complexity (coordination,

embedding)• Logical structure of the kind: if X, then Z shall (not)

do/be Y

Speech Acts• Speech Acts – sometimes referred to as ‘functions’• Locution, illocution, perlocution• Performatives, constatives• Performatives – important in understanding operative

documents• Hereby – used in legal language to make it explicit

that a speech act is being performed: „I hereby promise to pay…;

Speech Acts• Explicit marking of a speech act – noticeable in the

enacting formulae at the beginning of legislation• UK• Be it enacted by the Queen ‘s most Excellent Majesty,

by and with the advice and consent of the Lords Spiritual and Temporal, and Commons, in this present Parliament assembled, and by the authority of the same, as follows…

Legal Discourse• Genres• Reference

Reference• Pronouns: in operative documents pronouns are

avoided (pursuit of precision, avoidance of ambiguity): repetition• Defined pro-forms (referential indices): setting up

special meanings for words and expressions by means of definitions, so that these words can be used throughout the text• Core noun with deictic (e.g. the terms so varied refers

back to those terms have been varied under section 17 – terms is a core noun, and so varied is used as a deictic expression to copy varied under section 17.

Interpretation• 1) Textual semantics – examining the wording of an

operative document at word, phrase, or sentence level; words and grammar are not given their everyday construction, but one based on legal traditions• 2) The legislator’s intentions (difficult to determine if not

made explicit in the wording of the statute)• 3) applying societal standards (judges apply their own

moral standards when reaching their decisions, even though they may be masked; judges prefer to write their judgements using basis of interpretation (1), when they are actually often making moral judgements, using basis (3)

Knowledge Issues• Knowledge differences between lawyers and non-

lawyers• Lawyers – operating within a different conceptual and

discoursal ‘frame’ – they construct, discuss and present events in a way that differs from, and may be unintelligible to non-lawyers• In a courtroom, this may result in a failure of

communication with jurors• Through the centuries, lawyers have evolved their own

way of reasoning

Communication Difficulties in the Legal System• Sources of communication difficulties:• 1) non-lawyers cannot understand the language of the

law• 2) lawyers cannot understand the language of people

who do not speak the standard language of the legal system

Communication Difficulties in the Legal System• ‘Ignorance of the law is no defence’• If the law is presented in a language that cannot be

understood by the people to whom it applies, this can lead to grave injustice• More intelligible legal language would help non-

lawyers to understand and appreciate the way the legal system works, to understand basic legal concepts, to understand and protect their rights, and to understand and participate more meaningfully in legal proceedings

The incomprehensibility of legal language: sources of difficulty• Linguistic features: distance from context, technical elements

of legal language, the use of interpersonal power• Passives without an agent; extremely long and complex

sentences; nominalization: the density of information increases comprehension difficulty, as well as syntactic complexity• Archaisms, loanwords, doublets and triplets • The grammar of operative documents follows different rules

from everyday language, which creates a likelihood of miscommunication• Double or multiple negatives• Conceptual frame: lack of shared knowledge

Jury instructions• A tension between the language appropriate to the lay

jury audience, and the language appropriate to the specialist legal audience – two audience dilemma• Written language presented in oral form –

communication breakdown• Lack of a shared conceptual frame• Jurors do not understand a large portion of the judicial

instructions delivered to them; emphasis on legal accuracy with minimal attention paid to comprehensibility

Jury instructions• Notions that jurors are likely to misunderstand:• Reasonable doubt• Presumption of innocence• Burden of proof

Plain Language Movement• Lord Wolf’s reforms(1998)• Plaintiff> claimant• Pleading > statement of case• In camera > in private• Anton Piller order > search order

Language and Power• The justice system – the most powerful institution in

societies based on ‘the rule of law’• Language – an important manifestation of power• Much of the power in law – manifestation of

organizational hierarchy• Legal power – purports to be impersonal (people in the

courtroom – often referred to by their role: defendant, witness; frequent use of passive voice)• Legal register: „hierarchical, authoritarian, monologic

and alien use of language”

Semitics of law: Non-verbal communication• Imposing court buildings• Judicial robes, wigs and gowns• Another marker of power – all must be on their feet

when the judge or jury enter or leave („All rise!”); people leaving or entering the court will usually bow to the judge

Adress forms in the courtroom• Your Honour, Your Lordship• In the 2nd person, counsel may address or refer to

each other as my friend or my learned friend and may also refer to each other in the third person as the Crown, Counsel for the Prosecution or Counsel for the Defence• Names are rarely used since the person’s courtroom

identity is seen as their primary identity• Judges and other lawyers often referred to as learned

Linguistic attributes of power• Loudness and variation in loudness• A larger pitch range (i.e. varied intonation)• Repetition• Silent pauses rather than filled pauses (um, er)• Interrupting• Not using expressions of agreement• Fluency• coherence

Speech attributes of powerlessness• Hedges (sort of, kind of, you know)• Hesitation• Uncertainty• Use of ‘sir/ma’am• Intensifiers (very, definitely, surely)• Time taken (powerless take longer time to say the

same things)• Mitigation (would you mind if…, sorry to trouble you…)

Linguistic indicators of power• Powerful speakers – more likely to dominate discourse• Less powerful speakers – less convincing as witnesses• Overall: People who are less powerful in society may

reflect their status in their speech behaviour and be less convincing as witnesses or defendants

Coherence and cohesion• Testimony – narrative account of events; often

interrupted by lawyers’ questions• In the fragmented ‘question’ narrative it is the lawyer

who is in control of the discourse, constraining what the witness can say and deciding the organization and ordering of the account• If a story is presented in this fragmented way, it might

be less convincing, and jurors might associate the witness’s lack of control with a lack of competence and power

Turn-taking• In the courtroom, the most powerful person – the

judge – can speak and interrupt at will, so judges can take a turn whenever they wish• The least powerful people – observers – can be

punished, even imprisoned for contempt of court if they speak at all or even laugh• Witnesses are given a turn, but they have little control

over when they speak and what they say• Counsel frequently interrupt witnesses, but witnesses

should not interrupt counsel

Turn-taking• Counsel are given many more turns at talk, but these are

constrained: • 1) during questioning of witnesses, the counsel who called

the witness asks questions (examination-in-chief), then• 2) the opposing counsel may ask questions (cross-

examination), • 3) then the counsel who called the witness can ask follow-up

questions (re-examination)• Counsel may interrupt each other according to strict rules of

procedure, for instance to raise an objection, but they do not interrupt the judge

Turn-taking• In police interviews control of the interview rests with

the interviewing officer who has control of topic and turns

Questioning• Objectives:• 1) to elicit information• 2) to obtain confirmation of a particular version of

events that the questioner has in mind (coercive interrogation to obtain confessions; often leading to miscarriages of justice)

Coercion in questioning• The form in which a question is put exerts a strong

influence on the quality of the answer• Frailty of memory: witnesses’ memory and testimony

can easily be influenced by a questioner• ‘for lawyers, the focus of attention to question forms is

on how to control witnesses’; a common strategy with hostile witnesses – to confuse, upset, or otherwise intimidate in order to discredit their testimony or to bring into question their personal credibility• Control of the person (credibility) and control of the

information (testimony)

Coercion in questioning• Where there is an imbalance in power relationship

between the speakers, the more powerful speaker not only gives more directives, but asks more questions; the less powerful speaker is expected to give more answers• Powerful people (lawyers, police) can manipulate

people more readily; they can persuade others, change attitudes, and influence behaviour of others in many ways

Politeness• In normal discourse there are ‘preferred responses’

(e.g. a preferred response to an invitation is acceptance rather than a refusal)• Responses in the courtroom or in police stations may

be influenced by this: e.g. the preferred response to an evaluation is agreement rather than disagreement• In this case, politeness can serve as a mechanism for

coercion

Coercion in questioning• Tag questions – put a degree of pressure for

agreement upon the interlocutor; more coercive than yes/no questions• Questioner’s power over the interlocutor and the

latter’s obligation to comply• The more information included in the question, the

greater the questioner’s control of the information• Open questions should be encouraged• It is necessary to check if a suspect has understood

the question

Presuppositions• Potential to confuse witnesses and mislead hearers by

inserting as given content something that is new or disputed• Questions presupposing the presence of items or

events (‘Did you see the broken glass?” elicit different responses from those that did not make the presupposition („Did you see any broken glass?”)

Linguistic complexity and power• ‘one of the social resources on which power and

dominance are based is the privileged access to discourse and communication’ (Van Dijk 1993)• Legal texts can be made more accessible without

sacrificing legal exactness• Without public understanding of it, the law is in

constant danger of becoming a mechanism for oppression rather than order, for injustice rather than justice (Gibbons 2003: 199)

Primary and secondary realities• Courtroom discourse: • 1) the primary courtroom reality: the courtroom itself

and the people present• 2) the secondary reality: the events that are subject to

litigation• The secondary reality is ‘projected’ through the

primary reality

Telling the story: Genre• Procedures in the primary reality of courtrooms,

lawyers chambers, prisons and police stations may be a staged process, and therefore describable as genres• Genre - important both for the construction and the

comprehension of discourse• Genres – prototypes – underlying models that are

sometimes not followed or are intentionally modified• Genre structures – constantly evolving

Legal Genres • Codified legal genres:• Legislation• Regulation, by-law• Will, contract• Precedent/judgment

Representing the secondary reality• The legal process is one whereby an attempt is made

to decide about:• 1. a representation of the secondary reality• 2. the ‘fit’ between the secondary reality and the legal

representation (e.g. in a criminal case to see whether the secondary reality is legally permissible or not);• 3. the degree of any difference between the secondary

reality and legal theory, to determine punishment or compensation

Representing the secondary reality• The secondary reality – removed in space and time so

it must be reconstructed on the basis of evidence• In the adversarial system – two conflicting versions of

the secondary reality• Another challenge: to establish the meaning of

legislation: interpretation

Means of representing the secondary reality• Non-linguistic means: photographs, diagrams, material

evidence• The most important genres used in reconstruction of

the secondary reality: the narrative

Narrative structure• Orientation• Event • Complication• Resolution• Coda

Narrative structure• Orientation and the coda – boundary units which

frame the story but do not form of the event sequence or the story itself• The other parts of the story – usually in a

chronological order (in court or police investigations this may be intentionally disrupted to destabilize the witness by breaking up the narrative structure used as a memory framework)

Naratives in the courtroom• Narratives – common in the testimony of witnesses

who present their account of the events• Two ‘master’ narratives (Prosecution/Plaintiff case

followed by the Defence case)• The master narrative – built piece by piece from a

range of evidence• Only in the two counsels’ closing statements or

‘arguments’ that all the narratives are woven into the two master narratives

Master narratives interacting with procedural genres• The trial is staged as a micro-genre, which itself has

some characteristics of a narrative• „The law in practice cannot be reduced to a single

narrative level, but rather should be conceived in terms of a multipolicity of narrative/discursive structures’

Legal narratives• Assigning responsibility for events to particular

participants – a central concern of legal narratives• The core of the legal narrative – the complication,

which may constitute the issue that is being adjudicated (e.g. a breach of contract)

Audience design in the courtroom• Based on the knowledge and beliefs, the ‘schemas’ of

the audience• A good narrative uses such schemas, involving them

to make the narrative intelligible to the audience,• The use of rhetorical effects to engage the audience• A primary audience: the judge and the jury• A secondary audience: the press and courtroom

spectators• A universal audience consisting of all reasonable

people

Evaluations of narrative• The jury make their decision on the basis of whose

story is most convincing in terms of completeness, consistency and credibility• If witnesses come from a culture with a different

narrative tradition, their story telling may produce confusion and lead the hearers to assume that the story is illogical• If the audience does not share the schemas needed to

understand the story, this may render a story less convincing or less intelligible – the risk to witnesses from minority cultures

Jury trial proceedings• Opening statement• Examination of witnesses• Final argument• Judge’s suming-up and instructions to the jury• Decision: 1) verdict, 2) sentence

Opening statement• sets the theme by outlining the plot, describing the

characters, depicting the setting, attributing the motives and portraying the action of the story• A macro orientation stage• Blame can be openly assigned (or denied) or else it

may be implied

Examination of witesses • In each witness appearance, the counsel is trying to

elicit all or part of the desired master story • The hostile cross-examination attempts to challenge

and discredit the testimony; • Counsel will often use confirmation questions

containing counsel’s alternative version of events, attempting to get the witnesses’ agreement• Examination of witnesses – the main basis for the

competing constructions

Final argument• The defence and prosecution attempt to construct a

master narrative which contains or explains all evidence presented during the trial in a coherent way

Judge’s summing up and instructions• Judge’s directions to the jury will often provide some

form of summary of the master narratives, highlighting the areas where the master narratives differ, instructing the jury as to the validity of the evidence within the rules of procedure and discussing the fit beteen the master narratives and the law.• The judge assesses both the constructions of the

primary reality and the fit of these to both elements of the legal framework• Verdict: guilty or not guilty• Sentence

The report summary• The written judgment produced after the case – a

genre of its own• It contains a summary which may have narrative

characteristics

Language and disadvantage before the law• People with a lower level of education• Children• Dialect speakers• Illiterate people• Second language speakers• People who are deaf/mute• People with a low IQ• Negative social attitudes, prejudice

Language and disadvantage before the law• Law has the potential to be a mechanism for

oppression and persecution, rather than a means of achieving justice• Providing the same treatment does not equate with

providing just treatment (e.g. treating a second language speaker in the same way as native speakers)• Just treatment – not the same treatment, but rather

recognizing difference, and developing measures to cope with these differences

Children• Reliability of children’s testimony – similar to that of

adults if they are questioned in a way that helps them produce their own version of events)• Children may be more suggestible• The problem of interpersonal power and coercion;

children may be frightened into silence (e.g. sexual abuse cases)• Yes-no questions, tag questions – coercive• Extreme syntactic complexity – a lack of

understanding

Indigenous minorities• Aborigines – different attitude to knowledge; secret knowledge is not

shared; questioning in Aboriginal societies – done with great caution; direct questioning – rude and intrusive; answering is not obligatory; the clash with police questioning and courtroom cross-examination• Aboriginal culture – no measurement expressions, esp. regarding

time; e.g. a date is referred to by a significant event, not by a calender date• Sequences of narrative – different; Aborigines do not organize their

information in conformity with western ‘logic’ and are viewed as incoherent• Aborigines – prone to saying ‘yes’ to everything to avoid pressure

and questioning

Second language speakers• Communication problems – remedy: legal translation

and interpreting• Evidence of communication problems: responding with

an apology, a clarification request, absence of response, inappropriate response

The deaf• There is no signed legal system• low levels of literacy• Characteristics of legal language – technicality,

writeness and power - cause severe communication problems• A signer who is handcuffed cannot communicate

Social class• Lower level of command of High Register• Social stereotyping contributes to unequal treatment

Women in sexual assault cases• Women – traumatized by the style of questioning in

court• Often – ‘power’ language features intended to

pressure witnesses into an account of events with which they are not in full agreement• The invasion of a woman’s personal life (questions

about previous sexual experience)• Judges’ bias in favour of male defendants

Legal communication problems• 1) conceptual content• 2) coercion• 3) trauma

Measures to reduce communication problems• 1) Information (training of lawyers)• 2) Mediation (by people who understand both sides

e.g. the Aboriginal Legal Services, child councellors, mediators in cases of sexual assault)• 3) Modifying legal procedures (e.g. guidelines on

formulating questions and ensuring comprehension; admission of video-taped interviews with young children)

Legal interpreting and translation• International and national legislation on the right to

translation and interpretaton• Interpreters needed not only for people with no

command of a language, but also those with a limited command• Courts, police stations, prisons• Reluctance to use interpreters and translators

Problems

• 1) availability of interpreters/translators (lesser-used languages)• 2) quality (training, pay, career structure)

Legal translation• The issue of technicality• The legal concepts and terms in two legal systems

may be different – lack of equivalence or partial equivalence• Complex cognitive structure manifested in complex

discourse structure and extreme syntactic complexity• Extreme precision demanded by legal texts, the need

to defend against hostile interpretation; the changes required by linguistic differences can lead to legal problems

Court interpreting• Difficulties: the need to provide a speedy delivery; the

legal world’s ignorance of the complexity of the translation process; gaps in the interpreter’s knowledge of the law, of courtroom discourse conventions and of the law’s assumptions of relevance• Interpreters – expected to render a perfectly accurate

version of all that transpires in a case without being afforded the conditions to perform in such a manner (judges – impatient with interpreters who ask for clarification)• Interpreters often keep equivalence of propositional

content, but not of pragmatic meaning

Law on language• Language policy and planning • Language rights• Language crimes

Language rights• Linguistic minorities: prevention of discrimination,

right to use their language in education, the media and public administration

Right to silence• A Common Law right: rule against self-incrimination;

the primary protection for those least able to protect themselves against coercive questioning: the weaker, the less educated, the intellectually impaired

Language crimes• Offering/accepting a bribe• Threats• Extortion• Perjury • Conspiracy • Soliciting an illegal act• Using offensive language• Defamation: slander and libel• Hate speech (racist language): Can hate language lead to hate

action?

Linguistic evidence: forensic linguistics• 1) evidence on communication• 2) evidence on authorship

Forensic evidence: linguistic levels• Phonetics• Lexis• Morphology• syntax• Discourse• Register• Genre• Sociolinguistic variation

The ethics and admissibility of linguistic evidence• Expertise: • Validity: can the linguist offer information that is

relevant and precisely targeted at a disputed issue?• Reliability: is the information based on scientific

methods that can be trusted?

Evidence on communication• Difficulty of understanding legal language• Linguistic disadvantage before the law• Language proficiency of second language speakers• Evidence on language crimes

Evidence on communication• Elements of communication:• 1) linguistic form• 2) communicative situation• 3) knowledge of participants• Miscommunication: poor linguistic construction,

wordings inappropriate to context, differences between the knowledge base • Effective communication – choosing the best wording

to communicate an intended meaning to a particular participant in a particular context

Communication cases• Examining the wording: sounds, words, grammar,

discourse and their interaction with the social context• Analysis of linguistic complexity• Analysis of interaction (CA) for discoursal evidence

such as inappropriate responses which can indicate communication breakdown• Analysis of meanings• Language proficiency of participants

Evidence on authorship• Text – written or spoken, of varying length• The basic methodology – to obtain comparison texts

produced by the imputed author, and compare them with the questioned text for similarities and differences• It is easier to demonstrate that a person did not

produce a text• Positive identification - probabilistic

Forensic phonetics• Identificatory features: • Fundamental frequency (pitch)• Articulation – any idiosyncracies in vowels/consonants?• Voice quality (creaky, breathy, squeaky, etc.• Prosody• Timing: fast, slow• Intonation patterns• Intensity: how loud• Dialect/sociolect• Speech impediments (e.g. defective ‘r’)• Idiosyncratic pronunciations• Unusual use of stress

Speaker identification• 1) ear identification (earwitnessing)• 2) machine identification (spectrograms – ‘voice

prints’)

Sources of degradation in the message• The microphone• Amplifier• Recording head• Recording medium• Playback head• Noise• Multiple voices• Filtering produced by telephones• Acoustic properties of the situation where the recording takes

place

Writing • Handwriting, typeface, width of margins• Spelling, punctuation

Plagiarism

• Concordancing programs revealing the degree of lexical overlap between texts

Author profiling• Speech may give indicators of a person’s age, sex,

social class, level of education, regional origins, profession