The Routledge Handbook of Forensic Linguistics

Malcolm Coulthard, Alison May, Rui Sousa-Silva, Malcolm Coulthard, Alison May, Rui Sousa-Silva

• Publisher: Routledge
• Year: 2020
• ISBN:
  9780429638251
• Edition: 2
• Topic: Languages & Linguistics
• Subtopic: Linguistics
• Index: Languages & Linguistics

The Routledge Handbook of Forensic Linguistics offers a comprehensive survey of the subdiscipline of Forensic Linguistics, with this new edition providing both updated overviews from leading figures in the field and exciting new contributions from the next generation of forensic linguists.

The Handbook is a unique work of reference to the leading ideas, debates, topics, approaches and methodologies in forensic linguistics and language and the law. It comprises 43 chapters, including entirely new contributions from many international experts, in the areas of Aboriginal claimants, appraisal and stance, author identities online, biased language in capital trials, corpus approaches, false confessions, forensic phonetics, forensic transcription, the historical courtroom, legal interpretation, multilingual law, police crisis negotiation, speaker profiling, and trolling. The chapters include a wealth of examples and case studies so the reader can see forensic linguistics applied and in action.

Edited and authored by the world's leading academics and practitioners, The Routledge Handbook of Forensic Linguistics is a vital resource for advanced students, researchers and scholars, and will also be of interest to legal, law enforcement and security professionals.

1

Introduction

Alison May, Rui Sousa-Silva and Malcolm Coulthard

Introduction

When Halliday wrote ‘language is as it is because of what it has to do’ (Halliday 1973: 34), a functional theory of language was born, giving us a perspective of meaning-making that is grounded in social practice and in the many varied and complex contexts in which we find ourselves. The legal world is context-rich. It is peopled by a hierarchical mini-nation of judges, lawyers, police and law enforcement officers, along with the ordinary men and women who encounter this strange world. Its texts are richly layered with meaning; its peculiar grammar and lexis have evolved over many centuries as a result of a history of specialised use. What legal people do with lay people through legal language, legal texts and legal interaction is the focus of this Handbook. Leading scholars from a range of disciplines, including language and law, examine the ways in which language has been and continues to be used, who is using it, how they are writing and speaking, why they are interacting in that way and what is being accomplished through that interaction.

The aim of this Handbook is to provide a unique work of reference to the main ideas, debates, topics, approaches and methodologies within Forensic Linguistics, with chapters written by the world’s leading academics and practitioners, both established and up-and-coming. Our intended audience is advanced undergraduates, graduates and research students, as well as established researchers in other disciplines who are new to forensic linguistics. This Handbook is designed as a comprehensive advanced introduction to core issues and topics in contemporary forensic linguistics. The contributions display a richness of both examples and case studies to enable the reader to see forensic linguistics applied and in action. Contributors come from a wide range of countries and numerous professions – academics, lawyers, freelance consultants, interpreters and translators, a computer program developer, a police officer, a judge and a police investigative agent. They also come from a wide range of fields: anthropology, communication, computer science, criminology, English, humanities, law, linguistics, modern languages, phonetics, sociology, translation studies, and, in addition, some of the contributors have previous professional experience as lawyers and police officers. As a group, we are truly multi- and cross-disciplinary in composition and often in approach.

What is forensic linguistics?

The textbook, An Introduction to Forensic Linguistics: Language in Evidence (Routledge, 2017), organises material into two sections: the language of the legal process and language as evidence. In other words, it makes a distinction between the description of the language of the law (both written and spoken) and the work of the expert linguist, which, of course, involves both the production of written reports and the presentation of oral evidence in court. This binary distinction blurs the boundary between written and spoken language but there are good reasons for sub-dividing the field instead into three areas:

i) the study of the written language of the law;

ii) the study of interaction in the legal process, which in criminal cases includes everything from an initial call to the emergency services to the sentencing of someone who has been found guilty; and

iii) the description of the work of the forensic linguist, when acting as an expert witness.

This tri-partite division must, however, not allow us to forget that

a) some fixed-form written texts, like the police caution, the Miranda Warnings and Pattern Jury Instructions, are ‘performed’ or perhaps better ‘verbalised’ as part of what are otherwise real-time, now-encoding spoken interactions;

b) in some jurisdictions, police investigative interviews are standardly audio- or video-recorded and these recordings are subsequently transcribed into written form using ordinary orthography;

c) these written interview transcripts are frequently reconverted into speech in the courtroom with a lawyer, usually the prosecutor, performing the part of the accused and the police witness playing him/herself; and

d) expert forensic linguists typically provide their evidence first in written and then, if called to give evidence in court, in spoken modes.

The question of what forensic linguistics is becomes more apparent in the chapter titles and specifically in their content; they cover a wide range of sub-fields of forensic linguistics, as you can see below, where we explain the contents and organisation of the Handbook.

Contents and organisation

After this introductory chapter, the almost encyclopaedic array of topics covered in the remaining 42 chapters is organised into three major sections:

Section I: The language of the law and the legal process

Section II: The linguist as expert in legal processes

Section III: New directions.

Within each of these sections the reader will find themed collections of three to six chapters grouped for convenience, but this must not be taken to imply isolation, as there are, in fact, as many connections across groups as there are between the chapters within any given group. For example, the common denominator across the five chapters in the section titled ‘Lay participants in the judicial process’ is a focus on who is talking or being spoken about (jurors, vulnerable witnesses, rape victims, defendants, Aboriginal claimants), but in a sense that link is arbitrary, because the authors themselves didn’t necessarily identify that theme. It was we, the editors, who made the connection, and we who now invite you to see the many other possible inter-chapter links. Such is the nature of reading and research; the intellectual activity that enables us to perceive connections between ideas creates new areas of scholarship and, as each of you reads chapters in the multiple combinations that are possible with such an extensive collection, we anticipate a blossoming research landscape in our next and successive springs. We do, however, make many explicit connections between chapters – by saying, for example, Archer and Todd (Chapter 39, this volume) – to help readers locate relevant material elsewhere in the volume. We hope you will go on a journey of discovery and that soon your own work will join the already extensive library of books, chapters, papers, corpora and software in this growing field.

Section I – The language of the law and the legal process

The Handbook begins with five chapters on legal language and legal meaning in Subsection 1.1.

Subsection 1.1 Legal language and legal meaning

Though much of the research on legal language focuses on written texts, the first chapter in the subsection, by May, Holt, Al Saeed and Ahmad Sani, takes speech as its subject and puts talk ahead of writing as the primary mode of communication. This chapter is one of several that examine questions, the most characteristic of legal interactional forms, and it focuses on and- and so-prefaced questions, formulations and repeating questions. The following chapters deal with written legal texts: Stygall with complexity, Finegan and Lee with attitude and emphasis, McAuliffe with translation and Hutton with interpretation. Stygall deals with the real-world problems that readers encounter when they try but often fail to understand pension documents. Finegan and Lee examine written opinions, using data from the California and US Supreme Courts and focus, in particular, on adverbial expressions of judicial attitude and emphasis. Though legal drafters are expected to be dispassionate, attitudinal and emphatic adverbs are abundant in Finegan and Lee’s corpus and they demonstrate how an empirical corpus analysis of judges’ opinions can reveal ‘justice with attitude’. McAuliffe’s and Hutton’s chapters are entirely new to this edition. McAuliffe focuses on the law of the Court of Justice of the European Union (CJEU) to study the relationship between law, language and translation in the EU legal order, to illustrate the limitations of a multilingual legal system. Hutton examines the tensions holding between ordinary language and legal interpretation, focusing primarily on issues arising when judges interpret common English words embedded in legal texts.

Subsection 1.2 Witnesses and suspects in interviews and investigations

The five chapters of Subsection 1.2 are concerned with participants and issues in police investigations. Ainsworth, Rock, Gaines and Lowrey-Kinberg, and Haworth all deal with police interviews and interrogations. ‘Interview’ seems the preferred term in the UK with ‘interrogation’ more usual in the US. The different nomenclature partially reflects the differences both in the investigative styles of the police in the two countries and in their attitudes to interviewees, which are revealed in Ainsworth’s disturbing chapter. Ainsworth deals with the problems of suspects’ access to, and the effective denial of, their rights in the US, while Rock, looking at British data, focuses not only on the suspect, but also on witnesses, recognising the central role of reading and writing practices in the interview and showing how these activities affect the outcomes. Gaines and Lowrey-Kinberg’s chapter is entirely new and deals with the important issue of false confessions, by discussing how the complex constellation of factors in play during the interrogation of the innocent make it difficult to establish if a false confession was triggered by a specific question or a series of questions. Haworth also sees the interview as an evidential object in the judicial process, as she explores the different and sometimes competing investigative and evidential functions of the interview and looks at how evidence constructed discursively can be ‘contaminated’ in the process, and this clearly has implications for the suspect. MacLeod’s chapter takes us from the interview room to an earlier stage before suspects are interviewed. Her chapter deals with evidence gathering in chatrooms where young people are at risk of grooming by sexual offenders. This is the only chapter in the Handbook that deals with criminal investigations prior to arrest.

Subsection 1.3 Language in the courtroom

Subsection 1.3 moves from the interview room to the courtroom. It begins with Drew and Ferraz de Almeida, who build on Drew’s early work that focused primarily on lawyers’ questions and witnesses’ answers in courtroom examination and cross-examination, and bring it up to date. The other four chapters include Heffer’s focus on narrative throughout the many phases of the trial; Chaemsaithong’s examination of studies of the historical courtroom; Greenlee’s discussion of language and bias in Californian capital cases; and Matoesian and Gilbert’s attention to multimodality in legal interaction. Heffer introduces some of the complex issues involved in the construction of stories in court, focusing on narrative construction and demonstrating how it is manifested in emplotment, story negotiation, character navigation and narration. Chaemsaithong then addresses the textual and contextual challenges in the study of the discursive practices of the historical courtroom; he discusses two aspects of trial talk: the strategies employed by lawyers to construct narratives and shape different versions of reality, and how courtroom participants show awareness of the interlocutor and negotiate their relationships. Greenlee examines court transcripts, pleadings and written opinions to discuss the subtle shading that language adds to capital trials and to question how the credibility of witnesses’ evidence is often artificially eroded by erroneous notions of language use in minority communities. Finally, Matoesian and Gilbert focus on legal discourse as multimodal performance and on how verbal and embodied conduct function as co-equal, multimodal partners in the constitution of meaning, rather than separate entities, to demonstrate how participants synchronize multimodal resources such as speech, gesture, gaze, artefacts and aspects of the physical environment in a criminal trial.

Subsection 1.4 Lay participants in the judicial process

In our list of the conventions used in this Handbook (xv–xvi) we list all the participants referred to in the course of this book (e.g. convicted person, defence barrister/attorney, prosecuting barrister/attorney, interviewee, police interviewer, witness in court) and it therefore seemed appropriate to have a section specifically devoted to participants. This section focuses on the challenges faced by a range of lay participants: jurors (Tiersma), vulnerable witnesses such as children and the physically and intellectually impaired (Aldridge-Waddon), rape victims (Ehrlich), defendants at sentencing hearings (Gruber) and Aboriginal claimants in land rights cases (Gray). Gruber’s and Gray’s chapters are entirely new to this edition; Gray’s chapter gives a fascinating insight into some of the complexities of hearing Aboriginal land rights cases outside the courtroom in remote and makeshift locations. All of these chapters examine the power of language to complicate meaning-making and make outcomes for lay participants at best difficult and at worst result in ‘distorted perceptions’ that place severe restrictions on civil liberties.

Section II – The linguist as expert in the legal process

As we move from looking at what legal language does to what the linguistic expert does, we see how linguists can make an important contribution to the presentation of evidence. An expert’s opinion is called on in cases where linguistic knowledge – semantic, syntactic, pragmatic, discoursal, phonetic, lexicographic and corpus linguistic – can assist the judge and jury in a particular case.

Subsection 2.1 Expert and process

Butters, Dumas, Jessen, Watt and Brown, Fraser, Solan and Shuy each offer a different perspective. Butters analyses trademarks – the particular language that companies try to own; Dumas consumer product warnings – focusing on the way that the language of warnings on tobacco products succeeds or fails to warn consumers of the dangers of smoking. Jessen, Watt and Brown, and Fraser examine different aspects of the forensic application of phonetic analysis – the ways that speakers are identified by their voices through automated, technical and descriptive methods, with Fraser making a case for transcription as a dedicated branch of linguistic science. All these encapsulate a struggle between the expert, a client and the legal system. Solan also takes up this theme in his chapter, which deals with the linguist’s encounter with the adversarial system. He presents a stark picture, on the one hand, of a legal system that exploits uncertainty in experts and, on the other, of experts who are susceptible to cognitive bias in the pursuit of confirming results. Shuy outlines his system for analysing the entire linguistic context of verbal evidence and illustrates its application with an analysis of a series of clandestinely recorded conversations.

Subsection 2.2 Multilingualism in legal contexts

The multilingual legal context is no less fraught for the expert, and...

Table of contents

• Cover
• Half Title
• Title Page
• Copyright Page
• Dedication
• Table of Contents
• List of illustrations
• List of conventions used
• List of contributors and affiliations
• Notes on editors and contributors
• Acknowledgements
• 1 Introduction
• Section I The language of the law and the legal process
• Section II The linguist as expert in the legal process
• Section III New directions
• Index