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LING 2450 (1)


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LING 2450
Philipp Angermeyer

LING 2450 BOOK NOTES – WINTER TERM TH JANUARY 9 , 2013 Moodle: Solan & Tiersma (2005) – Linguistics in the Law - Rules of evidence, constitutional doctrine, and principles of statutory interpretation all contain tacit assumptions about how accurately we recall language - Noam Chomsky in the 1950s and 1960s focused on what he saw to be the creativity of the human language facility o We are all endowed with the power to articulate and understand infinitely many new linguistic expressions as a routine matter - Many of the regularities that enable us to speak and understand language can be found in the relationship between syntax and meaning The Subsystems of Language - the study of the sounds of language is called phonetics - the study of how sounds interact and how sound systems (languages) are structured is called phonology - we put together sounds to form words, words to form sentences, sentences to form discourse - language is thought of as a system that relates sound and meaning - sounds strung together into meaning-bearing elements are called morphemes o Cat = 1 morpheme, Cats = two morphemes (Cat + s) - Study of complex structure of words when they are combined is called morphology - Syntax is primarily the study of sentence structure - Semantics is the study of meaning - Investigation into how words contribute to meaning is called lexical semantics A Look at Sound Systems - Bilabial sounds: type of consonantal sound, made with both lips held tightly enough to block passage of air o Example: Pat and Bat - Aspiration sounds: if you put your hand in front of your mouth, you will feel a puff of air after the “P” but not after the “B” - English speakers employ aspiration without being consciously aware of it Syntax - Syntax is riddled with systematic ambiguities and variables - The trade-off between syntactic clarity and stylistic elegance produces an ongoing tension in legal language o Example: “A picture of a man I admire is on the wall”. Could refer to “a man I admire” or to “a picture of a man” I admire. Ambiguous whether I admire the man or the art. A switch of the sentence could be “A picture I admire of a man is on the wall”. o Example: “any person who knowingly distributes a depiction – if the depiction contains child pornography – shall be punished”. The defendant won an appeal because based on the way the statute is described, he could defend that he did not know it was child pornography Word Meaning: Two Ways of Thinking - We use words to express concepts, so unless language and thought are the same, then there must be some interface between language and conceptualization that allow us to access words and use them to express the concepts we want to convey - One way to understand the meanings of words is to provide a definition for them - Like the dictionary definition, the statute describes a set of conditions - Some concepts, including something as basic as a chair, seem to be characterized not by definition, but by a complicated array of information that includes some definitional features, along with some typical features - Prototype approaches: understanding of words is rooted in theories we develop that contain definition features, and features based on prototypical mental models we form from experience Discourse and Inference from Context - Courts are aware that context is a necessary element in determining meaning - Broader use of context, which includes not just the verbal context, but also the surrounding circumstances and shared background information and assumptions is known as pragmatics - Cooperative principle explains not just how we produce utterances but how we understand them o Maxims of conversation  Maxim of quantity (make contribution as informative as required for exchange)  Maxim of relevance (be relevant) - Utterances not only convey meaning, but can also function as acts that have impact on surrounding world beyond mere communication information o Performative word: using it performs the act that the verb identifies when the conditions are right  Example: I can promise by saying “I promise”  One indicator that a sentence is being used as a performative is that it allows for the insertion of “hereby” before the verb - People use words to solicit, threaten, lie, command, and request o These speech acts are best characterized by speaker’s intent in making the utterance; which is referred to as it illocutionary force - When focusing on the effect a speech act is likely to have on others, it is called the utterance’s perlocutionary effect o Example: deceiving, coercing, persuading - Example: the illocutionary act of threatening is often used to accomplish the perlocutionary effect of intimidating or coercing Linguistics in the Courts - Lawyers offer expert testimony by linguists with some regularity - Generally excluded when asked to use discourse analysis to draw inferences about a speaker’s intent, or to identify the author of a document from its style - Linguists provide reports on their own experiences as experts Linguistics and the Admissibility of Expert Evidence in American Courts - The introduction of DNA evidence created a dramatic impact on the legal culture o Become the paradigm for what science in courts should look like - Rule 702 requires courts to engage in a “preliminary assessment of whether the reasoning or methodology underlying the testimony is scientifically valid and of whether that reasoning or methodology can be applied to the facts in issue - Daubert set 4 nonexclusive criteria for deciding whether evidence is scientifically valid: o 1) whether theory offered has been tested o 2) whether it has been subjected to peer review and publication o 3) the known rate of error o 4) whether theory is generally accepted in scientific community - The key to deciding the admissibility of expert evidence, according to the court, is whether the expert “employs in the courtroom the same level of intellectual rigor that characterizes the practice of an expert in the relevant field” - Linguistic analysis generally meets any evidentiary standard - Psychologists have observed that we think in two different ways: o From top down based on rules and principles o From the bottom up, based on experience TH JANUARY 16 , 2013 Moodle: Tiersma (1999) Chapter 6 Legal Archaisms - One of the main justifications for continued use is that it is more precise than the modern equivalent – virtually never true Antiquated Morphology - Archaic pronouns: ye and thou - Anachronistic verbs: giveth, takest, sayeth - Comes now plaintiff, hear ye Same - Same is used as a substitute for a pronoun o Example: “she made an offer in a letter to buy the machinery, and I accepted same - In ordinary speech, same implies comparison to a similar object or person, but in the legal sense it refers to identity of reference - Same may be singular or plural, while it or them specifies the number Said and Aforesaid - Said used as an article or demonstrative pronoun o Example: “Jessie promises to pay a deposit. Said deposit shall accrue interest at a rate of five percent per annum” - Said can be replaced by the or this and can also be used as an ordinary adjective - Characteristics of a style that began in medieval England and has spread along with the English legal system itself - Anaphorically: referring to a specific antecedent in previous text or discourse - Deictically: referring to something outside the discourse or text - Said and aforesaid are exclusively anaphoric, in that they can only refer to something that has been mentioned previously Such - Such performs exactly the same function as this, and appears indistinguishable from said or aforesaid - Normally, such is an adjective meaning “that sort” or “this sort” To Wit - Beyond sounding lawyerly, this phrase serves no function - to wit served as a marker that what followed was not the formulaic language of the writ, but individualized details of this specific complained - a colon or a comma would serve as an adequate substitute Subjunctives - one type of subjunctive is a construction called the formulaic subjunctive - formulaic subjunctive: involves use of a verb in its base form and conveys roughly the same meaning as let or may o example: know all men by these presents and be it remembered Here-, There-, and Where- - constructions of the type hereunder, therein, and wherewith – words common in medieval English - rather than saying under it or under that, a speaker would say hereunder or thereunder - wherefore is the interrogative form of therefore and means “for what reason” or “why” - herein must be determined by the context Why is Legal Vocabulary so Conservative? - One reason for conservative or archaic language is that it is considered more formal than everyday speech - Because legal language strives toward great formality, it naturally gravitates towards archaic language - Much of linguistic conservatism derives from an attribute that most major religions share with the law: a veneration of authoritative texts o When every syllable in a text is holy, translating it into another language can be less reliable or authentic than the original – same is true for updating legal text to modern language - Related reason for not modernizing archaic legal texts is that specific words and phrases may have received authoritative interpretations over the years o Rewriting statutes and constitutions could wreak havoc with decades of court decisions - The safest course of action is almost always to reuse the same worn phrasing time and time again - Archaic language happens to help justify the profession’s monopoly Linguistic Creativity New Wine in New Bottles - Most of legal language is actually new rather than archaic - With the creation of securities law, new terms such as antitrust, blue sky laws, poison pill, etc. - Even as lawyers create new terms for novel areas of practice, old terms tend to die out with the obsolescence of the legal concepts they refer to - Legal terms retain their vitality as long as the concepts to which they refer remain current Asylees, Escapees, and Tippees - Frequent addition of the suffix –ee to a verb, primarily to indicate the human object of an action - Ordinary language has retained a few of these terms – employee, referee and trustee - Function as direct objects to refer to the person who is acted upon - Can also refer to the indirect object of an action (“the person to whom something Is V-ed”): allocate, cvenantee, grantee, indorsee, lessee, patentee, payee, pledgee, referee o Here, paraphrase includes preposition to: someone to whom something is allocated o Asylee (someone who seeks asylum, not the person who is “asyled”) o Condemnee (someone whose property has been condemned, not someone who has been condemned) - -ee words come in matched pairs frequently: mortgagor/mortgagee - -or word typically indicates the actor, and hence has more of an active sense, while the –ee word refers to the recipient of the action, and thus has more of a passive sense - Past participles that lawyers use as ordinary nouns include the accused, the deceased, and the condemned Formal and Ritualistic Language - Verbal formulas and ritualistic words put the audience on notice that this is a proceeding with important consequences - Formality of the courtroom reminds participants that this is an adversarial setting - Ritualistic language helps mark the beginning and the end - Ritualistic administration of the oath to witnesses and jurors, and their placement in boxes that separate them from the outside word, only heightens the otherworldly impression - Ritualistic language and ceremonies of the courtroom have much in common with a religious service, and serve much the same purpose - Testamentary intent – was the intent of the letter to really be a will? - American attorneys seldom say anything to anyone; they almost invariably indicate or advise Do and Shall - Do can function as a main verb (do this for me) - In legal writing, do often appears in declarative sentences, but not with the emphatic or contrastive sense that it has in ordinary speech o It indicates that the following main verb creates or modifies legal institutions or relations - Performatives: similar to hereby, which also signifies that the following verb is actually performing an operative legal act o Allow a person to create or modify a state of affairs simply by saying so o Hereby is a useful criterion that the utterance is performative o Do often fulfills the same function as hereby - In ordinary language, shall typically expresses the future - In legal language, shall does not indicate futurity, but it is instead employed to express a command or obligation, and can thus be paraphrased with must - Shall can also make declarations and express the terms of a contract - Function depends on the type of document in which it occurs - Generally, shall indicates that the verb and phrase that follow are part of what is being enacted, promised, and so forth Jargon, Argot, and Technical Terms - Critics name legal language that are not used at all in ordinary speech argot or jargon, both of which tend to have a negative connotation - The phrase jargon and technical term are closely related o Any words or phrases that are commonly and fairly exclusively used by a profession or trade can be labelled jargon (example: arguendo, boilerplate, case at bar, etc.) - Jargon helps provide a single word where an entire phrase would be necessary or there is no term at all (example: conclusory, in reference to an allegation or statement that suggests a particular conclusion without expressly justifying the result) - Technical terms are useful because they often have a fairly precise definition o If a word or phrase is used exclusively by a particular trade or profession, or if the profession uses it in a way that differs from its normal meaning, and the term has a relatively well-defined sense, it should be considered a technical term - Legal vocabulary tends to refer to legal and social institutions that change frequently, which results in the meaning of associated terminology changing as well Homonyms - Homonyms are words that sound the same, but have different meanings o Example: to, too, and two - Sometimes a word has several different but related meanings – it is viewed as one word that is polysemous o Example: Crown – physical head ornament and symbolic authority of the sovereign – polysemous because words are closely related - A great deal of legal vocabulary looks like ordinary language, but has a distinct meaning – legal homynms o Example: action (not a physical movement, but a lawsuit), brief (a noun referring to a type of legal document, not an adjective), motion (a request that a court issue an order or engage in some other act; the only thing that movies is the lawyer’s lips), party (someone who is part of a lawsuit and often refers to a single person or entity, not a group) Synonyms - Synonyms are different words with the same meaning - Same meaning, same form: if a lawyer uses residence to refer to a particular concept or thing, she should consistently use the term residence thereafter, thus avoiding synonyms or near- synonyms like domicile. - Many lawyers have a great love for synonyms and near-synonyms, at times using it for no reason o Example: rest, residue and remainder and give, devise and bequeath - Sometimes the idiom has come to acquire a meaning that the individual words do not o Example: full faith and credit is a term that cannot be replaced by full faith or full credit Antonyms - Words that have opposite meanings are generally called antonyms o Antonyms have most semantic features in common, but typically differ in one critical aspect o Example: black and white are both adjectives that refer to colour - In legal usage, many pairs of words are turned into antonyms even though they have no such relationship in ordinary language o Example: speech and conduct Moodle: Tiersma (1999) Chapter 12 What Makes Legal Language Difficult to Understand? Technical Vocabulary - Much of legal language is technical vocabulary that are vaguely familiar to many people o Example: estoppel, lis pendens, per stirpes, testator, and tortfeasor - Jurors often turn to dictionaries even though they are not allowed to go to consult other sources o Jurors accused of misconduct for looking up words - People do have the right to know the meaning of the contracts they sign and for which they will be held legally responsible – it should be as free as possible of technical terms and jargon Archaic, Formal, and Unusual Words - Idiosyncratic legal uses of aforesaid, same, and such, to mention a few anochronisms, are no longer part of ordinary language and thus reduce understanding o More examples: hereof, therewith, wherein - Formal or highly literate vocabulary causes comprehension problems o Example: not everyone knows what initiate or terminate means, but everyone knows what begin and end mean o Mostly learn meanings of words by hearing them used, so many people do not know these words since they don’t hear it as often as lawyers Impersonal Constructions - Using nouns in place of pronouns like I and you is another factor that makes legal documents harder to understand o Example: “vendor shall have the right to modify this clause with thirty days’ notice to vendee”  ”we have the right to modify this clause after giving you thirty days’ notice” - In theory, a contract “speaks” for at least two parties, which is the reason for using third person - Contract of adhesion: A type of contract, a legally binding agreement between two parties to do a certain thing, in which one side has all the bargaining power and uses it to write the contract primarily to his or her advantage - It would be more effective to state laws in first person - Impersonal phrases imposing obligation (it is your duty to…it is required that) are less comprehensible than expressions with a pronoun (you must) Overuse of Nominalizations and Passives - Nominalizations: nouns that are derived from verbs and that they often have the purpose or effect of de-emphasizing (or even obscuring) the actor - “in the event of default on the part of the buyer” o The word default can be either a noun or a verb; here, it is a noun o Much more effective to use the word as a verb, which allows a simpler (and shorter) sentence while communicating same message: if the buyer defaults  if you default - Using verbs instead of nominalized equivalents is almost always more direct way of making a point - Passives impede comprehension, but mainly in subordinate clauses Modal Verbs - Clear communication generally requires using ordinary modal verbs (can, could, may, might, must, should, will, and would) - In place of shall public should mostly use must - Personal pronouns followed by a modal verb, like you must or you can are much clearer than longer impersonal expressions like it is necessary (for you) or it is your duty Multiple Negation - Two negatives in the same sentence cancel each other out in standard English - The more negatives there are in a sentence, the more semantically intolerable it becomes Long and Complex Sentences - Sentence length by itself is not the problem, but rather the greater complexity that accompanies length - Plain language thus strives to avoid unusual, complex, or antiquated syntactic constructions, while promoting clarity through strategies like keeping subject and verb close to each other, reducing the number of clauses in each sentence, and minimizing the depth of embedding - Example: “the boy whom the girl whom the gentleman in the white car hit kissed lives next door to me” Poor Organization - For the most part, it makes sense to present the most important things first, the general before the specific, and the overall statement or rule before any conditions or exceptions - Good organization includes dividing complex material into sections and subsections, adding headings when appropriate, and using numbered lists - Legal documents place most important provisions at the end and bury critical contract terms o Less crucial matters placed in smaller letters in out-of-the way locations  we assume provisions in small type at end of contract have little importance Moodle: Tiersma (2006) – Some Myths about Legal Language Legal Language is Archaic and Conservative - many lawyers use archaic expressions, often because of habit, laziness, or economy encourages the continual recycling of forms that were successfully used in the past - once a word or phrase has received an authoritative interpretation by the courts, lawyers will be inclined to continue using it even if it may have changed in meaning or become obsolete in ordinary speech - language of lawyers can be creative and innovative – quick to coin a new word when their existing vocabulary is insufficient Legal Language is Full of Latin and French - in medieval England, latin was the language not only of the church, but of education and learning - latin was also the language of court records - latin maxims survived somewhat longer than 200 years, but most modern lawyers and judges rarely quote more than two or three - technical use of latin seems to be stable or declining, as the concepts to which the latin terminology refer become obsolete or are replaced by English - although latin was the language of record in the courts, judges and lawyers addressed each other in French - because of its long retention by English lawyers, French has had a tremendous influence on legal language o a vast amount of legal vocabulary is French in origin: appeal, attorney, bailiff, bar, claim, complaint, counsel, and court - another feature we have inherited from law French is a rule of word formation that allows a word for the object of an action to be created by adding –ee, thus completing the suffix Legal Language is Wordy and Redundant - other legal documents, like contracts, deeds, summons, and indictments, also tend to exhibit wordiness and redundancy, although usually to a lesser extent than wills - lawyers do not talk this way, unless quoting verbatim from a will or other document - wordiness and redundancy are features of the written language of law - not only the genre of legal text, but also the strategic objectives of lawyers, can strongly influence their language - if you fear that a document or statute will be ruthlessly dissected by very smart lawyers who are well paid to undermine its effect, you will try to anticipate as many contingencies as possible before they can be exploited - multiplying words seems to be the solution to just about every legal problems; few lawyers remove words Legal Language is Pompous and Dull - the language of lawyers again proves not to be monolithic – lawyers can be remarkably eloquent - with respect to written documents, the subject matter poses severe restraints on how creative and eloquent lawyers can be Legal Language is Precise - the purported precision of the language of the law is often used as a justification for not making greater use of ordinary English - in the past English lawyers defended their use of law French on the ground that technical terms in French were more exact and less subject to change than was ordinary English - the scope of “knowingly” is potentially ambiguous, a problem that arises with some regularity in the criminal law, which is full of adverbs (such as “knowingly”, “willfully”, “intentionally”) relating to a defendant’s state of mind - it is hard to define words, especially words for categories, by listing the conditions that are necessary and sufficient for membership in that category - people’s judgements are often heavily influenced by prototype effects (the fact that many categories invoke a prototypical member) o example: definition of “vehicle” - a word is precise only if there is general agreement in the profession that it is or ought to be used in a relatively specific sense - we can avoid the ambiguous scope of adverbs by using verbs - we can avoid fuzziness of a word by defining it carefully or listing categories to which it applies - the meaning of a word is determined by usage in the community, but that usage is not always consistent o no matter how precise a term might be in theory, in reality it can only be as precise as the range of its usage dictates Legal Language is a Myth - although most rules governing ordinary conversation also apply to legal language, the language of law is in many important respects quite different ordinary speech o much harder to distinguish legal language from ordinary but highly formal written language - most commonly-cited linguistic features of legal language are the following: 1. Technical vocabulary. This includes words such as "asportation," "demurrer," "interpleader," "estop," "quitclaim," "reverter," or to "expunge a lis pendens," along with many other examples. We might also include jargon like "black-letter law," "boilerplate," "case on point," "chilling effect," "conclusory," and "judge-shopping." 2. Archaic, formal, and unusual or dificult terminology. We have already discussed archaic language. Examples of formal or unusual terminology include the lawyerly proclivity to speak of "commence" and "terminate" in place of "begin" and "end," or the use of "indicate" and "advise" to mean ''say" or ''tell" ("my client has advised me . ..”) 3. Impersonal constructions. Illustrating this feature is avoidance of first and second person pronouns ("I" and "you"), and preference for the third person in referring to oneself (as in "this court finds"). 4. Passive constructions. Much legal writing prefers verbs in the passive voice, especially favoring what are called agentless passives, as in "mistakes were made," which hides or deflects attention from the person who was responsible for the action. 5. Nominalizations. Another characteristic of legal language is preference for nouns and nominalizations (nouns derived from verbs, such as "consideration" or "injury") over verbs ("consider" or "injure"). This feature can also reduce emphasis on the actor. 6. Negation. It has also been suggested that legal language contains high levels of negation. In fact, the problem seems to be multiple negation rather than negation per se.38 7. Long and complex sentences. Legal English tends to have long sentences, in some extreme cases going on for hundreds of words before reaching a period. Blackstone's Commentaries contains an appendix that reproduces an indenture from the year 1747; one sentence goes on for 1463 words before coming to a complete stop.39 Often the sentences have high levels of embedding, which leads to syntactic complexity. Consider a sentence from the California jury instructions: "Do not assume to be true any insinuation suggested by a question asked a witness."40 8. Wordiness and redundancy. - List shows a remarkable overlap with features that linguists have associated with written language in general, and especially more formal types of prose o Writers use more nominalizations and passives than speakers do o Writing generally has higher levels of abstraction and verbal density, more difficult and more Latinate vocabulary, fewer personal pronouns, and more elaborate syntax - All features attributed to legal language are also characteristic of formal written prose - Legal language has minor deviations from ordinary language in terms of pronunciation, spelling and punctuation o Drafting and interpretive conventions that differ from ordinary writing o Two or three terms to refer to a single person or object o Repeating a noun indicates that the second occurrence of the noun refers to something or someone different JANUARY 23 , 2013D Moodle: Dumas (2000) Introduction - Rationale for our jury system is the assurance of a fair trial, one in which the adjudication of facts, as distinct from the elucidation and application of the law, is performed by peers of the defendant – in either a civil or a criminal law - In every American jury trial, there is an obligatory ritual during which the trial judge attempts to convert a group of ordinary citizens, the “twelve laymen” into experts on substantive law and judicial process - Importance of the goal of law to be stated accurately and completely is reflected in the great reliance in most jurisdictions on pattern instructions – standard instructions designed to save time for judges and lawyers by eliminating the need to write instructions separately for each case o Problem = they are written in dense complex language favoured by lawyers - The judge believes that a jury is presumed to understand a judge’s answer to their question if a section of the instructions are not understood Recent Criticisms and Reform Efforts - A common theme in all the American reports is that jurors are too passive o Passivity interferes with the quality of their fact-finding and their sense of accomplishment o Commission’s recommended changes focus on making jury service more respected, tolerable, efficient and effective - Jury instructions are essential to the American judicial system o Research conducted between 1970-1990 demonstrates that most of the instructions cannot be understood by most jurors - Jury’s role as finder of fact has to compete both with requirements of legal procedure and with the current judicial perception that the jury must be highly constrained and controlled Linguistic and Psychological Research - Jury instruction process has concentrated generally on three topics: o 1) the syntactic and semantic comprehensibility of the instructions o 2) the timing of the delivery of the instructions o 3) the medium of presentation of the instructions (oral, written, videotaped, etc.) - There is a discourse imbalance between domain experts o In courtroom, trial judge expert on law, while jurors experts on facts o Judges treated with respect and have free will in courts, while jurors are restricted Syntactic and Semantic Comprehensibility - Certain linguistic constructions are intrinsically more difficult to comprehend than others - Higher level of comprehension can be achieved by: o 1) providing roadmaps o 2) avoiding the use of arcane vocabulary unless necessary, in which case they are defined clearly o 3) clarifying the meaning of difficult abstract concepts by providing examples - The finding of similarity or difference is the key step in the legal process - Concepts that produce much confusion on the part of lay jurors are: anti-trust liability, copyright infringement, qualified immunity of police officers or government officials, and civil rights violations Roadmaps - Jurors have to absorb new information, learn new procedures, and digest and use new standards quickly, with no time for reading, reviewing, or consulting with others - A roadmap telling jurors where they are headed and by what route can provide an outline of jury instructions Syntactic and Semantic Complexity - Pattern instructions are modelled closely upon appellate opinion language o Appellate opinions specifically directed to legal professionals trained in law and accustomed to using legal discourse on a daily basis o Characterized by lengthy sentences containing many clauses, a lot of subordination, and arcane vocabulary Difficult Abstract Components - Many legal concepts are difficult to define (example: reasonable doubt, proximate cause, present cash value, etc.) - One way of explaining concepts is to give examples or brief narratives - In considering the use of paraphrase and examples, the legal system must consider whether they should be uniform for all cases, as the pattern instructions are o No legal reason why trial judges could not compose their own paraphrases and examples, but that procedure would increase possibility of reversal on appeal and therefore be unattractive to the judiciary EXAMPLE OF ABSTRACT EXPLANATION: - I have used the expression .present cash value. In these instructions concerning damages for future losses that may be awarded to the plaintiff. In determining the damages arising in the future, you must determine the present cash value of those damages. That is, you must adjust the award of those damages to allow for the reasonable earning power of money and the impact of inflation .Present cash value means the sum of money needed now, which, when added to what that sum may reasonably be expected to earn in the future when invested, would equal the amount of the damages, expenses, or earnings at the time in the future when the damages from the injury will be suffered, or the expenses must be paid, or the earnings would have been received. You should also consider the impact of inflation, its impact on wages, and its impact on purchasing power in determining the present cash value of future damages. CORRECTION BY PARAPHRASING: - In other words, in order to make a reasonable adjustment for the present use, interest free, of money representing a lump sum payment of anticipated future loss, the law requires that the jury discount, or reduce to its present worth, the amount of the anticipated future loss, by taking (1) the interest rate or return which the plaintiff could reasonably be expected to receive on an investment of the lump sum payment, together with (2) the period of time over which the future loss is reasonably certain to be sustained; and then reduce, or in effect deduct from, the total amount of anticipated future loss whatever the amount would be reasonably certain to earn or return if invested at such rate of interest over such future period of time; and include in the verdict an award for only the present worth – the reduced amount – of the total anticipated future loss Timing of the Delivery of the Instructions - It is traditional to provide jury instructions after all the evidence has been presented and just before jury retires to deliberate the evidence - Problem is that jurors usually figure out their opinion in the beginning of the case - Presenting jury instructions immediately before deliberation is based upon principle of recency Delivery of the Instructions - Instructions prepared to be read should not be delivered orally and rapidly in a monotone - Judges could provide summaries as well as roadmaps, they could use multimedia formats (charts, decision treats, bullet summaries), and they could be careful to maintain eye contact with jurors and pay full attention to legitimacy, dignity and humanity of the jurors and their role - Exclusive focus on problems with vocabulary and syntax has prevented jurors from paying full attention to the notion of textual comprehension as ‘discursive construction’ Moodle: Heffer (2006) Introduction - One of the fundamental features of the anglo-american criminal justice system is that defendants remain innocent until the prosecution manages to prove their guilt beyond reasonable doubt - Juries have trouble with true definition of ‘beyond reasonable doubt’ - Linguists have located the trouble in the lexis and syntax of the proof instructions themselves in the semantics of ‘reasonable’, and in the misdirected discourse focus on doubt The Criminal Standard as Legal Text and Communicative Act - The focus is very much on the legal source at the expense of the communicative goal o Aim is to provide legally relevant information to the jury and the process of communication tends to be taken for granted o The focus on accuracy means that the wording is likely to be drawn from legal statutes and legal opinions – wordings that can date back to the 19 century or earlier - Judges are concerned with delivering instructions that are legally safe rather than ones that are communicatively effective The Message: core values of the criminal standard - One of the main problems with traditional legal paradigm of jury instruction is that it tends to confuse saying with conveying, the locutionary act with its illocutionary force - The discursive history of the criminal standard reveals that it has always referred to a subjective mental state rather than an objectively measurable standard - Many observers confuse the core values of the standard with the terminology used to convey them - The core meaning of subjective evidence-based rational conviction arguably leads to flexibility in the application of the standard across cases - Diamond argues that ‘an optimal instruction on reasonable doubt should leave some limited room for the fact-finder to adjust the standard in response to consequences of error that may differ across cases’ o Would appear to be a better view with community values and with the legal belief that the degree of proof needs to be proportional to the harm caused by a wrongful conviction The Jury: comprehension of the criminal standard - legal authorities often presume that juries will understand their instructions - the expression beyond reasonable doubt is used far more rarely in non-legal contexts than the judiciary imagine o in lay contexts ‘beyond reasonable doubt’ is equated with certainty, while in a legal setting, this conveys much less than certainty o when undefined, it leads to greater uncertainty and disagreement in jury room - the legal approach to clarification generally involves breaking down a phrase into its analytical components o generally has meant focusing on the noun phrase o reasonable doubts have been defined as ‘substantial’, ‘actual’, ‘honest’, ‘fair’ ‘based on reason and common sense’ o unreasonable doubts have been defined as ‘possible’, ‘speculative’, ‘imaginary’, ‘forced’ - we do not indicate the rationality or substance of the doubt (actual doubt, substantial doubt, fair doubt) or the lack of such rationality or substance (fanciful doubt, speculative doubt, imaginary doubt) - the presumption of comprehension shown by the legal establishment in their criminal standard instructions is arguably as insidious as the types of presumptions shown by lay jurors to which we now turn The Jury: Counteracting the presumption of guilt - rewriting jury instructions on its own has not improved comprehension – possibly due to juror’s pre-existing notions of the law and legal procedure, their presumptions, prototypes and prejudices - even if the complexity of the trial itself appears to help overcome prejudices, it remains a communicative imperative that instruction should help rather than hinder the process of counteracting the presumption of guilt - stress on ‘doubt’, rather than the prosecution’s process of convincing the jury, effectively refocuses the burden of proof onto the defence rather than the prosecution The Jury: conveying subjective certainty - “beyond reasonable doubt” is insufficient on its own and that attempts to provide analytical definitions of the term, particularly by defining types of doubt, are misdirected o Even if it was defined, we would still wonder what it means to go beyond reasonable doubt - Synthetic definitions o In this approach, ‘beyond reasonable doubt’ is treated as a prefabricated formulaic phrase which is ‘stored and retrieved whole from memory at the time of use, rather than being subject to generation or analysis by the language grammar’ o From an instructional perspective, the object is to find equivalence of meaning either in a synonymous phrase or in paraphrase - There is a distinct danger in associating the standard in any way with morality since moral conviction, like religious conviction, is often based on faith rather than a rational consideration of evidence - Paraphrase would be a possible solution – paraphrase moral certainty to nearest technical equivalent ‘subjective certainty’ o Could be expressed in plain English as sure and convinced - Makes a clear distinction between mathematical (‘absolute’) certainty and the subjective certainty (‘firmly convinced’) actually required The judge as author and animator - In the traditional legal paradigm, the principal (ultimate authority behind the words) is what the law says on the criminal standard through statutes and judicial judgements - The author responsible for the wording of the instructions, is often the committees that compile the ‘standard’, ‘pattern’ or ‘model’ sets of jury instructions - The judge is often left with the role of mere animator (sound box) of the words of those pattern instructions - There is no direct correlation between the extent of verbal involvement and the extent of influence - Solution to confusion could be by making metalinguistic reference to the legal term while using the plain English substitute to do the main job of conveying the standard o Beyond reasonable doubt = sure - Treating the instruction as a variable communicative act rather than a fixed legal text has costs and benefits o The less control institutional sources have over the wording of the delivery, the more likely it is that infelicitous instructions might be given The criminal standard instruction as communicative act - The way counsel instruct the jury on the burden and standard of proof in their opening and closing speeches may have significant complicating effects - Medium of delivery is import – evidence seems to suggest that a combination of oral and written instructions is better than just one medium - Judges frequently stress some values at the expense of others and there is a case for more consistent coverage, for keeping the message more or less constant, without denying judges authorial rights over the precise wording of definitions Conclusion - Strategies that operate under an “instruction as communication paradigm” which depend on “instruction as legal text”, often lead to instructions which judges are poorly motivated to communicate effectively, ultimately conveying the wrong message - Rather than re-word instructions, it is imported how the actual message is conveyed by the judge and how it is received by the jury - Wording of instructions need to be as far as possible in plain English - Allowing judicial discretion in the wording of instructions often appears to lead to greater contextualization and processes of linguistic accommodation to the jury which might aid comprehension - Problem lies mainly with the failure of the legal establishment to embrace instruction as a real act of communication th JANUARY 30 , 2013 Just Words: Chapter 4 - Claim is that “law and legal institutions in a number of cultures have played a significant role in maintaining systems that subordinate and oppress female human beings - Law is patriarchal because it is powerful and men control it o Men largely control this decision-making mechanism - Even in the liberal democracies of the west, men denied women the right to vote until the first quarter of the century - Changes in family law have made divorce more readily available to women Gender and Equality - Laws that appear to be evenhanded still embody a distinctively male point of view - Freedom from unwanted connection to others is a male concern o Women, because of their socialization, tend to seek and value the very connections against which men seek legal protection - From the law’s perspective, the ideal contracting party is a person who fears entanglement with others - The ultimate objective of the contract is to identify every sort of misconduct that might occur and specify the consequences if it does o The law of the contract treats separation as the basic human condition and connection as an aberration requiring careful advance preparation - Described the law as an authorized language of the state, a discourse suffused with the power of the state o To the extent that the law embodies male values and advances male interests, it is an authoritative patriarchal discourse - The patriarchal discourse of law is a way of talking and thinking about women, and acting toward them, in legal and political context - As long as the dominant legal discourse is patriarchal, women will be talked about, thought about, and acted upon as subordinate to male interests Stylistic Variation in Courtroom Talk - People do not simply speak differently, but that variation in language reflects such social dimensions as class, race, ethnicity and age - Lawyers and hostile witnesses interrupted each other regularly, and in elaborately patterned ways - Jurors are attuned to subtle variations in the pattern and that these variations influence their evaluations of both lawyer and witness - Women, as a result of their socialization, speak a language of subordination o Hedge words (kind of, sort of) o Polite forms (sir) o Tag questions appended to declarative statements (the meeting’s at three, isn’t it?) o Exaggerated imprecision about quantities o Inquisitive intonation in normally declarative contexts (six-thirty?) - Women project deference and uncertainty o Not every woman spoke this way – women who did not were usually expert witnesses - Powerless language – associated primarily with the speaker’s status in society Powerlessness and Patriarchy - in simulated courtroom situations, we found that language style did indeed influence the credibility of testimony o jurors more likely to believe witnesses who spoke assertively than those who spoke powerless language - style is a critical factor in the courtroom and that relative credibility of witnesses is influenced by the manner in which their testimony is presented - most of the witnesses who used powerless language were women o most women, most of the time, were speaking in a style that the legal system devalued; men did not suffer this disadvantage - through the credibility assessments of jurors, the law was expressing a strong preference for a speech style that was distinctively male - the law, as an institution is complicit in punishing women for their speech habits to the extent that it remains silent as jurors act on their cultural values The Logic of Legal Accounts - sociolinguists paid attention to such things as how narrators structure their accounts, and how they claim authority for their stories, and how they interact with their audiences - structure of courtroom discourse had short circuited expectations about testifying – expectations based on everyday storytelling habits o unable to structure and illustrate their accounts as they did in ordinary conversation - in small claims courts, people give accounts of legal problems in whatever ways they deem appropriate - two very different ways in which litigants structure their accounts o rule-oriented accounts base claims for legal relief on violations of specific rules, duties, and obligations, such as those inscribed in contracts  arranged sequentially, deal explicitly with cause and effect, identification of agents responsible for events  emphasize evidence that bears directly on the specific rule violation being asserted and exclude evidence extraneous to the claim o relational accounts base their entitlement to relief on general rules of social conduct  focus on personal status and social position  full of details law usually deems irrelevant The Rule-Oriented Account - unlike many relational accounts, this one presumes no prior knowledge of people, places, and events on the part of the listener The Relational Account - describes and analyzes her problem in terms of social relationships rather than the kinds of rules that constitute legal doctrine - the rules-versus-relational dichotomy implicates some common gender stereotypes - the structure of the rule-oriented account reflects some defining beliefs that many men have about themselves: men think in straight lines, they get right to the point, they emphasize “facts” rather than emotions, and they have faith in general rules that apply to everyone regardless of personal circumstances o relational account evokes a widely held male stereotype of female thought and behaviour: women are imprecise in dealing with time, they wander off the point when telling stories, they let their emotions get in the way of the facts, and they get too engrossed in context to develop and apply general principles - the ability to produce rule-oriented accounts seem to be an acquired skill o remains largely a male prerogative - imbalance is highly significant because the law has a strong preference for rule-oriented accounts - relational accounts tend to predicate legal entitlement on personal need and worth - the law is preferring the abstract, rule-driven logic typical of men to the more contextual reasoning that characterizes women Moodle: Conley & O`Barr – Chapter 5 - Five contrasting approaches to the judicial role - These approaches are distinguished by different conceptions of the legal process, beliefs about the mandate of judges within that process, and decision making style - The strict adherent to the law sees the judge as a passive channel for the application of unyielding legal principles - The lawmaker considers the judge to be empowered to do whatever is necessary to reach fair results, even to the point of bending or inventing rules of law - The authoritative judge renders definitive judgments readily, but often presents them based on the judge’s personal opinion rather than the dictates of the law - The mediator attempts to avoid pronouncing judgment and instead uses the adjudicative process as a means for effecting compromise - The proceduralist purports to the concerned with simplifying procedure, but this concern often leads to an obsessive focus on procedural details that can distract litigants from the substance of a case Some Observations about the Linguistic Structure of Judgments - The portion of the trial that often gives the most succinct evidence about a judge’s orientation is the rendering of judgment - Structural components present in many judgments: o Judge provides notice of the impending judgment o Judge announces the decision in the case  Judges usually address their remarks in the judgment phase to one or another of the parties  The judge usually addresses the “loser” o Judge provides the factual and legal reasoning underlying the judgment o Judge gives advice The Jurisprudence of Judges: Differences in Approach to the Law – The Strict Adherent to the Law - Strict adherent views the law as a set of inflexible neutral principles - Role is to ascertain what principles are relevant to a given situation and to apply them straightforwardly - Little room for discretion in the decision-making process - Conveys to the litigants the message that the outcome of the cause is beyond his/her control - Disclaims responsibility for decision, attributing it to a force external to themselves: the law - To convey the assertion that the law is a set of immutable principles and that the role of the judge is merely to select the applicable principle and then to announce the result that this process yields o Under this view, legal process is dispassionate and value-neutral, relatively immune from manipulation The Law Maker - The judge who views the law not as a constraint, but as a resource - Renders judgments consistent with his or her sense of fairness and justice, even to the point of ignoring apparently applicable principles of law or inventing legal-sounding principles to fit the needs of particular cases - What distinguishes them is their unabashed willingness to manipulate rules of law in pursuit of goals that they value more highly than respect for legal precedent - After stating the issue and recapitulating the parties’ factual positions, judge emphasizes their responsibility for determining the facts – asserts responsibility for shaping the legal outcome - Law is portrayed as a malleable raw material to be employed in the pursuit of objectives defined without reference to legal rules The Mediator - The mediator pursues justice primarily through the manipulation of procedure - Mediated settlements are an overriding objective - Judges seek to identify and recommend to the parties settlement strategies that avert judgments which, for the winners, might be difficult to enforce, and, for the losers, might exacerbate already difficult personal situations - Striving for workable solutions conveys a subtle but powerful sense of authority and control - Makes it clear that forthcoming judgment is theirs and summarizes reasoning, then announces the decision - May defer the legal resolution of the case in an effort to resolve the underlying social issue - A mediating judge may enhance a litigants sense of well-being at the expense of that litigant’s ability to achieve tangible ends through legal means The Authoritative Decision Maker - Authoritative decision makers emphasize their personal responsibility for decisions - They resemble the strict adherents in that they follow the law as they believe it to be - In communicating judgments to the litigants, they give no indication that here is any source of legal authority beyond their personal opinions - Such judges often express critical opinions about the in-and out-of-court behaviour of the parties - Usually show no interest in mediating the conflict – prefacing judgment by telling the parties that they can appeal if they are unhappy with the terms of his decision - May make no reference to a body of law that guide the decision making - May provide extralegal commentary (in the form of criticism) - Present to litigants a different picture of the law and the legal process than judges with other approaches to legal decision-making - Authoritative judges use their personal authority to emphasize the finality of their decisions to suppress dissent, not in pursuit of compromise, and they are frequently authoritarian as well as authoritative The Proceduralist - Place high priority on maintaining procedural regularity - Invest substantial time in explaining procedure to litigants - Do not hesitate to point out procedural violations whenever they occur - Obsessive attention to procedure confuses and frustrates litigants who attempt to follow their instructions about the importance of informality - Give less attention to substantive legal issues - Claim responsibility for their decisions, and rarely interject themselves personally into cases - Believes that trials will follow a strictly adversarial model in which each party must present their own case - Seeks to avoid the role of structuring the presentation of evidence o May be condescending or sarcastic when forced to come to aid of confused/unprepared litigant - Key elements: notice of impending judgment, recitation of the facts as the judge finds them, brief announcement of the decision, and a usually perfunctory statement about where to obtain help in executing the judgment - Proceduralists’ judgments are comparable to those of the law makers, the mediators and the authoritative decision makers in that “facts” acquire meaning through the interpretive role of the judge - Judge speaks as the court and not in first person, and addresses both parties in third person - They present the substance of the law as flexible and outcomes as dependent of their discretion The Jurisprudence of Judges: Rules and Relationships? - Depending on the judge that a litigant draws, informal justice may mean mediation, enforced compromise, apologetic application of legal norms, authoritative decision making with social commentary or obsessive attention to the points of procedure - Strict adherents display a strong rule-orientation -- create image of the judge as the servant of inflexible legal rules o Facts are facts, immunable and nonnegotiable - For authoritative judges, facts are simply the outcome of the judge’s sorting out of the conflicting accounts o Willing and active collaborators in the dominance of rules - Mediators overriding concern is finding a compromise o When rule-oriented litigants have reached an impasse, a mediating judge will force them to rethink the problem in relational terms o May use rules to promote relational solutions - Law makers display a blend of relational and rule-oriented tendencies o Usually relationally oriented in the sense that they are willing to manipulate, ignore, or even invent legal rules in pursuit of relational objectives o Hybrids, pursuing a relational agenda while recognizing and deferring, at least superficially, to the power of rules - Proceduralists seem to view the legal process as an end in itself; the results that the process yields are almost an afterthought o Oriented primarily toward maintaining procedural regularity as a means of creating distance between the court and the litigants o Strongly rule-oriented in that they are constantly announcing rules and requiring litigants to follow them o While they flaunt the form of the law’s rule-orientation, in confronting substantive issues they seem not so much rule-oriented or relational as simply uninterested Accounting for the Variation in Judicial Approaches to Decision Making - Gender, class, race, and social experience - Lack of legal training and experience correlate with the tendency to displace responsibility for decisions onto rules that are beyond the control of the decision maker o Such judges lack the legal acumen and resulting confidence to take more personal and creative approaches - Judges who mediate most often are women o Mediating judges derive their relational orientation from their primary socialization as females Moodle: Harris (2001) - Model to identify two distinct styles of witness testimony, which he calls narrative and fragmented o More loquacious [talkative] responses (narrative) with what he considers to be brief, incisive and non-elaborate responses (fragmented) - It is the degree of fragmentation in a witness testimony which is interesting and variable - It is the control strategies of lawyers which are critical in determining both the content and form of witness testimony - Stygall argues that legal coherence has little to do with narrative order and sequencing, particularly in the evidential portions of a trial The Presentation of Evidence by Witnesses and Defendants - The evidential portions of trials are considered as the most compelling, complex and crucial to the outcome of the trial - Narratives in the evidential portions of trial are predominantly refracted through question and answer sequences and are subject to rules of evidence which do not permit expression of opinion, hearsay, speculation, evaluation in personal terms, etc. o All of these expressions associated with personal oral narratives - Personal oral narratives are most familiarized as narrative form The Identification and Structure of Narratives in Court - Labov’s definition of the narrative, which emphasizes both the referential (narratives match verbal sequences of clauses to sequences of events) and the temporal (the clauses in a narrative are characteristically ordered in a temporal sequence) is suited to analysis of trial language - Labov’s characterization of the minimal narrative as a sequence of two clauses which are temporally ordered and contain a single temporal juncture - Identified narratives in witness and defendant accounts as incorporating the following features: o 1) involve a recapitulation of past events, including speech events o 2) they contain a predominance of past tense verbs which are often simple past tense o 3) events are temporally ordered, though this temporal ordering sometimes includes an elaboration of an event which is itself non-temporal o 4) at least two independent clauses are present - Labov identified narrative structures essentially as follows: o Abstract – what the story is about o Orientation – who, what, when, where? o Complication action – then what happened? o Evaluation – so what, why interesting? o Result – what finally happened? o Coda – bridging back to the current situation - The evaluation is elevated from a structural component of the narrative to a secondary structure o Three types of evaluation and four categories of evaluative elements - Labov believed that narratives are composed primarily of actions (what is done rather than what is said or seen) o However, witness/defendant accounts usually are based on what is said or seen - Many, if not most, narratives in witness and defendant accounts are fragmented and involve multiple tellers in a different sense than casual conversation Analysis of Data - Modified Labovian model of narrative structure applied to trial data: o Orientation – the circumstances which surround the narrative account o Core narrative – the account itself: what happened, including often what was said and seen as well as what was done o Elaboration – provides further details, clarification, explication of the core narrative o Point – significance of the narrative account for the larger trial narrative - There are fewer narratives present in cross-examination - - Conclusions - There are varying degrees of fragmentation in narrative accounts in court and some level of fragmentation present in all accounts as a consequence of the question/answer mode of information exchange - Narrative accounts usually involve multiple tellers, and shifts between ‘teller’ and ‘knower’ are common and often strategically initiated by lawyers - Narrative structures in witness and defendant accounts are generally less complex - Lawyers seek to elicit from witnesses coherent and credible core narratives whose significant must be evaluated and made manifest to the jury by means of point, either explicitly or by means of an implicature - Narratives occur less frequently in cross-examinations TH FEBRUARY 6 , 2013 Conley & O’Barr: Chapter 2 Rape and Power - FBI reports 4 or 5 women per 1000 are raped each year o Investigators have produced data indicating that rapes are at least ten times more common than that - Focus on rape as an exercise in power o At the physical level: rape is a crime in which a man overpowers a woman, using actual or threatened force to take sexual advantage of her - At any point in history, the definition of rape has included only a limited subset of all possible acts of non-consensual sex - The fact that society has tolerated any forms of forced sex makes a statement about power relations and the sexualisation of violence o If particular acts of forced sex have to be specifically defined as criminal, then the unstated premise is that women are presumed to be subject to the power of men - Critics of the legal system point out that rape is grossly underreported o When it is reported, convictions are rarely obtained - Elements of the crime are defined in male terms o Law, in other words, is patriarchal, because it is written and applied from a male point of view - Most controversial mechanism of revictimization is the common defense tactic of cross- examining the victim about her prior sexual history - Although these new laws appear to make a different ideological statement about gender relations than did their patriarchal predecessors, realities of men’s power over women seem little changed - Gregory Matoesian o Essential point is that the realities of power are far more complex o Concepts of power and domination and their real-world manifestations are two sides of the same coin. On the one hand, power is an underlying reality that helps shape the rules by which those conflicts are waged and their outcomes determined: men are able to dominate rape prosecutions because they have power. On the other hand, power is the label we apply to the pattern we observe in the outcomes of innumerable daily social conflicts: men seem to dominate rape prosecutions, so they must have power. Efforts to change the distribution of power by tinkering with the structures through which it is exercised are doomed to failure o Argues linguistic analysis can help us understand the nature of power itself. Language is the primary mechanism by which we act out the power relations in our society. It is also a means by which we reaffirm those power relations. Our shared understandings of power give meaning to the way we talk, but at the same time, the way we talk helps to shape our understandings - Discourse is connected to both thought and action o A way of talking about something is also a way of thinking about it - The flow of influence is in both directions: higher-order discourse informs day-to-day talk, but the latter also shapes the former - Moteosian draws on the methods of conversation analysis o Conversations that occur in everyday context – marveled at the orderliness of conversations that we, as members of society, take for granted, and have sought to discover the resources that we use to maintain that order Principle of Conversation Analysis - Its method is straightforward: record everyday conversations, transcribe them, and then dissect the transcripts in an effort to discern the resources that people employ to maintain order and coherence o Most important discovery about talk in everyday contexts is its orderly and highly structured nature - Structure is the grammar of turn-taking o Grammar of conversation specifies the following:  A person who is speaking can expect to finish a syntactically complete utterance before the issue arises of who gets to talk next  A speaker who reaches a syntactically complete point in the utterance must either relinquish the turn or attempt to continue speaking  A person who is speaking can influence who the next speaker will be  When speaker overlaps do occur, one speaker normally continues as others drop out - Special rules governing court room have distinctive features not present in everyday conversations o Judge who acts as referee to oversee the system of turn-taking, monitor the substance of what is discussed, and resolve complex interactional problems when they arise o Witnesses have no comparable power to demand that lawyers ask questions that they deem relevant to issue at hand o Structural arrangements for talking in court do not privilege all speakers in the same way o Cross-examination is a hostile environment for both the lawyer and the witness o Lawyers make maximal use of the linguistic power accorded to them Conversation Analysis of Rape Trials - Five features that lawyers manipulate to control witnesses: silence, question form, topic management, evaluative commentary, and challenges to the witness’s capacity for knowledge Silence - Use of silence for strategic purposes is almost exclusive in the hands of the lawyer - Lawyers control over silence allows them to accomplish two importance strategic objectives o They can manipulate the law’s question and answer format in ways not usually permitted by the turn-taking rules of the courtroom o They can comment critically on a witness’s credibility, a practice normally forbidden by the rules of evidence - Silence is a tool for lawyers in their management and control of courtroom discourse Question Form - Form of a question can limit the range of permissible answers available to the witness – some kinds of questions can also serve as statements of blame that stand irrespective of the witness’s answer - WH Question is the least controlling and coercive because it imposes no particular form on the answer o Open-ended, why, where, when, which, who, what, how question - The tag question, with its implicit insistence on a yes/no answer, is the most controlling o Statement followed by a question - By controlling question form, the lawyer is thus able to transform the cross-examination from dialogue into self-serving monologue Topic Management - The lawyer may then seek to regain control by repeating, rephrasing, or elaborating on questions that have failed to elicit the desired answers - When the witness sidesteps a pejorative question, the lawyer can use elements of the answer to frame another question that is almost equally damaging Commentary - Opportunity to make covert evaluative comments on the witness’s behaviour o Such comments are not stated directly, but are embedded in questions - The rhetorical force of the question is to comment critically - Lawyer structures the question so as both to offer an evaluative comment and to demand that the witness confirm his evaluation in her answer - The fact that witnesses have no resource parallel to the objections permitted to lawyers further underscores the imbalance of power under which witnesses must face examination The Witness’s Capacity for Knowledge - Matoesian calls these challenges “epistemological filters” o The lawyers call into question not only the specific facts the witness claims to know, but also the sources of the claimed knowledge, and ultimately whether the witness is capable of knowing anything at all Is It Really about Rape? - Perhaps we think we see something unique because the adversarial treatment of rape victims is particularly offensive to our moral and political sensibilities - The jury must decide whether the behaviour in question was an act of domination o It is hard to think of another crime that has precisely these qualities o Linguistic strategies reviewed are all strategies of domination The Sexual Double Bind - The double bind is the dilemma that an acquaintance rape victim finds herself in when she tries to explain her interaction with the defendant - A critical element of the explanation is how the witness describes her state of mind at various points before and after the alleged rape - Rape victims are not allowed to negotiate a middle course between emotion and reason Sexual History - Rape victims are also subject to attack on the basis of their sexual history with men other than the defendants Eades Excerpt 2008 - Several Canadian inquiries investigated allegations of police officers abusing aboriginal people in the same way as Pinkenba case – removing them from public place and abandoning them in an isolated area - Fact that there is a single lexical item “drop-off” used to refer to practice suggests it is not an unusual occurrence - In a criminal trial in such a case, the outcome depends on what the aboriginal young person says in court o Evidence can be extremely manipulated Lexical Struggles in Court – Eades (2006) FEBRUARY 13 , 2013TH Erlich & Sidnell (2006) Introduction - Drew & Heritage (1992:49) note that an important dimension of such asymmetry in institutional discourse “arises from the predominantly question-answer pattern of interaction.” This organization, it is suggested, provides little opportunity for the answerer (typically a layperson) to initiate talk and thus allows the institutional representative “to gain a measure of control over the introduction of topics and hence of the ‘agenda’ for the occasion.” - Interactional asymmetry of courtroom discourse is most pronounced during cross-examination - We argue that the power of cross-examining lawyers does not reside solely in their ability to ask controlling and restrictive questions of witnesses, but rather is crucially dependent on their ability to compel witnesses to produce straightforward answers – or what we call type- conforming answers – to these controlling and restrictive questions Questioning in adversarial contexts: issues of control and presupposition - Woodbury’s category of controlling questions is defined in precisely this way: in terms of the extent to which a question’s form imposes a questioner’s interpretation or words on the evidence - By contrast, a yes/no question with a tag, such as “you were attracted to him, weren’t you?”, is more controlling because it contains a pseudo-proposition – “the witness was attracted to him” – that is made available to the third-party recipients, irrespective of the addressee’s answer - Even more controlling are questions with presuppositions - It is precisely the capacity to survive in the context of negation that has been taken to distinguish presuppositions from semantic entailments - Presupposition triggers o These are linguistic expressions or constructions that seem to carry with them presuppositions about either the existence or the truth of something o This list includes definite descriptions, implicative verbs (e.g. managed implies tried), change of state verbs (stop, start, continue imply that whatever action they modify has happened), clef and pseudo-cleft sentences (e.g. it wasn`t john that hit rosie implies “someone hit rosie”), factive (e.g. verbs such as be aware, realize, know and regret) that presuppose the truth of their complement - Presuppositions are a powerful instrument in the implicit assertion of debatable propositions o Contribute to the building of a consensual reality (Chilton) - Addressees have difficulty disagreeing with or challenging the presuppositions of questions - Negation occurs either with wide scope as in the presupposition-denying interpretation or with narrow scope as in the presupposition-preserving interpretation - In conversation, we find that presuppositions are usually not taken up and made explicit in subsequent talk Type-Conforming vs. Non-Type-Conforming Responses - Raymond’s distinction between type-conforming and non-type-conforming responses to questions, a distinction based on the extent to which responses conform to the constraints embodied in the grammatical form of a question o Example “yes” and “no” are type conforming responses to yes/no questions o Responses that depart from constraints embodied in yes/no question are non-type- conforming - Type-conforming responses, whether affirmative or negative, accept the terms and presuppositions of a yes/no question, whereas non-type conforming responses treat them as problematic in some way - In courtroom discourse, cross-examining lawyers often design yes/no questions containing presuppositions that support their client’s version of events and that will not necessarily reflect what is common knowledge among interlocutors - Witnesses in courtrooms can be compelled to produce type-conforming responses - According to the official mandate, an inquiry is strictly a “fact-finding” exercise and not an attempt to attribute responsibility and assign blame Factive Predicates and Presuppositions in the Lawyers’ Questions - In inquiry testimony, witnesses are not compelled by lawyers or judges to answer questions directly - Factive predicates presuppose the truth of their complements Addressing presuppositions directly and not producing recognizable answers - One of the ways Harris resisted the presuppositions of lawyers’ questions was to address directly, and to problematize in some way, the damaging presupposition Transforming presuppositions while producing recognizable answers - As Clayman & Heritage have noted, one of the ways that a stretch of talk becomes recognizable as an “answer” is by preserving some of the exact wording of the question in the response to that question - Atkinson & Drew showed that lawyers typically use question-answer pairs to build a line of questioning o Routinely, a line of questioning begins with a question that merely establishes some fact o Once established, these facts are then used in such a way as to allocate blame or responsibility, to discredit a witness, or to reveal an inconsistency o Often these facts are established by lawyers in the form of presuppositions Conclusion - While most of the questions asked of Harris in the Walkerton Inquiry were coercive and controlling and apparently designed to undermine his credibility, the fact that he was never forced to produce type-conforming responses meant that he could resist the damaging presuppositions embedded in lawyers’ question - Harris at times directly addressed the presuppositions of questions, either challenging their status as appropriately presupposed or denying the presuppositions themselves - The fact that Harris was not compelled to produce type-conforming responses resulted in an interactional relationship between questioner and answerer that was arguably more symmetrical than those described for many courtroom settings Komter (1994) - Double commitment to legal rules and to everyday rules reflects the simultaneous operation of institutional and interactional environments of action - Social order can be studied by investigating the ways in which members produce and make sense of talk in interaction Formal Accusations and Conversational Mechanisms - If accusations are made there is a tendency to mitigate them o Desire to avoid loss of face not only for oneself, but also for others o Because silence can be interpreted as an admission of guilt, those accused will react admittedly with a denial, counter-accusation, justification or an excuse - Indictment in court differs on several basis: o Not offended party who makes accusation bu
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