February 13, 2006

Presenting linguistic evidence in court

[This is a guest post by Roger Shuy, Language Log's forensic linguistics correspondent.]

Here's a novel idea. Why not use experts to do experts' work?

Language Log has done a lot to show how reporters don't quite get it right when they quote what their sources say (see here and here and here and lots of earlier posts). We might expect better of them, but the sad truth is that they are no worse than our courts when it comes to reducing the spoken word to writing.

We all know that lawyers try their cases in the courtroom using spoken language. But after the trial ends, only the written form of the oral exchanges is preserved in memory. This written version is what is used as a basis for settlement, sentencing, and appeals. In the courtroom, once speech is written down, it freezes, assumes authority and becomes resistant to change. In his excellent book, Legal Language, Peter Tiersma tells us that it wasn't until the end of the eighteenth century that judges began to issue written opinions systematically. He also points out that what today's American appellate judges say is now virtually irrelevant, that all that really matters is what they write and that this development has led to the doctrine of precedent, among other things.

Even if the legal community's preference for the written word is thought to have advantages, when the major evidence in a criminal case is tape-recorded spoken language, a number of difficult problems can make things ugly. For example, how can these undercover conversations between law enforcement officers and suspects be best communicated to a jury? Playing the tapes to a jury sounds okay, except for a few serious problems, including the following.

1. Task unfamiliarity. The jurors are not used to listening to tapes this way. Speech goes by very fast and they can easily miss the crucial things that expert linguists are trained to hear. Jurors often get to listen to the tapes only once during trial, although they can take into the jury deliberation room if they ask for them.

2. Quantity. In some cases there can be many, many tapes to hear. In the case of John Z. DeLorean, the automaker tried for narcotics conspiracy, there were 63 hours of conversation over a period of about a year. Simply following the convoluted development of themes and topics discussed is painstaking for even a trained analyst, much less for a jury. The BCCI money laundering case had over a thousand hours of taped conversation between many speakers using different varieties of foreign sounding English. The sheer quantity of tapes often leads the prosecution to excerpt only those portions of the conversation that best suit their case, allegedly making the jury's task simpler. True, the defense is allowed to use those deleted and sometimes redacted portions although they often don't know how to do this. In addition, sometimes the undercover agent has control of when to turn the tape on and off, making it impossible to know what might have happened in the off-tape conversations.

3. Quality. The quality of the tape recordings sometimes makes listening to them daunting for jurors. Often conversations are recorded in noisy restaurants or inside automobiles with the radio blaring. Telephone calls are usually a bit easier to hear, but not always. The task of just listening, much less understanding, is difficult for the untrained ear.

4. Transcripts. Okay, if tapes are so hard to hear, why not provide a written transcript? Trying to accommodate these problems, judges in most jurisdictions permit a transcript of the conversation to be provided as an aid to the jury, introducing still another problem. Although transcripts (when accurate) can indeed be helpful in keeping track of who said what to whom and when, my experience shows that invariably the persons making the transcript produce many errors. Among other things, they sometimes attribute turns of talk to the wrong speakers, leave out words, sentences and sometimes even longer passages, miss-hear a lot of what is said, and make creative but erroneous interpretations. In addition, they often guess at passages that the audiotapes do not and cannot indicate, such as "suspect counts the money," or "opens desk drawer." Nor do they include important timing information that would show that five seconds or even ten minutes elapse with no speech audible on the tape. Even worse, they sometimes correct the grammar of the police and delete their foul language while leaving these intact for the suspects.

The way the prosecution creates these transcripts is perhaps the most depressing thing of all. To my knowledge, no explicit procedure has ever been described but there is every reason to believe that many transcripts are made by secretaries, whose job skills may include taking dictation. They listen to the tapes and write down what they think they hear. Even when court reporters are used, the product is often inaccurate. After the initial transcript is made, the agent who participated in the undercover investigation reviews the transcript and corrects it to reflect what he thought was said. It is common for this to favor the prosecution, of course.

Why do such practices continue? Largely because not enough outrage and criticism has moved the courts to understand that important aspects of language are omitted when spoken language is written down. Audiotapes don't contain the information found on videotapes, which are better in indicating where the speakers are located in relationship to each other and who was present when the talk took place. Is it possible that the suspects couldn't even hear the agents' representations of illegality? But even audiotapes contain much more information than written transcripts.

I don't have to tell you that there are several serious problems with the way transcripts are used in our court system. For one thing, based on my experience the final transcripts most frequently err on the side of making the suspect look guiltier than he might be. Why? Goodwin's notion of professional vision springs to mind. Most our jobs in life pass along to us the professional vision of our group — how to think and act like it. Police have a professional vision that leads them to spot, even anticipate, aggressive behavior because this can be helpful to them in their work on the street. The professional vision of lawyers is to advocate. The professional vision of prosecutors is that suspects must be guilty because it's their job to put them in prison. Defense lawyers have the opposite vision because it's their task to be sure that their clients go free. And to be fair, I should mention that transcripts prepared by the defense can be equally biased and wrong.

When the courts accept transcripts made by people whose jobs it is to prosecute, objectivity, neutrality and accuracy suffer. To combat advocacy, the courts need objective and knowledgeable third parties to make the transcripts. What is needed is a more neutral, objective vision. Does the job of the linguist spring to mind here?

It seems clear to me that linguists could be extremely helpful to our legal processes, as long as they aren't sucked into the advocacy of whichever side they work for. The obvious idea is to have linguists working for the court, not as expert witnesses for either the prosecution or the defense.

What useful linguist-produced transcripts for the jury to use might look like is another matter. They can't contain phonetic notations, for example, because they have to be easy for laypersons to read easily. That's a topic for another post on another occasion.

— Roger Shuy

Posted by Geoffrey K. Pullum at February 13, 2006 10:24 PM