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Towards a
Critical Forensic Linguistics
In the past twenty years
linguists and phoneticians have been ever more frequently invited to act as
expert witnesses in court cases, when language has been part of the evidence.
Usually, their evidence is 'legal system neutral' - for instance when they
express an opinion on the likelihood that the voice recorded committing a crime,
or the person who texted a suspect message or authored a piece of hate mail, is
indeed the accused. However, at times linguists intervene and work
critically to change linguistic aspects of the legal system to make is fairer
and/or safer.
In this paper I will give
examples from five areas where intervention is needed or is already
occurring:
a) One of the basic
rights of anyone accused of a crime is to have access to accurate records of the
evidence collected against them. In Britain, in response to a series of
miscarriages of justice where handwritten police records of interviews were
shown to have been falsified, all interviews with suspects and court proceedings
are now standardly tape-recorded, so that there is an independent record for
future reference. In many countries this is still not true - see Gibbons (2001)
for an example from Chile of how an official written summary can be inaccurate
but unchallengeable.
b) There are many problems at the legal/lay
interface, where texts written to be legally accurate are anything but
transparent and so do not communicate well with a lay audience. A clear example
of this are pattern jury instructions. Linguists have drawn attention to the
worst of these definitions - see Dumas 2002 - and in California have been
involved in redrafting, Tiersma (200&).
c) There is a major need to
distinguish genuine asylum seekers from economic refugees but some governments
are placing too much faith in language tests. Linguists are campaigning
against the use of current tests and are working to design more reliable tests
and better trained testers. Eades (2002).
d) The role of interpreters
in the legal system is still under negotiation. Many legal professionals
strongly dislike using interpreters because it, apparently unnecessarily, slows
down the process, and some judges even feel competent to assess the linguistic
competence of witnesses, Eades (1995). Linguists are working in two areas:
firstly, to inform legal professionals and to secure the basic right of all
those involved in the legal process to an interpreter and secondly to help
professionals work more successfully with interpreters.
e) Finally,
linguists are setting out to control the quality of the evidence produced by
those working as forensic experts. This is being done in the UK firstly, by
signing up with the Council for the Registration of Forensic Practitioners,
which will mean that in the longer term only those accredited will be able to
give evidence and secondly, by at the same time running professionalising
Masters courses in forensic linguistics and phonetics.
Dumas B 2002 'Reasonable doubt
about reasonable doubt: assessing jury instruction adequacy in a capital case',
in J Cotterill (ed.), Language in the Legal Process, London: Palgrave,
246-259.
Eades D 1995 Language in Evidence: Linguistic and Legal Perspectives
in Multicultural Australia, Sydney, Australia: University of New South Wales
Press.
Eades D 2005 'Applied linguistics and language analysis in asylum
seeker cases' Applied Linguistics, 26, 4, 503-26.
Gibbons J 1996 'Distortions
of the police interview process revealed by video-tape', Forensic Linguistics:
the International Journal of Speech, Language and the Law, 3ii,
289-98,
Gibbons, J 2001 'Legal transformation in Spanish: an 'audiencia' in
Chile, Forensic Linguistics: the International Journal of Speech, Language and
the Law, 8, ii, 24-43
Tiersma P 200
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