fter the boxing ring, the courtroom may be the closest that the modern age comes to the Roman Coliseum. A celebrity case or the lesser lights of local scandal always attract a throng to watch the conflict. With high-profile trials recast as sport or entertainment, experts opine on the players and the process, newscasters keep score, attorneys wield words and reasoning to win the fight for justice and the American way, the judge referees; and when it’s all over, the public takes great glee in defending or deploring the result, indeed the legal system itself.

The audience for courtroom drama is so wide that a cable channel can survive on a steady diet of trials. But the more visible and audible legal proceedings become to the public, the more resonant certain questions become: how powerful a weapon is legalese? To what extent does the language of the law contribute to the doing or undoing of justice? To what degree are jury instructions comprehensible to the average person? How is language used to humiliate or intimidate witnesses? If a witness is constrained to answer in a yes/no format, can “the whole truth” be conveyed? And finally, the $64,000 question: How close does the Anglo-American judicial system come to its ideal of fairness for all?

Court administrators do not concern themselves with such matters, considered “philosophic,” “semantic,” even “political.” Judges and attorneys rarely pause to reflect on the nature of legalese: they speak it as though it were English. But where does the ambiguity of language begin, or end? And where to turn for insight?

Look to the forensic linguists, who use the tools of social science to stake out the territory where language and the law interact. Three years ago a small group of them banded together and formed the International Association of Forensic Linguists, which holds biannual conferences, the most recent on September 4-7, at Duke University in Durham, North Carolina. Inquisitive court interpreters—quite a few of us, both sign and spoken-language, were in attendance, found their program attractive, not least of all because topics ran the gamut, intersecting with philosophy, English, legal studies, dialectology, language arts, sociology, psychology, cultural anthropology, semantics, phonology and comparative anthropology. Quite a few sessions were included on interpreter administration, testing and monitoring, with Australia, the U.K., Japan, Hong Kong and the U.S. represented, and for good reason: in all these places, interpreter use is on the rise.

Traditionally, the term “linguist” has referred to someone who studies or speaks foreign languages. Although some interpreters or translators still use the term that way, linguistics as an academic discipline—the scientific study of language—came into its own in the 1960’s and has now branched out into various subdivisions, of which forensic linguistics is one. Some but not all court interpreters actually have a background in linguistics , and to judge from this conference, we would all be well advised to catch up with what is happening in the field.

Unfortunately, it is not widely known what forensic linguists study or how they can be useful in court. Judges and attorneys who stand to benefit the most from their knowledge are not even aware of their existence. Forensic linguists are roughly analagous to fingerprint experts, only of language. When people speak spontaneously, their “linguistic prints” are highly characteristic and can be described and compared to their language use in other contexts. Forensic linguists can examine in a scientific way the effects of known language in a known context, and thus can offer linguistic clues that may support or rule out multiple interpretations.

While it is true that everything is subject to interpretation, common sense and experience in language count for a great deal . If a witness says, “My mother will kill me,” no expert need testify that this is a common way of conveying the speaker’s fear that mother may not entirely approve. Indeed, attorneys often argue alternative interpretations of taped (English) conversations to the jury and leave the jury to draw its own conclusions. Yet there are occasions when linguistic testimony might prove illuminating for juries and judges, giving them a better grasp of the array of factors that color meaning. Linguistic knowledge is often about things we suspect intuitively without knowing they can be analyzed scientifically. For example, if a written confession is introduced into evidence, how do we know who the author was? Was it the suspect, or could it have been a fabrication by the police? A forensic linguist could help the jury understand why it is important to analyze the confession carefully, indicating specific “markers” to look for. These are the details an untrained eye will not see—and, as the saying goes, the devil is in the details. Like other experts, the forensic linguist can assist the trier of fact by providing a framework to understand the nature of the evidence. The message of linguistics is that how something is said—the form of a sentence or question—shapes and can even determine what is conveyed.

Fascinating and Disturbing Findings

At the Duke conference, fascinating and disturbing research findings were reported about language use in court and other settings, both with and without interpreters. One study found that medical patients volunteering for research were mostly confused about the terms “medical study,” “clinical trial,” “medical experiment” and “clinical investigation,” often not understanding the basic difference between research and treatment. To obtain ethically meaningful informed consent, then, doctors would need to ask patients directly about their understanding of these terms. Another study found, in the case of land rights for the aboriginal population in Australia, that the term “local descent group” had been variously interpreted over a ten-year period by judges according to what they believed was “common knowledge” (in contrast to the dictionary definition), and the judges’ interpretations were not always consistent with anthropological knowledge.

Several presentations focused on “discourse markers,” “function words,” “content words,” “focusing devices,” “politeness markers,” etc. Interestingly, it was found that hesitations and discourse markers were highly likely to be omitted by both transcribers and interpreters, perhaps because these words are considered unessential fillers; but they have emotional and emphatic impact and should not be omitted.

Malcolm Coulthard examined two texts, a police report and an earlier confession the report was allegedly based on; his analysis showed that the police had acted as amateur dramatists in creating a text that would appear to be a “spontaneous” confession. While confession is considered powerful evidence against an accused, statistics reveal it is the third leading cause of wrongful conviction after perjury and eyewitness error, as Gillian Gebler pointed out in yet another analysis of police interrogation techniques. Along the same lines, crass language and a baiting style used in cross-examination at a commitment hearing for mistreated Aboriginal teenagers in Australia was found to elicit frequent “gratuitous concurrence,” getting confused witnesses to answer “yes” and contradict themselves. Even the so-called “dying declaration” exception to the hearsay rule (the law recognizes that just before death one is more likely to tell the truth) was debunked, as Bryan Liang, both doctor and attorney, illustrated all the ways in which reconstructed or reported speech can be distorted. He warned that “Everything can be moved from one place to another without being changed, except speech.” In another session the anatomy of threats was discussed and a typology suggested. (Cultural norms vary here, too. In a recent Hong Kong case, “I hope we can sit down and have tea when this is all over” was perceived as a threat, causing the listener later to commit suicide.) One experiment using various versions of a jury charge on the “mental state” portion of an insanity defense found that jurors were often confused by the “If X, then not Y” construction; the most effective explanation was a tree diagram with the explanation rewritten in more accessible language. Several presentations focused on the language used in rape trials, which by structured questioning places the victim once again in a situation over which she has no control.

The studies involving interpreters cited anecdotal evidence or small samplings of interpreter performance, but it was found that (1) interpreters often misinterpret (omit or change) entire portions of questions and answers; and (2) attorney control over testimony was mostly lost in cross-examination because interpreters lessened the degree of coerciveness in their interpretations of the questions. But the lack of training programs has plagued the profession since its inception, and these conclusions only confirm a need that is already acute.

Roger Shuy (author of Language Crimes) suggested further research is needed on the wording of the Miranda warning. Lawrence Solan (author of The Language of Judges, and keynote speaker at the 1994 NAJIT convention) proved an excellent guide to the literature and history of expert linguists in court. As Shuy pointed out, the fields of law and linguistics look at the same data with different eyes. Much linguistic research has already been done on what is called powerful and powerless language, conversational strategies, and the pragmatic and semantic aspects of communication. If there was a common thread to all the conference presentations, it was that the fate of the innocently accused can depend to a large degree on linguistic insights. The linguists at this conference were clearly well-versed in law; it remains to be seen whether the legal profession will take their cue and at long last discover linguistics. Law enforcement agencies have already begun to look at the investigative uses of linguistic analysis, which can be applied to electronically produced documents as well as handwritten ones.

Nancy Festinger (Nancy_Festinger@nysd.uscourts.gov) is Chief Interpreter for the U.S. District Court, Southern District of New York.