Language in the Judicial Process


Joint International Conference on Law and Society

 

Joint International Conference on Law and SocietyJuly 10-13, 1996
University of Strathclyde
Glasgow, Scotland

Language and Law Panels

#2108. Thursday, July 11, 8:30 – 10:15 am

Session Title: Language and Law I: Plain Language Around the World

Peter Tiersma, Loyola Law School
Chair/Discussant
Barbro Ehrenberg-Sundin, Ministry of Justice, Stockholm
Plain Swedish Statute Drafting
Joseph Kimble, Thomas M. Cooley Law School
The State of the Plain English Movement
Dennis Kurzon, Haifa Universtiy
The Language of Legal Documents and Multi-Ethnicity: The Case of Legal Hebrew
Mami Hiraike Okawara, Takasaki City University of Economics
Comprehensibility of Japanese Legal Language

#2207. Thursday, July 11, 10:30 am – 12:15 pm

Session Title: Language and Law II: Power and Ideology

Lawrence Solan, Brooklyn Law School
Chair/Discussant
Susan Berk-Seligson, University of Pittsburgh
Language, Power, and Influence in Congressional Committee Hearings: The Impact of Gender on the Verbal Participation of Lawmakers in the Costa Rican Legislative Assembly
Georgia M. Green, University of Illinois
How to Get People With Words: Manipulating a Witness
Rosina Lippi-Green, University of Michigan
Normal People with a Normal Language: Accent, Language Ideology, and Discriminatory Pretext in the U.S. Courts

#3207. Friday, July 12, 10:30 – 12:15 pm

Session Title: Language and Law III: The Legal Text

Dennis Kurzon, Haifa University
Chair/Discussant
John M. Conley, University of North Carolina, and
William M. O’Barr, Duke University
A Generation of Law and Language Research: A Critical Reappraisal
Bernard Jackson, University of Liverpool
Who Enacts Statutes? A Semiotic Analysis
Lawrence Solan, Brooklyn Law School
The Decline of Textualism in American Courts
Peter Tiersma, Loyola Law School
From Literate to Literal: The Increasing Authoritativeness of the Judicial Text
#3311. Friday, July 12, 1:00 – 2:45 pm

Session Title: Language and Law IV: In the Courtroom

Georgia M. Green, University of Illinois
Chair/Discussant
Steven Cushing, Northeastern University and Union Institute Graduate School
Language, Ideology, and Juror Objectivity: The Meaning of Murder
Bethany K. Dumas, University of Tennessee
The Power of Misconceptions About Language in Criminal Tape Cases
Kate Storey, Monash University
Kissing the Jury: Advantages and Limitations of “Keep It Simple” Principle in the Presentation of Expert Evidence
Graham H. Turner, University of Central Lancashire
Interpreting in Virtual Space: Accommodating Spoken and Signed Languages in Legal Discourse

Abstracts of Papers Scheduled for Presentation

#2108. Thursday, July 11, 8:30 – 10:15 am

Session Title: Language and Law I: Plain Language Around the World

Barbro Ehrenberg-Sundin, Ministry of Justice, StockholmPlain Swedish Statute Drafting

The Cabinet Office is the main source of initiative for the plain language movement in Sweden.

Since 1980 we are a team of three plain language experts seeing to it that the senior officials use a plain language approach in their legislative drafting. All draft statutes and government bills destined for the Riksdag (the parliament) are sent to us for a final revision. We also write guidelines and organize training sessions for the senior officials to help them to prepare drafts, bills, commission reports and governmental decisions in a rational and user-friendly way.

The ordinance for the Ministries (1982) prescribes that the Under-Secretary for Legal Affairs in the Cabinet Office must ensure that “all statutes and decisions are written in a clear and simple language.” With this support we have been carrying out noticable text reforms during the last fifteen years. The achievements within the ministries are now being spread to state agencies and to local authorities. The Plain Swedish Group, recently appointed by the government, has gotten the assignment to convey the experiences and to encourage state agencies all over Sweden to start plain language projects.


Joseph Kimble, Thomas M. Cooley Law School

The State of the Plain English Movement

The international Plain English movement has gathered force in the last ten years, although the battle is far from won. The movement still faces indifference and resistance from lawyers.

Professor Kimble will mention some organizations and activities around the world: in England, the Plain English Campaign, the Plain English Commission, and CLARITY; in the United States, the Information Design Center, the Legal Writing Institute, and several state-bar associations; in Canada, an inter-agency project to develop a process for drafting in plain language; in Australia, the Law Reform Commission of Victoria, the Centre for Plain Legal language, and the Corporations Law Simplification Program; in New Zealand, the New Zealand Law Commission; in the neew South Africa, an initiative by the Ministry of Justice to write laws and government forms in plain language.

One reason for the resistance is the myths that surround plain language: it’s just baby talk; it debases the language; it’s not as precise or accurate as traditional legal style; its impossible because lawyers have to use terms of art. In reality, plain language has a long literary tradition, it’s every bit as accurate as traditional style, and it recognizes that a small part of legal documents may consist in terms of art.

The movement will eventually win out when we can convince writers that the costs of poor communication are enormous–not only in economic terms, but also in the public’s attitude toward the institutions of business, government, and law.


Dennis Kurzon, Haifa University/The Hebrew University of Jerusalem

The Language of Legal Documents and Multi-Ethnicity: The Case of Legal Hebrew

For the last 15 years or so, there have been groups of lawyers and consumers in English-speaking countries who have demanded changes in the style and structure of legal documents such as laws and contracts. They claim that such changes will alleviate the problems among the consumers of legal services, i.e. the general public.

In the USA such pressure groups received support from the then president, Jimmy Carter, who even had a law passed to encourage Plain English. In Britain, the Plain English Campaign has received at least moral support from the Royal Family and leading government and opposition politicians, while in Australia, legal firms offer services in writing simpler and more comprehensible documents. The question asked in the present research is whether there is a similar problem concerning legal documents in Hebrew. Is a change to plainer Hebrew needed at all in order to enable a better understanding of such documents?

Groups of Humanities students were asked to read two short texts one from a contract or an insurance policy, and the other a non-legal text, and then to answer several questions on each. The non-legal text served as a control text, to check the subjects’ general ability to understand formal written texts.

The paper to be delivered will discuss the results of the research.


Mami Hiraike Okawara, Takasaki City University of Economics

Comprehensibility of Japanese Legal Language

I will, firstly, review the history of legal Japanese from the 7th century through present to seize its peculiar linguistic features. Secondly I would like to make two comparisions: one comparison between the amended Penal Code of Japan in its old Code and another comparions between the amended Code and the written Japanese. The amended Penal Code has been made mairly for the purpose of using plain Japanese and has come into force since the 1st of June of 1995.

Japanese legal language started with the imitation of the Chinese counterpart. Although Japanese had been already spoken in the nation the Chinese language was used as the written legal language, with the introduction of Chinese laws in Japan in the 7th century. As the warriors, lacking proper attainments of Chinese language, gained power in the politics after the 12th century, ordinary Japanese was tried to use in the legal language. The Imperial Restoration in the middle of the century, however, shifted legal Japanese from ‘quasi-ordinary Japanese’ to Tclassic Japanese’. The establishment of the Constitution of Japan in plain Japanese after Wars imposed plain language on amendments afterward. However, the old Penal Code with strong Chinese influences has been one of the most difficult codes for the person to understand. I will contrast the amended Code with the old Code in terms of types of character, styles, punctuation, terms, etc. I would like to raise some different points of the amended Code in comparison with ordinary written Japanese and discuss the difficulty and necessity of imposing plain Japanese on the legal language.


#2207. Thursday, July 11, 10:30 am – 12:15 pm

Session Title: Language and Law II: Power and Ideology

Susan Berk-Seligson, University of Pittsburgh

Language, Power, and Influence in Congressional Committee Hearings: The Impact of Gender on the Verbal Participation of Lawmakers in the Costa Rican Legislative Assembly

Women throughout the world increasingly are being elected to public office. Recent research, however, questions whether a greater proportion of women in national office translates into a commensurate increase in their legislative power. Specifically, this study explores the question as to whether female and male members of congress in committee hearings of the Costa Rican Legislative Assembly participate to a different degree and in and a different manner along gender lines. Participation is viewed from the perspective of conversational analysis, that is, as floor-holding within a turn-taking system. The study seeks to determine whether women members of the Costa Rican congress influence policy-making to the same degree as male representatives do. To this end, congresswomen’s verbal participation in committee hearing discussions will be compared with their effectiveness in getting laws passed.

The specific verbal aspects of participation that have been singled out by conversational analysts as reflecting differences in social power are the following: total volume of talk of each participant at a given meeting, the mean length of turns at talk of each individual, the number of turns taken by each one, and the number of times a participant interrupts or is interrupted by another. The Costa Rican congressional committee hearings will be analyzed from this vantage point. The data to be analyzed consist of a sample drawn from 1,240 hearings of four standing committees of the Asamblea Legislativa: the Committee on Social Matters, the Committee on Matters Relating to Agriculture/Livestock and Natural Resources, the Committee on Budgetary Matters, and the Committee on Judicial Matters. They represent the 1990-1994 legislative term. Since the four congressional committees chosen for analysis vary in the number of women permanently assigned to them, the analysis will be able to determine whether the presence of a larger number of women on such committees, as opposed to a smaller number, helps or hinders the passage of laws generally perceived by women as being of particular relevance to them.


Georgia M. Green, University of Illinois

How to Get People With Words: Manipulating a Witness

Ostensibly the purpose of questioning a party’s witness, whether in cross-examination, or as part of mandated discovery opportunities, is to allow the opposing party access to the witness’ relevant knowledge. However, because of the conditions under which a deposition is taken (sworn testimony, recorded verbatim, with no authority present to rule on the propriety or relevance of questions), a deposition is also an opportunity (even more than cross-examination) to collect sworn testimony for the purpose of impeaching the witness. That is, while the ostensible purpose of a deposition may be to probe the boundaries of the witness’s relevant knowledge, the real purpose may be to compile a record of inconsistent statements, or statements which look absurd. Such a record might be used to design a cross-examination strategy to cast doubt on the value or reliability of the testimony, or even to persuade a judge that the witness should not be allowed to testify in the first place.

In some cases, this is surely an appropriate and ethical strategy. However, it is not so obviously appropriate or ethical when questioning techniques are used to manipulate the witness into making statements which can be presented out of context as representing beliefs or claims that are opposed to what the witness intended in making the statement. This paper describes the basis of such manipulation, and (based on examination of several hundred pages of depositions) surveys the forms which it may take. It concludes with a discussion of how this information might best be used by officers of the court in keeping the playing field level.


Rosina Lippi-Green, University of Michigan

Normal People with a Normal Language: Accent, Language Ideology, and Discriminatory Pretext in the U.S. Courts

Title VII of the U.S. Civil Rights Act clearly forbids an employer to discriminate against persons of color for reasons of customer preference. Similarly, a qualified job applicant may not be rejected on the basis of linguistic traits linked to national origin. In contrast to racial discrimination, however, an employer has considerable latitude in matters of languagee, provided in part by a judicial system which recognizes in theory the link between language and social identity, but in practice is often confounded by blind adherence to a standard language ideology. In this paper, I will first provide brief background about accent, or language-trait focused discrimination, which will include a discussion of ideology and the institutionalized subordination of peripheralized language speakers. Then, I will present main points from an analysis of more than twenty-five Title VII/ national origin discrimination court cases. Finally I will illustrate how the U.S. courts collude in this process of language-focused discrimination by allowing employers to confuse valid concerns about communication with questionable standards based on personal preference which happen to fall along the lines of race and ethnicity. Court cases considered include Phanna K. Xieng vs. Peoples National Bank of Washington (1993 Washington State Supreme Court), and Ira Sparks vs. Griffin (1972 Fifth circuit appeals).


#3207. Friday, July 12, 10:30 – 12:15 pm

Session Title: Language and Law III: The Legal Text

John M. Conley, University of North Carolina, and William M. O’Barr, Duke University

A Generation of Law and Language Research: A Critical Reappraisal

The authors are currently writing a book on the origins, history, and present and future directions of law and language research. This paper will briefly review some of the themes that comprise the major topical strands of the book. Our perspective is that of researchers who have been in the field since shortly after its inception and have watched it evolve from a methodological service center for other disciplines into an intellectural domain that is in many respects autonomous. We will review some of the earliest law and language research, sketching its connection to such diverse fields as legal history, structural linguistics, psychology, and feminism.


Bernard Jackson, University of Liverpool

Who Enacts Statutes? A Semiotic Analysis

How do we kow that the texts printed as statues are actually statutes? In the United Kingdom, not even the HMSO official editions bear any attestations. I argue that the now- traditional enactment formula, which begins “Be it enacted …” developed in order to perform the speech act function of providing such certification. The present formula was adopted at about the same time as the introduction of printing, and reflects the recognition of an audience for statutes outside the circles which inhabited the Houses of Parliament on the one hand and the Royal Court of Justice on the other. As far as the latter were concerned, there were historically earlier forms of attestation, including (one of the functions of) the royal assent (still signified in its Norman- French form, La reyne le veult). Should a court require certification of a statute, it is the presence of these words on the official (“vellum”) copy, rather than the words of enactment, which provides it. But who actually certifies the official copy?

This paper provides a detailed account of the texts and speech behaviour which accompanies the enactment of statutes, and suggests that the semiotics of enactment in the U.K. still reflect a pre-modern form of constitutional theory.


Lawrence Solan, Brooklyn Law School

The Decline of Textualism in American Courts

During the past decade, the Supreme Court of the United States has more and more adhered to a philosophy that prohibits courts from looking past the language of a statute to its intended purpose when the events in dispute appear to fit within the statutory language itself. Notably, in these plain language cases, the Supreme Court rarely engages in any analysis of the consequences of its decisions, since it considers the decisions the necessary result of the language that the Congress has enacted into law. Most such analysis occurs in dissenting opinions, which are often biting.

In this paper, I will discuss some recent cases in which this textualist hold on judicial decision making seems to be easing. I will focus on the recent Supreme Court decision in Bailey vs. United States, in which the Court used its standard textualist rhetoric, but relied heavily on legislative history and the need to provide intelligible, bright line rules in order to give guidance to the lower courts for future cases. The case involved the interpretation of a statute enhancing the sentence for those convicted of “using” a firearm in the course of a drug trafficking crime. The Court refused to interpret “use” to include having a gun in a locked trunk or in the trunk of an automobile, even though two years earlier it had construed “use” to include trading a gun for cocaine.

I will argue that this case is part of a trend in which the Supreme Court is trying more and more to find ways to circumvent its own prohibitions in order to produce more reasoned opinions, while preserving the rhetoric of the rules that it seeks to avoid.


Peter Tiersma, Loyola Law School

From Literate to Literal: The Increasing Authoritativeness of the Judicial Text

One of the great shifts in legal language over the past centuries has been the evolution from spoken to written authoritative texts. Brenda Danet and Bryna Bogoch have traced this development in Anglo-Saxon wills. They have shown how Anglo-Saxon wills were once primarily oral; what mattered was the words that were spoken. Any written record of the will was secondary. Gradually, however, the written document became the authoritative text, as is the case today.

I will show that a similar development has taken place in the judicial opinions issued by common law judges, which form the basis for the system of jurisprudence founded upon precedents. During the middle ages, law students and lawyers began to write down what judges said in court. Over time, the words of the judges came to acquire an increasing authoritativeness. What mattered, however, is what the judges said. Written reports merely summarized the oral proceedings, and varied greatly in quality. During the past few centuries, English reporting practices have greatly improved and now produce quite reliable transcriptions of the judge’s words. Nonetheless, I argue that English judicial opinions are still primarily oral. In contrast, American jurisdictions have traditionally required appellate judges to issue written opinions. What is authoritative is what the judge writes, not what he says.

In practice, the English and American systems now both produce highly reliable written texts. Nonetheless, I suggest that the differing traditions–oral versus written–have had a marked impact on the nature of judicial opinions in England and America. Most importantly, the tradition of written opinions has led American judges to focus on the exact words of judicial precedents in ways that English judges appear not to.


#3311. Friday, July 12, 1:00 – 2:45 pm

Session Title: Language and Law IV: In the Courtroom

Steven Cushing, Northeastern University and Union Institute Graduate School

Language, Ideology, and Juror Objectivity: The Meaning of Murder

Like the presumption of eye-witness credibility, the presumption of juror objectivity is a cornerstone of American jurisprudence. However, just as psychological research on perception and memory has cast doubt on eyewitness credibility, linguistic research on the effects of ideology on language understanding (Cushing, 1990, 1991, 1995) must be acknowledged as casting doubt on juror objectivity.

Ideologies serve as filters on consciousness, partially determining what a person will take to exist (or not exist), to be true (or false), and to be of positive (or negative) value, prior and subliminal to specific experience or conscious reasoning. Ideologies can incorporate not only political, but also religious, moral, social, and/or other factors, and more than one ideology normally co-exist and interact in complex ways in any one individual to influence cognition and behavior. An ideology acts as a set of constraints on cognition, the strength of which can be directly related to the degree that its status as belief is not recognized. In particular, ideology conditions to a significant degree how a person will understand the meanings of words in context.

As is the case with language understanding in general (Cushing, 1994), a juror’s understanding of uses of words is strongly conditioned by individual beliefs, values, and expectations, quite aside from any common rules or instructions that might be specified to a jury as a whole.This paper illustrates this fact by examining the meaning of murder, a word that plays a central role in major political debates (abortion, capital punishment, military excursions), as well as in a substantial body of law.

References

Cushing, S. 1990. Prototypical Considerations on Modal Meanings. In Tsohatzidis, S. L. (ed.). Meanings and Prototypes: Studies on Linguistic Categorization. London/New York: Routledge.

Cushing, S. 1991. Explaining a Missing Modal Meaning: Ideology and Paradigm as Pragmatic Parameter. In Verschueren, J. (ed.). Levels of Linguistic Adaptation: Selected Papers from the 1987 International Pragmatics Conference. Philadelphia/Amsterdam: Benjamins.

Cushing, S. 1994. Fatal Words: Communication Clashes and Aircraft Crashes. Chicago: University of Chicago Press.

Cushing. S. 1995. Pragmatic Parameters in Non-Modal Meanings: Examples from Political Discourse. To appear in the Proceedings, Political Linguistics Conference, Belgian Linguistic Association,


Bethany K. Dumas, University of Tennessee

The Power of Misconceptions About Language in Criminal Tape Cases

It has been suggested (Shuy 1993) that common misconceptions about language impede justice in criminal trials, particularly in cases involving taped discourse. Some of those misconceptions include the following notions:

  1. Meaning is found primarily in individual words.
  2. Listening to a tape once will be enough to determine its contents.
  3. Reading a transcript of a tape is as good as hearing the tape itself. Transcripts are accurate and they convey everything that is on the tape.
  4. All people in a conversation understand the same things by their words.
  5. People say what they mean and intend.

I propose to illustrate the power of such misconceptions by tracing the process whereby a defendant in a case of attempted murder in Knoxville, Tennessee, became a convicted felon, primarily as a result of an inaccurate transcription of a statement made by the defendant in a telephone call from jail.


Kate Storey, Monash University

Kissing the Jury: Advantages and Limitations of “Keep It Simple” Principle in the Presentation of Expert Evidence

[Abstract not available as of 4/15/96]


 

Graham H. Turner, University of Central Lancashire, UK

Interpreting in Virtual Space: Accommodating Spoken and Signed Languages in Legal Discourse

Recent years have seen major growth in public recognition of the existence and linguistic/cognitive ‘validity’ of the signed languages principally used by members of Deaf communities. The legal realm is among those in which bilingual interpreters, mediating between signed and spoken languages, have consequently become an increasingly familiar sight. The nature of language expressed in a four-dimensional, visual-gestural medium is, however, not yet widely appreciated. The most immediate and widespread perception tends to be relatively unconsidered: “If it’s a language, it must work like my language”.

This interdisciplinary paper will contextualise, describe and explore some of the implications of this state of communicative affairs for discourse in the legal realm, making reference to both fieldwork and experimental observations. In particular, attention will be paid to the requirement upon the signing interpreter to creat and sustain a linguistic ‘virtual space’ in which to place and refer to the actions at issue. Can the interpreter evoke such a space from the very different material presented in speech? Conversely, how does the interpreter deal with converting highly graphic signed material to accord with the socio-cultural and linguistic constraints of oral-aural language?

Ultimately, this issue is not one for which the solution is the responsibility solely (or perhaps even primarily) of the interpreter. It is a much more fundamental matter that requires the attention of other interested parties in order to develop policies and procedures aimed at ensuring equality before the law for users of all languages. This paper will aim to contribute sociolinguistic impetus towards such development.

 


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