Robert D. Rodman
Department of Computer Science
Box 8206
North Carolina State University
Raleigh, NC 27695-8206
rodman@csc.ncsu.edu
Language and the law, once a subfield of sociolinguistics, is now a robust, independent area of study, where lawyers and linguists collaborate to deepen their knowledge. It has spawned associations such as the IAFL that sponsor conferences such as the one for which this paper is written. International journals such as Forensic Linguistics, The International Journal of Speech, Language, and the Law have arisen in which an ever-growing body of scholarship explores the multifaceted effect of language on legal matters.
Most of the work in this field approaches the topic from the point of view of the use of language. For example, trial lawyers learn to avoid language usage that introduces unwarranted assumptions, such as “When did you stop beating your wife?” They do not learn about presuppositions and the logical structure of language. That’s linguistics: the science that describes and explains language.
This approach is for the most part correct. When interpreting testimony spoken in an uncommon dialect, the focus is on what the words mean in that dialect, not on linguistic questions of what dialects are, where they come from, whether they are social or regional, and so on. Linguists may inform jurists that speakers of uncommon dialects are not inherently ignorant, and that their form of speech is not inferior or degraded. They do not usually explain that all “languages” are composed of dialects, and that from a linguistic viewpoint the “standard language” is a dialect, no better or worse suited for communication than any other.
I was surprised, therefore, when I found myself consulting in a case in which linguistic matters, not language usage per se, had a bearing on the outcome. A jury had found a Haitian man guilty of selling three tenths of a gram of crack cocaine to an undercover police officer. The judge sentenced him to 12 years in prison.
In an appeal of his conviction, the defendant asked me to analyze a tape recording of the drug deal that allegedly contained his voice as the dealer. In doing so, I used some recorded testimony from his trial as part of the analysis. (That gave me voice exemplars of both him and the arresting officer to compare with those on the tape.) The content of the testimony caught my attention when the prosecution told the jury that the defendant had been a linguist in the army, and was therefore capable of disguising his voice by dropping his Haitian-accented English, and speaking English without a foreign accent.
I asked for the entire written transcript of the trial to see if the excerpt I heard could be interpreted in a sensible way, since I didn’t think linguists, or nearly anybody for that matter, could willingly speak without their foreign accent when the need suited them.
In reading the transcript, I discovered several paragraphs of testimony where a lack of knowledge of elementary linguistic concepts and definitions had a bearing on the outcome of the trial. The weakness in the prosecution’s case was that the voice of the defendant, and the voice of the drug dealer on the tape, sounded different. The defendant spoke English with a distinct accent indicative of his native language of Haitian Creole. He had begun to learn English at the age of 18. The drug dealer spoke a common dialect of African-American English.
In testimony:
DEFENSE ATTORNEY: And the subject [drug dealer] had no foreign accent whatsoever; is that right?
UNDERCOVER DETECTIVE: From listening to the tape, none.
Before his conviction, the defendant had been in the United States Army and “was assigned to linguist . . . duties,” according to court records. He was with the army during its presence in Haiti in 1994, and served as an interpreter.
In testimony, where the prosecutor is cross-examining the defendant:
PROSECUTOR: You were assigned as a linguist in the Army, is that fair to say?
DEFENDANT: Yes.
PROSECUTOR: I wasn’t sure what that meant, so I looked it up in the dictionary. Would you agree with me that linguistics is concern [sic] with the system of sounds and language, especially sound change?
DEFENDANT: I know I was a translator in the Army. What you asking me do I agree with you? No.
PROSECUTOR: I just looked up the definition of linguist and linguistics, and I’m referring to the Webster’s Dictionary, it says, “Linguistics is concerned with the system of sounds of language, especially sound change.”
Let me suppose here, and for the remainder, that an observer of these proceedings has the knowledge that a first year college student might acquire from an introductory course in linguistics. Let’s call him Daniel. What does Daniel observe so far?
He notes that the term “linguist” is misused. It is applied to a person who is a self-described translator, though more technically, he is an interpreter. Ordinarily, this is not a troublesome confusion. Daniel may also note that historical linguistics is certainly concerned with sound change, but he would hardly say that this is an especial concern of linguistics in general. He might, if he had some legal sophistication, wonder why the defense did not object to the prosecutor’s asking the defendant to agree or disagree with a dictionary.
In testimony:
PROSECUTOR: You’re not trying to tell this jury, are you, that when you’re out on the streets in the west side of A., you talk to people the same as you talk to Father Bob, are you? You’re not trying to tell the jury that, are you?
DEFENDANT: No. When I’m in the street, I’m talking to peoples. We use a different language. But when I’m talking to a . . . [sic] when I’m in a different language like, you know, a couple of curses might go out and stuff, but when I’m talking to the priest, you know, he’s a priest so he’s different.
PROSECUTOR: Sure. So the tone you take with him and the things you say are a little bit different than you do on the street? I understand what you’re saying.
DEFENDANT: No, no, no, no, no. What I’m saying is like, okay, over here he’s an official capacity. I’m not going to curse or anything like that. But when I’m in the street, you know, I’m talking, you know, like to friends, like you know, peers and stuff like that, you know, we talk different.
PROSECUTOR: You would never think to saying to father Bob, “This is some good shit, man.” You wouldn’t ever said [sic] these words to Father Bob, would you?”
DEFENDANT: Would I say to Father Bob “This is some good shit, man?” Why would I say that to a priest?
PROSECUTOR: You would never say that to a priest, would you?
DEFENDANT: No.
If Daniel remembered his sociolinguistics, he would observe that this testimony has to do with styles, or registers, or situation dialects. He sees that the defendant, despite his broken discourse, aptly describes the phenomena.
In testimony:
PROSECUTOR: You speak French, you speak Italian, you speak Spanish, you speak English.
DEFENDANT: I speak French fluently, I speak Creole fluently, I speak Spanish some kind of fluently, and Italian because of the Spanish relation, it’s like Italian is, you know, like a Spanish cousin, you know, so I can understand, I can speak a little Italian.
PROSECUTOR: And obviously English?
DEFENDANT: Yeah.
PROSECUTOR: Obviously. You were assigned as a linguist in the Army, but you told Mr. L. it would be simply impossible for you to speak without that accent. No matter who you’re talking to, whether it’s Father Bob or whether it’s KF, it’s impossible for you to speak without an accent.
DEFENDANT: Yes, it is impossible for me to speak without an accent.
Daniel recalls learning about second language acquisition and the critical age hypothesis. He finds it sensible that the defendant, who began learning English at age 18, would speak with an accent, and sees that the other languages he speaks have little bearing on whether his English is accented or unaccented.
In the State’s final argument, the prosecuting attorney argues, must argue, that the voice of the drug dealer, who speaks unaccented English, is the voice of the defendant. He can achieve this goal only by convincing the jury that the defendant disguised, as it were, his voice to imitate a native speaker of a common dialect of American English. Here is an excerpt of his argument:
PROSECUTOR: . . . Fluent in English. Fluent in French, Fluent in Creole. Speaks Italian. Fluent in Spanish. U.S. military linguist. . . He acknowledges all of this, fluent in five languages, U.S. military linguist, goes by several names, and he’s willing to say to you, if you will recall my last question to him, “You can’t possibly speak without that accent, can you?” “No, sir, I can’t.” “It’s impossible for you to speak without that accent?” “Yes it is.” Fluent in five languages, several names including his Spanish name, TM, but it’s impossible for him to speak without this accent. Please, that’s a guy who’s willing to say anything to get out of hot water.
Daniel is unimpressed. He recognizes the non sequitur, whose basis is an ignorance of elementary linguistics. Were Daniel on the jury he would point out that the state has not established the fact that the defendant can speak unaccented English. None of the linguistic arguments hold water. Other arguments were possible. The prosecutor might have tried to establish that the defendant once took acting lessons, or studied phonetics, or had formal language training. Any of these might arguably lead to the ability to code-switch into a native sounding dialect of English. But he did not attempt to make any of these arguments.
We have an instance in which a small amount of linguistic knowledge, comparable, say, to the amount of knowledge a high school graduate would have of chemistry, would alter the course of justice. With the absence of that knowledge in the jury box and at the defense table, the prosecutor was free to argue speciously that the defendant could speak English without an accent if he wished. This obviated the unaccented English of the drug dealer on the buy-tape, which should have cast reasonable doubt on the guilt of the defendant.
A person with elementary knowledge of linguistics, such as our hypothetical Daniel, would know the difference between linguist, translator and interpreter. He knows that being an interpreter imparts no special ability to speak without an accent.
Daniel knows that knowledge of sound change is knowledge about the historical development of language, and has no more to do with speaking skills than knowledge of how to cook a soufflé. He also knows that situation dialects, code-switching, register, and style, are sociolinguistic skills possessed by all speakers, and do not endow a person with the ability to imitate a dialect not already known. He knows that when a language is learned passed the critical age of puberty, it is almost inevitably spoken with interference from the native language, that is, with an accent.
Should we conclude, then, that part of a legal education should include elementary knowledge of linguistics? Perhaps. But I would rather advocate that part of a general education should include the fundamentals of linguistics. Why should it not? Elementary understanding of chemistry and physics are part of a general education, and such knowledge is arguably less relevant in today’s global society than linguistic knowledge.
The defendant has been incarcerated for nearly three years. He is unlikely to win his appeal, according to his new attorney. He is probably innocent of the crime for which he was convicted. He is a victim of ignorance, and of a particular kind: ignorance of the basic concepts and definitions of linguistics. Here is an excerpt from the final argument for the defense:
DEFENSE: . . . LH’s voice is not on that tape. You’ve heard it time and time again. His voice is not on that tape. His voice isn’t on that tape. He didn’t make the buy. You cannot fake an accent. You may be able to speak lots of different languages, but that does not make you able to fake an accent. He was born in Haiti. He grew up in Haiti. He speaks with a Haitian accent. Even when he become [sic] angry on the stand, he speaks with a Haitian accent. He’s been over at the M C Jail where they could have brought any officer in that they wanted to if they heard him speak in anything other than a Haitian accent. They didn’t do that. They didn’t bring anybody from the street in to say sometimes he speaks in something other than a Haitian accent. Please put your common sense to work here. People cannot – although they may be able to speak a different language – they cannot speak it without an accent. Does not happen. I went to college with a man who grew up in a German [sic], with German parents, and he could speak fluent German and English without any accent. Two different languages. Larry can speak different languages, but he cannot – I think, I don’t know why – he cannot talk in an American accent. And why would he I mean, it just doesn’t make any sense. He talks the way he talks. He lives on the streets. He says the thing he says in the only voice that God gave him, and that’s the one you heard on the stand. The prosecutor talked about Father Bob, and he tried to make a big deal about he uses a different language with Father Bob than he does on the street like somehow he turns this on and turns it off. He was talking about swear words. You know he was talking about swear words. He wasn’t talking about, “With Father Bob I use my Haitian accent. With the people in the street, I talk some way other than that.”
Is it not sad when the defense attorney has to say, “I think, I don‘t know why?” How much better than this pathetic argument would it be if the defense attorney had reviewed his class notes from Linguistics 1 and said something like:
The defendant did not begin to learn English until the age of 18. It is widely accepted that such an age is beyond the age where a person can learn to speak a foreign language without an accent. Being an interpreter does not mean a person can speak a language without an accent. Interpreters of English at the United Nations mostly speak English with an accent. (A tape of such could be played.) The prosecution stated incorrectly that the defendant is a linguist. An interpreter is not a linguist. He then stated that a linguist knows sound change. Sound change, ladies and gentlemen, is how the language changes over time. It means that Shakespeare pronounced words differently than we do. That’s all. It has nothing to do with the ability to disguise a voice or conceal an accent. As far as speaking differently with the priest, don’t we all do that? Don’t you and I speak in a different manner with our clergy than we do with our kin? Of course we do. Everybody does. There’s a name for that. Linguists call it code-switching. Everybody does it. Does that mean that everybody can disguise their voice with an accent, or by dropping an accent that they already have? Certainly not. And this defendant is no exception. The science of linguistics teaches us that a person cannot willingly drop a foreign accent in a language that is learned as an adult. The science of linguistics tells us that there is little likelihood that the voice of the drug dealer is the voice of the defendant, and therefore little likelihood that that the defendant is the drug dealer, little likelihood that he is guilty.