Powerful Word Magic
Thanks to an alert Defending People reader, here’s a little more linguistic goodness (following up on Complex Questions and Children) for you today. Here’s Janet Ainsworth’s ‘You have the right to remain silent…’ but only if you ask for it just so: the role of linguistic ideology in American police interrogation law (nothin’ but title!), from the International Journal of Speech, Language, and the Law.
Ainsworth looks “speech acts with legal consequences” — speech that does things in the legal system, performing “a kind of ‘word magic'”. Some such magic occurs in a ritualized, scripted context in which the speaker is aware of the specific legal outcome that will result from a specific incantation — like a judge finding a person not guilty, or a minister pronouncing a couple married, or the President taking the oath of office.
Not all speech acts with legal consequences occur within a ritualized, scripted context, however. In cases other than these scripted situations, using an unintentionally legally infelicitous utterance may cause speakers to fail to achieve their desired legal outcomes and instead expose them to unintended and unforeseen legal consequences. These unfortunate results are particularly likely when the speaker lacks the legal training needed to know how to shape legally felicitous speech acts. Legally naive speakers are often unaware that a script exists prescribing the language needed for legal efficacy. When their language fails to track the script, they are unable to achieve their desired legal ends.
For examples of legally naive speakers trying unsuccessfully to cast legal spells, Ainsworth inspects the cases in which courts have found an ineffective invocation of the rights to counsel and to remain silent in the face of police interrogation, and compares the attempted invocations in those cases with waivers that the courts had found to be effective. Ineffective invocations vs. effective waivers.
An invocation of counsel must be clear, unequivocal, and unambiguous. “Maybe I should talk to a lawyer” isn’t good enough.
But the courts’ approach doesn’t reflect how we actually communicate;
the insights of Gricean conversational implicature, coupled with a sociolinguistically grounded recognition of the impact of power asymmetry on speech register, illuminate the inadequacy of current legal doctrine and practice both in light of what linguistics can tell us about how communication works and in light of the legal system’s stated goal of admitting only voluntary confessions into evidence.
“Gricean conversational implicature” is the theory “that conversation is a rule-governed activity, with participants interpreting responses as relevant to the context of the situation and to what has been said earlier in the interchange” — that we use a shared context-dependent social shorthand when we converse:
For example, consider the following short conversation between two university colleagues:
Colleague 1: ‘Have you eaten?’ Colleague 2: ‘Oh, I have a one o’clock class…’ Colleague 1: ‘Another time, then.’ Interpreted literally, this conversation is a disconnected series of statements about the unrelated topics of food consumption, proximate class schedule, and a non-speciHc reference to an indefinite point of time in the future. To someone who lacked an understanding of the conventions of conversational implicature – say, a Martian armed with a good English language grammar and dictionary – this exchange would be incomprehensible nonsense.
“I want a lawyer” doesn’t seem like it’d be a hard thing to say. But communication is also shaped by social identity and context;
the likelihood that someone will express themselves using hedged or indirect language is increased when there is power asymmetry between the parties, with the relatively powerless speaker unlikely to make direct and unhedged demands upon the more powerful party.
In the context of a police interrogation, after the Miranda warnings have been given, a suspect who hedges the invocation of his Fifth Amendment rights, by using an interrogative (“Could I call my lawyer?”) or softening language (“I think I will talk to a lawyer”) or language that the court thinks is ambiguous (“I don’t want to talk about it”) is speaking in terms that are adequate to convey the message, especially considering the extreme power asymmetry between him and his listeners, the police.
For example, just as a diner might tell the waiter, ‘I think I would like to have the salmon’, or ‘Can I have another cup of coffee?’ and would expect the waiter to understand those utterances as unequivocal orders, so too an arrestee who says, ‘I think I would like to talk to a lawyer’ or ‘Can I get my lawyer?’ should be understood as having made unambiguous requests for counsel.
But to judges, much like the Martians, the response, “I think I will talk to a lawyer” to the Miranda warnings is incomprehensible nonsense.
It will come as no surprise to a criminal-defense lawyer that the sort of clear, unequivocal, and unambiguous language needed to cast a spell of invocation of counsel isn’t needed to waive counsel. Ainsworth suggests that this results from judges ignoring Gricean conversational implicature because of an ideology of language that holds that “it is fair to hold people to the objective meaning entailed by the language that they use, irrespective of what they subjectively intended that language to mean.”
This, Ainsworth points out,
stands the Miranda Court’s set of assumptions about police interrogation on its head. The Miranda Court imagined that rights invocation would be generously construed by courts if the arrestee ‘indicated in any way’ that he desired to exercise his rights, and, as a corollary, that the government would have a ‘heavy burden’ to demonstrate instead that these rights had been waived.
Context is interesting. As a linguist writing for linguists, Ainsworth sees the ease with which the courts find waiver and the difficulty with which they find invocation as a result of their ideology of language. As a lawyer writing for lawyers, I see it as a result of their result-oriented ideology of law . . . I think.
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