Annual Review of Applied Linguistics (1999) 19, 156–173. Printed in the USA.

Copyright © 1999 Cambridge University Press 0267-1905/99 $9.50

LANGUAGE AND THE LAW

John Gibbons

INTRODUCTION

Law is language. It is not solely language, since it is a social institution

manifested also in non-linguistic ways, but it is a profoundly linguistic institution.
Laws are coded in language, and the processes of the law are mediated through
language. The legal system puts into action a society’s beliefs and values, and it
permeates many areas of life, from a teacher’s responsibilities to a credit card
agreement. The language of the law is therefore of genuine importance,
particularly for people concerned with addressing language issues and problems in
the real world—that is, Applied Linguists.

Aside from the work of applied linguists, there is important related work
on language and the law in the fields of literature, communication, philosophy,
legal studies, and psychology. Word limits mean that there is not space to discuss
all of these issues, although a comprehensive theorized understanding would
demand their inclusion. Indeed, each of the major areas in the review that follows
merits a lengthy review of its own, but even these topics cannot be treated in more
than a passing manner in a review such as this: Rather than repeat this warning in
each section, I make it now.

1. Communication

Legal communication includes non-verbal semiotic systems (e.g., gesture,

illustrations) and a linguistic system with (at least) three levels: the grapho-phonic
system (e.g., the font used in a legal document, the pace and intonation of a judge’s
instructions to a jury); the lexico-grammatical system (words, morphology, syntax);
and the discourse system, including genres. The regular use of particular lexicon
and grammar within specific socio-cultural areas such as the law constitute another
linguistic aspect, that of registers (Kurzon 1997)—while difficult to define, the legal
register is usually easily recognizable. The lexico-grammar is used to negotiate

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meaning, including propositional meaning, social meaning, and functional meaning

(the last often referred to as ‘speech acts’). This negotiating of meaning inevitably
involves a construal of the social and physical world—the legal view of the world is
unique and particular. Such construal is therefore pragmatically related to socio-
cultural and physical contexts. As the notion of construal implies, a third aspect
of communication is the world view/knowledge of the participants, including their
social schemas, physical world schemas, and intentions, in other words, their pre-
existing shared and differing understandings of social and material worlds, and
particularly of the topic of the communication. An important part of this
knowledge consists of their command of the above elements of the communication
process, that is, their communicative ability.

2. Law

Law consists both of a code of laws and processes for applying them and
disputing their application. This distinction, between the static or codified, and the
dynamic and dialogic aspects of the law is useful, although the two interact, and the
boundary is fuzzy (for instance ‘precedent’ operates as means of converting the
outcomes of dynamic legal processes into static bases for interpretation). Law of
this kind appears to have developed long before writing as part of the regulatory
system of human societies, as can still be seen in the “traditional law” of orate
cultures. (There is a substantial anthropological literature.) Religion has also
played a role in the development of law—an important predecessor of Common
Law courts were the Ecclesiastical courts; for example, Islamic or Shari’ah Law is
the basis of many legal systems around the world, although not entirely: Saudi
Arabia has non-Islamic traffic courts. There are, in addition, many ‘local’ legal
systems, but these have often blended with two secular legal systems which have
evolved into many variants around the world. Roman Law, also known as the
Inquisitorial system, developed from ancient Roman law and is found in much of
continental Europe, East and South East Asia, Latin America, and parts of Africa
and the Middle East. Common Law, also known as the Adversarial system,
originated in England and Wales and can be found where English speakers have
ruled, including England and Wales, North America, much of Australasia and
Oceania, South Asia, Singapore and Malaysia, and parts of Africa and the Middle
East.

LEGAL LANGUAGE

The law in literate societies is a social institution which has become highly
specialized, predominantly written, and since it involves the imposition of societal
norms, associated with the deployment of power. These three characteristics are
marked in the language of the law. The development of the language of the law
thus reveals 1) the move from speech to writing, 2) specialization and technicality
(e.g., legal dictionaries), and 3) the use of power (Atkinson and Drew 1979).
158 JOHN GIBBONS

Jackson (1994:201) writes, “The cognitive structures of the law have come
to reflect written forms of consciousness.” Danet and Bogoch (1994) document
the linguistic consequences of the move from spoken to written legal texts, and also
the return to more orate forms in incipient post-literate uses of video recording and
photography, perhaps as part of a more profound cultural change from aurality to
visuality. Judges too may ‘translate’ from written to spoken form for the benefit of
jurors (Phillips 1985).

Technicality and the impact of writing are manifested in various ways.

The main lexical characteristic of the law is large-scale technicality. This feature
can involve technical terms that are not part of everyday language, such as
‘codicil,’ ‘deforcement,’ and ‘decree nisi.’ But it may also mean that everyday
words are used in a specialized sense, for instance ‘contempt,’ ‘execution’ (of a
document), ‘caution,’ and ‘costs.’ The classic Mellinkoff (1963) text is still an
important source for a history of the language of Common Law, including the
influence of Latin (e.g., ‘habeas corpus’) and French (e.g., ‘tort’) in the
development of technical language (see also Hiltunen 1990). The legal system
construes external reality in a unique way and legal practice is a distinct micro-
culture, so at least some of this lexical technicality is necessary to express legal
notions and refer to legal processes. The grammar of the language of the law
reflects in very long noun phrases the need to package complex and precise
meanings (Danet 1990) and in complex syntactic structures the need to establish
both the nature of laws and the conditions under which they apply (Bhatia 1994).
Both of these characteristics are required, but probably not to the degree to which
they are currently used. Legal technicality is also found in languages other than
English and in other legal systems; for instance, Pardo (1996:36) describes legal
technicality in Spanish, as does Duarte (1993:66–67) for Catalan. In the area of
semantics and hermeneutics, linguistics has many applications in the areas of the
drafting, interpretation, and implementation of the law. The Plain Legal Language
movement is perhaps the best known influence upon drafting. There is a significant
and occasionally heated debate (e.g., Washington University Law Quarterly 1995,
73/5) between eminent lawyers and linguists concerning the role of linguistic
approaches to interpretation and implementation of legislation, and Solan (1995)
provides important insights on this debate.

Power relations are manifested in many ways, but particularly in spoken

interaction between lawyers and layfolk, between police and public, and between
prison staff and prisoners. For example, turn allocation in the courtroom is
constrained by power relations. Another example is the extensively studied
coerciveness of courtroom questioning (Danet, et al. 1980, Harris 1984), with
degrees of coercion in barristers’ questions ranging from the very open “can you
tell us anything about the incident?” to the highly coercive “you removed it, didn’t
you?” Other coercive tactics include the use of presupposition, reformulations
which distort what a witness said, variations in pace, unexpected ordering of
questions, and the use of loaded vocabulary. The use of technicality may also serve
 LANGUAGE AND THE LAW 159

power purposes. However, witnesses may resist and may indeed use tactics of
their own.

Three additional focal areas of legal language research include speech act
analysis, discourse interaction, and critical discourse analysis. Speech act analysis
in the law has mainly concerned itself with the nature of certain language crimes
such as threats and broken promises (see ‘language crimes’ below) and with the
major speech act of ‘enactment’ (Kurzon 1986), the form of words by which
statutes put out by a parliament or other ruling body become law. Enactment
formulae are found in many legal systems. (I have examples from Germany, Italy,
Egypt, the USA, Australia, and the UK, and Pardo [1994] describes one for
Spanish.) Jackson (1997) challenges the notion that these are in fact enactment
speech acts.

At the discourse level, Hale and Gibbons (forthcoming) show that two
levels of reality are manifested in courtroom language: the primary courtroom
reality and the secondary reality of the events under litigation, which are projected
through the courtroom reality. Concerning the primary reality, Maley (1994)
provides a taxonomy of legal genres, and Atkinson and Drew (1979) and Harris
(1984) represent examples of conversation analyses of courtroom discourse. A
well established way of conceiving the representation of the secondary reality is to
view it as narrative, and in fact to see prosecution and defense cases as containing
competing narrative representations of the same reality. Bennett and Feldman
(1981) describe these as competing “stories.” There has been sustained interest in
this type of analysis (Brooks and Gewirtz 1996), and courtroom narratives are not
limited to the particular events under litigation; they may be stories of the witness’
life, loves, and previous contacts with the law, and their appraisal might benefit
from literary imagination (Bohler and le Roux 1997, Nussbaum 1995). Work has
also been done on interaction in other legal settings such as dispute resolution and
lawyer-client interaction.

Critical discourse analysis has also become an emerging focus. For

instance, Vasilachis de Gialdino (1997a; 1997b) examined an Argentinian labor
reform bill rooted in neo-liberalism, describing the language used within labor
courts in Argentina, the discussion of the reform in the parliament and the
executive, and the treatment of these in the local press. She showed that, in the
case of local press reporting, workers were not discussed, unionists were portrayed
as violent and irrational, and reduced protection for workers was portrayed as a
positive move towards globalization, modernization, and flexibility (Vasilachis de
Gialdino 1997a: 270–271). There is similarly a growing debate concerning gender
and language in the law, often showing an interaction between legal power and
male-female power relations (Bogoch 1997, Chng 1996:16–21, Matoesian 1997).
This discussion is also related to language and disadvantage before the law (see
below).
160 JOHN GIBBONS

The great majority of the references given above are written in English
about English. There is, however, considerable work in and about other languages,
though space does not permit me to give this area full coverage. Notably, there is a
new series on legal language in various countries (Rechtssprache des Auslands
[Legal language of countries]) consisting, at the time of writing, of Cavagnoli and
Wölk (1997) on Italian, and Byrd (1997) on English. There is also a new series on
legal language “Rechtslinguistik—Studien zu Text und Kommunikation” [Legal
linguistics—Studies in text and communication] edited in Germany. One should
note also the journal, LLengua i Dret [Language and Law] published in Barcelona,
which has papers in Catalan, French, English, and Spanish.

LEGAL COMMUNICATION—PROBLEMS AND REMEDIES

Problems in legal communication commonly occur when legal

professionals attempt to communicate with layfolk. Areas that have received
considerable attention from scholars are contracts (particularly insurance policies),
legislation, judges’ instructions to juries, and standard police cautions or warnings
(such as the Miranda Warnings in the USA). The importance of addressing
communication is obvious—in Victoria, Australia, there was some concern recently
when it was realized that food regulations could not be understood by cooks.
Miscommunication is life threatening in the situation described by Diamond and
Levi (1996), where jurors did not fully understand instructions concerning
mitigating factors when deciding whether to impose a death penalty.

One source of this difficulty is that legal discourse may be addressing two
audiences, both a lay audience and a legal audience. For instance, police cautions
must not only communicate to the person being cautioned, they must also be
admissible in court as having fully performed that function. This explains in part
the inertia, and even resistance, when it comes to using plain language for legal
purposes. Another source of resistance among police and lawyers is their
understanding of the types of social message conveyed. Most work in this area has
assumed that only propositional information is communicated by, for example,
police cautions. It is clear, however, that complex and technical language also
carries a social message concerning the power and authority of the person using it.
Resistance to a lessening of this power and authority is not surprising.

1. Language and disadvantage before the law

The technical, written, and power laden nature of legal language makes the
language of the law notoriously impenetrable for non-lawyers. The situation is
even worse for those who have a low proficiency in the language of the legal
process, such as many second language speakers or the deaf. Writtenness and
technicality will reduce effective participation in legal processes by children, the
illiterate, and the mentally handicapped. It may also affect speakers of other
dialects or sociolects. Power asymmetries may impact particularly on the
traumatized, children, women, and already disadvantaged minorities. The law is
 LANGUAGE AND THE LAW 161

also a cultural field, and the disadvantage suffered by cultural minorities is

powerfully documented by Eades (1994), Jacquemet (1996), and Stygall (1994).
These disadvantages represent daunting human rights issues to which only partial
solutions have been found in new legislation, revised procedures (such as video
cameras in private rooms for children), and the education of legal professionals and
the public.

2. Improving legal communication

The early attempts to improve legal communication with non-lawyers,

including the classic work by Charrow and Charrow (1979), focused on the lexico-
grammatical area. The problems that were identified were those particular aspects
of legal language discussed earlier, which emerge from decontextualized written
language and a specialist field. Some, although not all, advice to persons
producing written text for non-lawyers gave quite simple formulas such as ‘avoid
nominalizations,’ ‘avoid passives,’ ‘avoid more than two embeddings,’ ‘ensure that
the order of ideas is coherent and logical,’ ‘avoid technical language’ (Steinberg
1991). Essentially, the plain language movement was attempting to shift the
register from highly written and technical to more everyday, spoken-like, and non-
technical forms. There is ample evidence in the literature that this approach
produced substantial improvements in communication. However, as Solomon
(1996) points out, plain language practitioners could not fully follow their own
nostrums. There are good reasons for using nominalizations to summarize the
ideas previously discussed in a text. Passives are sometimes necessary in order to
delete uncertain agents, to organize information flow in texts, or to make certain
participants the theme or topic of a text. There is also a loss in avoiding
technicality. Technical language constructs the world in a different way from
everyday language: It can be useful to define a particular term and then use it.
Problems are more likely to arise when technical terms are used without definition
to an audience that is unaware of them. For example, Diamond and Levi
(1996:232) mention jurors who misunderstand the legal term “aggravating” to
mean “irritating.” (For more discussion, see Engberg and Trosborg 1997.)

The improvements in intelligibility produced by lexico-grammatical

modifications were necessary, but not sufficient. In recent years, there has been a
move away from formulaic transformation to examine more thoroughly the role of
aspects of communication other than lexico-grammar. Penman (1992) suggests that
comprehensibility can be substantially improved by formating—by the use of
subheading, numbering, etc. She and others have demonstrated the usefulness of
testing out multiple rewrites of a text in order to discover empirically which version
really communicates best. Importantly, work by Steele and Thornburg (1988)
shows the problematic relation between the speaker/writer and the hearer/ reader.
They indicate that lawyers are often not aware that the text they produce is not
intelligible to a lay audience, not because of language but because of a lack of
shared knowledge. At its most extreme, this miscommunication can be manifested
as resistance by jurors because they have their own understanding of justice, and
162 JOHN GIBBONS

they are not prepared to accept the version manifested in the legal system
(Lieberman and Sales 1997). This type of problem can be handled in part by
educating jurors, but this approach is still in its infancy.

3. Legal interpreting and translation

One means of addressing some of the problems outlined above, where they
impact upon second language speakers, the deaf, or even second dialect speakers, is
through the use of legal interpreters or translators. Legal interpreting is a
substantial academic field in its own right, so only a brief foray into two major
issues is possible: access to appropriate interpreting/translation services, including
interpreter supply and certification; and the specific nature of legal interpreting and
translation.

There is no basic Common Law right to the use of an interpreter. The

situation is similar under Roman Law. Therefore, the right of access to an
interpreter in contacts with the courts and the police varies greatly across
jurisdictions. As a consequence of the ever increasing movement of peoples,
particularly through migration, there is a noticeable increase in the need for access
to interpreters. Taking Australia as an example, Carroll (1995) documents extreme
under-use of interpreters and a consequent change in Federal Law (now adopted in
some States also). (For British parallels, see Morris 1998.) This change has
reversed the onus of proof, so a court now has to justify not using an interpreter if
an appeal is made on the basis of language problems. However, there is still no
full right to an interpreter as there is in some U.S. jurisdictions (Berk-Seligson
1990:27). Among police in New South Wales, figures show that interpreter use is
around 1–2 percent of all interviews, while interpreter need may be as high as 20
percent. Gibbons (1995) documents the unfortunate consequences of this
imbalance. The revised 1998 NSW Police Codes of Practice have now
strengthened support for interpreter use, but not imposed it. A contributory factor
in the under-use of interpreters is the low supply of appropriately certified
interpreters. In many states in the U.S., training and certification of legal
interpreters is well developed, particularly for Spanish. The situation is highly
variable elsewhere, with some new certification initiatives appearing, but truly
competent legal interpreting is still far from universal. There will probably always
be a problem with languages of low demand or languages of communities with few
proficient bilinguals.

The nature of legal interpreting is the object of considerable research.

Colin and Morris (1996) provide an overview, and there are many papers in
translation and interpreting journals such as META and The Translator. One
important issue is the court’s view of interpreters and the consequent treatment and
use of them. Lawyers appear to have problems with the use of interpreters, being
uncomfortable with the loss of control over the discourse in the interpreting process
and not understanding that an interpreter is not a robotic device or ‘conduit’ that
converts word for word from one language into another (Hale 1997). A second
 LANGUAGE AND THE LAW 163

issue involves the problems raised by legal interpreting itself, given the complex
technical nature of legal language. Berk-Seligson (1990) and Hale (1997) describe
problems in Spanish-English interpreting, particularly register features. A third
issue is a conceptual mismatch between understandings of the law when witnesses
or accused are from a different cultural background. To give just one example of a
problem, Hale and Gibbons (forthcoming) mention that certain courtroom formulae
such as “I put it to you that...” are embedded in Common Law concepts, and a
literal interpretation, which is probably the best an interpreter can do, cannot
convey this conceptual frame to a person from a Roman Law background. This is
why Morris (1998) refers to legal interpreters as a “necessary evil.” There is a
wide consensus that lawyers and police require explicit training in the nature of
interpreting, in what interpreters can and cannot do, and in how best to use
interpreters. Again, such training varies greatly from place to place.

LEGISLATION ON LANGUAGE

1. Language rights

Around the world there have been many efforts to provide rights under law
to linguistic minorities, both in the prevention of discrimination and in the right to
use their language (Ó Riagáin and Nic Shuibhne 1997). The Mercator website
<http://www.troc.es/ciemen/mercator/index-gb.htm> is a rich source of
information on the largely successful attempts of European linguistic minorities
such as the Catalans, Basques, Bretons, and Welsh to gain some official legal status
for their languages. In Canada too, over recent decades, the place of French has
been greatly strengthened, particularly in Quebec and New Brunswick. In other
countries, a bloody pursuit of minority language rights continues—for instance
Kurdish in Turkey and Albanian in Serbia. Kaplan and Baldauf (forthcoming) note
that the U.S. appears to be moving in the reverse direction to most other countries.
Under the influence of the U.S. English movement, the U.S. has been moving to
outlaw the use of minority languages for institutional purposes, and legislation to
this effect has been introduced in many states of the U.S. A balanced account of
the debate can be found in Edwards (1994:166–170).

2. The right to silence

Another area of legislation on language is the Right to Silence provision of

the Common Law, which allows no negative inferences to be drawn if an accused
remains silent. (This is generally not the case in Roman Law systems.) In the UK,
the decision of many IRA suspects to remain silent during police questioning led to
a change in the law: “Now, the refusal to answer questions put by the police may
result in such silence being taken into account when deciding on the case at trial”
(Kurzon 1998:60).
164 JOHN GIBBONS

3. Language crimes

There are various language acts that have been legislated against.
Offensive language is prescribed in many Common Law jurisdictions, but, in
reality, prosections are rare—social norms have weakened, and many people lack
the hypocrisy to prosecute others for behavior they engage in themselves. Where
prosecutions do occur, they tend to be used as means of addressing agendas other
than bad language, as can be seen in the prosecution of aborigines for swearing by
the New South Wales police, who themselves have a reputation for bad language
(Taylor 1995, Walsh 1995).

Other language crimes have to do essentially with the issue of whether or

not a particular speech act has been performed, and perhaps even more
problematically, whether it is the illocutionary intention, the perlocutionary force,
or some “neutral” reading of the semantics of the utterance that will decide the
issue. Threats provide a paradigm example, and the difficulties in deciding are
brought out by Shuy (1993) and particularly by Yamamata (1995). (See also the
discussion of Shuy [1993] below.)

Vilification, particularly racial vilification, is a language act that has been

made illegal in most developed nations with the exception of the U.S., where
freedom of speech is taken as the paramount concern. Blain (1995) asks how
“people talk themselves and others into killing people,” and other papers in the
collection by Freedman and Freedman (1995) debate in considerable depth the legal
and moral issue of banning racist communication. A major applied linguistic issue
is deciding what constitutes vilification, since much of it is coded. There is also
work from psychologists on the impact of racist language (e.g., Leets and Giles
1997). In some jurisdictions, vilification on the basis of other human
characteristics such as religion and sexuality is also banned, and there may be
institutions charged with pursuing cases of vilification. There is also a long history
of language being used to mask genocide—“ethnic cleansing” being a recent
example.

FORENSIC LINGUISTICS

There is not a consensus on the meaning of this term. Some people in the
field would include all the areas discussed in this review under this label, others
would include only some of them. Here I am taking the term in the strict sense of
‘the field of the provision of linguistic evidence.’ As such, it may include language
crimes, but the description and definition of language crimes need not involve
expert testimony. Such evidence is typically given in court, but it may also involve
aid to the police, to insurance companies, or, for example, to companies on
copyright issues. Although the journal Forensic Linguistics deals with many
language and law issues, including for instance legal interpreting, its contents over
the four years of publication have predominantly concerned forensic linguistics.
 LANGUAGE AND THE LAW 165

Formerly, much publication in the area appeared in edited collections such as

Kniffka, Blackwell and Coulthard (1996).

1. Admissibility

Important issues concerning linguistic evidence are its admissibility in court

and its nature. Eades (1997) shows in considerable depth the problems of gaining
acceptance in court of linguistic evidence on aborigines. There are other accounts
of the difficulties and frustrations involved in the presentation and acceptance of
linguistic evidence in court (Coulthard 1997, Storey-White 1997). In Britain and in
much of Australia, the constraint on linguistic evidence has eased with the
introduction of new Evidence Acts, but Shuy (1993) mentions problems in the U.S.
with Rule of Evidence 702.

2. Areas of forensic linguistics

The types of information that linguistics can offer to the law fall into two
main categories: 1) issues of authorship (i.e., whether a particular person said or
wrote something) and 2) problems of meaning and communication. These issues
can be addressed across all aspects of communication mentioned in the
introduction, in both spoken and written form. Identification of authorship is often
more reliable in the negative, since it is often possible to say with certainty that two
language samples come from different people, even if it is not always possible to
say with certainty that two samples come from the same person.

Phonetics. There are two principal means of voice identification, the ear
or a machine. The ear may be untrained, as in the case of earwitnessing, which
provides evidence of limited dependability, or linguistically trained, which may
offer greater reliability (Schiller and Köster 1998). The machine analysis of voices
is a major sub-field with regular conferences. It fell into disrepute when the FBI
made excessive claims concerning spectrographs, which were misleadingly
renamed ‘voiceprints.’ The important work by Hollien (1990) and Künzel (1987)
and others, allied to technological developments, has now increased both the
reliability of findings and caution in their use. Various voice features are used in
identification, but vowel formants still predominate. Hollien (1990) also discusses
the sound ‘signatures’ left by telephones, tape recorders, etc.

Handwriting and type. Found, Dick and Rogers (1994) discuss the
numerous features of handwriting that may permit identification. With the steady
reduction in the use of handwritten material, emphasis has turned to the
identification of typefaces, printers, and programs.

Words. These generally form part of broader examinations of style.

McMenamin (1993) discusses forensic uses of both the identificatory value of word
use and issues of word meaning, for instance, what the word ‘accident’ means in an
insurance policy. A controversial area of forensic linguistics is ‘Stylometry.’ This
166 JOHN GIBBONS

technique involves word counts of various types, and the measurement of the co-
occurrence of fairly common linguistic items such as ‘the + adjective + noun’; it
is proposed that individuals vary considerably from each other on such features. It
uses a statistical technique ‘cusum’ (Farringdon, et al. 1996) to analyze the data. It
has been widely attacked for the reliability of the statistics (Smith 1994). Even
Bissell (1995:59), a supporter, writes “word-count analysis, using cusums or other
techniques, can form only part of an investigation into authorship.” Linguists have
also doubted the validity of the technique, questioning whether there is any
identificatory potential in parameters such as ‘the number of words beginning with
a vowel’; “there is no generally accepted support for such a proposition”(Canter
and Chester 1997:259). The controversial nature of the technique can be seen in
the two utterly opposed reviews of Farringdon, et al. (1996) in Forensic Linguistics
(1998, 51). Johnson (1997) provides an alternative approach based on word counts
of vocabulary shared between writers.

Grammar. There are a few examples of the discussion of morphology as

evidence. One interesting instance in the communication area is Lentine and Shuy
(1990), which discusses the meaning of the Mc prefix as adopted by McDonalds.
Concerning authorship, Jensen (1995) reports on her use of morphological data to
demonstrate that language attributed to a second language speaker was beyond his
current linguistic competence. Levi (1994) provides examples of communication
problems caused by syntactic complexity. McMenamin (1993) and Eagleson
(1994) provide examples of cases where authorship could be established using a
range of linguistic evidence, including syntactic structure.

Discourse. In the area of communication, Labov (1988) describes the U.S.

Steel case, which was fundamentally a problem of ‘document design’ or text
construction. Concerning authorship, Coulthard (1994) gave important evidence in
the judicial appeal of the Birmingham Six, which showed on the basis of the nature
of the discourse that the police records of interviews contained fabrications. For
instance, they contained repeated reference to a “white plastic bag” in that full
form, rather than beginning with the full form, and then using only “bag”
thereafter, which would be normal in spoken discourse. Coulthard also examined a
range of other features. The Birmingham Six were subsequently released and paid
compensation.

Sociolinguistics. Variations in all the areas mentioned above (speech

sounds, words, syntax, etc.) are associated with different geographical regions, or
Dialect (e.g., Queensland English); with socio-economic status, or Sociolect (e.g.,
working class English); and with different uses of language, or Register (e.g., the
language of the courtroom). There are a number of examples of the forensic use of
evidence on dialect differences reported in the journal, American Speech. As a
number of people speak any dialect, such evidence is typically not used to provide
identification, unless the speaker is one of a small number of speakers (e.g., who
said a particular sentence in a room containing four people). The most common
use of such evidence is negative, (i.e., saying that particular speech is NOT the
 LANGUAGE AND THE LAW 167

voice of a certain person on the basis of dialectal or sociolectal evidence). For

example Labov and Harris (1994) describe the Prinzivalli case, in which Labov
says that there was no doubt that Prinzivalli could not have made a bomb threat
phone call because the bomb threat voice had an unmistakable New England
(Boston area) accent, while Prinzivalli had an equally unmistakable New York City
accent. The main problem was convincing the court of this. The evidence was
accepted and Prinzivalli was acquitted.

Of particular importance in evidence of this type is whether people can

assume a dialect or accent that is not their own. There are recent examples of film
actors, with expert coaching, producing convincing versions of accents not their
own. Ash (1988) had Philadelphia speakers attempt to disguise their voices, but
found that none of them could consistently disguise their vowels in such a way as to
prevent their identification as Philadelphia speakers. It seems to be very difficult,
but perhaps not impossible, to simulate another accent to a degree where it is
accepted as native by experts.

PROSPECT

At present there is a need for broad introductions to language and the law.
While none is available to me at the time of writing, Gibbons (forthcoming) is in
preparation, and there are unverified suggestions that a number of other texts are in
preparation. The language and the law field may be about to experience more
explosive growth.

ANNOTATED BIBLIOGRAPHY

Berk-Seligson, S. 1990. The bilingual courtroom: Court interpreters in the judicial

process. Chicago, IL: The University of Chicago Press.

This book constitutes the best account so far of courtroom interpreting. It

is a meticulously performed and data-driven analysis of interpreting
between Spanish and English in American courtrooms. It looks in
particular at changes in social and functional meanings produced by the
interpreting process. These changes seem to involve primarily register
features such as forms of address, passivization, and hedges rather than
propositional meaning. A more coherent register model, such as that of
Biber or Halliday, could have strengthened the analysis.

Gibbons, J. (ed.) 1994. Language and the law. Harlow: Longman.

This book is divided into three sections ‘Language constructing law,’

‘language and disadvantage before the law,’ and ‘forensic linguistics.’
168 JOHN GIBBONS

Each section is introduced by the editor and ends with a reflection on the
section from a lawyer. The content has a substantial Australian element.
Of particular note are Maley’s survey of the language of the law, Eades’
account of unfortunate contacts between aborigines and the law, and
Brennan’s disturbing analysis of lawyers’ questioning of children. The
collection is not comprehensive since it does not cover drafting and
interpretation of the law, legal interpreting, or legislation on language.

Hollien, H. 1990. The acoustics of crime: The new science of forensic phonetics.
New York: Plenum.

This is a masterly account of the work of forensic phoneticians. Hollien

documents the very many speech features that can be taken into account in
the process of speaker identification. He also looks, for example, at
factors that lead to degradation in the recording used to identify speakers.
I came away from this book convinced of the identificatory value of speech
characteristics and of the merits of both ear and machine in uncovering
these, but somewhat stunned by the technicality of acoustic phonetics.

Levi, J. N. and A. G. Walker (eds.) 1990. Language in the judicial process. New
York: Plenum.

This is probably the most widely referenced book on language and the law.
It contains important papers by leading figures on the language of the
courtroom, interpreting, court reporting, and forensic linguistics.

Shuy, R. 1993. Language crimes: The use and abuse of language evidence in the
courtroom. Oxford: Blackwell.

In this book, Shuy builds from the ground up a sub-field of ‘language

crimes.’ He provides a staged genre analysis of the bribery event and
shows which stages are constitutive, thereby demonstrating that certain
so–called bribery episodes were not. He also examines speech acts such as
threats and promises. The book is written clearly and approachably, but
generally fails to reference work other than Shuy’s own.

Shuy, R. 1998. The language of confession, interrogation, and deception.

Thousand Oaks, CA: Sage.

This book addresses a significant gap in current research. While there is

substantial research into the language of lawyers, much less work has been
done on the language of the police. Written in Shuy’s idiosyncratic case
study manner, it discusses the difference between interrogation and
interviewing, problems with police interrogation particularly with regard to
constitutional rights, and the language of truth and deception. It finishes
with practical advice on the process of interrogation.
 LANGUAGE AND THE LAW 169

Solan, L. M. 1993. The language of judges. Chicago: University of Chicago Press.

This carefully crafted and elegantly written text examines many of the
features of the language of judges. Solan shows that judges use linguistic
argument as the basis for their decision making, but their argumentation is
often linguistically flawed. In particular, they often argue for a ‘plain
meaning’ interpretation where the law is clearly ambiguous. The book is
weakened by a dependence on formal linguistics, ignoring the additional
illumination that might be thrown by a functional approach.

Washington University Law Quarterly. 1995. What is meaning in a legal context.

[Special Issue of Washington University Law Quarterly. 73.5]

This special edition of the journal is a record of the Northwestern

University/Washington University Law and Linguistics Conference entitled
‘What is Meaning in a Legal Context.’ It brought together senior lawyers
with an interest in language, and many of the major linguists interested in
the law in the U.S. (including Charles Fillmore, Georgia Green, Geoffrey
Kaplan, Judith Levi, Lawrence Solan, and Peter Tiersma). The issue
involved whether linguists could be of assistance to lawyers in the
interpretation of the law. The dialogue (possibly of the deaf) between
lawyers and linguists makes fascinating reading. It is clear that the lack of
shared schemas between the participants means that linguists do not always
understand ideological and cultural aspects of the law, and lawyers
sometimes misunderstand linguistic analysis. Some lawyers also
wholeheartedly reject linguists invading their territory.

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