Linguistics in the Courtroom: Incorporating Considerations of Language and Context to Improve Criminal Court Consent Analysis

• Publication year: 2022

Linguistics in the Courtroom: Incorporating Considerations of Language and Context to Improve Criminal Court Consent Analysis

Danielle Bimston
danielle.bimston@emory.edu

LINGUISTICS IN THE COURTROOM: INCORPORATING CONSIDERATIONS OF LANGUAGE AND CONTEXT TO IMPROVE CRIMINAL COURT CONSENT ANALYSIS^†

ABSTRACT

A legal conundrum occurs every day: suspects regularly incriminate themselves by voluntarily granting their verbal consent to requested searches by law enforcement officers, yet later move to suppress on the basis that they never agreed to such a thing. When these disputes arise, fact finders are left to adjudicate a fundamentally linguistic issue—whether the presence of voluntary consent existed. Herein lies the problem. The current totality test that is used to make this determination gives judges enormous discretionary power to evaluate the merits of the case, but is completely devoid of methodology grounded in linguistic theory that could guide the court to a rational conclusion regarding the effect of language upon the interaction. Accordingly, voluntary consent to search jurisprudence appears disorderly, and suspects are routinely disadvantaged.

The solution to this problem is both simple and more attuned to the realities of human interaction: linguistics. In recent years, scholars have called attention to the utility of certain linguistic considerations, such as pragmatics, the study of how context contributes to meaning, and its relevant sub-theories, in analyzing officer-suspect interactions in related contexts such as Miranda rights jurisprudence. However, even though linguistics promises greater equality and more precise findings, courts today fail to consider linguistic inputs with any consistency, if at all.

This Comment reinvigorates the conversation about pragmatics in the courtroom—specifically emphasizing its value as a tool to better understand how suspects interpret requests for consent by power figures, such as law enforcement officers. Ultimately, this Comment will break new ground by proposing a series of solutions that can be implemented both in and out of court to reduce the effect of linguistically problematic language. First and foremost, courts should eliminate elements of the current totality test that find no support, or, even worse, contradictory evidence, in linguistic research, such as that which accounts for the cordiality of the exchange. Furthermore, by adopting the lens used in Fourth Amendment seizure analysis and Miranda custody jurisprudence—that of the reasonable suspect—courts can take steps toward correcting the systemic inequities that suspects face in the courtroom without

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overburdening themselves. Finally, the institution of a series of best practices for officers who seek to procure consent would not only provide suspects with a true opportunity to understand the nature of the questions being asked of them and protect themselves from unwanted privacy intrusions, but also decrease frivolous litigation over the merits of consent

INTRODUCTION................................................................................212

I. THE HISTORY AND DEVELOPMENT OF THE VOLUNTARY CONSENT TO SEARCH DOCTRINE .........................................216

A. The Bustamonte Case....................................................216
B. After Bustamonte: Defining the Limits of Consent .......220
C. A Glimpse at the Totality Test Today: United States v. Ruiz ..............................................................................223

II. PRAGMATICS: A MEANS OF BRIDGING THE GAP..................225

A. Implicature and Grice 's Co-operative Principle ..........226
B. Speech Act Theory.........................................................228
C. Application of Pragmatic Theories in Officer-Target Interactions ...................................................................231
D. Pragmatics in the Courtroom Today: Case Study of the Invocation of the Right to Counsel................................232

III. DANGERS OF THE CURRENT TOTALITY TEST .......................234

A. Susceptibility to Subjectivity .........................................235
B. Out-of-Touch with Linguistic Considerations...............237

IV. A SERIES OF PROPOSED CHANGES TO THE VOLUNTARY CONSENT TO SEARCH DOCTRINE.........................................245

A. Refine the Totality Test..................................................245

1. Elimination of the Cordiality Element.....................245
2. Switching the Lens in the Courtroom: Adopting the Reasonable Suspect Standard .................................247

B. Impose Best Practices for Out-of-Court Officer-Suspect Interactions ...................................................................250

1. Utilizing the Direct Speech Form............................250
2. Soliciting Follow-Up Questions ..............................251

CONCLUSION....................................................................................252

INTRODUCTION

In Fourth Amendment cases today, courts act as arbiters of conversation. On one side stands the law enforcement officer, who describes a simple interaction in which the suspect's consent was requested and given. The suspect stands in vehement opposition to this narrative—never would she have allowed the officer

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to search her property had the officer given her a choice. And in the middle lies the judge, now asked to make a finding that exceeds the bounds of traditional Fourth Amendment jurisprudence. The central issue is no longer whether the search of a given location was permissible, but rather hinges on the way in which the officer expressed his desire to search or the way that the suspect expressed her reticence. Thus, the question arises, should we be allowing judges to make these kinds of linguistic determinations?

In their influential work, Cops and Robbers: Selective Literalism in American Criminal Law (also known in this Comment as "Cops and Robbers"), Peter Tiersma and Lawrence Solan argue that trust in the courts to perform this function would be misplaced.¹ Historically, courts have been unable to take linguistic inputs into consideration with accuracy and consistency, leading to unjust results.² Accordingly, to make up for fact finders' neglect of these important considerations, prescribed linguistic guidance should be put into place.³ This guidance would be best informed by pragmatic theory, the study of how context contributes to meaning.⁴ More specifically, because it can provide insight into how conversationalists interpret language in different settings, pragmatic theory may help to illuminate troubling elements of officer-suspect interactions. Ultimately, knowledge of and response to the way that language operates in these situations could vastly improve the quality of judgments in the Fourth Amendment arena.

Linguistic experts further assert that we should be concerned about "selective literalism"—the tendency of "courts [to] selectively consider pragmatic circumstances in interpreting the speech of suspects."⁵ This method of selective interpretation creates systemic inequities, as "courts are significantly more likely to take pragmatic information into account when it benefits the

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government, and less so when it helps the accused."⁶ For this reason, selective literalism has been accused of "devalu[ing] the constitutional protections that all of us hold dear."⁷

Despite these warnings from linguistics scholars, courts acknowledge pragmatic inputs rarely, if at all.⁸ As a result, suspects are not only up against a doctrine that interprets the facts in favor of finding consent, but also a legal system that perpetuates this inequity by permitting the introduction of pragmatic context on a discretionary basis.⁹ This Comment proposes a potential solution to the inequities that dominate the current voluntary consent to search doctrine. Ultimately, change would be best implemented both in and out of the courtroom by training judges on the core tenents of linguistics, reshaping the totality test, and shifting the language that officers use to request consent in the first place.

Part I of this Comment sets out the history and development of the voluntary consent to search doctrine. It begins in Section A by introducing Schneckloth v. Bustamonte, which established that a totality of the circumstances test should be used to discern the presence of voluntary consent and, perhaps more importantly, that voluntariness does not require officers to inform citizens of the right to refuse consent to a search.¹⁰ This holding greatly restricted the latitude of courts in deciding whether consent is voluntary, as it eliminated the possibility of using the analytical framework applied in the Miranda rights context—requiring informed consent in addition to a valid wavier—as a template for search cases. The Bustamonte reasoning was revisited almost twenty years later in Florida v. Jimeno, addressed in Section B. In Jimeno, the Court wrestled with whether a suspect's knowledge of his right to delimit the scope of a search is a relevant inquiry.¹¹ The continued relevance of Bustamonte is exemplified in Section C, which features United States v. Ruiz—a Seventh Circuit case decided in 2015.¹²

Part II of this Comment provides insight into various pragmatic theories that help to explain the legal conundrum detailed above. Though they operate in

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slightly different ways, both the co-operative principle,¹³ featured in Section A, and speech act theory,¹⁴ addressed in Section B, seek to explain why suspects may perceive officers as commanding rather than requesting their consent, despite police use of seemingly nonconfrontational language. Section C expands upon these language-perception gaps and emphasizes the relevance of these linguistic elements in context by applying the aforementioned pragmatic theories to the facts of Bustamonte. Finally, Section D provides a glimpse...