Speaking of Crime: The Language of Criminal Justice.

• Author: Bilz, Kenworthey
• Position: Book review

LAWRENCE M. SOLAN & PETER M. TIERSMA, SPEAKING OF CRIME: THE LANGUAGE OF CRIMINAL JUSTICE (CHICAGO: UNIVERSITY OF CHICAGO PRESS, 2005). Pp. 289.

Today, we live in the "confession era" of criminal law: a defendant's inculpation of himself is the golden ring for which prosecutors always reach. Police procedures are structured around it, as are vast swaths of criminal procedure doctrine, from Escobedo to Miranda to Dickerson. Knowing sophisticated and reliable techniques for interpreting these confessions is thus fundamentally useful to lawyers and judges. In Speaking of Crime: The Language of Criminal Justice, Lawrence M. Solan and Peter M. Tiersma provide a sweeping introduction to the state of the art in forensic linguistics, providing the reader with just such techniques. This makes their book indispensable to the modern practitioner. (1) At the same time I commend Solan and Tiersma in this review for making forensic linguistics accessible to the novice, I am also going to suggest that the confession era is coming to a close. As new technologies develop, such as DNA identification, fMRI "lie detector" tests, and "data fingerprinting" on the internet, I predict that courts will rely less and less on confessions and their artifacts altogether, ironically rendering our need for linguistic sophistication in this area of the criminal law less important.

Of course, we are not out of the confession era yet (if in fact we ever will be), and in Part I of this review, I will outline this book's many contributions to understanding issues of language that are so central to the criminal law today. I will also touch on the other areas of criminal law that Solan and Tiersma discuss, because their aims are quite broad. In Part II, I will make the case for my speculation that in the near future, emerging technologies will render confessions, and related phenomena such as consensual searches and requests for attorneys before interrogations, mostly obsolete. I will further argue that, consistent with past technological innovations in criminal evidence, the judicial system will continue to focus on traditional confessions well past the point where they contribute helpfully to the search for truth in trials, partly out of habit, and partly out of skittishness about the perceived (and I believe false) power of the new technologies to displace trials altogether.

I.

If you were to leave the rest of the book untouched, reading the first of the book's four sections (really, even just Chapter 2) would adequately acquaint you with the bulk of the linguistic tools Solan and Tiersma employ to resolve most of the criminal law problems they discuss. Though many lively debates continue in linguistics, they argue that much of importance is well-settled: "We now know a great deal about what makes language plain when it is plain, and what makes language vague or ambiguous when it is unclear.... We also know how the structure of a discourse affects the inferences that people are likely to draw from the language that they hear." (2)

The authors lucidly explain this body of knowledge to their readers--though I confess I would have liked more flesh in this overview chapter, even if it came at the expense of perfect clarity to the complete novice. Their discussion of "sound systems" (the way different languages voice--and sometimes confuse--different sounds at different parts of words and sentences), (3) syntax, (4) and the differences between the "definitional" (a list of necessary and sufficient conditions) versus "prototypical" (based on experience and understanding) approaches to word meaning (5) are somewhat disappointingly brief, especially given that they don't return to these issues at any real length or technical detail later in other chapters. In contrast, their introduction to pragmatics (6)--that is, the understanding of language through both verbal and circumstantial context--is both clear and thorough; better yet, they return to it time and again throughout the book so that the reader gains real facility with the concepts.

Indeed, this book is less about the science of linguistics generally, and more about the application of pragmatics to criminal law specifically. When divorced from context, language as spoken or written is hopelessly ambiguous. To illustrate this point, Solan and Tiersma offer the example of the simple statement, "It's two o'clock." Taken purely at face value, this is "nothing more than a statement about the time of day." (7) Yet because we assume that the speaker is a conversational partner interested in cooperating with us in a shared endeavor to express meaning, (8) we can infer from context what the speaker intended to say when she spoke her words:

 [W]hen uttered by one concerned parent to another, it may be a way of saying, 'I'm worried about our teenager not being home yet,' even though worry is never mentioned. When uttered by a teacher at the end of a test, it may mean. 'Time is up.' When uttered by a sports fan, it may mean, 'The game is about to start.' (9) 

It is of course this very ambiguity that causes repeated problems that courts must solve, and Solan and Tiersma's ambition is to raise the level of technical precision in legal discussions and resolutions of these problems.

After the first two introductory chapters, the authors organize the rest of the book into sections roughly organized around criminal procedure, the boundaries of expert linguistic testimony, and substantive criminal law. However, notwithstanding an interesting, but stand-alone, foray into the science of voice- and writing-identification in Chapters 7 and 8 and a final, exhortatory chapter that summarizes all of their policy recommendations, linguistic pragmatics is the unifying theme that runs throughout the entire book. The theme has two basic strands, which I expand on below. First, by offering repeated problems and solving them by using pragmatics, Solan and Tiersma provide the reader with a solid "how to" guide for solving other interpretation problems in the law. Second, the authors systematically uncover startling inconsistencies in courts' actual use of pragmatics to solve interpretation dilemmas.

A.

All of the following are established doctrines of criminal law and procedure: law enforcement personnel do not need to secure a warrant if a suspect consents to a search after a request--not a command--from a police officer. (10) Police must immediately stop interrogating a suspect and allow him to consult a lawyer as soon as he explicitly asks for one. (11) Literal truth (even though deceptive) is a complete defense to a charge of perjury. (12) Mere predictions about future harms, (13) or explicit, though menacing, political commentaries, (14) do not count as convictable threats.

But what is the legal difference between a request ("May I have a look inside your car?") and a command ("Let me look inside your car")? How can we tell the difference between a genuine request ("Please let me talk to my lawyer") and a mere musing ("It would be nice if I could see my lawyer")? What makes a lie, a lie and not just a nonresponsive answer to a question? What makes a threat, a threat and not a warning or dramatic hyperbole? The distinctions, of course, are critical to the law, and courts are constantly called upon to make them.

Solan and Tiersma very convincingly make the case that all of these distinctions can only be drawn pragmatically. Take the example they offer, Schneckloth v. Bustamonte. (15) During a traffic stop for burnt headlamp and license plate lights, a police officer asked the driver, "Does the trunk open?" The driver answered "yes," and opened the trunk. Inside, the police found three stolen checks. (16) Did the police make a request to search the trunk? Obviously the officer was "not [making] an inquiry into the design of the automobile or the condition of the trunk," (17) and so the Court interpreted the question "Does the trunk open?" as a request to examine the contents of the trunk. It was context alone that suggested this reading. Had the questioner been a customer and the questionee a used car salesman, then the question might have more appropriately been taken literally. But here, the questioner was a police officer and the circumstance was a traffic stop. Had the citizen merely answered "yes" with no move to open the trunk, the police officer would have rightly regarded the response as obstreperous.

Solan and Tiersma point out that while courts instinctively use linguistic pragmatics to interpret the words of police officers in exchanges with citizens, their usually-subconscious and untutored applications can be wooden or one-sided. In Bustamonte, the Court took for granted that a question which on its face was about whether a trunk could open, was a request by the officer to open it. However, they did not consider another linguistically-plausible reading: given the context of a legitimate traffic stop and a police officer acting in his official capacity, most people would consider the words not as a request, but as a command. Solan and Tiersma argue that the Court's error was in considering only whether the officer intended to convey a request to open the trunk (the "illocutionary force" (18) of his words), rather than on how the driver heard the words (the "perlocutionary effect" (19)). The error is made all the worse because there was nothing in the actual language of the police officer that would have clued the citizen in to the fact that the coercive phase of the interaction had ended (that is, being required to pull over and step out of the car), and the optional phase begun (the consensual search of the automobile). (20)

This is but one instance where Solan and Tiersma walk the reader through an interpretive problem and solve it using pragmatics. Through extensive examples, the authors clarify many other language problems that come up again and again in criminal law. For instance, they...