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Forensic Linguistics: the Linguistic Analyst and Expert Witness of Language Evidence in Criminal Trials

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Forensic Linguistics: the Linguistic Analyst and Expert Witness of Language Evidence in Criminal Trials DOCUMENT RESUME ED 472 652 FL 027 593 AUTHOR Jordan, Sherilynn Nidever TITLE Forensic Linguistics: The Linguistic Analyst and Expert Witness of Language Evidence in Criminal Trials. PUB DATE 2002-08-00 NOTE 159p.; A thesis presented to the Faculty of the School of Intercultural Studies, Department of TESOL and Applied Linguistics, Biola University. PUB TYPE Dissertations/Theses - Masters Theses (042) -- Speeches /Meeting Papers (150) EDRS PRICE EDRS Price MF01/PC07 Plus Postage. DESCRIPTORS *Crime; *Criminal Law; Ethics; *Evidence (Legal); *Forensic Sciences; *Linguistics IDENTIFIERS Expert Witness; Forensic Psychology; Trials ABSTRACT Forensic linguistics (FL) provides consultation to lawyers through the analysis of language evidence during the pre-trial investigation. Evidence commonly analyzed by linguists in criminal cases includes transcripts of police interviews and language crimes (such as bribery) and anonymous or questioned texts. Forensic linguistic testimony is rarely admitted into courts of law, however. A major reason for this is apparently impressionistic methods, which are examined for their objectivity. A further barrier to legal acceptance is that FL experts, like all experts testifying in court, support the claims of whichever side has hired them. Nonetheless, forensic linguists have an ethical and professional responsibility to provide the legal community with reliable and admissible information and help prevent unfair conviction or acquittal of criminal defendants. Legal acceptance of FL expertise should increase as methods improve and as forensic linguists adapt to legal norms. This thesis includes five parts: (1) "The Field of Forensic Linguistics";(2) "The Evidence Forensic Linguists Analyze"; (3) "The Need to Improve Credibility in the Legal Community";(4) "Professional and Ethical Issues and Responsibilities for Forensic Linguists"; and (5)"The Future of Forensic Linguistics." Anthrax letters are appenddd. (Contains 92 references.) (SM) Reproductions supplied by EDRS are the best that can be made from the original document. FORENSIC LINGUISTICS: THE LINGUISTIC ANALYST AND EXPERT WITNESS OF LANGUAGE EVIDENCE IN CRIMINAL TRIALS A Thesis Presented to the Faculty of the School of Intercultural Studies U.S. DEPARTMENT OF EDUCATION Office of Educational Research and Improvement ED ATIONAL RESOURCES INFORMATION CENTER (ERIC) This document has been reproduced as Department of TESOL and Applied Linguistics received from the person or organization originating it. Minor changes have been made to improve reproduction quality. Biola University Points of view or opinions stated in this document do not necessarily represent PERMISSION TO REPRODUCE AND official OERI position or policy. DISSEMINATE THIS MATERIAL HAS BEEN GRANTED BY In Partial Fulfillment TO THE EDUCATIONAL RESOURCES INFORMATION CENTER (ERIC) of the Requirements for the Degree 1 Master of Arts in Applied Linguistics by Sherilynn Nidever Jordan August 2002 BST COPYMA1 6 ABSTRACT FORENSIC LINGUISTICS: THE LINGUISTIC ANALYST AND EXPERT WITNESS OF LANGUAGE EVIDENCE IN CRIMINAL TRIALS Sherilynn Nidever Jordan Forensic Linguistics provides consultation to lawyers through the analysis of language evidence during the pre-trial investigation. Evidence commonly analyzed by linguists in criminal cases includes transcripts of police interviews and language crimes (such as bribery) and anonymous or questioned texts. Forensic linguistic testimony is rarely admitted into courts of law, however. A major reason for this is apparently impressionistic methods, which are examined for their objectivity. A further barrier to legal acceptance is that FL experts, like all experts testifying in court, support the claims of whichever side has hired them. Nonetheless, forensic linguists have an ethical and professional responsibility to provide as thorough and objective analyses as possible in order to provide the legal community with reliable and admissible information and help prevent unfair conviction or acquittal of criminal defendants. Legal acceptance of FL expertise should increase as methods improve and as forensic linguists adapt to legal norms. FORENSIC LINGUISTICS: THE LINGUISTIC ANALYST AND EXPERT WITNESS OF LANGUAGE EVIDENCE IN CRIMINAL TRIALS BY Sherilynn Nidever Jordan APPROVED: 4/VLAkPlit4",dk_ s a1 Dr. Herbert C.Purnell Chair, Thesis Committee 4f, Dr. Stephen Baf6er Member, Thesis Committee Mr. Walter Lewis Member, Thesis Committee APPROVED: v t, Dr. F. Dougla Pennoyer Date Dean, School of Intercultural Studies Copyright © 2002 by Sherilynn Nidever Jordan TABLE OF CONTENTS PAGE PART ONE: THE FIELD OF FORENSIC LINGUISTICS 3 THE FORENSIC LINGUIST DEFINED 4 LANGUAGE AND THE LAW VERSUS FORENSIC LINGUISTICS 6 OVERVIEW OF ISSUES IN THE FIELD OF LANGUAGE AND THE LAW 8 Language in the Legal Arena ...8 Legal Language 8 Courtroom Discourse 14 Court Interpreting and Other Non-native Speaker Issues 18 Language Legislation 21 Trademark Infringement Cases 23 Sociolinguistic and Dialectological Contributions 25 Forensic Linguistics ...28 PART TWO: THE EVIDENCE FORENSIC LINGUISTS ANALYZE 31 TRANSCRIPTS 32 Transcripts As Incomplete Representations of Interactions 32 Types of Transcript Analysis 35 Authenticity Evaluation of Police Transcripts or Recordings of Witness/Suspect Statements 35 iii Discourse Analysis of Alleged Language Crime Recordings 42 LANGUAGE EVIDENCE IN QUESTIONED OR ANONYMOUS AUTHORSHIP CASES. 46 The Uniqueness of Individual Linguistic Behavior 47 Speaker/Writer Identification Through Analysis of Language Stylistic Elements 52 PART THREE: THE NEED TO IMPROVE CREDIBILITY IN THE LEGAL COMMUNITY .62 REASONS FOR LACK OF RECOGNITION BY THE LEGAL COMMUNITY 63 Tentative Acceptance of Expert Testimony .63 Admissibility of Expert Evidence in Court 63 History of Expert Testimony in General .63 History of Forensic Linguistics in Court 65 Federal Rules of Evidence 69 Conflicting Testimonies of Experts 71 The Inability to Produce Legally Acceptable Findings .72 The Assumption of Native Speaker Linguistic Expertise 72 The Lack of Empirical Methods 74 FORENSIC LINGUISTIC METHODS: SUBJECTIVE? 77 Electro-Static Deposition Analysis (ESDA) 77 Disputed Authorship Index (DAI) 82 Cumulative Sum Analysis (QSUM) 84 Type-Token Ratio (TTR) 89 Forensic Linguistic Differential Diagnosis (FLDD) 96 Forensic Discourse Analysis .99 Corpus Linguistics 106 Error Analysis ..113 General Recommendations 116 PART FOUR: PROFESSIONAL AND ETHICAL ISSUES AND RESPONSIBILITIES FOR FORENSIC LINGUISTS .121 APPARENT ADVOCACY AND CONFLICTING EXPERT TESTIMONY 122 QUALIFICATIONS OF THE FORENSIC LINGUIST 123 INTERACTION WITH THE LEGAL COMMUNITY OFF AND ON THE WITNESS STAND 124 INVOLVEMENT IN CASES CONTRARY TO ONE'S OWN MORAL PRINCIPLES 126 PART FIVE: THE FUTURE OF FORENSIC LINGUISTICS 129 A SHORT LIFE EXPECTANCY? 130 THE DEVELOPMENT OF THE FIELD OF FORENSIC LINGUISTICS 130 FINAL RECOMMENDATIONS AND AREAS'FOR FURTHER STUDY 132 REFERENCES CITED 137 Appendix A Anthrax Letters 146 ACKNOWLEDGMENTS I owe special thanks to Mr. Walter Lewis, a retired Deputy District Attorney of the County of Los Angeles, for his thoughtful critique of my thesis, and for his many comments and copies of articles providing me much greater insight into the legal world and its response to forensic linguistic claims. I also must thank the English Language Studies Program at Biola University for allowing me to spend hours on end hovering over the computer in the ELSP office to produce this thesis. Finally, thanks to my thesis committee, friends and colleagues for their support and prayers as I attempted to accomplish the biggest feat of my grad school years, particularly in those moments when I was unsure whether I would ever finish. a vi The term forensic linguistics may evoke various images for the interested listener. One image may be that of a skillful rhetorician engaged in lively courtroom debate, wrapping an eloquent web of words around a rapt jury and winning his case (an image which more accurately may depict the hiring lawyer). On the other hand, the image may be a large question mark betrayed by a look of puzzlement. Although the first image is, as of yet, completely fictitious, the field of forensic linguistics still conjures up notions of language, law and justice with a whole range of possibilities to research and explore. The primary focus of this thesis will be to examine the investigative role of the forensic linguist in analyzing language evidence and interpreting it in a meaningful and objective manner for the benefit of the legal community. The secondary focus found in the linguistic literature, is the role of the forensic linguist as expert witness. This is because forensic linguistic testimony is heard in court much more rarely than linguistic evidence presented at the pre-trial stages in criminal proceedings: Part of the reason for this lies in issues of admissibility of expert testimony in court as well as in linguistic methods deemed subjective by the legal community, addressed in Part Three of this paper. Ethical and professional considerations of thepractice of forensic linguistics (FL) is a further and subsidiary focus, examined in Parts Four and Five. My initial interest in forensic linguistics was spawned by an encounter with articles about criminal proceedings in which forensic linguistic evidence 10 2 appeared to be a contributing factor to the outcomes of the cases. It became apparent to me that the forensic linguist shoulders a great burden in such cases to analyze the language evidence by the most
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