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The Pragmatics of Powerlessness in Police Interrogation Author(S): Janet E

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The Pragmatics of Powerlessness in Police Interrogation Author(S): Janet E The Yale Law Journal Company, Inc. In a Different Register: The Pragmatics of Powerlessness in Police Interrogation Author(s): Janet E. Ainsworth Reviewed work(s): Source: The Yale Law Journal, Vol. 103, No. 2 (Nov., 1993), pp. 259-322 Published by: The Yale Law Journal Company, Inc. Stable URL: http://www.jstor.org/stable/797097 . Accessed: 16/08/2012 14:37 Your use of the JSTOR archive indicates your acceptance of the Terms & Conditions of Use, available at . http://www.jstor.org/page/info/about/policies/terms.jsp . JSTOR is a not-for-profit service that helps scholars, researchers, and students discover, use, and build upon a wide range of content in a trusted digital archive. We use information technology and tools to increase productivity and facilitate new forms of scholarship. For more information about JSTOR, please contact [email protected]. The Yale Law Journal Company, Inc. is collaborating with JSTOR to digitize, preserve and extend access to The Yale Law Journal. http://www.jstor.org Articles In a Different Register: The Pragmatics of Powerlessness in Police Interrogation Janet E. Ainswortht CONTENTS I. INTRODUCTION....................................... 260 II. How WE Do THINGS WITH WORDS .............................. 264 A. Performative Speech Acts . ................................. 264 B. Indirect Speech Acts as Performatives ......... ................ 267 C. Conversational Implicature Modifying Literal Meaning ..... ........ 268 III. GENDER AND LANGUAGEUSAGE: A DIFFERENTREGISTER .271 A. Characteristics of the Female Register . .275 1. Hedges .276 2. Tag Questions .277 t Associate Professorof Law, Universityof Puget Sound School of Law. B.A. BrandeisUniversity, M.A. Yale University, J.D. HarvardLaw School. My appreciativethanks go to HarrietCapron and Blain Johnson for their able research assistance. I am also indebted to Melinda Branscomb, Jacqueline Charlesworth,Annette Clark, Sid DeLong, CarolEastman, Joel Handler,Robin Lakoff, Debbie Maranville, Chris Rideout, Kellye Testy, Austin Sarat,and David Skover for their helpful comments and suggestions. I gratefully acknowledge the responses of my colleagues and friends to an earlier version of this Article presentedat the Law and Society Association's 1992 annual meeting in Philadelphia. 259 260 The Yale Law Journal [Vol. 103: 259 3. Modal Verb Usage ................................... 280 4. Absence of Imperatives ................................ 281 5. Rising Intonation .................................... 282 B. The Pragmatics of Powerlessness in the Female Register ... ........ 283 C. Power Asymmetry in Police Interrogation . .286 D. Multiple Registers and Mutual Misunderstanding . .288 IV. INVOCATIONOF THE RIGHT TO COUNSELIN POLICEINTERROGATION ... 292 A. The Legal Consequences of Invoking the Right to Counsel .292 B. The Legal Consequences of Invocations Found To Be Ambiguous or Equivocal .................................. 301 1. The Threshold-of-Clarity Standard .302 2. The Per Se Standard .306 3. The Clarification Standard .308 V. TRANSCENDINGTHE "WOMAN QUESTION":CULTURAL PLURALISM AND THE FEMALE REGISTER.315 VI. CONCLUSION:How LAW CAN ACCOMMODATEMULTIPLE REGISTERS ... 320 I. INTRODUCTION Imaginethat you are in police custody,about to be interrogatedconcerning a crime. Before the questioningbegins, the interrogatingofficer tells you that you have the right to remain silent and to have an attorneypresent during questioning.If you decide to invoke your right to the presenceof an attorney, you must be very careful about how you phrase your request. Make your request in the wrong way, and you may lose legal protection for your constitutionalrights. The SupremeCourt has yet to resolve the questionof what legal effect, if any, should be accorded to an arrestee's use of equivocal or ambiguous language in invoking Miranda' rights during police interrogation.Three differentapproaches have emergedin the state and lower federalcourts. Some jurisdictionshave adopteda rule requiringinvocations of the right to counsel to be direct and unambiguousbefore they are given any legal effect. Other jurisdictions allow the police to continue questioning a suspect whose invocation is ambiguous or equivocal, but only to determine the suspect's intent with respect to the exercise of the rightto counsel. Still otherstreat any 1. Miranda v. Arizona, 384 U.S. 436 (1966) (holding that suspect in police custody undergoing interrogationhas right to remain silent and right to presence of attorney). 1993] In a DifferentRegister 261 recognizable invocation as legally sufficient to bar any further police interrogation. The first two doctrinalapproaches, which are observed in the majorityof jurisdictions, provide enhanced constitutionalprotection from furtherpolice interrogationfor those who use direct and assertivemodes of expression, and penalize those who adopt indirect or qualified ways of speaking. The legal distinctions in the degree of protectionaccorded to arresteesrest on implicit and unexaminednorms about how people express themselves-namely, that people naturallydo and should use direct and unqualifiedways of speaking. Invocation doctrinesthat favor direct speech operateto the detrimentof certain groups within society. Sociolinguisticresearch has demonstratedthat discrete segments of the population-particularly women and ethnic minorities-are far more likely than others to adopt indirectspeech patterns. An indirect mode of expression is characteristicof the language used by powerless persons, both those who are membersof certain groups that have historicallybeen powerless within society as well as those who are powerless because of the particularsituation in which they find themselves. Because criminalsuspects confronted with police interrogationmay feel powerless,they will often attemptto invoke their rightsby using speech patternsthat the law currently refuses to recognize. Ironically, invocation standardsused in a majority of jurisdictions, although intended to protect the individual from abuses of power by the police, in practice provide systematically inferior protectionto the least powerful in society. The inadequacy of the majority legal approach to the invocation of Mirandarights is symptomaticof a more generalphenomenon within the law: the incorporationof unconsciousandrocentric assumptions into legal doctrine. Feminist theory has exposed many of these assumptionsand thus has had a powerful impact on many aspects of contemporarylegal thought.2It may not be immediatelyobvious what relevancefeminist theory has for such areas of law as criminal procedurethat are, or at least appearto be, gender-neutral. However, recent works in feministjurisprudence have examined a variety of legal doctrinesand practicesthat seem on the surfaceto be gender-neutral,and have discovered gender bias3 through the use of one of the primary 2. ProfessorOwen Fiss has suggested that feminism has a transformativepotential for the law similar to that of the civil rights movementof the 1960's. Owen M. Fiss, The Death of the Law?, 72 CORNELLL. REV. 1, 15 (1986); see also Owen M. Fiss, The Law Regained,74 CORNELLL. REV.245, 251-55 (1989). ProfessorFiss describesfeminist jurisprudence as a "vibrantintellectual movement in the law" that"infuses new life and energy into the notion of law as public ideal[, which] it enjoyed during the sixties but not since." Id. at 251, 254. 3. See, e.g., DeborahMaranville, Feminist Theory and Legal Practice:A Case Studyon Unemployment Compensation Benefits and the Male Norm, 43 HASTINGS L.J. 1081 (1992) (demonstrating that unemploymentcompensation policy requiringapplicants to be availablefor full-time work is premisedon work patternsand lack of care-givingresponsibilities more typical of men than of women); see also Mary I. Coombs, Shared Privacy and the Fourth Amendment,or the Rights of Relationships,75 CAL.L. REV. 1593 (1987) (arguing that certain aspects of Fourth Amendment law reflect male preferences for 262 The Yale Law Journal [Vol. 103: 259 methodological tools of feminist theory-asking the "womanquestion."4 As framed in feminist jurisprudence,the "womanquestion" asks, "Whatwould law be like if women had been consideredby the draftersand interpretersof the law?" Asking the "womanquestion" forces us to imagine a counterfactual world in which women's experiences,perspectives, and behavior were taken into account in constructingthe legal order. By measuringthe actual legal orderagainst this imaginedworld, feminist methodologyexposes assumptions that are deeply embeddedwithin the law, assumptionsthat influencethe shape of legal doctrine5and the dynamicsof legal practice.6 In the case of Mirandarights, askingthe "womanquestion" means asking whethera legal doctrinepreferring direct and unqualifiedassertions of the right to counsel takes into account the speech patternsof women as well as other powerless groups.As I will detail, sociolinguisticresearch on typical male and female speech patterns indicates that men tend to use direct and assertive language, whereas women more often adopt indirect and deferentialspeech patterns.Because majoritylegal doctrinegoverning a person's rights during police interrogationfavors linguistic behavior more typical of men than of women, asking the "womanquestion" reveals a hiddenbias in this ostensibly gender-neutraldoctrine. autonomousindividualism over female preferencesfor connection in relationships). 4. For a considerationof asking the "woman question"as feminist methodology, see KatharineT. Bartlett,Feminist Legal Methods,
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