Forensic linguistic corpus

Annotated Bibliography and References Summary: This article discusses the
discipline of Forensic Linguistics. It begins by describing what Forensic
Linguistics is, namely the interface between linguistics (the science of language)
and the law, including law enforcement. It then outlines the history and
development of Forensic Linguistics from its beginnings in the 1950y s and 1960a s to
the present day. A section on Forensic Phonetics is included, and the article
concludes with how Forensic Linguistics works in the justice system and some of the
difficulties that linguists and lawyers may have in understanding each otherso
viewpoints. The article concludes by suggesting that lawyers and linguists work
more closely with each other in the interests of justice, and that linguists seek
to widen their understanding of international law, of international human rights
issues, and of how law and language relate to each other across the globe. The
article suggests that the future of Forensic Linguistics will be bright if
linguists work on these issues, and also on acquiring skills, knowledge and
qualifications in other disciplines in order to better prepare them for working in
and with courts. What is forensic linguistics? In ten words or less, what is
Forensic Linguistics? Forensic Linguistics is the application of linguistics to
legal issues. That is a starting point, but like all answers it is imperfect and
serves only to stimulate more questions. For example, what does ‘the application of
linguistics mean? When Forensic Linguistics is referred to as an application of
linguistics or, more concisely, an applied linguistic science, the word applied is
not necessarily being used in the same sense as, for example, in the phrase applied
statistics, where what is being applied is a theory underpinning a particular
science to the practice of that science. Forensic Linguistics is, rather, the
application of linguistic knowledge to a particular social setting, namely the
legal forum (from which the word forensic is derived). In its broadest sense we may
say that Forensic Linguistics is the interface between language, crime and law,
where law includes law enforcement, judicial matters, legislation, disputes or
proceedings in law, and even disputes which only potentially involve some
infraction of the law or some necessity to seek a legal remedy. Given the
centrality of the use of language to life in general and the law in particular, it
is perhaps somewhat surprising that Forensic Linguistics is a relative newcomer to
the arena, whereas other disciplines, such as fingerprint identification and
shoeprint analysis, are much older, having a well#established presence in judicial
processes. The application of linguistic methods to legal questions is only one
sense in which Forensic Linguistics is an application of a science, in that various
linguistic theories may be applied to the analysis of the language samples in an
inquiry. Thus, the forensic linguist may quote observations from research
undertaken in fields as diverse as language and memory studies, Conversation
Analysis, Discourse Analysis, theory of grammar, Cognitive Linguistics, Speech Act
Theory, etc. The reason for this reliance on a broad spectrum of linguistic fields
is understandable: the data the linguist receives for analysis may require that
something is said about how the average person remembers language, how
conversations are constructed, the kinds of moves speakers or writers make in the
course of a conversation or a written text, or they may need to explain to a court
some aspects of phrase or sentence structure. In summary, we can say that the
forensic linguist applies linguistic knowledge and techniques to the language
implicated in (i) legal cases or proceedings or (ii) private disputes between
parties which may at a later stage result in legal action of some kind being taken.
Legal Cases and Proceedings In lay terms, for the purposes of this discussion, we
can envisage a legal proceeding as consisting potentially of three stages: the
investigative stage, the trial stage and the appeal stage. The investigative stage
is also sometimes referred to as the intelligence stage. In this part of the
process it is important to gather information relating to the (alleged) crime. Not
all of the information which is gathered during investigations can be used in
court, and so a linguist who assists law enforcement officers during the
intelligence stage may, in fact, find that there is no requirement to give evidence
at any subsequent trial. Similarly, a linguist whose work is used at trial may not
be required to assist the court at the appeal stage, if the content of the appeal

does not include linguistic questions. On the other hand if linguistic evidence
which was not available at the earlier stages comes to light while the appeal is
being prepared, then this may be the stage at which the linguist is called in to
give an opinion. The investigative stage Typically, requests for linguistic
analysis originate with law enforcement departments or, in some countries, at the
invitation of an investigating magistrate. Examples of linguistics intelligence
work have included analysis of ransom notes, letters purporting to provide
information on a case, mobile (cell) phone text messages, and specific threat
letters. Linguists have also been asked to analyse texts purporting to be suicide
notes. Even though the police in such cases may not suspect foul play, it could be
important to attempt to establish whether the questioned text can throw any light
on the cause or circumstances of death. Also at the investigative stage, the police
may need to have an opinion on a text or an interview tape, perhaps to assist in
developing interview and interrogation strategies. It is unlikely that anything a
linguist says about veracity (using techniques similar to statement analysis) would
be acceptable evidence in court, which is why this kind of linguistic analysis is
usually confined to the investigative stage. The trial stage At the trial stage any
one of a number of types of linguistic analysis may be called for, including
questions of authorship (Who wrote the text?/Who is the speaker in this
recording?), meaning and interpretation (Does this word mean x, y or something
else?), threat analysis (Does the text contain a threat?), or text provenance and
construction (Was the text dual#authored? Was it written rather than spoken? etc).
The inquiry could be of a civil or criminal nature, and this will determine the
level of ‘proofl acceptable to the court in question. Usually, the forensic
linguist is instructed some time before a case gets to court. An expert report is
submitted to the instructing legal team — either for the prosecution or the defence
(or the plaintiff/claimant in a civil case). Even though the linguist prepares a
report for one ‘sidea in a case rather than the other, it is the court for whom the
work is really done. The first duty of the linguist — like that of any other
forensic expert — is to the court, and not to the client on whose behalf the
analysis was originally carried out. The appeal stage If a defendant is convicted
of a crime it is not uncommon, especially these days, for the defence legal team to
launch an appeal almost immediately. The structure and nature of appeals varies
from country to country, and in some countries appeals centre on the claim that new
evidence has been made available, or that existing evidence should be looked at in
new ways. It is becoming increasingly common for linguists to be called in to
assist legal counsel at the appeal stage, either because there may be some dispute
about the wording, interpretation or authorship of a statement or confession made
to police, or because a new interpretation of a forensic text (such as a suicide or
ransom note) may have become apparent since the conviction. Private disputes A not
inconsiderable part of the forensic linguistt
this is meant that the work is commissioned by private individuals not involved in
litigation at the time of the commission. Such cases include identifying the author
of anonymous hate mail, the investigation of plagiarism for a school or university,
or on behalf of a student accused of plagiarism. It sometimes happens that the
linguisths report may have an influence on the cliento s decision to take matters
further, either in a civil or a criminal court, but this is not common. Usually,
what happens is that the report is submitted and the client deals with the matter
internally — either within a university department, a business organisation, or, as
may also be the case, within a family. History and development of Forensic
Linguistics to the present Like almost all sciences it is not possible to say that
Forensic Linguistics began at a specific moment in time. Questions of authorship
have exercised minds since the times of the ancient Greek playwrights who not
infrequently accused each other of plagiarism. Since at least the eighteenth
century scholars and amateurs alike have pondered over the authorship of some of
the worldcs most famous texts, including sacred texts and the plays of Shakespeare.
There was some attempt in the nineteenth century to develop methods of authorship
attribution, mainly by British and American mathematicians and statisticians,
notably Augustus de Morgan, in 1851, TC Mendenhall (1887 and 1901) and in the

earlier part of the twentieth century by Udney Yule (1938 and 1944). These studies
tended to concentrate on easily measurable attributes like word length average,
mean sentence length, and so on. The application of these exercises, though, was
hardly forensic and, in any case, had little to do with linguistics. The actual
phrase Forensic Linguistics was not used until 1968 when a linguistics professor by
the name of Jan
Svartvik recorded its first mention in a now famous analysis of statements given
to police officers at Notting Hill Police Station in 1953. Timothy John Evans was
accused of the murder of his wife and baby at 10 Rillington Place, Notting Hill,
London, England, tried at the Central Criminal Court of England and Wales (The ‘Old
Bailey,) and hanged at Pentonville Prison. In the 1960f
allegedly given to police following his arrest, troubled several people, including
a well#known journalist by the name of Ludovic Kennedy, and Svartvik was
commissioned to analyse the statements. Svartvik was one of the earliest linguists
involved in corpus studies, which is the systematic analysis of language through
the collection and study of large bodies (hence corpus, pl. corpora) of language,
and therefore he was able to approach the task of analysing the Evanso statements
in a methodical manner. He quickly realised that the statements contained two
styles and he set about quantifying the differences, ultimately demonstrating that
they were, in fact, an educated written style and a marked spoken style. Along with
other evidence collected in the course of many different threads of investigation,
the findings of Svartvik showed that Evans could not, as had been claimed at his
trial, have dictated the statements attributed to him. For a long period in English
law a set of rules had been established regarding the interrogation of witnesses,
in particular how statements were to be taken from them. These prescriptions were
known simply as Judgese Rules which laid down that suspects were to dictate their
narrative to police officers, that police officers were not to interrupt suspects,
and that questions were not to be asked of the suspect at the statement stage
except for minor clarifications. In practice this almost never happened. Typically,
a police officer would ask a series of questions, take down notes and then write or
type the suspect s statement, not in the words of the suspect, but in a form and
pattern which police custom had long dictated. Thus, police statements contained
phrases like ‘I then observeda, etc. This type of phrasing is not at all typical of
how people speak, but rather reflects a way of phrasing which has come to be known
as ‘police registeru, itself an area of study within Forensic Linguistics. The
learned judges who formulated the rules for statement taking were not aware that
dictating a statement and transcribing it verbatim are difficult — perhaps even
impossible — tasks for the average speaker. Learning to dictate a narrative in a
coherent, sequential, articulate form is extremely difficult, but the person taking
the statement has an even harder task if the speaker is not skilled at pacing
his/her delivery. Usually, people do not deliver their statements in a coherent,
ordered fashion: they speak too fast, they omit important details, they speculate
aloud, they backtrack, and so on. In effect, the Judgesn Rules were unworkable.
This was why police officers had their own way of taking and regrettably in some
cases making statements. It was simply impossible to follow the prescriptions of
the Judgesn Rules. This was why in the early days of Forensic Linguistics, at least
in the United Kingdom, many cases involved questioning the authenticity of police
statements. The first example of expert evidence being given from the witness box
on this matter was at a murder trial at the Old Bailey in 1989, where Peter French
demonstrated the presence of police register in an incriminating statement the
prosecution claimed was entirely in the words of one of the defendants. Notable
cases included appealing against the convictions of Derek Bentley (posthumously
pardoned) the Birmingham Six, The Guildford Four, the Bridgewater Three, and so on.
These last four cases all relied on the work of Britainr s most distinguished
forensic linguist, Professor Malcolm Coulthard of Birmingham University, a
discourse analyst who had first taken an interest in forensic questions following
an inquiry from a colleague. In the United States forensic work began slightly
differently, but also concerned the rights of individuals with regard to the
interrogation process. In 1963 Ernesto Miranda was convicted of armed robbery, but

appealed on the grounds that he did not understand his right to remain silent or to
have an attorney present at the time of questioning. The Court of Appeal overturned
his conviction in 1966. In the US there were many Miranda cases, as they came to be
known. On the face of it the provision of Miranda is a simple one: police officers
are obliged to advise arrestees that they need not speak unless they wish to, that
they are entitled to have a lawyer present, and that anything they say can be used
against them in court. However, many issues arose, as discussed by Professor Roger
Shuy: (i) a confession must be voluntary, (ii) questioning should not be coercive,
(iii) arrestees must be asked whether they understand their rights, etc. With
regard to the first point Shuy pointed out that an arrestee is hardly in a position
to agree voluntarily to being questioned. Effectively, the very nature of
questioning (as pointed out by the US Supreme Court) is coercive. Shuy (1997: 180)
gives a good example of the issue of coercion in an interrogation process. He
describes how a suspect, having declined to speak following the reading of his
Miranda rights, was escorted in the back of a police car to the police station by
two officers, who then began to talk to each other about the possibility of the
murder weapon in the case (a shotgun) being accidentally stumbled upon by children
at a nearby school. The suspect immediately waived his rights and led officers to
the location of the weapon. The suspect, a man by the name of Innis was convicted
of murder and his lawyers appealed. The issue before the appeal court was whether
the suspect had been coerced into making the confession. This in turn caused
lawyers and judges to consider the meaning of the word interrogation. The Rhode
Island Supreme Court concluded that interrogation need not involve the asking of a
question, and that in this case subtle coercion had occurred and that this was “the
functional equivalent of interrogation”. In the US Supreme Court it was thus
appreciated that “interrogation need not be in the form of a question…[and] may
involve the use of psychological ploys”. However, it was also realised that the
conversation between the officers was probably more in the nature of casual remarks
than a deliberate ploy. Shuy raised many important points about Miranda, and
vigorously questioned many of its assumptions of simplicity. He cites one case
where a fifteen year old boy from Houston, Texas was read his rights and ultimately
signed a confession of murder. After analysing tape-recorded interviews between the
attorney and the child Shuy concluded that though the boy often said he understood
what he was being asked it was clear that his level of comprehension was extremely
low. His school confirmed that his comprehension ability was no more than that of
an eight year old. Thus in this and other cases Shuy explores the most basic
premises of Miranda, and — by extension — similar legal provisions. He does not
take even the ‘simplestd word or concept for granted: what does ‘voluntarilyn mean,
does ‘understandi mean ‘I say I understando or ‘I actually understandn ? The work of
Roger Shuy, and other US linguists, has encompassed many areas of civil and
criminal practice, but right from the beginning, the law itself was, as it were,
subject to questioning: what does this law mean? How do different people perform
when asked if they ‘understando their rights? There is a very readable review of
early Forensic Linguistics in the United States, written by Judith Levi (Levi
1994). In her account Levi recalls a case in which she was asked to analyse a ‘bad
news about your social benefitsl letter written by the Illinois Department of
Public Aid to recipients of child benefit payments whom they had categorised as
‘non#cooperativec. One of the tasks Levi undertook was to determine whether the
vocabulary selections made by the drafters of the letter had used technical and
bureaucratic language in place of ordinary, everyday language. Also included in the
analysis were pragmatic questions such as inferencing (Were inferences made by
recipients of the letter justified by the facts of the case? Did the writers of the
letter “provide incomplete information which could lead…to the making of misleading
inferences”? Was the reader forced “to infer information that should have been made
explicit”?). The result of Levic
the letters. Most of the recipients of the benefit were single mothers who had
suffered real hardship as a result of the Statef
awarded $20,000,000 to the beneficiaries and ordered the State to rescind its
classification of ‘non#cooperationi until it had complied fully with the courts s

consent order. Finally, the State was ordered to re#write the letter in terms
comprehensible to the beneficiaries (Levi 1994: 18). An important point noted by
Levi is the comment by a linguist acting in another case, namely that the legal
system is “linguistically naïve and vulnerable” (Levi 1994: 22). This point is
referred to in the next section. Another early application of Forensic Linguistics
in the United States related to the status of trademarks as words or phrases in the
language. An early case involved a dispute surrounding an aspect of the brand name
‘McDonald sn, owners of the multi#national fast food chain. In this case the
linguists were Genine Lentine and Roger Shuy (as reported in Levi 1994: 5). Quality
Inns International announced their intention of opening a chain of economy hotels
to be called ‘McSleepo. ‘McDonald sn claimed that the attachment of the ‘Mco
prefix to many unprotected nouns, such as ‘Friesa in ‘McFriesm
‘McNuggetsm, etc., barred Quality Inns from use of the ‘Mci prefix. In this case
the plaintiff was not just claiming implicit ownership of a name, but over a
morphological principle, namely the attachment of a particular prefix to any noun.
It appears that the claim was inherently one of a “formula for combination” (Levi
1994: 5) and it was this formula for which protection was being invoked.
‘McDonaldasd also claimed that they had originated the process of attaching
unprotected words to the ‘Mca prefix and had run advertising campaigns which
illustrated this. In their evidence Lentine and Shuy showed that the ‘Mch prefix
had had previous commercial applications, and that as ‘McDonaldt st had not objected
to any of these they had no grounds for doing so in the present instance. Despite
the overwhelming evidence presented by Lentine and Shuy, judgement was for the
plaintiffhs and Quality International Inns were unable to launch their chain of
motels under the ‘McSleepn banner. In Australia linguists began meeting in the
1980ls to talk about the application of linguistics and sociolinguistics to legal
issues. They were concerned with the rights of individuals in the legal process, in
particular difficulties faced by Aboriginal suspects when being questioned by
police. They quickly realised that even such phrases as ‘the same language are
open to question. An important instance of this is the dialect spoken by many
Aboriginal people, known colloquially as ‘Aboriginal Englishc , wrongly thought by
many white Australians to be a defective form of the English spoken by whites. It
is in fact a dialect in its own right. Thus, when being questioned by police,
Aboriginal people bring their own understanding and use of ‘Englishb to the
process, something which is not always appreciated by speakers of the dominant
version of English, i.e. ‘white Englisha. More than this they bring their own
interactional, culturally#based, styles to the interview. An individuali s own
interactional style, if perceived to be at variance to that of the dominant
culture, might compel responses to questions in particular, non#confrontational
ways which could lead to a false assumption on the part of a questioner that the
suspect was being evasive or, worse still, that an admission of guilt was being
made. Other Australian research focused on how Aboriginal witnesses and defendants
understood the legal processes involved in land claim hearings and examined the
impact of cross#cultural differences between white settlers and Aboriginal people
on the presentation and even outcome of cases. In this context Gibbons (1994: 198)
observes “ the…system…around interrogation in the courtroom is alien to Aboriginal
culture”. Gibbons is the author of two major books on Forensic Linguistics,
‘Language and the Lawt (Longman, 1994) and ‘Forensic Linguistics: An introduction
to language in the justice system1 (Blackwell 2003). In these books he not only
summarises some of his own considerable experience as a Forensic Linguistics expert
in the court system, but also details much of the history of the development of
Forensic Linguistics. Surprising as it may seem, the thread which connects many of
these different forensic activities is authorship. Essentially, in considering the
question of whether an individual dictated a statement, or whether a statement was
in the words of its alleged speaker, analysts were actually asking the question
‘Who was the author of the statement attributed to X?t This applied to the
statements of Derek Bentley, Timothy Evans, the Birmingham Six, the Bridgewater
Three in the United Kingdom (and many others), as well as to Australian Aboriginal
defendants who claimed that police had ‘verballed them (i.e. altered what they had

said). In the case of US defendants whose Miranda rights were being investigated,
there was a slightly different kind of authorship nexus of questions which
included: ‘Did the putative authors of statements (such as the 15 year old Houston
boy, or Mr Innis) make their statements voluntarily, knowingly and in full
possession of their rights?r In other words, the issue here relates to the
conditions of authorship: a series of questions put by police, for which answers
are required, structures and even distorts a narrative of events; answers which
appear vague, ambiguous or reluctantly given may slant a narrative in a way which
is disadvantageous to the defendant and, as pertinently, to the apparent truth of
the narrative. In any case, the assymetric nature of the relationship between
authority figures (the police) and the defendant — who may be (i) illiterate (ii) a
speaker of another language than the language of interview (iii)
young/disabled/ethnically disadvantaged, etc., can result in a text (such as a
record of interview, video or audio recording or written statement) which is
considerably at variance with what the suspect would have said had he/she been
given the opportunity to make a statement in a non#coercive or less threatening
environment. In a broad sense to be an author is to possess the language you are
using. It is the use of language to produce a text over which you as the author
have control, and whose course you are free to direct. Illiterate, young, disabled,
language minority speakers are scarcely in control of the authorship process when
‘givinge a statement to powerful authority figures. We can realistically challenge
almost any text produced under conditions of duress even where the duress may not
have arisen through the intention of questioning police officers, court officials,
or any other authority figure within the justice system. If a suspectr s way of
using language is at some remove from that of the officials with whom the suspect
is dealing then the potential for distortion of the authorship process is clearly
exacerbated, probably in proportion to the differences of perspective,
interactional styles and cultural norms between the institutional, authority
figures on the one hand and the suspect on the other. This is not to suggest any
malice or intrinsic lack of fairness or justice on the part of officials: they work
within institutional structures which are not always the most conducive for taking
individual circumstances into account. In Germany, an early case involved an
alleged slander by a tenant in an apartment complex of a fellow tenant (Kniffka,
1981). The issue at stake was whether the word concubine was an insult. Linguists
advised that for some speakers the word might be amusing, for others a way of
addressing each other as a joke, while yet others might find it insulting under
some circumstances: it was not possible to say that a given word or phrase, on its
own, was an insult, or constituted verbal injury. Rather, the relationship between
speaker and hearer, the context of situation, the speaker s education level — all
needed to be taken into account. A word does not have a single, universally-agreed,
meaning within a speech community. Other issues which emerged in the early days of
Forensic Linguistics in Germany involved authorship attribution, and the
development of methodologies for doing so. An early case, reported by Kniffka,
concerned the theses of twin sisters whose previous academic performance was,
according to university authorities, at a much lower level than the theses they
submitted for their final examination. Kniffka argued that an authorship
attribution in the case was not possible because the language used was essentially
the meta#language of the law and that it was not easy to attribute such language to
any given individual. He suggested the university authorities subject the students
to a written examination on their theses to test their knowledge, rather than
relying on subjective comparisons with their previous, known, work. In the years
since Forensic Linguistics began to establish itself as a discipline its scope has
grown considerably. From its beginnings as a means of questioning witness and
defendant statements, linguists have been called on to give evidence in many
different types of case, including authorship attribution in terrorist cases,
product contamination cases and suspicious deaths; the interpretation of meaning in
legal and other documents, the analysis of mobile (cell) phone text messages to
establish a time of death. The list continues to grow. In the next section, an
important area within Forensic Linguistics will be considered: Forensic Phonetics,

the analysis of speech through auditory and acoustic means and its application in
the legal and criminal arena. Forensic Phonetics This article is about Forensic
Linguistics rather than phonetics, but no account would be complete without some
mention of the science which deals with questions of speaker identification,
resolution of disputed content of recordings, the process of setting up voice line-
ups and ear line-ups and related topics. It has a more established presence in the
legal forum than Forensic Linguistics and its progress has been assisted by recent
advances in acoustic engineering. Phoneticians are able to analyse the distinctive
speech characteristics of a speaker relative to other candidate speakers in an
inquiry much more easily than as little as 20 years ago. An important ethic within
Forensic Phonetics is that no means exists which can infallibly identify an unknown
speaker in a legal case (such as a hoax or bomb threat caller to an emergency
service). Rather, like all branches of science Forensic Phonetics examines a set of
phenomena, in this case aspects of recorded speech, and offers opinions based on
the observations arising from the analysis. Among the earliest British forensic
phoneticians were John Baldwin, Stanley
Ellis and Peter French, while in Germany Hermann Künzel was also active. Künzel
(with Eysholdt) considered many aspects of speech production with reference to
social situations, including the influence of alcohol on speech (Künzel and
Eysholdt, 1992). Kniffkads (1990) collection contains accounts of some of the early
forensic phonetic cases – see especially Elliso s and Baldwint s contributions to
that collection. The earliest recorded voice identification testimony in the UK was
in 1965, given by Stanley Ellis at Winchester Magistrateso Court. Summary of the
development of Forensic Linguistics The early years of Forensic Linguistics were
characterised by two critical issues: The need to discover the scope and
effectiveness of Forensic Linguistics as a form of expert testimony within the
court system. The need to improve methodologies within Forensic Linguistics and to
make these transparent to non#linguists. These issues are still ongoing. It is
tempting to add a third point to the above: the need to develop a theory of
authorship as a socio#cognitive process, the relationship between individual and
community or social authorship and the nature of institutional authorship. However,
the scope of such a discussion is beyond the present article. Like all sciences —
even new ones — a disciplineos scientific methods, the need to educate
non#specialists and the constant testing of the limits of the science are always
key issues. To some extent these questions will be addressed in the following
section. Forensic Linguistics in the Justice System In the previous section we saw
the kinds of cases which forensic linguists routinely advise on, but it is
important to consider the mechanisms which underlie the use of Forensic Linguistics
in the world s justice systems, and the institutional and other factors which
relate to the further development of Forensic Linguistics and its rôle as an
adviser within the legal process. In this section the following aspects of
linguistics in the justice system will be considered: the relationship between
language and the law; the relationship between linguists and lawyers; the
conflicting goals of linguists and lawyers; meaning and clarity in judgest
directions to juries, and the process of admitting linguists as expert witnesses.
The relationship between the two abstract notions, language on the one hand and the
law on the other is key to understanding how linguists can contribute to the forum
of the law. It has often been said that the law is the language that enshrines it.
Not only do we need language to frame the law, but we need language to understand
the law. Law and language are inseparable. For this reason it was perhaps only
natural that, as linguistics developed throughout the course of the twentieth
century, linguists would take an increasing interest in the relationship between
the two, specifically: the language of the law, the use of language within the law,
and language in the court system. An early concern was the way in which the law is
framed: it was often seen as abstruse, impersonal, vague or ambiguous. Lawyers were
frequently viewed as wordy and hyper-precise and many linguists questioned the
assumption that lawyers were experts in the language. On occasion this led to
tensions between lawyers and linguists, with lawyers questioning the need for
linguistic testimony in the court system and occasionally seeking to exclude it.

One judge remarked to a phonetician: “A linguist…is someone who speaks a lot of
languages, so what exactly are you doing here?” (Storey#White 1997: 281). In
another case a linguist was told by the judge that ‘Surely there are only two kinds
of English — correct English and incorrect English?‘
difficulties many lawyers and linguists have learned to work with each other. It is
now realised in some legal circles that the language of the law is often archaic,
and that lawyers — in an effort to protect their clients — will frequently use
expressions whose meanings are not always transparent. However, it is not enough to
say that lawyers and non#lawyers have different ways of using language. They bring
to encounters with each other different perspectives and hence different discourse
practices. Jackson made a close study of some aspects of language and the law, one
aspect of which was the rôle of narratives in the legal process (Jackson 1995). In
an earlier section of this article it was discussed how the police statements of
Derek Bentley and Timothy John Evans could not have been dictated, as claimed by
police officers at the time. Such police statements are the kinds of document
Jackson studied, except that his reference point was their use in the courtroom
rather than their method of construction. Citing the example of a murder trial, he
considered, for example, the fact that the prosecution is always able to present
their narrative first in a courtroom, and that the defence has not only to dislodge
this narrative, but to create a convincing one to replace it. This, Jackson
claimed, inherently puts the defence at a disadvantage. As an example of the
ordinary person interfacing with the law Stratman and Dahl considered the language
of temporary restraining orders, and the difficulties ordinary speakers may have in
comprehending them. They cite a case where a man served with a temporary
restraining order drove to his partnerh s apartment and slipped a letter under her
door in order to elicit from her what the problems in their relationship were and
how they could address them. The court argued that he had violated the restraining
orderhs injunction not to ‘molest, interfere with or menacei his partner (Stratman
and Dahl 1996: 212). It was clear that the drafters of this particular law had a
different conception of the words molest, ‘interfere withi and menace, since it is
highly likely that most people would not ordinarily consider placing a letter under
someonels door to be an act of molestation or menace on its own. In court judges
often refer to dictionaries for the meaning of words which occur in legislation.
However, this approach has been criticised. Generally speaking, linguists view
dictionaries as imprecise and limited. Meanings are probably best not taken from a
dictionary, but from experimentation and observation of how words are used. It is
generally agreed that words have a core meaning and a number of ‘fuzzyu meanings
(see Goddard 1996: 254). While the core meaning is probably well understood by
‘mostG people, it is as the word approaches the boundaries of its semantic envelope
that difficulties arise. We would probably all agree that dogs, cats and hamsters
are pets. But what if a prospective tenant in a block of apartments which allows
pets were to bring a chicken or a crocodile and claim such an animal as a pet? How
does this kind of meaning difficulty equate with interpretations of words in our
previous example, such as molest and menace? Thus, while the word pet encompasses a
range of familiar domestic animals in the minds of most of us which may or may not
exclude such creatures as a chicken or a crocodile, words like molest and menace
have status as legal terminology. Though legal drafters are nowadays obliged to use
words in a meaning as close to ordinary language as possible, words like these do
present special problems, since they may have been used in legal language for
hundreds of years in a more or less fixed fashion, yet in ordinary language their
meaning will probably have changed considerably. Linguists have proposed a number
of ways of dealing with this kind of difficulty, including carrying out semantic
surveys. However, this approach has not found universal favour among linguists. For
example, Solan notes: “People cannot explain what, for instance, makes a snake a
snake, a game, a vehicle, etc. Generic categorisation is a matter of induction and
intuition, which we are rarely able to describe” (cited in Goddard 1996: 259).
Goddard notes that it would be absurd for forensic linguists to promote themselves
as experts in the meaning of legal words, because this is really the province of
judges. Using surveys, for example, to determine the meaning of a word, could

produce contradictory results. He suggests that if linguists confine themselves to
non#legal words, this may make more sense, but in any case, he points out that
semantics is still a relatively under#developed area of linguistics and that there
is still considerable disagreement among semanticians as to methodology. Corpus
linguistics has allowed the semantic survey approach to flourish because in the
technological age it is easy to collect many samples of a word in its ordinary
usage. However, an important competing process is that of semantic reduction (the
‘reductive paraphrasep — Goddard 1996: 269), which puts into practice Platon s
dictum that a definition must use words which are simpler than the word which is
being defined. Another area of potential conflict with regard to word#meaning is in
the directions given by judges to juries. It has often been pointed out that such
directions are full of legal terminology, some of which may be present in the
language as ordinary, everyday words. How are jurors, by definition ‘ordinary
citizens , to understand whether a word is being used as a technical term or as an
ordinary word, let alone understand the legal terminology? Would all the jurors in
a case agree as to the meaning of a particular word? In recent years, in England
and Wales at least, judges have received recommendations to illustrate their jury
directions with visual presentations, to avoid giving directions about the law, and
to keep reminding juries throughout the jury direction phase what the issues in the
case are. In the US in some jurisdictions, judges are now being trained in how to
talk to juries. When it comes to linguists
giving evidence in court, it is clear that lawyers and linguists have different
goals. The job of the lawyer is to convince or persuade the jury that the defendant
is guilty or innocent. The job of the linguist is to present an opinion and to
explain that opinion. The lawyer may interrupt the expert witness, use rhetoric,
‘spini, guile, and may choose to ignore anything the expert witness says. It is
safe to say that it is not necessarily the case that the lawyer is intent on
discovering or promoting the ‘truthi. The linguist, on the other hand, mindful —
among other things — of Grice‘s famous Cooperative Principle will attempt to be
informative, truthful and relevant. However, if the evidence is injurious to the
party the lawyer is representing — prosecution or defence — the linguist must
expect various lawyerly stratagems to suppress or distort that evidence. Lawyers
can also play on the notion of ‘cooperativee. The linguist will usually attempt to
be cooperative, but linguist and lawyer may conflict about what cooperative means
in practice in a given instance. This, again, will be due to the differing
discourse practices of lawyers and linguists. The lawyer will in all probability
bring a folk-semantic meaning to the idea of cooperation: ‘Why arenl
cooperating with the court? After all, it s a simple question. The linguist on the
other hand, mindful that the lawyer is attempting to direct the discourse away from
the evidence, struggles with the lawyera notion of cooperative: to the linguist
s
cooperation here means that lawyer and linguist cooperate to uncover the truth.
Finally in this section, it is important to consider some aspects of the different
methods of admitting expert witnesses into courts, in particular linguists. In the
US each state has its own rules of evidence, some of which will be applicable only
to district courts, and some to higher courts. There are also Federal Rules of
Evidence and these differ in kind from the evidence rules of lower courts. The
rules governing expert evidence are complex and not always understood. They require
that scientific evidence meets certain standards. Generally, the ‘Dauberte standard
is what is insisted upon. This requires, among other things, that witnesses
demonstrate the known error rate attached to their opinion. This of course implies
that the linguist must present quantifiable data. However, in linguistics it is not
always possible to present quantifiable data, and it may indeed be misleading to do
so. Some courts have interpreted ‘Dauberta more flexibly than this, and it is an
ongoing debate in legal and linguistic circles, with some insisting that any
authorship attribution analysis must be backed up by the use of inferential
statistics, which is the only way to demonstrate a known error rate in a particular
case. However, contrary to popular belief there is in reality no such thing as a
‘linguistic fingerprint and it is not always possible to quantify a view that a
particular individual is the author of a questioned text in a case. In other

countries it is sufficient that the method on which the expert bases an opinion
should be acceptable to the scientific community, and that the expert should be
qualified to give it. Both Canada and Sri Lanka, for example, follow this method of
accrediting a witness and accepting an opinion. In the near and medium term future
it is likely that the question of how linguists verify their opinions will be given
a great deal of attention. Some have argued that linguists have inhabited the ivory
tower of academia for too long. For this reason moving into the rough and tumble
arena of the law, where they are required with great rigour to justify what they
do, say and believe, has been a culture shock for many. Understanding of this
culture is critical: some would argue that it is not productive to describe the law
as alien or hostile to the linguistic viewpoint. The law is blind: it has no
favourites and nor should it. It is surely necessary for linguists to accept this
culture and adapt to it, while remaining true to their discipline. In this section
an attempt was made to illustrate some of the issues linguists face when
interacting with the legal system. It is now seen as imperative among linguists
that both they and legal professionals work towards a better understanding of each
otherbs perspective. If linguists claim that lawyers are ignorant of linguistics,
then it is up to linguists to ensure that this situation does not continue. Lawyers
can equally claim that linguists are ignorant of the law and it is certainly up to
linguists to ensure that this gap in their knowledge is addressed as a matter of
some priority. It will also be important for linguists, in this age of
international courts, to understand the discourse practices of international law,
and to familiarise themselves with the customs and mores of other countriesl legal
systems, as Forensic Linguistics moves into a new millennium and an uncertain
terrain in a world of organised crime, international terrorism and human rights
abuses in many countries. It is likely in the future that increasing numbers of
those seeking to enter the field of Forensic Linguistics will have additional
qualifications in areas such as the law and mathematics and statistics, and to gain
greater understanding of scientific techniques, methods and presentation. Many
universities are already equipping their undergraduates with some of this
information. With a broad but accurate insight into the law and an appreciation of
how science is ‘doneb in other fields than their own, forensic linguists of the
future will have greater means at their disposal than the founding fathers and
mothers of the discipline and the future for Forensic Linguistics will be bright.
Glossary Authorship attribution: the activity of attempting to assign a particular
text to one or more candidate author (see ‘authorshipm ). Authorship: the process
whereby language is produced by an individual writer or speaker, or by a group of
writers or speakers. Candidate author: in an authorship inquiry the candidates are
those individuals who are suspected of being the author of a questioned text. Some
inquiries have only one candidate author. Inflection: the morphological attachment
of a prefix, suffix or word ending, e.g. ‘-edl
‘pre-‘ as a prefix to a word. In general, if a word cannot take an inflection it is
non#lexical (see ‘lexical wordI). IPA. The International Phonetic Association. A
group of leading phoneticians who concern themselves with the sound systems of all
of the world's known languages and their transcription. The IPA Chart, which
records most of the phones in the world's known languages, is an essential
reference for anyone interested in or working in phonetics. The IPA Chart can be
used for transcribing any language. Lexical word: a lexical word is one which is
said to have meaning, e.g. ‘doga, ‘catx , ‘tabled , as opposed to words like ‘thes ,
‘ofd, etc., which essentially carry the grammar of the language, see non#lexical
words. Lexical words are also called ‘content wordst‘inflectione .
. See also
Linguist: one who studies linguistics. However, in some courts a linguist is an
interpreter or translator. Linguistics: the systematic, scientific study of
language. Morpheme: the minimum grammatical unit of a language, e.g. in the word
dog there are two morphemes, dog and -s. Neither of these morphemes can be reduced
further. Morphology is the study of the system of morphemes in a language. It is
now largely the domain of those studying syntax (see ‘syntaxi below). Non#lexical
word: a word which is said not to have meaning or content, such as in, for,
therefore, etc. There are approximately 250 common non#lexical words in English.

Phoneme: the minimum contrastive sound unit of a language, e.g. /b/, /k/, etc.
English has about 44 phonemes depending on the language variety under discussion.
Phonetics: the study of the sounds of a language, usually written in phonetic
symbols (see IPA). Phonology: the study of the sound system of a language.
Plagiarism: the activity of using other people
originate a text, particularly where the plagiarist intends to pass the work off as
his/her own. Plagiarist: one who plagiarises (see plagiarism). Pragmatics: the
study of the application of speaker-addressee context, as well as external
contextual factors, to communication, closely related to ‘semanticsx (see below).
Questioned text: a text whose authorship is unknown, or whose authenticity is
doubted. Semantics: the study of meaning, either theoretically or empirically.
Semantics deals with truth conditions, sense and reference and the (broadly)
metaphoric relations between words (such as metonymy, meronymy, etc). Syntax: the
study of the grammar of the sentence. In traditional syntax, as proposed by Noam
Chomsky and his followers, the focus of the study (and much of linguistics at the
time) was to understand how native speakers of a language acquired competence in
the language, by which was meant the ability to generate and understand an infinite
number of sentences. Text Measures: attributes of a text which can be measured,
e.g. text length (the number of words in a text), lexical density, the number of
lexical words divided by the total number of words, etc. Annotated Bibliography and
References Baldwin J.R. and P. French. 1990. Forensic Phonetics. Pinter Publishers,
London. [The authors, practising phoneticians, describe the rôle of phonetics in
criminal inquiries and as evidence in the courtroom. They illustrate voice
identification with a number of cases. A very readable book, though regrettably now
out of date.] Cornu G 1990. Linguistique Juridique. Montchrestien, Paris. [A good
introduction to Forensic Linguistics in French. In this book the emphasis
is on the language of the law.] Cotterill J: 2003. Language and Power in Court: A
Linguistic Analysis of the O.J. Simpson Trial. Palgrave Macmillan. [This is a
detailed account of the trial of OJ Simpson from a linguistic point of view. The
author, a professor of linguistics at Cardiff University in Wales, and a practising
forensic linguist of international reputation, discusses the trial from many
linguistic perspectives. The chapter on narrative discourse in the courtroom is
particularly interesting. Cotterill considers research from closely related
disciplines including the law itself, sociology, criminology, anthropology and
psychology.] Coulthard M. 1994. On the use of corpora in the analysis of forensic
texts. The International Journal of Speech Language and the Law. 1 (1), 27-43. [In
this article Professor Malcolm Coulthard, discusses his approach to the Derek
Bentley statement (see ‘History and development of Forensic Linguistics to the
present , this article). He illustrates the use of a corpus and how to compile a
concordance to illustrate systematicity in what is supposed to be a spontaneously
dictated statement. See also: Coulthard M. 1992. Advances in Spoken Discourse
Analysis. Routledge, Chapter 12: ‘Forensic Discourse AnalysisS (pp 242-254).]
Coulthard M and J Cotterill. 2006. Introducing Forensic Linguistics. Routledge. [In
this book the authors provide an overview of the interface of language and the law,
illustrated with authentic data and contemporary case studies. Topics include
collection of evidence, discourse, courtroom interaction, legal language,
comprehension and Forensic Phonetics.] Eades D 1994. Forensic linguistics in
Australia: an overview. International Journal of Speech Language and the Law 1 (2)
113-132. [As the title says, the author — a leading forensic linguist practising
mainly in Australia — gives a broad picture of Forensic Linguistics in Australia,
its beginnings, and details a number of important cases. A key issue in Australia
has been the involvement of linguists in analysis of police statements by speakers
of Aboriginal English.] Gibbons J (1996). Distortions of the police interview
revealed by videotape. International Journal of Speech Language and the Law 3 (2)
289-298. [In this journal article John Gibbons shows how the sequence and content
of questions in a police interview structures that interview, and in some cases
leading to a distorted representation of an incident and the intervieweee s
involvement. See also Gibbons J 1994 Language and the Law, Harlow, Longman. This is
Gibbonsm classic book on Forensic Linguistics.] Goddard C. 1996. Can linguists help

judges know what they mean? Linguistic semantics in the court-room. International
Journal of Speech Language and the Law 3 (2) 250-272. [This journal article, by a
semantician, writer and theorist, examines how judges can interpret statutory legal
terms in ways that ordinary people can understand what they mean. The author argues
against linguists being admitted to courts as experts on the interpretation of the
law because lexical semantics is as yet not sufficiently developed.] Grice HP 1975.
Logic and Conversation. In Cole, P & Morgan J (eds.) Syntax and Semantics Vol 3,
41-58. [This is the classic article by Grice on logic in conversation: in it he
introduces his famous Conversational Maxims. What is not perhaps always realised is
that Grice is essentially a philosopher and that his maxims are a philosophical
attempt at the logical structure of meaning. As such they rely on introspection
rather than actual data. Essential knowledge for anyone interested in speech act
theory.] Hale S. 1997. Clash of world perspectives: the discursive practices of the
law, witness and interpreter. International Journal of Speech Language and the Law
4 (2) 197-209. [The writer is a practising interpreter, writer and teacher. In this
journal article she discusses the different viewpoints that lay people and lawyers
bring to a meeting, based largely on the fact that lawyers, especially in court, do
not have the same discourse practices as the rest of us. The problem is exacerbated
in the case of a non#native speaker witness.] Jackson BS (1995) Making Sense in
Law. Liverpool. Deborah Charles Publications. [In this book, Bernard Jackson — a
university teacher of law — shows how a core linguistic ‘evente in the law is the
narrative. He analyses the presentation of narratives in court and how the
structure and sequence of narratives — prosecution and defence — influences the
legal process.] Kniffka H. 1981, in G PeuserSt. Winter (eds), Angewandte
Sprachwißenschaft: Grundfragen – Berieche – Methoden, pp 584-633. Der Linguist als
Gutachter Bei Gericht. Überlegungen und Materialien zu einer ‘Angewandte
Soziolinguistike. [The author, Hannes Kniffka, is a well known writer, teacher and
practitioner in Forensic Linguistics in Germany. In this paper he reviews the
application of linguistics to the court arena and the rôle of the linguist as
expert. A must read for those interested in the practice of Forensic Linguistics in
Germany.] Kniffka H. 1990 (Ed). Texte zu Theorie und Praxis forensischer
Linguistik. Tuebingen. Niemeyer. [See previous citation. However, this paper
focuses on theoretical aspects of Forensic Linguistics.] Kniffka H. 1994.
Understanding misunderstandings in court: “La Serva Padrona” phenomena and other
mis#communications in forensic interaction. Expert Evidence: The International
Digest of Human Behaviour Science and Law 2 (1), 164-175. [In this paper the author
(see previous two citations) discusses a very interesting academic authorship case
involving two sisters, law students, who were accused of plagiarising their
dissertations.] Künzel H und Ulrich Eysholdt, 1992. Der Einfluß von Alkohol auf
Sprache und Stimme. Heidelberg. Kriminaliste Verlag. [In this paper Hermann Künzel
and Ulrich Eysholdt, two well known phoneticians, teachers and writers practising
in Germany, give detailed information about the effects of alcohol on speech output
and voice characteristics.] Kuenzel, H.J. Sprechererkennung: Grundzuege forensicher
Sprachverarbeitung. Heidelberg: Kriminalistik Verlag, 1987. [Introductory text on
Forensic Phonetics in German.] Hollien, H. The Acoustics of Crime. New York:
Plenum, 1990. [An introductory text on Forensic Phonetics.] Lentine G and R Shuy
1990. Mc-. Meaning in the marketplace. American Speech, 65(4), 349-366. [Genine
Lentine and Roger Shuy were involved in the classic trade mark dispute between a
famous hotel chain and a famous fast food chain. In their paper they discuss how
they researched the uses of ‘Mc , and how they attempted to persuade the court
that, by its very nature, ‘McM could not be the property of a commercial concern
such as ‘Macdonaldnst.] Levi J. Language as evidence: the linguist as expert
witness in North American Courts. International Journal of Speech Language and the
Law 1 (1), 1 – 26. [In this article Professor Judith Levi summarises the kinds of
case in which linguistics has played a rôle in US courts. She discusses such cases
in which linguistic areas as diverse as phonology, morphology and dialectology have
formed part of the argumentation, in social contexts such as historical
dialectology and trademark law. In one case a group of recipients of Family Aid
brought a class action against the Illinois Department of Public Aid based on

comprehensibility issues in a notice sent to aid recipients. Levi s article also
discusses the application of other areas of linguistics to criminal and civil work
including semantics, syntax and pragmatics (see Glossary below).] McMenamin, G.
(2002). Forensic Linguistics: advances in forensic stylistics. Boca Raton: CRC
Press LLC. [In this book Gerald McMenamin offers a readable and down#to#earth
explanation of the work of the forensic linguist for the specialist and
non#specialist alike. He concerns himself, and his reader, with such basic
questions as ‘What is linguistics?h, ‘What is language?e. ‘How is language
acquired? . McMenamin goes on to discuss a wide variety of authorship markers and
the measurement of probability in authorship attribution exercises.] Nolan, F.J.
The Phonetic Bases of Speaker Recognition. Cambridge: CUP, 1983. [A classic but
highly readable text on Forensic Phonetics.] Olsson John 2004. Forensic
Linguistics: An introduction to Language, Crime and the Law. London, Continuum. [In
this book John Olsson (the author of this article) — a practising forensic linguist
in the United Kingdom, writer and teacher, and Adjunct Professor at Nebraska
Wesleyan University, Lincoln, Nebraska, outlines the main areas of Forensic
Linguistics, especially authorship. The book — a practical guide — tends to focus
on linguistics in criminal investigations and in the courtroom, with less emphasis
on the language of the law. There is also a chapter on phonetics.] Rose, P.
Forensic Speaker Identification. London: Taylor and Francis, 2002. [A recent text
on Forensic Phonetics.] Shuy R 1997. Ten unanswered questions about Miranda.
International Journal of Speech Language and the Law 4 (2) 175-196 (see Lentine and
Shuy, above). [The author, Professor Roger Shuy, shows how the language of Miranda
is far from simple and can be interpreted in a number of different ways. He
questions the assumption that it is sufficient to read an individual his/her rights
for that person to understand what rights he/she actually has. Professor Shuy has
provided linguistic input in a wide variety of cases, both criminal and civil. Two
particularly famous cases were those relating to (i) John de Lorean and (ii)
‘McDonaldrsy Corporation vs. Quality Inns International.] Solan LM 1993. The
Language of Judges. Chicago. University of Chicago Press. [Lawrence Solan is
Professor of Law at the prestigious Brooklyn Law School. He distils his experiences
of a lifetime of dealing
with and listening to judges. This is a key text in understanding the interface
between linguistic theory and the law.] Stratman JF and P Dahl. 1996. Readersa
comprehension of temporary restraining orders in domestic violence cases: a missing
link in abuse prevention? International Journal of Speech Language and the Law 3
(2) 211-231. [In this journal article the authors — researchers, writers and
teachers on legal issues and their comprehensibility to lay people — show how an
apparently straightforward legal instrument, the temporary restraining order, is
open to misinterpretation.] Walsh M 1994 (217-233) Interactional Styles in the
Courtroom: an example from Northern Australia, in Gibbons J (ed) Language and the
Law, London, Longman. [In this article in John Gibbonso classic work on Language
and the Law (see reference above), Michael Walsh, a linguistic fieldworker, teacher
and writer in Australia, shows how the different interactional styles of lawyers
a
and Aboriginal people, works to the disadvantage of Aboriginals.]

In this article I first divide Forensic Linguistics into three sub-disciplines :
the language of written legal texts, the spoken language of legal proceedings, and
the linguist as expert witness and then go on to give a small number of examples of
the research undertaken in these three areas. For the language of written legal
texts, I present work on the (in) comprehensibility of police cautions and of
judges instructions to juries. For the spoken language of legal proceedings, I
report work on the problems of interpreted interaction, of vulnerable witnesses and
the need for more detailed research comparing the interactive rules in adversarial
and investigative systems. Finally, to illustrate the role of the linguist as
expert witness I report a trademark case, five different authorship attribution
cases, three very different plagiarism cases and I end reporting briefly the

contribution of linguists to language assessment techniques used in the linguistic
c
classification of asylum seekers.

THE LINGUIST ON THE WITNESS STAND: FORENSIC LINGUISTICS IN
AMERICAN COURTS
PETER TIERSMA LAWRENCE M. SOLAN
Loyola Law School Brooklyn Law School
It is becoming increasingly common for linguists to testify as expert witnesses in
both civil
and criminal trials. Often linguistic expertise is clearly helpful to the judge or
jury. Based on
published judicial opinions, from which we draw our data, it appears that courts
have allowed
linguists to testify on such issues as the probable origin of a speaker, the
comprehensibility of a
text, whether a particular defendant understood the Miranda warning, and the
phonetic similarity
of two competing trademarks. In other areas the admissibility of linguistic
testimony has been
more controversial, including author and speaker identification, discourse
analysis, the meaning
of legal texts, and the comprehensibility of jury instructions. Reasons for
judicial reluctance to
admit linguistic expertise include concerns that it is not sufficiently reliable,
the belief that issues
like the meaning of a text can just as well be decided by a jury, and sometimes
even institutional
and political considerations. Despite such reservations, courts generally recognize
that there is a
place for linguistic expertise in appropriate cases.*
Linguists are appearing with increasing frequency as expert witnesses in American
courtrooms. Nonetheless, in many cases where one side or the other wishes to
present
linguistic evidence—either through testimony or some other means—the judge refuses
to admit it. This raises questions of why courts are more receptive to linguistic
expertise
in some types of cases than in others, and when they ought to accept linguists as
experts.
Linguistic issues can arise in a great variety of legal contexts. Specific subjects
that
linguists may address include the likelihood of confusion in trademark cases;
miscommunication
because of dialect differences; the comprehensibility of legal documents;
the meanings of statutes, wills and contracts; the identification of authors and
speakers;
the ability of jurors to understand instructions, or of an arrested person to
comprehend
the Miranda warning; and many more. Almost any area of linguistics can be relevant
in court. Phonetics, for example, is important in trademark cases where the sound
similarity of two names is in question, as well as in speaker identification.
Discourse
analysis has been used to help jurors understand covertly recorded conversations in
criminal cases. Syntax, semantics, and pragmatics are all relevant when the meaning
of legal documents is at issue. Smaller subfields of linguistics may also have
relevance
in a legal dispute. Thus, a dialectologist might help identify the place of origin
of a
speaker on a tape-recorded bomb threat.
In this article, we will review some of the substantive legal areas in which

linguistic
expert testimony has been admitted, and others in which its admissibility has been
more
controversial. We will not focus on reports by forensic linguists themselves.
Judith
Levi (1994) has already published an overview of cases in which linguists have
reported
on their experiences in court, and Roger Shuy (1993, 1998) has written two books
describing some of his experiences.1 In contrast, we draw our examples from
published
* We would like to thank Darren Nakano and Leslie Nathan, former students of Loyola
Law School in Los
Angeles, and former Brooklyn Law School students Robyn Schneider and Amy Sender for
their assistance.
We are also grateful to Roger Shuy and the Language referees for many helpful
comments. This research
was supported in part by a summer research stipend from Brooklyn Law School and the
Joseph Scott
Fellowship from Loyola.
1 In addition, several anthologies contain reports of linguistsn experiences as
experts. See Gibbons 1994,
Rieber & Stewart 1990, Levi &Walker 1990, and Cotterill 2002. Moreover, the journal
Forensic Linguistics,
now in its eighth year of publication, contains such reports.
221
222 LANGUAGE, VOLUME 78, NUMBER 2
judicial opinions in the United States. In almost all American jurisdictions, only
published
opinions can serve as precedents.2 A court deciding whether to permit alinguist
to testify is most likely to turn for advice to the record of published judicial
opinions.
We therefore think it is useful, for both the legal and linguistic communities, to
investigate
and report on that record.
Our legal research found over one hundred published judicial opinions, not counting
voiceprint cases, in which language experts were mentioned. (We deal with the issue
of voiceprints separately below.) Most of these are decisions by federal and state
appellate
courts. Often, the party who offered the testimony of an expert witness at trial
appealed the trial court s ruling not to allow such testimony. Because appellate
review
of evidentiary decisions under American law is very deferential to the trial court,
such
rulings are often upheld on appeal (Weinstein & Berger 1998). One might therefore
get the impression that linguists only seldom participate in the judicial system,
and are
largely unwelcome. But this would be a serious misinterpretation of the facts for
three
reasons.
First, and perhaps most important, our analysis of the published opinions shows
that
on some types of issues, testimony by linguists occurs virtually without
controversy,
while on others, courts are far more likely to reject the offer of expert
linguistic testimony.
It is on these distinctions that we wish to focus this article, first describing
the
issues, later offering explanations for some of the more salient discrepancies.
Second, accounts by linguists themselves (e.g. Levi 1994), show active

participation
by linguists in many areas of the legal system. For example, in his book Language
Crimes, Roger Shuy (1993:xx) notes that he had consulted in over two hundred cases
and had testified in about thirty-five cases. While Shuy is probably the most
active
American linguist in terms of legal consulting, these figures suggest that
published
opinions tell only part of the story.
Third, the number of published appellate opinions is quite small in relation to the
overall number of cases in the judicial system. For example, 1998 data from the
United
States Department of Justice show that more than three hundred thousand cases were
‘terminatedr in the federal trial courts (district courts) that year, after a
trial, a motion
to dismiss, settlement, and so on.3 In that same year, about fifty-two thousand
appeals
were terminated. This number suggests that most cases are never appealed. Of the
completed appeals, only about twenty-five thousand were decided on the merits, and
of those, only about six thousand resulted in published opinions by the United
States
courts of appeals. This means that only about 11 percent of appellate court cases
generated
published opinions.4 Moreover, comparing the total number of cases terminated
in the federal trial courts in 1998 (300,000) with the total number of published
opinions
by the federal appellate courts in that same year (6,000), one is forced to
conclude that
the percentage of federal cases that result in a published appellate opinion is
quite
2 In our understanding, this is not true in England, where a case can function as a
legal precedent even
if it was never published.
3 The data in this paragraph are taken from a United States Department of Justice
Report, Judicial Business
of the United States, published at www.uscourts.gov/dirrpt98/index.html (pp. 16,
29, 54). The United States
District Court is the trial level court in the federal judicial system.
Corresponding data from state courts
varies from state to state. For example, in California, roughly 9 percent of
majority opinions issued by the
courts of appeal are published (Judicial Council of California, 1997 Judicial
Council Report on Court Statistics,
Table 9, p. 29).
4 The actual percentages are even smaller since it is not unusual for certain
complex cases to generate
multiple opinions. These rough estimates, however, are good enough to serve our
purposes here.
THE LINGUIST ON THE WITNESS STAND 223
small, almost certainly under ten percent, and probably well under five percent of
all
lower court cases.
In this context, the presence of more than one hundred published judicial opinions
that deal with linguistic expertise implies substantial participation by linguists
in the
legal system. Only those cases in which the linguisti s testimony was controversial
would ever result in an opinion that addresses the admissibility of linguistic
expertise.
Of those controversial cases, only a relatively small percentage results in
opinions that

are published. Assuming quite conservatively that each published appellate opinion
represents at least ten trial court cases, the more than one hundred published
judicial
opinions that mention linguistic experts may represent very roughly a thousand
trialcourt
cases in which linguistic expertise was involved in some way.
Another way to address the issue is to look for published opinions making reference
to linguistic experts in a single year. We found eleven such cases in 1998: two
from
the United States Courts of Appeals; five from the United States District Courts;
and
four from state appellate courts. Extrapolation from these figures suggests that
linguists
most likely played a part in approximately one hundred cases in just one year.
Obviously,
these quantitative inferences are quite coarse. Moreover, the relative novelty
of linguists on the witness stand may result in more appeals and an
overrepresentation
of such cases in the reported appellate opinions; if so, our estimates would have
to be
adjusted downward. Nonetheless, the data strongly suggest that there has been
considerable
participation by linguists in the American legal process.
Despite these indications of an increasing presence of expert linguists in American
courtrooms, our own perception—both of us were practicing lawyers before becoming
legal academics—is that the vast majority of American lawyers and judges have
little
or no experience with linguistic expertise in a legal matter. Many have never even
heard of it. This suggests that it is not self-evident to lawyers and judges that
linguists
can be of help in resolving legal disputes. We hope this article will clarify for
both
linguists and members of the legal community just where linguistic expertise can be
helpful.
We will first describe the evidentiary standards under which courts are supposed to
decide whether to permit expert testimony in general. It appears to us that
linguistic
expert testimony meets these standards in a wide range of cases. But we will show
that
while courts are often very receptive to testimony by linguists, they shy away when
it
conflicts with certain beliefs about language and cognition deeply entrenched in
the
legal system. In some instances, these observations suggest that expert testimony
from
linguists would be better received if it were tailored to meet the needs of the
legal
system. In other instances, they suggest that it may be time for the legal system
to
reexamine some of its long-standing tenets about the nature of language.
1. THE ADMISSIBILITY OF EXPERT EVIDENCE IN AMERICAN COURTS.5 Until the Federal
Rules of Evidence were adopted in 1975, the predominant standard for the
admissibility
of expert testimony was the Frye test, named for a 1923 United States Court of
Appeals
decision, Frye v. United States (293 F. 1013 (D.C. Cir. 1923)). Frye involved atria
l
courtis refusal to admit the results of a lie detector test (called a ‘systolic
blood pressure

deception test ) offered through an expert to prove the defendant s veracity in a
murder
case. The court of appeals affirmed the trial court
standard
5 For an expanded version of this section, addressed primarily to a legal audience,
see Solan 1999.
for admissibility that was routinely followed for some fifty years, not only by
other
federal courts, but by many state courts as well. The court held:
Just when a scientific principle or discovery crosses the line between the
experimental and demonstrable
stages is difficult to define. Somewhere in this twilight zone the evidential force
of the principle must
be recognized, and while courts will go a long way in admitting expert testimony
deduced from a
well-recognized scientific principle or discovery, the thing from which the
deduction is made must be
sufficiently established to have gained general acceptance in the particular field
in which it belongs.
(293 F. at 1014).
Despite its wide acceptance, the Frye standard came to face increasing criticism as
being too tough. Science often involves controversy, and many significant
scientific
theories never gain general acceptance. The critics argued that it would make more
sense for courts to permit the trier of fact (the judge, or the jury in a jury
trial) to hear
arguments on both sides of a controversial issue and to weigh the evidence, rather
than
to preclude the jury from hearing the evidence at all. Defenders of a more
restrictive
test, then as now, worried about ‘junk science (see Huber 1991).
In 1975 the Federal Rules of Evidence came into effect. Rule 702, which governs
the admissibility of expert testimony, originally reads as follows:
If scientific, technical, or other specified knowledge will assist a trier of fact
to understand the evidence
or to determine a fact in issue, a witness qualified as an expert by knowledge,
skill, experience, training,
or education, may testify thereto in the form of an opinion or otherwise.
Rule 702 therefore required that expert testimony must help the judge or jury
understand
the evidence or decide what happened. On its face, this is a more relaxed standard
than
Fryees requirement of ‘general acceptance in the particular field in which it
belongsr.
The adoption of Rule 702 did not, however, lead to the immediate demise of the
Frye standard in the federal courts. Rather, it led to a period of uncertainty as
to just
what the standard really was. Some federal courts understood Rule 702 as having
replaced Frye, while others continued to follow Frye, which was deeply entrenched
after all those decades.
This lack of consensus continued until 1993, when the Supreme Court decided Daubert
v. Merrell Dow Pharmaceuticals, Inc. (509 U.S. 579 (1993)). The issue in Daubert,
a products liability case, was whether Bendectin, an antinausea drug taken during
pregnancy,
had caused birth defects in the plaintiffns children. The epidemiological
literature
suggested that it did not. The plaintiffs in Daubert wanted to call experts who
would

attack the inferences drawn from the data in the published literature and bring to
bear
the results of animal studies. The trial court had rejected the experts on the
grounds
that their work had not been published, and therefore failed to meet the standards
of
scientific acceptance that the courts had developed under Frye. It thus granted
summary
judgment to the defendant, Merrell Dow (727 F. Supp. 570, 572 (S.D. Cal. 1989)).
The court of appeals affirmed the trial court.
1991)).
The Supreme Court reversed the decision of the court of appeals, holding that the
Federal Rules of Evidence had replaced the Frye standard. It interpreted Rule 702
as
requiring courts to engage in a ‘preliminary assessment of whether the reasoning or
methodology underlying the testimony is scientifically valid and of whether that
reasoning
or methodology properly can be applied to the facts in issue (509 U.S. at 592–93).
To be ‘scientifically valid the proffered evidence need not be uncontroversially
accepted
in the scientific community. Rather, ‘[t]he adjective ‘‘scientificc o implies a
grounding in the methods and procedures of sciencei (509 U.S. at 590).
The Court did not attempt to state the conditions that are both necessary and
sufficient
for evidence to be scientifically valid. It did suggest, however, four nonexclusive
indicia.
1. whether the theory offered has been tested;
2. whether it has been subjected to peer review and publication;
3. the known rate of error; and
4. whether the theory is generally accepted in the scientific
community. (509 U.S. at 593)
The Daubert opinion has been the subject of much discussion, often critical. What
complicates the matter is that some states have retained the Frye test, or tests
similar
to it. Thus, the case law based on Frye continues to be relevant in many of those
jurisdictions.6 Still, there is no doubt that Daubert has become the leading
opinion in
this area.
One question that Daubert left open was whether it applies to testimony that is not
strictly scientific. One could argue, for example, that testimony on a legal texto s
range
of possible interpretations is more descriptive than theoretical, and that
therefore the
Daubert approach should not apply. In a recent opinion, Kumho Tire Co. v.
Carmichael
(119 S.Ct. 1167 (1999)), the Supreme Court rejected this type of argument. Kumho
Tire was a product liability case about automobile tires. In allowing the exclusion
of
a tire expert whose offered testimony was based on his experience in the industry,
the
Court held that ‘the general principles of Daubert apply not only to experts
offering
scientific evidence but also to experts basing their testimony on experience (119
S.Ct.
at 1173). While the Court admitted that the Daubert factors may not all be
applicable
in a given case, it stressed that the overall approach to evaluating reliability
should be

followed. Significantly, the Court went on to hold that the key to deciding the
admissibility
of expert evidence is whether the expert ‘employs in the courtroom the same level
of intellectual rigor that characterizes the practice of an expert in the relevant
fieldt
(119 S.Ct. at 1176). We therefore cannot avoid asking how linguistic testimony
stands
up to the Daubert/Kumho Tire factors.
Moreover, in response to Daubert and Kumho Tire, Rule 702 has recently been
amended. It now reads:
If scientific, technical, or other specialized knowledge will assist the trier of
fact to understand the
evidence or to determine a fact in issue, a witness qualified as an expert by
knowledge, skill, experience,
training, or education, may testify thereto in the form of an opinion or otherwise,
if (1) the testimony
is based upon sufficient facts or data, (2) the testimony is the product of
reliable principles and methods,
and (3) the witness has applied the principles and methods reliably to the facts of
the case.
At least in the federal courts, this is the standard against which linguistic
expert testimony
will be evaluated.
2. EXPERT LINGUISTIC EVIDENCE IN THE AMERICAN LEGAL SYSTEM. At least in theory,
linguistic evidence should fare quite well regardless of the evidentiary standard
that is
applied. Linguistics is a robust field that relies heavily on peer-reviewed
journals for
dissemination of new work. Furthermore, much of the expert testimony offered is in
keeping with very basic literature in the field. For example, when a linguist is
asked
to testify about a criminal defendant s proficiency in English, the expert has
available
a number of well-accepted instruments and a great deal of learning on which to base
an analysis.
6 A United States Supreme Court decision on evidence is binding only on federal
courts, unless it is based
on constitutional grounds. Individual states may choose to follow the Daubert
standard, or continue to follow
Frye, or may adopt another standard entirely.
It is true, of course, that there is controversy over certain issues in the field.
Consider
the English passive construction. Within the linguistics community, there is lively
debate
over how passives really work. Are they formed by transforming active sentences
into passive ones, or are they formed more or less as they appear, with other rules
telling us how to relate them to corresponding active structures? There are
linguists in
both camps. Peter Culicover (1997) is in the former, Joan Bresnan (1978) in the
latter.
But almost all of these controversies are entirely tangential to any testimony that
a
linguist might give on the range of interpretations available to sentences with
passive
constructions. The resolution of that debate in favor of one side or the other
would not
affect an experths testimony. Thus, while there may be disagreement as to WHY we
understand a given linguistic structure to have a particular range of meanings, the

FACT
of the range of meanings should not normally be controversial.
For this reason, it seems relatively straightforward that linguistic testimony
based
on the kinds of analyses that linguists use in the scholarly literature should meet
either
the Daubert or the Frye standard. We present some examples below.
2.1. THE MEANING OF LANGUAGES OTHER THAN STANDARD AMERICAN ENGLISH. As the
reader will see later in this article, judges are often reluctant to allow expert
testimony
on the meaning of a text in ordinary standard English. In contrast, they have
little
trouble with admitting testimony on foreign languages or on nonstandard registers.
Of
course, this area of knowledge involves language but is not necessarily the
exclusive
domain of professional linguists. For that reason, we have not systematically
covered
such cases, of which there are a substantial number.
An example of testimony on the meaning of a non-English term is when an expert
in Shoshone-Bannock was allowed to testify how the Shoshone might have understood
the English term hunt in a treaty. The linguist testified that the Shoshone-Bannock
translations would not systematically distinguish between fishing and hunting, but
referred
to gathering wild food in general (State v. Tinno, 497 P.2d 1386 (Idaho 1972)).
The meaning of technical language or jargon is also a common legal issue,
especially
in contract cases, and is likewise freely admitted, even if the expert is not a
trained
linguist. Thus a doctor might testify as a ‘medical lexicographerx on the meaning
of a
medical term (Hagenkord v. State, 302 N.W.2d 421 (Wis. 1981)). An important caveat
is that judges will generally not allow linguists to testify on the meaning of
legal
terminology, viewing themselves as the experts in this area.
Another type of specialized language is argot and code, often associated with
criminal
activity. In one case, a government agent testified that in a particular case, the
boyfriend,
the boy, transcripts, briefs, a nd motions meant ‘heroin , and that the girl and
them
broads meant ‘cocaine (United States v. Simmons, 923 F.2d 934 (2d Cir. 1991)).
This
type of testimony, typically by law enforcement officers, is almost invariably
allowed.
Overall, judges seem well aware that they and jurors need assistance in
understanding
foreign words and phrases, technical terminology, and code or argot.
2.2. DIALECTOLOGY. Although there are not many published cases, linguists have on
occasion testified on the dialects of English or other languages. In the well known
Ann
Arbor case, several experts on Black English Vernacular or Ebonics testified about
the
characteristics of that variety of English; the court discussed the testimony in
detail
(Martin Luther King Junior Elementary School Children v. Ann Arbor School Dist.
Board, 473 F. Supp. 1371 (E.D. Mich. 1979)). At least one opinion in an employment
discrimination case mentions the testimony of a linguist on the value judgments
that

can be associated with how one speaks: people often view speakers of nonstandard
dialects as being less educated and competent (Polk v. Yellow Freight Systems, 801
F.2d 190 (6th Cir. 1986)).
Moreover, many linguists have expertise in identifying dialects of individual
speakers,
which could be quite useful in determining whether a particular defendant made
a recorded incriminating or threatening statement. Oddly, we have found only one
published opinion discussing such evidence (People v. Clarke, 277 N.E.2d 866 (Ill.
1971); cf. Labov & Harris 1994). Nonetheless, because most judges and juries have
limited experience in this area, we believe that linguistic expertise on dialects
and
dialectology would generally be admitted with little controversy.
2.3. COMPREHENSIBILITY AND READABILITY. When the issue has been the
comprehensibility
or readability of texts, courts issuing published opinions have tended to allow
experts on language to testify. Admittedly, one court has ruled that whether the
average
customer could understand a standard form collection letter threatening legal
action
against the recipient was a matter of common sense and did not call for expert
testimony
(United States v. ACB Sales and Service, Inc., 590 F. Supp. 561 (D. Ariz. 1984)).
That
case, however, seems to be the exception.
More often, testimony concentrating on the comprehensibility of legal documents
that are directed to the public is admitted. In a case that presaged the 2000
presidential
election, a linguist testified in a Florida case that a ballot containing an
amendment
to a county charter was confusing. The trial court, seconded by the court of
appeal,
acknowledged the testimony but concluded that most voters would have properly
understood
the ballot (Wadhams v. Board of County Commissioners, 501 So. 2d 120 (Fla.
Dist. Ct. App. 1987)). Interestingly, the FloridaSupreme Court reversed. Although
not
specifically referring to the linguistt
of the
voting public is intolerable and should not be countenancedr (Wardhams v. Board of
County Commissioners, 567 So. 2d 414, 418 (Fla. 1990)).7
Less commonly, language experts have testified on the comprehensibility of jury
instructions. An example is the case of James Free, who was condemned to death for
murder in Illinois (United States ex rel. Free v. Peters, 806 F. Supp. 705 (N.D.
Ill.
1992); see also Tiersma 1995). Free challenged his death sentence, arguing that the
instructions given to the jury were misleading and obscure. The trial court
listened
carefully to various experts, including a linguist, and decided that jurors likely
did not
understand instructions on how to decide whether to impose the death penalty. But
the
court of appeals had an almost disparaging attitude towards the research (12 F.3d
700
(7th Cir. 1993)) and quickly affirmed Free s death sentence. Although there are not
many cases, we would have to conclude that the admissibility of linguistic expert
testimony on the comprehensibility of jury instructions is uncertain at best.
Later, we
will suggest a reason for this reaction.

2.4. LINGUISTIC PROFICIENCY. Another factual issue that sometimes arises in court
is
the linguistic proficiency of a particular person. For example, it may be unclear
whether
a criminal defendant understood the Miranda warning. Or an accused may have
consented
to a search without fully understanding the implications. Again, there are not a
great many published opinions in this area, but courts have generally allowed
expert
testimony on the linguistic competence of a specific individual. In one case, a
sign
language expert was allowed to testify that a defendant had clearly invoked his
right
7 See also Coleman v. Block, 589 F. Supp. 1411 (D.N.D. 1984).
to counsel, which meant that the subsequent interrogation—without a lawyer present—
was illegal (People v. Smith, 37 Cal. Rptr. 2d 524 (Cal. Ct. App. 1995)).
It is worth emphasizing at this point that even if testimony is admitted, the
‘finder
of facto can decide how much value to place on it. Thus, in United States v.
Gutierrez-
Mederos (965 F.2d 800 (9th Cir. 1992)), the court admitted testimony by a linguist
supporting the defendantts claim that when he consented to allow police to search
his
possessions, his cultural background and limited English proficiency prevented him
from understanding that he had a right to refuse. Although the judge allowed the
linguist
to testify, the court gave little weight to the testimony, noting that the linguist
had
never actually interviewed the defendant, and consequently holding that the
defendantus
consent to search was valid. This point applies to all areas in which linguistic
expertise
might be brought to bear: the judge or jury can give it as much or as little weight
as
they feel appropriate.
2.5. LINGUISTIC ISSUES IN TRADEMARK CASES. Linguistic expertise, and especially
phonetics, has also been relevant to legal proceedings in trademark law. The
critical
question in many trademark cases is whether the name that a person or company is
using for a product is confusingly similar to an existing trademark. Often that
depends
on the phonetic similarity between the two marks. Trademarks that have been found
to be confusingly similar include Beck s Beer and Ex Bier; Comsat and Comset;
Diaparene
and Dyprin; Dramamine and Bonamine; Listerine and Listogen; Lorraine and La
Touraine; Smirnoff and Sarnoff (McCarthy 1992:§23.6(1)).
Trademark law has long relied on expert testimony, which often includes surveys
of whether people are actually confused by the similar names. Therefore, it is not
surprising that courts have almost universally and without extensive comment
admitted
testimony by linguists in this area, at least as reflected in the published
opinions. For
example, if one company has a valid trademark in the name Aveda and a second
company begins to use the name Avita on similar products, the second company may
be infringing on the trademark of the first. In this particular case, a professor
of English
and linguistics testified via an affidavit that intervocalic t and d are often
pronounced

the same in these words, and that the middle vowels (e and i) may also be. Thus the
marks may be—or may almost be—homophones. Based in part on this evidence, the
judge granted an injunction that prohibited the defendant from further use of Avita
(Aveda Corp. v. Evita Marketing, Inc., 706 F. Supp. 1419 (D. Minn. 1989)).
Linguistic expertise has been brought to bear on other trademark issues as well. Is
the Mc- in McDonaldes generic—and thus a relatively productive morpheme—or is it
specifically identified with the McDonaldrs Corporation? One court received
extensive
linguistic testimony on both sides, which concentrated on the use and meaning of
Mc- in
many ordinary texts. The court eventually decided that Mc- was tied to the
McDonaldis
Corporation, rather than being an ordinary English prefix. Thus, McDonalde s was
entitled
to protect its ‘morpheme from being used by acha in of inexpensive McSleep
motels (Quality Inns International, Inc. v. McDonald s Corp., 695 F. Supp. 198 (D.
Maryland 1988)).
3. PROBLEM AREAS: JUDICIAL RELUCTANCE TO ADMIT EXPERT TESTIMONY BY LINGUISTS.
Although the legal system has often welcomed linguistic expertise, there are
a number of areas in which they are more hesitant to do so. One example is the use
of
linguistics to identify authors or speakers. Courts sometimes question whether
linguistic
theory is able to meet the standards of Frye or Daubert with respect to these
areas.
Other uses of linguistics that have not always been accepted by the courts are
discourse
analysis and testimony on the meaning of contracts and statutes. In both cases,
courts
are reluctant to admit linguistic evidence not only because of the evidentiary
issues
raised by the Frye and Daubert requirements, but also because they fear that
linguistic
expertise might usurp the role of the judge or jury. We conclude our overview of
problem areas with a discussion of the comprehensibility of jury instructions,
where
courts tend not to accept linguistic expertise because it might challenge the
legitimacy
of an important legal institution.
3.1. DISPUTED AUTHORSHIP. Recent discussion in the press of the JonBene´t Ramsey
murder investigation in Colorado has brought into the public spotlight the issue of
using linguistic techniques to identify authors. Unfortunately, the publicity has
not been
good for those who believe that linguistic analysis can shed light on this problem.
Early in the morning of December 26, 1996, Patricia Ramsey reported to authorities
that her six-year-old daughter, JonBene´t, was missing from their Colorado home,
and
that she had found a ransom note in the house.8 Later that day, JonBene´to s body
was
discovered in the basement. To date, no one has been charged with the child s
murder,
although theories abound in the numerous books, articles, and web discussions that
the
case has generated. Some of these theories allege that the parents were involved.
A critical question is who wrote the ransom note. Professor Donald Foster, an
English
professor at Vassar College who is well known for using stylistic analysis to
identify

authorship in both literary texts and legal cases (Foster 2000), first attributed
the note
to someone who did not write it. He wrote aletter to JonBene´t) s mother asserting
her innocence.9 Later, after examining additional materials, Professor Foster
candidly
changed his position and determined that Mrs. Ramsey had written the note. Such
incidents help to justify the lawes concern about methodology. Regardless of how
one
looks at the merits of the Ramsey case, if ‘forensic stylisticsR
identification
is to comply with evidentiary standards, it must use scientifically validated
techniques.
Although it has generated a fair amount of scholarly discussion (e.g. Finegan 1990
and McMenamin 1993), analysis of texts in cases of disputed authorship has not led
to a great many published cases. In one such case (United States v. Clifford, 704
F.2d
86 (3d Cir. 1983)), the court rejected testimony about a ‘Forensic Linguistic
method
of handwriting and stylistic analysis, which it deemed of questionable reliability.
It
held that the jury could reach its own conclusions from the samples provided
without
the assistance of experts.
Clifford shows a peculiar hole in the American system of evidence. The issue in
that
case was whether the defendant was the author of a threatening note. The government
tried to offer the testimony of a forensic linguist expert in stylistic analysis.
The court
summarized his testimony as follows:
Dr. Miron testified that forensic linguistic analysis is the process of matching
stylistic similarities in
different documents and then of assigning weight to those similarities according to
their distinctiveness
and frequency of occurrence. He further stated that such an analysis could not
provide a positive means
of identifying the author of an anonymous document. He indicated that the results
of forensic linguistic
analysis could be probative in establishing authorship but could not prove that one
person, to the
exclusion of all other possible authors, had written a document. (704 F.2d at 88)
8 The ransom note can be found at http://www.jameson245.com/ransomnote—p1.jpg.
9 The text of the letter is available at various sites on the web. It was also
reported in the press. See Lisa
Levitt Ryckman, ‘Book details linguistic scholar
Rocky Mountain News, April
11, 2000. For Foster s account, see Foster (2000:16–17).
This was enough to keep the testimony out under the Frye standard, and, for the
most
part, under Daubert as well. On appeal, however, it was determined that the
documents
themselves should be admitted and that the jury should make its own determination
of
their similarities.
This, in our opinion, is a remarkable state of affairs. If forensic testimony is
precluded
because the expert cannot form a definitive opinion, then jurors, not knowing how
to
evaluate what they see, will be forced to reach conclusions that are even less

supported
by the evidence. At the very least, experts should be permitted to assist jurors by
advising them of the risk that they might make too much of the similarities between
documents.
A more recent case, United States v. Van Wyk (83 F. Supp. 2d 515 (D. N.J. 2000)),
illustrates why courts are wary of permitting experts in forensic stylistics to
identify
authors. The court there permitted an FBI agent with training in forensic document
identification to testify about the similarities between certain threatening
letters and
the defendantns known writings, but did not allow him to offer an opinion about
authorship
of the documents whose origin was in dispute. As the Van Wyk court explained,
we do not have good corpora and appropriate analytical tools that permit inferences
as to how likely it is that a document was produced by a particular person.
Although Fitzgerald [the FBI agent offered as a stylistics expert] employed a
particular methodology
that may be subject to testing, neither Fitzgerald nor the Government has been able
to identify a known
rate of error, establish what amount of samples is necessary for an expert to be
able to reach a conclusion
as to probability of authorship, or pinpoint any meaningful peer review.
Additionally, as Defendant
argues, there is no universally recognized standard for certifying an individual as
an expert in forensic
stylistics. (83 F.Supp.2d at 522)10
It is not unreasonable to argue that allowing an expert to point out similarities
and
differences between a defendant s known writings on the one hand, and questioned
writings in the case on the other, is better than simply giving the documents to
the jury
without any guidance whatsoever, leaving the jurors to their own devices. Yet this
solution is far from ideal. Because jurors will not know how significant the
similarities
and differences between the two sets of documents really are, they can easily reach
the wrong conclusion. In fact, this absence of baseline information is the very
reason
that expert opinion testimony was not allowed. Moreover, in Van Wyk, the expert was
an employee of the FBI, who was called to point out the similarities between the
disputed documents and documents known to be authored by the defendant. It seems
unfair in criminal cases to permit the government to offer expert testimony based
on
insufficient baseline data, and then to place upon the defendant the burden to
rebut that
evidence through cross-examination or by calling another expert in forensic
stylistics.
We believe that ultimately the only responsible solution is for the linguistic and
legal communities to work together toward developing techniques from which reliable
inferences about authorship can be drawn. This task will inevitably require the
collection
of large corpora of informal written language and sophisticated computer programs
to
analyze the data. Fortunately, such work is underway, both by government and by
academic linguists (see Chaski 2001, McMenamin & Brengelman 2000). In the short
term, if courts are not inclined to keep the documents from the jury, linguists
should
be permitted to testify about the dangers of drawing unwarranted conclusions.
3.2. PHONETICS AND THE PROBLEM OF SPEAKER IDENTIFICATION. There are a number
of areas in which phonetic expertise might prove relevant to judicial decision

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