The lawyer-client relationship is constituted through communication, and the lawyer’s advising role is a foundational element. This chapter begins by reviewing the most significant professional requirements impacting lawyers when advising clients. It then reviews the major models for advising in lawyer-client relationships. Attention is given to the methods employed in research on lawyer-client advising and some key findings of that research. Finally, it discusses best practices for lawyers in giving advice and for clients in receiving advice.
Few topics in the theory of language are as closely related to legal interpretation as the linguistic indeterminacy associated with ambiguity and vagueness. Significant portions of the institutional legal system, especially courts at the appellate level and supreme courts, are for the most part concerned not with disentangling the facts of cases but with the indeterminacies of the law. In a colloquial sense, both vagueness and ambiguity are employed generically to indicate indeterminacy. This is the sense in which vagueness is understood in the ‘void for vagueness’ doctrine, according to which a statute is considered void if it is framed in terms so indeterminate that its meaning can only be guessed at. Vagueness may relate to individuation or classification. There are at least four different vantage points from which to address the problems caused by vagueness: logic, ontology, epistemology, and semantics. This article explores ambiguity and vagueness in legal interpretation, and discusses other forms of indeterminacy, kinds of vagueness, and vagueness and the rule of law.
Carole E. Chaski
Author identification can play a role in the investigation of many different types of crimes, civil transactions, and security issues. Over the last fifteen years, author identification has become increasingly recognized by research-funding agencies, investigative agencies, the forensic science community, and the courts, as a forensic science that deals with pattern evidence. Forensic authorship identification methods, despite their differences, require that similar steps be taken: choosing an appropriate linguistic level, coding, engaging in statistical analysis and decision making, and conducting validation testing. This article presents a review of currently available and emerging methods for identifying authorship in the forensic setting, presents some current methods based on the categorization scheme, and provides some ideas about why some methods fail to obtain high accuracy. Finally, it considers two methods that are currently used in criminal investigations and trials: forensic stylistics and software-generated analysis.
In Canada, a few groups enjoy explicit constitutional recognition, including certain official language minorities and aboriginals. In light of the constitutional history of Canada, the Supreme Court of Canada affirmed in the Reference re Secession of Quebec that the protection of minorities forms part of the constitutional order in Canada. This article explores bilingual interpretation rules as a component of language rights in Canada. It first outlines the linguistic rights of minorities in Canada and then discusses the historical development of multilingual legislation in the country. The article also considers multilingual statutory interpretation, focusing on the rules of equal authenticity and shared meaning, selective application by jurists, the conflict between language versions, and erroneous applications of the equal authenticity and shared meaning rules. It concludes with a discussion of future challenges in Canadian bilingual jurisprudence as well as the publication of bilingual judgments.
‘You do not have to say anything. But it may harm your defense if you do not mention when questioned something which you later rely on in Court. Anything you do say may be given in evidence.’ This is the police caution, presented by police officers in England and Wales when individuals are arrested, and immediately before they are interviewed. A similar wording is recited if they are charged. On entering custody, suspects will also be offered access to a written version of the wording, along with information on other rights, most importantly the right to legal advice. This article examines three aspects of cautioning – its official wording, its explanation in context, and its upshots during the extended legal process – and also discusses the issues surrounding non-native speakers when encountering cautions and warnings. It then outlines the standard wording of the police caution, including its comprehensibility and comprehension. The article concludes by considering the caution's administration, as well as its influence on speech, silence, and their interpretation.
Focusing on the link between law, language, and culture, J. B. White notes that legal translation is a ‘necessarily imperfect process’. This article focuses on challenges to legal translators caused by the inherent incongruity of legal systems, cultures, and languages. It attempts to ‘demystify’ the ‘miracle’ of legal translation, showing how skilled translators with legal expertise and cultural sensitivity use language effectively to compensate for conceptual incongruity by creating ‘terminological bridges’. The article then outlines some of the basics of legal translation, with the main emphasis on the special nature of legal texts, their function, and the degree of accuracy required to achieve intercultural communication for various purposes. It also considers the role of skopos (communicative purpose) in legal translation and considers terminological problems in legally binding instruments. Like comparativists, translators need to use methods of comparative law in their search for potential equivalents and to test their adequacy by comparative conceptual analysis. The article concludes by discussing considerations about the effectiveness of multilingualism.
Robert W. Bennett
Contemporary debates about constitutional interpretation in the United States seem fixated on what is called ‘originalism’, the view that, regardless of when some constitutional issue arises, guidance for resolving it is to be sought in ‘original’ sources, those which accompanied the promulgation of the constitutional language in question. The apparent alternative is ‘living constitutionalism’, in which a large dose of judicial discretion keeps constitutional interpretation in touch with a changing world. This is seen by originalists as relegating ill-defined responsibility to the doubtful authority of the judiciary. Originalists invoke the writtenness of the Constitution, the desirability of stability in the law, specific constitutional provision for amendments as signaling the acceptable mechanism for change, and the tenuous democratic credentials of life-tenured federal judges to depict originalism as the right approach to constitutional interpretation, and living constitutionalism as misbegotten. This article provides an overview of originalism and living constitutionalism. It first discusses constitutional language and original intention before focusing on the summing problem, degrees of generality of language, degrees of generality of intentions, unforeseen problems, and constitutional amendments.
According to conventional contract law, the formation of a valid agreement ordinarily involves an offer, an acceptance, and consideration. The former two elements typically take place through spoken or written language: an offeror proposes to do something in exchange for something of value to be given by an offeree. The latter may then accept the offer, reject it, or make a counteroffer. What is it that makes this particular verbal exchange so special, and how does it differ from other acts of speech which may also entail legal consequences, such as issuing a threat, offering a bribe, defaming someone, or perjuring oneself? This article addresses this question using speech-act theory, a linguistic approach to meaning advocated by two language philosophers, John Austin (1962) and John Searle (1969). It presents Searle's requirements (called felicity conditions) that commissive illocutions must satisfy in order to be well-formed speech acts. The article also discusses contract formation by focusing on promise versus offer and commitment versus obligation.
Krzysztof Kredens and Malcolm Coulthard
Corpus linguistics is basically ‘an empirical approach to studying language, which uses observations of attested data in order to make generalisations about lexis, grammar, and semantics’, and which, in the context of forensic linguistics, offers much more than explanatory possibilities. It provides methods for processing naturally occurring language data with a view to describing the nature of particular instances of language use and the behavior of particular (groups of) language users. Language corpora can thus be used for a variety of forensic linguistic tasks. This article explores how corpora and corpus methodology can aid the forensic linguist: in authorship identification; to analyze texts comparatively in order to comment on the authorship of questioned documents; to interpret the meaning of disputed utterances; and to investigate and describe language use in legal and forensic settings. After discussing authorship attribution, it looks at disputed meanings, corpora in language and law research, corpora for forensic applications, and the Internet as a corpus.
This article examines courtroom discourse in China in terms of its three components: the contextual, the interactional, and the propositional. After briefly introducing the Chinese legal culture and system, it considers courtroom questioning and interaction patterns as well as a courtroom judgment. For the analysis of the interactional component, the article uses the transcription of a criminal trial involving a charge of destruction of private property. The data for the analysis of the propositional component is a judgment from a lower court in Shanghai. Courtroom discourse in the article means criminal courtroom discourse, rather than courtroom discourse in general. Fa and Li are two core concepts in traditional Chinese legal culture, and represent the debate between the doctrines of Legalism and Confucianism. The article also introduces some of the key points about judicial proceedings in China, along with courtroom judgment (sentencing).
Mami Hiraike Okawara
The implementation of the saiban-in (lay judge) system in 2009 has opened the way, not only to lay participation, but also to some participation by linguists in Japanese courtrooms. This article, which explores how differences between lay and professional views are mingled in the judicial deliberations, first explains the saiban-in (lay judge) system and then introduces some studies of court proceedings in Japan. It also examines how the intent to murder is determined in Japanese courts, and, finally, focuses on a discourse connective and analyzes the discussion on the degrees of murder during the deliberation stage in a mock trial. The article shows that lay people do not understand an important legal concept – mihitsu no koi – which means ‘willful negligence’. Furthermore, in determining a defendant's state of mind, lay people tend to look for motives, while the legal system asks them to examine circumstantial evidence instead. The result is a complicated negotiation between the professional and lay judges in which the professional judges play more of a role of educator than of an equal colleague.
This article describes the concept of courtroom interpretation. Legal interpreting is a branch of interpreting conducted when speakers of different languages have to communicate in legal or paralegal settings. Each legal system has its own unique court procedures, legal concepts, and terms that sometimes have no equivalent in other languages. This cultural asymmetry of legal systems creates substantial interpreting difficulties. In order to interpret competently, court interpreters must be well versed in legal terminology. The role of the court interpreter is to make communication possible between speakers of different languages. A courtroom interpreter has ethical responsibilities to fulfill. The challenges to courtroom interpreting include lack of bilingual legal dictionaries, obstacles to pragmatic influence etc. Court interpreters require training, in both interpreting skills and court interpreting. Effective courtroom interpreting can only be achieved by the professionalization of interpreters through compulsory education, adequate working conditions, and professional remuneration for effective multilingual dialogue.
The sensitive use of historical courtroom data can elucidate the evolution of both (English) legal language specifically and also spoken language more generally. “Sensitive use” means appreciating not only the strengths and weaknesses of any primary data used, but also the linguistic, social, cultural, political and/or religious context of that data; and, hence, making extensive use of secondary sources (including the work of legal and social historians). This article first outlines the strengths and weaknesses of some of the most popular primary sources and then provides an overview of sourcing historical trials. It also discusses how the advent of electronic or web-based datasets has enabled researchers to investigate trial data using data mining and data retrieval techniques.
Plagiarism refers to the act of copying from a written or published source, fully or partially, without attribution to that source. The need to avoid it is written into the regulations for the presentation of academic work at all universities, as well as at many colleges and schools. Subject to doctrines such as fair use, nobody can copy all or part of the work that is so protected without first obtaining permission to do so from the copyright holder. This does not necessarily have to be paid for, but it must be obtained. Detection is an investigation of a set of texts for the presence of apparent plagiarism. Automated detection provides the material for the assembly of a case. To locate any sequence when comparing documents, all systems need some sort of indexing methodology. This article, which discusses plagiarism and how it is detected, focuses on the use of computers in automated and electronic detection, and also considers digital fingerprints and matching with words, along with practical detection.
Sometimes ordinary people just do not understand the meaning of the language that they hear in courtrooms. This is problematic because courts are places of great power: a person's liberty can be restricted, or their life taken or property lost. Legal discourse is largely based on written texts that are invisible to laypeople in contact with the legal community. In a trial, however, a layperson's discourse becomes prominent. For the attorneys, the structure of the prototypical legal event – the trial – is second nature. Yet trials' language and procedures are opaque to ordinary people. Because the language itself can be difficult, the operation of power can be masked. The need for laypeople to understand the language in trials is a part of the legitimacy of law in the United States. This article reviews research focused on US courtrooms and how discourse operates in that particular setting. It examines trial chronology: pleas and pleadings; jury selection or voir dire; opening statement; questioning and narrative in the evidence portion; and closing arguments.
Matthew J. Gordon
This chapter explores methodological and theoretical issues related to chain shifts and mergers, familiar concepts in historical phonology that have received renewed attention by sociolinguists and others engaged in the study of active changes. It is argued that investigating changes while they are in progress opens new windows on the mechanisms driving these linguistic innovations. This fresh perspective shines light on traditional questions and introduces new wrinkles to our understanding of the processes at work in sound change.
A. Daniel Yarmey
A perpetrator speaking over the telephone or one whose face was obscured or disguised are examples of incidents that might lead to testimony on voice identification. Earwitness identification is part of the general area of person identification, but refers specifically to victims' and witnesses' verbal descriptions of voices and speaker identification. Although many laypersons give significantly more credibility to the identification of speakers than is justified, experts generally agree that earwitness descriptions and identification should be treated by the criminal justice system with great caution. This article presents a scientific overview of factors that affect the accuracy of speaker identification, or what is referred to as aural-perceptual analysis, and discusses the reliability and validity of speaker recognition and identification. The police do not have the luxury of handpicking their witnesses (or culprits) but must interview any and all male and female victims or witnesses, all of whom can differ in age, race, expertise, and other characteristics. The article also considers showups and voice lineups.
Cornelis J. W. Baaij
Both the treaties of the European Union (EU) and the secondary legislation from EU institutions are currently issued in twenty-three different language versions. Discrepancies between these versions both jeopardize their equal authenticity, and make a uniform interpretation and application of EU law in all EU Member States more difficult. Yet, discrepancies between language versions have come up in the case law of the European Court of Justice (ECJ). Using a statistical analysis of fifty years of the ECJ's case law, all relevant judgments between 1960 and 2010, this article sheds further light on which interpretive method the ECJ is more likely to use in the event of linguistic discrepancies as an argument to justify its interpretation of EU law. It first discusses the discrepancies between the language versions that impede the multilingual interpretation of EU law. The article then makes use of the so-called ‘legal reasoning’ methodology to analyze the ECJ's case law, and considers the ECJ's use of the teleological approach and the literal approach to discrepancies.
Paul Foulkes and Marilyn Vihman
This chapter presents new data from first language studies of acquisition, some of them sociolinguistically informed. We challenge various long-standing ideas about the role of first language acquisition in phonological change, in particular the assumption that cross-generational change reflects errors in first language learning, for which our data provide no support.
Paul Foulkes and Peter French
Two of the tasks undertaken in forensic voice and speech analysis are speaker profiling and speaker or voice comparison (or speaker/voice identification). The first task involves an examination of features of the voice to ascertain information about the speaker's regional, social, and ethnic background. The second involves comparative analysis against a reference sample known to have been produced by a particular talker. Although analysis of vocal features cannot determine a speaker's identity, it can provide a wealth of information about the speaker, albeit to varying degrees of precision and confidence. It is for this reason that the label ‘speaker comparison’ is now preferred to identification. Globally, speaker comparison is carried out using three general methodologies: ‘voiceprinting’, analysis using automatic systems, and linguistic-acoustic analysis. This article first presents a brief historical review of forensic speaker comparison and then explores the use of the linguistic-acoustic method in forensic speaker comparison.