Forensic Linguistics – Or A Story About How I Used To Help Sneaky Lawyers Get Immigrants Off Drunk Driving Charges

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This is not a dig at the cops. I have good mates who are police. It’s just a story… recorded here for posterity. Also, if I was doing all this again, I would take a different approach.


A long time ago, when I was much younger (and much more naive), I had a gig where I would work with lawyers defending immigrants and refugees who couldn’t speak (much) English.

The accused were always poor and had a court lawyer appointed and paid for by legal aid.

They were also all speakers of English as a second (or third or fourth) language.

I must have helped on around 20 cases like this in the 90s just after completing my post-grad studies in applied linguistics. In 19 out of 20 cases I think we were successful in getting the charges dropped.

Usually, their stories would unfold something like this.

He (the accused were always male) was minding his own business when the Police got involved for some unfathomable reason. One thing leads to another and suddenly he’s being arrested, charged and sentenced in court.

Of course, he has no idea what is going on. Especially through the early stages of the process.

I had one client who was asleep in his car when it happened. Let’s call him Mr A. The Police knocked on his window, woke him up accused him of drunk driving and then charged him with refusing to give blood.

I had another guy (Mr T) who was arrested after chasing down another dude who he caught burglarizing his house. He called the Police himself. But he probably should have put down the metal rod he was holding when he chased the burglar down the road.

And this is when I used to get called in.

I was engaged as an expert witness. My speciality was part of what I learned was called forensic linguistics. This is a fancy way of saying you use skills from applied linguistics in the pursuit of justice.

You see, our justice system relies on everyone having certain rights. This is codified in the Bill of Rights. And for me, the essential thing was the Advice Pursuant to the Bill of Rights.

Things are different now. I hope. I do know that now there are lots of cops who come from many different ethnic and language speaking backgrounds. So hopefully the problem doesn’t exist.

But 20 years ago, here’s how it used to play out. The cop would recite the Bill of Rights Advice at 100 miles an hour. Like a mantra or telephone number.

It sounds like this: “Yunnastandthatdjuvdaritetaconsultninstructalawyer?”

The answer, of course, was always “yes” on the part of the accused. What was happening is that they did understand that they were being asked a question. What they didn’t understand was what the question was about.

But they usually knew that the answer had to be yes. Because you don’t say no to a Policeman right?

So they just said yes. Usually, that meant they nodded.

And then they signed a statement to say that they understood.

But did they actually understand? Well… that’s where it all gets kinda grey.

For me, it was easy to make a case that they didn’t have a clue what was going on. I would meet them and interview them for an hour. I’d test their vocabulary – both general and specific to the Bill of Rights.

And I’d interview them. I might ask them to read something or do a few other tasks. But the outcome was always compelling evidence that they did not understand their rights at the time that they were read to them.

Yes, they signed a statement to say that they understood. But that’s a minor detail when you can prove that someone knows less than a thousand words of English and none of them are the weird legalese of the Bill of Rights.

Case closed. Nevermind whether they were actually guilty or not.

I see you cringe. The point was that their rights were more important.

Police prosecutors hated me. I understand why. No hard feelings. It wasn’t personal. Well, it was a little bit personal at the time.

I got cross-examined a few times. That was terrifying. But it was also exhilarating. Eat your heart out John Grisham.

Afterwards, the lawyer told me that only new or inexperienced prosecutors will cross-examine an expert witness.

I’m not sure that is always true. But it was easy to run rings around him. He just dug himself a deeper and deeper hole.

I’m sure the story as a moral somewhere. But I stopped doing this work because I moved to Japan. And I felt that a couple of my clients probably should have gone to jail. Or at least lost their licences.

For a boring version of this tale, please see the attached PDF which I wrote for an equally obscure academic journal while teaching in Japan.




Author: Graeme Smith

Education, technology, design. Also making cool stuff...

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