The Australian Linguistic Society‘s Annual conference (Monash University 7-9 December 2016) will include the following workshop, convened by Diana Eades and Helen Fraser, with speakers Kate Burridge and Georgina Heydon, and special guest, retired Federal Court Judge, The Hon. Peter Gray.
How to ensure language and speech evidence is used appropriately in court (7 Dec)
Wrongful convictions resulting from poor-quality forensic science have been widely publicised (Harris, 2012). In response, moves have been made, internationally, to formulate rules ensuring the reliability and validity of expert evidence admitted in criminal trials (LCGB, 2011; NRCC, 2009). Similar rules are gradually being accepted in Australian jurisdictions (e.g. FCA, 2013), and lawyers are being encouraged to cross-examine expert witnesses in ways that ensure weaknesses in their evidence are revealed (e.g. Edmond et al 2014).
The aim of this workshop is to encourage more linguists, including but not limited to those involved in forensic case work, to engage with this ongoing inter-disciplinary discussion.
Two issues seem particularly worthy of consideration by linguists.
1. Ensuring the rules are suitable for language and speech evidence
To date, most of the rules are based on the model of DNA analysis as the ‘gold standard’ of forensic evidence. However, characteristics of the language and speech sciences arguably make our situation somewhat different (e.g. Foxen & Bunn, 2015). For example, technical sciences typically prefer rules that admit only results of well-tested methods with statistically expressible error rates. However, while this is no doubt valid for many sciences, it is not always possible or even desirable for language and speech evidence. Indeed, insisting on it could have the effect of leading courts to prefer unreliable but ‘technical-sounding’ evidence over more nuanced or counter-intuitive explanations from analysts with genuine expertise in linguistics.
2. Ensuring results of expert analyses are communicated effectively to the jury
An important part of scientific evidence (from any field) is communicating the conclusion in a way that will be understood appropriately by the court. This is a particularly complex form of intercultural communication, in which the expert must explain difficult concepts for the jury by responding to questions from a barrister who has limited understanding of the field. Linguists (e.g. Eades, 2016; Haugh & Liddicoat, 2009) have emphasised limitations of the ‘conduit’ metaphor of communication, and developed sophisticated concepts that can potentially offer helpful contributions to current topics such as (for one example) the relative effectiveness of expressing conclusions via numerical statistics (e.g. Likelihood Ratio), verbal scales (e.g. highly likely, somewhat likely etc) or a paragraph of plain language (see Edmond, 2013 and other papers in that special issue of AJFS).
Eades, D. (2016). Theorising language in sociolinguistics and the law: (How) can sociolinguistics have an impact on inequality in the criminal justice process? In N. Coupland (Ed.), Sociolinguistics: Theoretical Debates (pp. 367–388). Cambridge University Press.
Edmond, G. (2013). Expert evidence in reports and courts. Australian Journal of Forensic Sciences, 45(3), 248–262. AND SEE OTHER ARTICLES IN THIS SPECIAL ISSUE AT http://www.tandfonline.com/toc/tajf20/45/3
Edmond, G., Martire, K. A., Kemp, R. I. et al (2014). How to Cross-Examine Forensic Scientists: A Guide for Lawyers. Australian Bar Review, 39, 175–197.
Federal Court of Australia. (2013). Practice Note CM 7 – Expert Witnesses in Federal Court proceedings. http://www.fedcourt.gov.au/law-and-practice/practice-documents/practice-notes/cm7
Foxen, S., & Bunn, S. (2015). ‘Forensic Language Analysis’, PostNote 509. researchbriefings.files.parliament.uk/documents/POST-PN-0509/POST-PN-0509.pdf
Harris, D. A. (2012). Failed evidence: Why law enforcement resists science. NYU Press.
Haugh, M., & Liddicoat, A. J. (Eds.). (2009). Conceptualising communication. Special issue of Australian Journal of Linguistics
Law Commission of Great Britain. (2011). Expert Evidence in Criminal Proceedings in England and Wales. London: The Stationery Office. https://www.gov.uk/government/uploads/system/uploads/attachment_data/file/229043/0829.pdf
National Research Council Committee on Identifying the Needs of the Forensic Sciences Community. (2009). Strengthening Forensic Science in the United States. Washington, DC: National Academies Press. https://www.ncjrs.gov/pdffiles1/nij/grants/228091.pdf