Language in Court: The Acceptance of Linguistic Evidence about Indigenous Australians in the Criminal Justice System

Article excerpt

Introduction

The continuing high over-representation of indigenous people in the criminal justice system is a matter of concern for a number of linguists, and earlier work (for example, Eades 1994a) has discussed the relevance generally of linguistic and sociolinguistic factors. This article highlights some of these factors, in discussing linguistic evidence used in specific cases involving Indigenous people. I use the term `linguistic evidence' here to mean linguistic analysis presented by a linguist to a court of law as expert evidence. I use the term `linguistic analysis' to mean the analysis of language using the principles of the discipline of linguistics (unlike some who use the term much more widely to mean any analysis of language, using any method). Similarly, I use the term `linguist' to mean a person trained in the discipline of linguistics (not a person who speaks many languages).

The focus in this article on language and communication issues affecting Indigenous people in the criminal justice system should in no way negate the significance of many other issues, including racism towards Indigenous people in the community generally, and by people within the police force and the judiciary specifically (as highlighted, for example, in the National Report of the Royal Commission into Aboriginal Deaths in Custody 1991). Also, while this paper is about the use of expert evidence by linguists, it is acknowledged that psychologists, psychiatrists, anthropologists and sociologists may also present expert evidence on language issues.

The use of linguistic analysis as evidence in courts of law has been quite a recent development, termed `forensic linguistics'. A number of Australian linguists have become active in this area, and in July 1995 the second conference of the recently established International Association of Forensic Linguists was held in this country, at the University of New England. (See Eades 1994b for an overview of forensic linguistics in Australia generally.)

The use of linguistic evidence in Australian criminal courts has mainly been in one of the five following areas (of which the last two have only developed since 1993):

* speaker identification, for example in the phonetic analysis of voices of people making threatening phonecalls, or other similar `language crimes'(1) (see Bowe and Storey 1995);

* tape transcription, for example where the taperecording of an interview with police or of a `language crime' is difficult to hear and/or understand, or where there is dispute over its transcription (see Bowe and Storey 1995);

* alleged verbals, that is, where a person charged on the basis of a police record of interview claims that this record of interview was fabricated (see below). This is part of the broader category of contested authorship of texts, which includes such examples as where doubt is raised over whether a person claiming to have received a suicide note or a farewell letter may actually have written the note before murdering the deceased (see Eagleson 1994);

* comprehension, that is, where a linguist has examined the extent to which a witness or defendant may have not understood the police caution, questions in the police interview, or written legal documents (see below); and

* cross-cultural communication differences in the legal system, to be discussed below.

The use of forensic linguistics in cases involving Indigenous Australians has been almost solely in the last three of these areas, as far as it has been possible to determine.

This article reports on a number of cases, all of which have involved linguistic evidence in relation to Indigenous people. There are two distinct areas of concern (based on the last three of the five areas above):

* in cases in which an Indigenous person has been convicted and charged on the basis of a confession which has been allegedly fabricated, and

* in cases where language and cross-cultural communication differences prevent an Indigenous person from effectively participating in the interviews which are crucial to the way in which they interact, as defendants or witnesses, with the criminal justice process. …