Book Review ( The Handbook of Discourse Analysis)

 

A.  Book Identity

Title                                        : The Handbook of Discourse Analysis

Edited by                                :  Deborah Schiffrin, Deborah Tannen and Heidi E. Hamilton

Publisher                                 : Blackwell Publisher

Print publication date             : 2003

Page                                        : i-xx, 817

Review part III page 437 ( Discourse Analysis in the Legal Context ) by Roger W.

B.     Introduction

            One of the defining characteristics of discourse analysis is that it is capable of application in a wide variety of settings and contexts. Wherever there is continuous text,written or spoken, there is a potential analysis of such text. The area of law provides an open opportunity for discourse analysis, especially since law is such a highly verbal field. It is generally regarded as a field containing written discourse, for care is taken to record in print all oral interactions that occur in court. Cases are preserved in written form to serve as the basis for later decisions and to record the cases for later review. Law libraries, therefore, house immense collections of written text, such as motions, counterclaims, and judges’ opinions, but they also contain spoken words, transcribed in writing, such as trial testimony, questioning, and argument. Law, therefore,

is a fertile field for discourse analysts.

C.    Content Analysis

1. A Brief History of Discourse Analysis and Law

Forensic linguistics is a somewhat newly recognized subfield of study, having spawned its own academic organizations and journal only recently. In the 1990s, forensic linguistics, in the broader sense, seems to have flowered, with important general collections of articles on language and law (Gibbons 1994; Levi and Walker 1990; Rieber and Stewart 1990), and books on the language of the courtroom (Solan 1993; Stygall 1994), bilingualism in the courtroom (Berk-Seligson 1990), and aircraft communication breakdown (Cushing 1994). Discourse analysis plays a role in these studies, but

it is not the centerpiece of these works.

There were, of course, instances of the application of linguistics to law much earlier than this. Individual linguists have been called upon to assist attorneys for many years, but, as far as I can tell, without much documentation. For example, I know from personal correspondence that the late Raven I. McDavid, Jr., was used by Chicago area lawyers to help with the identification of dialects of defendants in law cases. There were probably other linguists used in the same way throughout the years. During the 1960s, linguists were called upon to assist both the government and local

and state school systems in interpreting and evaluating issues related to new laws on bilingual education and desegregation. Again, official documentation of such consultation is either nonexistent or spotty.

Before the 1980s, it is clear that linguists who engaged in such work did so as a side-issue application of their primary work as dialectologists, phonologists, syntacticians,or, in some cases, applied linguists in the most general sense.  

2. Using Analysis to Analyze Criminal Cases

2.1 Using familiar tools to analyze criminal cases

2.1.1 Topic and response analyses

One of the early uses of discourse analysis in criminal cases involving tape recorded evidence appears to be Texas v. Davis in 1979 (Shuy 1982). T. Cullen Davis was a Fort Worth oil millionaire who was accused of soliciting the murder of his wife. The government used undercover tape recordings of conversations between Davis and an employee to attempt to show that Davis indeed solicited murder. But the tapes had some very odd qualities. For one thing, topic analysis showed that Davis never brought up the subject of killing, casting doubt on this as Davis’s agenda in those conversations. Response analysis showed that when the topic of murder was introduced by the undercover employee, Davis responded with no agreement and, in fact, no recognizable interest in the matter. His response strategies were to change the subject, say nothing at all, or offer only feedback marker “uh-huh” responses. One battle in court concerned the meaning of these “uh-huhs,” the prosecution arguing that they signaled agreement with the employee’s offer and the defense arguing that

they indicated only that Davis was listening, but not agreeing, to what the other man was saying.

The context of the event also shed some light on Davis’s verbal behavior. Davis had just been acquitted in a trial in which he had been accused of breaking into his own home, wearing a ski mask, and killing his wife’s boyfriend. After his acquittal, Davis, perhaps understandably, brought divorce proceedings against his wife. During these proceedings, Davis heard, correctly or not, that his wife was running around with the judge in the divorce trial. To obtain evidence of this, Davis asked that employee to spy on his wife and catch her with the judge. The employee went to the police and told them that Davis had asked him to find someone to kill the wife and the judge. The police then wired the employee with a tape recorder and sent him to get the verbal evidence on Davis. This produced two brief meetings, both requested by the employee, in which the two men sat in a car and talked. The employee carried a gun (not uncommon in Texas) and had a black belt in karate. Davis, a slight man, appeared nervous throughout.

The “smoking gun” evidence held by the prosecution was a passage on one of the tapes in which the employee reports to Davis, “I got the judge dead for you.” To this, Davis is alleged to respond, “Good,” followed by the employee saying, “And I’ll get the rest of them dead for you too.” These words do indeed appear on the tape but not in response to the employee’s statement, as the government’s own evidence would show. As it turns out, the police not only had the employee wear a mike but also made a videotape of the meeting, taken from a van parked across the parking lot. Correlation of the voice tracks of the audio- and videotapes indicated that Davis was getting out of the car as they were discussing the employee’s boss, a man named Art. As he got out of the car, Davis continued to talk about Art while the employee, anxious to get incriminating evidence on tape, talked about getting the judge and

others dead.

 2.1.2 Speech act and pragmatic analysis

Speech act analysis has been especially helpful in cases involving alleged bribery. A classic example, again in Texas, involved the charge that a state politician had agreed to accept money in exchange for switching the state employee insurance program to a new carrier. But was the speech act of offering the deal what the prosecution said it was? First of all, it was couched in the perfectly legal context of an offer to save the state money by getting a better insurance contract. Then suddenly the agents made a second offer, for a campaign contribution of $100,000 (perfectly legal at that time in that place), to which the politician replied, “Let’s get this done first, then let’s think about that.” The agents then upped the ante, saying, “There’s $600,000 every year . . . for whatever you want to do with it to get the business.” To this, the politician replied, “Our only position is that we don’t want to do anything that’s illegal or anything to get anybody in trouble and you all don’t either. This [the insurance plan] is as legitimate as it can be because anytime somebody can show me how we can save the state some money I’m going to be for it.” As for the campaign contribution, the politician accepted it as a legal campaign contribution and clearly said that he would report it. The agent urged him not to do so.

2.2 Newer areas for discourse analysis

2.2.1 Voice identification

Controversy over the validity of voice identification led to the modern era of scientific voice analysis (Tosi 1979). Today, those interested in the field that has come to be called forensic phonetics can benefit from starting their reading with Baldwin and French’s Forensic Phonetics (1990), Hollien’s The Acoustics of Crime (1990), and a special issue of the journal Forensic Linguistics (vol. 3, number 1, 1996). What can discourse analysis add to the issue of identifying the voices of otherwise unidentified speakers? The need to identify voices on a tape recording is not always limited to the types of cases normally examined by forensic phoneticians. For example, in a typical criminal case in which tape recorded conversations serve as evidence, not only must the words of each speaker be identified and transcribed, but also the speakers must be identified accurately. In most cases, this is not too difficult, especially if there are only two speakers on a tape and those two speakers have distinctively different voices. But when there are multiple speakers, things get complicated. And when some of the multiple speakers have, for example, equally deep voices, the same southern dialect, or other speaker attribution similarities, attention must be given to other voice identification features. Complicating matters even further for the use of forensic phoneticians, accurate voice identification usually requires a tape recording which is of good enough quality to be submitted to sophisticated spectographic instrumentation. This rules out many, if not most, surreptitious tape recordings made in criminal investigations, since such recordings are done under less than optimal laboratory conditions.

2.2.2 Defamation

Defamation law and dictionaries are in agreement with the definitions of both “opinion” and “fact,” but both law and lexicography are predictably silent about their linguistic structure. Yet it is the discourse structure of the language used as evidence of defamation that is often most crucial to the resolution of the case.Defamation is an extremely sensitive area in which to cite actual cases. Therefore, the following examples will protect participants by maintaining anonymity with pseudonyms. A defamation case was brought by Roy Harris against a television station which, he claimed, went beyond calling him a suspect to accusing him of committing the crime in news segments of two different programs. In most of the two programs, Harris was consistently referred to as “the only suspect” or “the one and only suspect.”

In one of the broadcasts, the police investigator said, “The suspect went directly into the house, into the kitchen, and shot the victim in the head.” Elsewhere in the programs, Harris was said to be the only suspect. Now we are told that the suspect shot the victim. Put these together and one can easily understand the program to be stating as a fact, not opinion, that Roy Harris killed the victim. This referential definition was overlooked by both the plaintiff and the defense, until the linguist called it to their attention. Referential definition is not the only discourse analysis procedure found useful in defamation cases. Discourse framing, for example, also played a role in the Harris case. Television news programs characteristically frame their stories with introductions and conclusions that relevantly focus on the specific news item. In this case, the introductory frame went a bit beyond this, as follows:

(1) Female announcer: During the past few weeks, you’ve probably heard about thelatest in the murder of a suburban Kenmore housewife. Male announcer: A husband and his one-time girl friend have been indicted for murder in that case. Well, tonight’s special examines another case where the victim’s husband is coming under close scrutiny. Here the murder story frame makes use of an analogy. An analogy is defined as an inference that if two or more things agree with one another in some respects, they will probably agree in others as well. Thus by using the analogy of the husband’s indictment in the prior Kenmore murder with the current Harris case, the discourse frame encourages the inference that these two separate and unrelated cases are alike even though Harris was never indicted. The use of the discourse marker, “Well,” uttered with a lengthened vowel, signals that what follows has semantic cohesion with the Kenmore murder. The male announcer’s use of “another” strengthens this connection. The use of analogical discourse framing encourages listeners to infer that Harris, like the Kenmore husband, is more than just a suspect. As with other areas of the legal context, discourse analysis has been underutilized in defamation cases so far.

3 Using Criminal Cases to Address Linguistic Problems

3.1 Discourse analysis and intentionality

One way to determine the intention of people is to simply ask them about their intentions. But the possibility of getting an accurate and truthful answer in a court case is diminished by the fact that participants naturally want to protect their own best interests. Short of inventing a machine that gets into the mind and captures actual intentions, the topics one introduces in a conversation come closer to indicating agendas or intentions than anything else. One should be very careful not to claim that these clues to intention are actually the real intentions. But real intentions can certainly be inferred justifiably from them. Likewise, the responses people make to the topics of others can also provide clues to their intentions.

3.2 Discourse analysis and ambiguity

Ambiguity in the use of language is often thought to be the sole province of semantics. Discourse ambiguity, however, is equally present in both written and spoken language. The sequencing of discourse can create an ambiguity that is not always immediately apparent in the individual words or sentences. Many criminal law cases center on the words used by the participants. Elsewhere I have referred to such as language crimes (Shuy 1993). That is, there is no physical damage done to victims, such as robbery, murder, or assault. Such crimes are based solely on the language used in cases involving bribing, buying or selling illegal property or substances, illegal soliciting of various sorts, extorting, and conspiring to do something illegal.

3.3 Discourse analysis and stylistics

Stylistic analysis is the examination of the characteristic use of language features by a given writer or writers. The analyst reviews the material presented, written or spoken, and compares the text of unknown origin with that of the known. Such comparison focuses on language features of which speakers or writers have little or no conscious knowledge or control as they speak or write. For example, writers have rather high levels of consciousness and control over vocabulary choices but considerably less consciousness and control over their grammar, spelling, or punctuation

patterns. Discourse style is another language feature of which most speakers and writers have little or no conscious awareness or control.

The contribution of stylistics to the broad field of forensic linguistics is well documented by Gerald McMenamin’s comprehensive text Forensic Stylistics (1993), a book which is an excellent resource for this field. The major thrust of forensic stylistics, however, has been the study of linguistic forms, such as vocabulary, grammatical categories, syntax, punctuation, and length of expressions or text, rather than discourse style. The latter has been dealt with ably in nonforensic contexts (Tannen 1982, 1984; Brown and Yule 1983), especially with written text, but the application to forensicdiscourse is only recently beginning.

The use of discourse markers (Schiffrin 1987), for example, has served as an identifier of an individual’s style in at least one known legal dispute (Katherine Thomas, pers.comm.). The analyst was able to determine that the speaker in question was not theone suspected by comparing that person’s use of discourse markers in known speech samples with the sample in question. Other indicators of discourse style are available for similar analysis and comparison, such as organizational style, patterns and types of register shifting or mixing, patterns of sequencing given versus new information (Brown and Yule 1983), the use of cohesion (Halliday and Hassan 1976; Scinto 1986), and many others.

4. Directions and Future Connections

The legal context appears ot be just beginning to take advantage of discourse analysis to help unravel the complexities of litigation. Whether the language evidence is written or spoken, whether the case is criminal or civil, and whether the analysis is done for the defense, prosecution, or plaintiff, discourse analysis has a bright future in legal disputes. Issues of intentionality, ambiguity, stylistics, voice identification, defamation, bribery, solicitation, and many others provide a vast arena for linguists to explore the uses of these, and other, aspects of discourse analysis. The field of law seems to be more and more open to such assistance (Wallace 1986). It is up to linguists to respond.