Introduction

Culture can be conceptualized as the ways of thinking, believing and acting which are shared within a social group, and passed on from generation to generation. Most of the (Anglophone) research on intercultural communication in the law examines communication between members of dominant English-speaking Anglo sociocultural groups and members of minority ethnic groups. The chapter starts by considering second-language speakers, including speakers of creole languages and deaf users of sign languages. It then moves to research on second-dialect speakers, and people whose language variety is very similar to the dominant language, but whose membership of a minority sociocultural group impacts on their communication in the legal process. This leads to a discussion of the relationship between power and culture in intercultural communication in the legal process. The culture of the legal profession is distinctive in many ways, so that many people without legal training and socialization can feel confused, misunderstood or ignored when they have dealings in legal contexts. The last section of this chapter investigates intercultural communication in the legal process between legal professionals and others.

As this chapter will draw on anglophone research, its focus is on the common law adversarial system found in England and its former colonies, including the US, Canada, Australia, New Zealand and South Africa. Research by sociolinguists and linguistic anthropologists has focused predominantly on courtroom hearings because of the relative ease of access to data for analysis compared to other legal contexts. This chapter will also draw on research in police interviews, as well as lawyer interviews, and law school training.

Second-Language Speakers

Perhaps the most obvious intercultural communication challenges in the legal process take place when a person who does not speak the dominant language is interviewed by police or gives evidence in court. International conventions protecting the rights of accused people make provision for them to have interpreters in such situations. Depending on the particular conventions signed, this provision may only apply to court and not to police interviews as well. In court, not only is the evidence of accused people interpreted, but also everything that is said in court must be interpreted for them. This is in accordance with the basic human right of accused people to hear the evidence of their accusers. Some countries extend the provision of interpreters to witnesses in court (not just accused people). There are also some jurisdictions which provide interpreters for jurors, such as the state of New Mexico in the US for monolingual Spanish speakers (Montalvo 2001). But in most jurisdictions, citizens who do not speak the dominant language are not able to serve on the jury.

Most of the research on second-language speakers in legal contexts focuses on courtroom hearings. From here, I will use the term “witness” to refer to any person who gives evidence in court, including defendants – that is, accused persons in criminal trials, and complainants – that is, persons who initiate complaints dealt with in either criminal or civil matters.

The first issue in the provision of interpreters for second-language speakers in the legal process relates to access. International conventions and statutes in different countries usually stipulate that an interpreter must be provided if a person “cannot speak or understand the language used in court.” In court, this decision is typically made by the presiding judicial officer (i.e. the judge or magistrate), after asking the witness some basic questions, such as “How long have you been in this country?”, “Where did you learn English?”, and “Where do you live now?” It can be problematic for this assessment of the witness’s language skills to be made subjectively by a judicial officer, who is unlikely to be trained in assessing language proficiency. While some questions asked of witnesses in court may be at this fairly basic level of linguistic complexity, others can be much more complex, involving questions of motive and mental state for example. Further, it is a common strategy in cross-examination for lawyers to ask questions which seek to reveal inconsistencies in the witness’s story. This can result in questions involving hypotheticals, conditionals, and complex reference to past events.

Angermeyer’s work in New York small claims courts (2008, 2009) highlights problems with a lack of recognition of different types of second-language proficiency. Courts typically take an all-or-nothing approach to interpreting, requiring witnesses to use interpreters for every utterance, or not at all. Thus, the monolingual bias of courts forces bilingual people to act as monolinguals. Angermeyer also discusses a much less frequently used approach in which witnesses answer the less complex questions in English, and can use their first language for more complex questions and answers. This approach, which is known as “stand-by interpreting,” is exemplified in Cooke (1996).

Both interpreters and second-language speakers face numerous challenges and difficulties in court. Legal professionals typically expect the interpreter to be as invisible and non-intrusive as possible (Berk-Seligson 2002a: 96). This expectation, combined with strict constraints on who can talk when, can inhibit interpreters from attempting to negotiate difficulties in understanding and interpreting. Further, courtroom interpreting can involve highly technical language, for example in interpreting for an accused person the evidence of an expert scientific witness. In contrast to the expectations of legal professionals, witnesses sometimes expect the interpreter to be a support person or advocate (Morris 1999), a role which would conflict with that of interpreter, and contradict the interpreter’s code of ethics.

Many legal professionals are unrealistic in their views about how interpreting should work. For example, legal professionals can be concerned that the interpreter (who is speaking to the witness in a language the legal professionals do not understand) may do more than interpret. Intent on an accurate interpretation and no more than that, lawyers and judges sometimes expect interpreters to give a word-for-word equivalence of what was said (Hale 2004: 8). But a literal word-for-word translation can produce ludicrous results, particularly in the case of idioms. As Hale (2004: 3) explains it, accuracy in interpreting requires “a pragmatic reconstruction of the [utterance in the] source language into the target language.”

Pragmatic accuracy can be particularly challenging in courtroom interpretation, given the importance of (sometimes subtle) pragmatic force in the ways in which lawyers ask questions. For example, tag questions can play an important role in a number of cross-examination strategies, including intimidation, confusion, and attempts to lead the witness to give contradictory answers. Thus, accurate interpreting of tag questions into a second language must pay attention to the pragmatic force of the particular tag question chosen. But English has a much more extensive range of tag questions than most other languages, which have only invariant tags. Thus, interpreting the wide range of English tag questions is tricky, as shown by Berk-Seligson (1999) and Hale (2004) for Spanish.

Leaving aside pragmatic accuracy, there can be linguistic challenges in providing grammatical and semantic accuracy too. Lee (2009) examines difficulties in interpreting accurately into English the evidence of Korean witnesses, given the difference between these two languages in terms of grammatical ellipsis. In Korean, personal pronouns can be omitted from any syntactic position, and contextual information is crucial to the understanding of utterances involving such ellipsis. But court interpreters are often provided with very little contextual information. Further, the rigid discourse structure of courtroom talk, as well as institutional “constraints on the role and behaviour of the court interpreter” (Lee 2009: 95), prevents interpreters from engaging in the negotiation of meaning which would enable them to disambiguate answers involving grammatical ellipsis. Lee’s study in Australian courts found (2009: 109) that the interpreters generally “do not reproduce the ambiguity of the meaning” deriving from such inexplicit utterances of Korean witnesses. Rather, she found that the interpreters omitted or modified the witnesses’ utterances “to make them comprehensible and grammatically adequate, based on [the interpreters’] judgement of the intended meaning” (Lee 2009: 109).

An example of a semantic challenge for interpreters comes from Moeketsi’s work in South Africa. Sesotho does not have a generic verb corresponding to English assault, so interpreters have to choose between verbs such as -otla (beat), -tlatlapa (ill-treat, abuse), -hlekefesta (treat roughly), -hlasela (attack), and -lematsa (hurt). Moeketsi recommends (1999: 161) that interpreters should explain this lack of exact equivalent to the judicial officer, and ask that the original speaker rephrase the utterance. But such advice is often difficult for interpreters to follow, because of the fear that a request like this may wrongly lead legal professionals to mistrust the linguistic skills of the interpreter.

In addition to linguistic challenges such as these, there are cognitive challenges. For example, interpreters face difficulties in remembering exactly what has been said, and translating every part of it with full accuracy, while not omitting or adding anything, or changing the emphasis attached to any particular part. Several researchers have found evidence supporting the observation of Hale and Gibbons (1999) that interpreters are more likely to achieve accuracy in interpreting utterances or parts of utterances which deal with the external reality or the propositional content of questions (e.g. the events about which the witness is being questioned), than the courtroom or pragmatic reality (e.g. the discourse markers which index the questioner’s stance of sarcasm) (see also Hale 2004).

Most of the research on courtroom language has been done in countries where courtrooms are monolingual, and this chapter has reported on anglophone research carried out in English-speaking legal systems. There are some jurisdictions where two languages are used, such as Malaysia (Malay and English), Hong Kong (Chinese and English), and Sri Lanka (Tamil or Sinhala, and English). Powell (2008: 155) finds that while practical acceptance of two languages “may increase participation in judicial proceedings … it cannot overcome the fact that individual bilingualism varies widely.” Further, while bilingual courtrooms can be an important step in making legal processes more transparent, they can “obscure the need many participants have for translation.”

While most of the research on interpreting in the legal process has examined interactions in court, there are also important issues in police interviews. Berk-Seligson (2000) reviewed all appeals between 1965 and 1999 in three populous US states (California, Florida, and New York) in cases involving police use of unqualified interpreters during their investigative interviews or interrogations. Her analysis of the forty-nine cases found that the following types of people were used as interpreters: police officers, relatives of the person being interviewed (including children), crime scene witnesses, a fellow prison inmate, and a suspect’s confederate. Berk-Seligson discusses obvious compromises for the justice system in terms of conflict of interest and quality of interpreting. Berk-Seligson (2009) presents detailed microanalysis of three cases in which a police officer acted as an interpreter for the suspect, which highlight serious problems in terms of miscarriage of justice. For example, in one of these interviews, the investigating police officer who also acted as interpreter blurred what should be two distinct roles. He also used coercion to elicit a confession, and thus violated the suspect’s rights. (See also Berk-Seligson 2002b.)

Two sociolinguistic analyses have revealed a number of problems that arise when a suspect’s rights in a police interview are communicated to a second-language speaker through an interpreter, from English into French (Russell 2000) and Japanese (Nakane 2007). Russell examines the difficulties experienced by interpreters with the complex language in the original version. This examination highlights problems both in the original and in attempts by police officers to explain the suspect’s rights. Nakane shows problems with the ways in which police officers break the written caution into phrases suitable for consecutive oral interpreting.

To date, there appears to be little attention given to intercultural communication involving second-language speakers (or members of other minority groups) in lawyer interviews. However, Trinch’s (2003) investigation of interviews of Latina survivors of family violence with lawyers and paralegals in the US will be discussed below.

Speakers of Creole Languages

Speakers of creole languages should be considered in the same way as any other second-language speakers. But these speakers can be disadvantaged by the fact that creole languages often sound like their lexifier language. Because of this similarity, people are often unaware of the fact that creole languages are different from their lexifier languages, and that speakers of creoles typically require interpreters. One example comes from linguistic evidence in an Australian Supreme Court trial of a Torres Strait Creole speaker who was charged with attempted murder. Linguistic analysis of the recorded police interview showed that the accused did not have sufficient knowledge of Standard English to deal with the complexities of the questions he had been asked. Further, the linguist pointed out that in Torres Strait Creole, the word kill may mean “hurt or maim” rather than “kill,” so that when the accused had talked about wanting to kill someone, this did not necessarily indicate an intention to murder (Trezise 1996).

Other striking examples are provided in Brown-Blake and Chambers’ (2007) study of Jamaican Creole speakers in UK police interviews. Jamaican Creole often sounds like English, and it is related to English, but it is not English. An example which illustrates pronunciation differences comes from the transcription of a police interview of a witness to a shooting incident (Brown-Blake and Chambers 2007: 276–7). During the interview the witness said “Wen mi ier di bap bap, mi drop a graun and den mi staat ron.” This would translate as “When I heard the bap bap [the shots] I fell to the ground and then I started to run.” But in the official written transcript, it is given as “When I heard the shot (bap, bap) I drop the gun and then I run.”

The mistake in this transcription shows that serious consequences can arise when Jamaican Creole is not recognized and its speakers are not provided with interpreters. Another example of erroneous transcription of Jamaican Creole accent occurred when a police interviewee’s statement that he was in a Jaguar (car) was mistranscribed as in a drug war (Brown-Blake and Chambers 2007: 277–8).

Deaf Sign Language Users

A particular group of people who do not have English as a first language are deaf sign language users, who experience even greater disadvantage in the legal process than second-language speakers, for several reasons.

Firstly, many people do not realize that deaf sign languages are full and complex languages, which are the first language of their users. Not all deaf people are proficient in English, and for those who do read and write English, it is as users of English as a second language (Brennan 1999). In the US, the lack of understanding that the deaf sign language (American Sign Language) is a language different from (non-oral) English is something of a two-edged sword. On the one hand, deaf people can serve on the jury in America, unlike deaf people in most other countries. But this is because this right is provided for people with disabilities, and deaf people are considered to be disabled users of non-oral English. On the other hand, this approach wrongly implies that American Sign Language is a manual form of English. However, it is not English, but a distinct language, and its users may not necessarily have good proficiency in reading and writing English. And some courts in the US have failed to understand the crucial difference between American Sign Language, and manually transliterated forms of English, such as Signed English. Thus, in some jurisdictions in the US, interpreters have been directed to use Signed English (rather than American Sign Language) for deaf jurors, because of the mistaken belief that this would somehow make the interpretation more accurate (Mather and Mather 2003). This is the same as interpreting from one spoken language to another by interpreting a string of individual words, rather than the utterance as a whole. This can easily result in nonsensical “interpretations,” for example in dealing with idioms.

Secondly, many people fail to recognize hearing impairment or deafness, and can wrongly attribute certain behaviors, including silence, to non-cooperation or resistance (McKee 2001: 132–4). And similarly, facial expressions which convey emotions in hearing people, may function quite differently as part of sign language. Castelle (2003) discusses the implications of such differences for police officers, who are often trained to study facial expressions and other nonverbal behavior of suspects generally, without an understanding of relevant differences between spoken and sign languages.

Sign language interpreters face a number of additional challenges to those which confront all interpreters. Firstly, whereas interpreting between speakers of two different (oral) languages involves just spoken interaction, interpreting for a deaf person involves two different modalities, spoken and sign (see Brennan 1999; Turner 1995). Secondly, while most interpreters for witnesses in court interpret in consecutive mode, it is customary for sign language interpreters to work in simultaneous mode (Napier et al. 2007: 16–17; Brennan 1999: 228). Presumably this difference relates to the difference in modality. When a deaf witness is giving evidence, the witness is using only the visual channel, and thus the interpreter can use the oral channel, and interpret simultaneously (and vice versa for questions addressed to the witness). But, this is more cognitively demanding and tiring for the interpreter, who has no time to process a question, or an answer, before providing its interpretation. And it is arguably not equitable for the deaf person, as research has shown consecutive interpreting to be more accurate than simultaneous interpreting (Russell 2002).

Important linguistic differences between signed languages and spoken languages also present particular challenges for interpreting in the highly constrained communicative events in the legal process. Spoken language is linear, comprising one meaningful unit spoken after another. But while sign languages are linear, there are also “two other forms of patterning” which intersect with linearity, namely “simultaneity and spatiality” (Brennan 1999: 222). As Brennan explains, the “characteristics of human gesture are such that we can do several things at once very easily.” In effect, sign languages use several different parts of the body in combination to make meaning, including eyes, eyebrows, cheeks, mouth, nose, head, shoulders, and hands. And as well as the possibility of numerous simultaneous articulators, sign language users encode meaning in their use of dimensions of space. As Brennan (1999: 223) explains this feature of spatiality, the signer “uses the space in front of the body to set out participants within the discourse” at different locations. So the signer can refer to these participants by referring to these specific locations, for example with eye gaze or “pronominal pointing.”

Another linguistic challenge for sign language interpreters comes from the fact that sign languages tend to have fewer “category” or “super-ordinate” terms than English (Napier et al. 2006). Thus, English generic words which are frequently used in criminal trials have to be interpreted more specifically. For example, the English word assault has no lexical equivalent in Auslan (in Australia) and NZSL (in New Zealand) (as with the Sesotho language, as we saw above). So, assault would have to be signed as “punch,” “stab,” “kick,” “slap,” or similar. Similarly the English word disorderly would have to be signed more specifically as “drunk,” “fight,” or “swear.” (See also Brennan 1999, Reed et al. 2001 for parallel comparisons between English and British Sign Language.)

Napier et al. (2006: 124) point out that “there is often no simple solution to such linguistic differences.” But one strategy that interpreters use is that which is referred to by Brennan and Brown (1997) as “borrowing.” This refers to the way in which sign language users use fingerspelling and/or mouthing the English word to provide an English gloss for the word they are signing. In this way, for example, as Napier et al. (2007: 15) explain, the English word murder might be interpreted with the sign for “strangle,” or “stab,” or “shoot,” or “slit the throat,” while simultaneously either mouthing the word murder, or fingerspelling the word.

Second-Language Speakers without Interpreters

Sociolinguistic research has been investigating a number of dimensions of second-language speakers communicating with interpreters. But to date, little attention has been paid to second-language speakers communicating without interpreters. However, Cooke (1995, 1998, 2009) provides some valuable insights, such as the complications and misunderstandings that can arise with one-word answers to yes/no questions. These answers are common in courtroom cross-examination, where witnesses are mostly asked questions that can be answered by yes or no. But one-word answers to negative yes/no questions can be confusing. Cooke’s work is with speakers of the Yolngu languages of northeast Arnhem Land in the Australian Northern Territory. In these languages, people “frequently say [the equivalent of] yes to confirm the veracity of a negatively framed proposition in a situation where the English speaker would say no” (Cooke 1998: 279). Speakers of these languages who speak English as second language often transfer this pattern of answering questions into their use of English. Cooke gives the example (1998: 282) of an exchange which starts with a lawyer asking “You can’t answer that?” The witness answers “Yeah, I can’t answer that,” which would translate into Standard English as “No, I can’t answer that.” The witness’s answer is instructive, because the witness did not stop at “Yeah,” but amplified his answer in a way that made his meaning clear. But, if he had given a one-word answer without this amplification, English speakers might well have mistaken it to mean “Yeah, I can answer that.” This example illustrates the complications which can arise in understanding answers from second-language speakers of English who speak a Yolngu language as their first language. Japanese is another language which uses the same pattern for answering negative yes/no questions, so the same miscommunication can arise from native speakers of Japanese answering yes/no questions in English. They may be following the pattern of their first language, or they may be following the pattern of English.

Second-dialect speakers

Second-dialect speakers are people who do not speak the dominant language, but rather a related dialect. This is often an unstandardized dialect which is stigmatized and denigrated in the society generally. Although communication difficulties are not as extreme as with second-language speakers, in some ways second-dialect speakers can be at a greater disadvantage than some people who speak a second language. This is because second-dialect speakers are often wrongly assumed to be speakers of the dominant language, or to be people who are too uneducated, lazy, or ignorant to speak “properly.”

This negative relationship between the use of a non-standard dialect and legal reactions to its speakers is revealed by Jacquemet (e.g. 1992) in his study of the major mid-1980s trial of Mafia gang members (camorra) from Naples (Italy). Defense attorneys tried to impugn the credibility of witnesses on the basis of the witnesses’ use of the non-standard Neapolitan dialect in their courtroom testimony, appealing to the general regulation that all courtroom participants should speak “Standard Italian.” Jacquemet (1992: 114) argues that this was part of the legal strategy of the defense in trying to make a negative connection between a witness’s “inability to perform within courtroom canons to his claim to be a reliable man, a man of truth.” So the implication was that witnesses using a non-standard dialect were “untrustworthy individuals.” However, the use of this dialect caused no comprehension difficulties for any of the participants, many of whom were themselves from Naples, and the judge refused to disallow its use.

Most of the research on speakers of non-standard dialects in legal contexts has focused on Australian Aborigines, many of whom use a dialectal variety of English in their dealings with the law. Aboriginal English in Australia varies from “light” (or acrolectal) varieties, which are closest to other varieties of Australian English, to “heavy” (or basilectal) varieties which are least similar to these varieties, and closer to the creole language, Kriol. Dialectal differences can impact on intercultural communication at every level of language.

Koch (1985: 180) gives an example of miscommunication involving an Aboriginal English-speaking witness in a Central Australian land claim hearing. Giving evidence about the relationship between two people, he said “Charcoal Jack – properly his father.” This was apparently understood by the court as the witness being unsure of the family relationship in question, consistent with it being recorded in the official transcription as “Charcoal Jack – probably his father.” But this was a misunderstanding, in which several features of heavy Aboriginal English were ignored, including the interchangeability of the b and p sounds, and the use of the adverb properly to mean “real.” So, a subtle but important misunderstanding arose because of phonological and semantic differences, combined with a cultural difference, namely the use of the Aboriginal English word father to refer to a person’s biological father as well as any of this biological father’s brothers (and thus the qualification properly to specify a person’s “real” or biological father). The witness was not expressing lack of certainty about the relationship. On the contrary, he was being specific about what kind of father-relationship was involved.

Most of the research on Aboriginal English in the legal system has focused on speakers of acrolectal (or “light”) varieties, which overlap to a considerable extent with other varieties of Australian English. Despite the fact that these Aboriginal English varieties do not sound very different from General Australian English, there are important pragmatic features which are often unrecognized or misinterpreted, and which can affect speakers in their dealings with the law. This may well be a major reason why the participation of second-dialect speakers in the legal system has not attracted much linguistic research: where lexical and grammatical differences between the stigmatized and the standard dialects are not great, the pragmatic and cultural differences can be overlooked.

For example, in the Anglo legal system and society generally, silence in answer to a question is generally “interpreted to the detriment of the silent person,” implying, for example, that the person asked the question has something to hide (Kurzon 1995: 56). And Conversation Analysis research has found that in western Anglo societies, the “standard maximum tolerance for silence” is about one second (Jefferson 1989). After that, someone will break the silence, which after about one second causes interlocutors to feel uncomfortable. In contrast, many speakers of Aboriginal English (as well as traditional Aboriginal languages) use silence as a positive and productive part of communication. But this use of silence is often not understood by legal professionals – of whom very few are Aboriginal – and considerable miscommunication can arise in legal interviews, whether in a lawyers’ office, a police station, or a courtroom. Many people who interview Aboriginal people are unaware that their answer will often begin with a silence. Not hearing an immediate reply to the question, the interviewer often moves on to another question. In effect, the interviewer has interrupted the first part of the reply, and thus prevented the Aboriginal interviewee from providing an answer (see Eades 2000, 2007).

Research attention has recently turned to Canadian Aboriginal English-speaking suspects in police interviews. Fadden (2008) compares three Aboriginal suspects with three non-Aboriginal suspects. She finds that, in contrast to the non-Aboriginal suspects, the Aboriginal suspects said very little, and that when they did directly address the investigating officer they were non-confrontational and used hedges.

Cultural Presuppositions about Communicative Style

We have seen above that understanding dialectal differences between speakers of Aboriginal English and General Australian English requires an understanding of differences in the use and interpretation of silence. This difference can be seen as a pragmatic feature of dialect, and it can also be seen in terms of cultural difference. It is also likely to be relevant to many other social groups beyond Australian Aboriginal people. Specifically, people from different cultural backgrounds may have different expectations about how silence is used and what it means, and thus they bring different cultural presuppositions to the interpretation of silence. Sociolinguistic research generally (not in legal contexts) has found distinctive uses of silence in a number of sociocultural groups, including the Amish (Enninger 1987), Japanese (Lebra 1987), and Chinese (Young 1994). So, there is a possibility of intercultural miscommunication in the legal process in countries such as Australia, the UK and the US with people from these ethnic groups. Further, a number of sociolinguists and anthropologists have pointed out that Native Americans use silence quite comfortably in their interactions (e.g. Basso 1970; Gumperz 2001).

Given the importance placed in the legal process on the “demeanor” of witnesses as an indication of their truthfulness and credibility, different cultural presuppositions about communicative style can play a crucial role. Such nonverbal behavior as eye contact is widely recognized in sociolinguistic and communication research to vary between different cultural groups (e.g. Bauer 1999; Van Ta 1999; Palerm et al. 1999; Eades 2008a; Reed et al. 2001: 186). To what extent are such cultural differences recognized and understood by legal professionals? And to what extent are they implicated in the effective or non-effective participation of members of minority cultural groups in the legal process? These are some of the questions awaiting further sociolinguistic research.

Cultural Presuppositions about Actions outside Legal Contexts

Cultural differences can impact talk and understanding in the legal process, even when language or dialectal differences seem minimal, as the discussion of silence above has indicated. But another way in which cultural differences can impact on the legal process is in the ways in which actions outside the legal context are handled within legal contexts (see Eades 2000). For example, there may be culturally specific assumptions presupposed in lawyer questions which are not shared with the witness. And, conversely, there may be culturally specific assumptions presupposed in witness answers which are not shared with the lawyer.

Cooke (1995: 89–91) discusses this aspect of intercultural communication in his analysis of a coronial inquiry which investigated the death of an Australian Aboriginal man in a remote area of the Northern Territory. Different cultural assumptions about illness and health led to miscommunication between an Aboriginal witness and the lawyer questioning him. The Aboriginal witness explained the (deceased) man’s habit of walking long distances in terms of “his sickness.” The lawyer did not appear to understand how this habit could be a symptom of sickness, saying “But he could walk a long way by foot?” (using adversative but, and the ability modal could and emphasizing the long distances involved). The lawyer also separated mental health from physical health, with questions such as “And apart from his sickness in the head was he physically fit?” Not sharing this cultural assumption that body and mind can be separated in talking about sickness, the Aboriginal witness said that the man was sick “from his head to his body.” Cooke shows how miscommunication developed over these contrasting cultural presuppositions. The lawyer’s questions appeared to assume that although the deceased may have suffered with a mental illness, he had nothing “wrong with his body,” as evidenced by the fact that he “could walk long distances.” The Aboriginal witness interpreted the deceased’s tendency to go for long walks by himself as a symptom of “his sickness,” which pervaded his whole being “from his head to his body.” Although the interpreter, who was sitting beside the witness in stand-by interpreting mode, offered to provide intercultural explanation, the lawyer prevented him from doing this.

The Politics of Intercultural Communication in the Legal Process

The example just discussed shows two sides in intercultural communication. But most research which sheds light on intercultural communication in the legal process has focused on how language is used by people from particular non-dominant sociocultural groups. However, two recent studies have examined the ways in which language has been used by legal officers to people from particular non-dominant sociocultural groups. Using sociolinguistic microanalysis, Jones (2008) examines the ways in which police in England and Wales interview Afro-Caribbean suspects, and Eades (2008a) presents an Australian case study which analyses the ways in which lawyers cross-examine Aboriginal teenagers in court. Each of these studies contributes to an understanding of the politics of intercultural communication in the legal process.

Jones’ (2008) examination of the language of police interviews contrasts the ways in which police officers talk to ten Afro-Caribbean suspects with the ways in which they talk to ten White British suspects. All of the suspects were British residents, and they appear to have all spoken the same mainstream variety of British English as each other and as the police officers interviewing them. Jones’ interest was in the linguistic strategies used by police officers to steer a suspect to produce a story which points to their guilt. Such an outcome would count as success in a suspect interview, in which an important aim is to elicit information which can result in a charge being laid.

Jones’ analysis found that the police officers treated the Afro-Caribbean suspects differently from the White British suspects. For example, “the Afro-Caribbean suspects had their answers rejected through repetition of questions,” whereas “the White British suspects did not” (2008: 238). There were some instances of the police interviewers repeating questions to the White British suspects. But the interviewers did not repeat the same question three or four times, as happened with the Afro-Caribbean suspects. Another important difference involved questions starting with the discourse marker so, known as so-prefaced questions. Jones distinguishes between so-prefaced questions which are information-seeking from those which are confirmation-seeking. Police asked the White British suspects more information-seeking questions than they asked the Afro-Caribbean suspects, thus appearing to invite the White British suspects’ versions of their story more than they did the Afro-Caribbean suspects’. On the other hand, Afro-Caribbean suspects were asked more confirmation-seeking so-prefaced questions. Such questions usually present the interviewer’s version of the story for the interviewee to confirm or deny, and in this way provide less scope for the suspect to present their own version.

Using analytical categories from Conversation Analysis, Jones distinguishes within so-prefaced questions between gists and upshots. Gists are “essentially a summary of the prior talk” (Jones 2008: 61), and thus they do not challenge the interviewee’s version. For example, a suspect provided information about when his brother had arrived at his house with a stolen video recorder. This was followed by the police officer asking the so-prefaced gist question which summarized these previous answers: “So he turned up at your address at two o’clock on either Thursday or Friday?” But upshots “draw out a relevant implication which [the interviewee] is expected to ratify” (Jones 2008: 65). For example, a suspect was answering questions about how he knew that a particular firearm was a replica gun. His answer, “Because I know what a replica looks like,” was followed by the police officer asking a so-prefaced upshot question, “So you know about guns?” As Jones explains (2008: 186), this upshot question “transforms the agenda from how [the suspect] knew the gun was a replica to the [arguably more damaging allegation] that he knows about guns.” Jones found that upshots constrained suspects “to take up and defend a new agenda, which is not necessarily in tune with what they originally meant” (2008: 164). In this way, upshots enabled the police officers to override the suspects’ stories with their own, something that the officers did more with the Afro-Caribbean suspects than with the White British suspects.

Jones is careful to avoid attributing intentions to the police officers in the study, who may not realize that they were treating the Afro-Caribbean suspects differently from the White British suspects. However, she points out that the racial inequality uncovered in her study is arguably related to the larger social issue of institutional racism in England, which has been of concern for several decades to sociolegal researchers and has been exposed in government inquiries. Government statistics for the year 2005–6 show that Afro-Caribbean people are seven times more likely to be stopped and searched by police than White people, and 3.5 times more likely to be arrested. Some important questions emerge about the connection between this microanalysis of police interviews and the complex and controversial relationship between police and Afro-Caribbean people. Do the police officers in this study interview the Afro-Caribbean suspects in a more coercive way than the White British suspects because the officers believe them to be more likely to be guilty of an offence? Is the interaction revealed in this small and rigorous study typical of the ways in which British police conduct interviews with suspects? Are there parallels with interviews in other countries with suspects from minority groups which are widely stereotyped in terms of law and order problems?

Aboriginal people in Australia are even more over-represented in the criminal justice system than Afro-Caribbeans in England and Wales. And sociolegal scholars have documented moral panic in Australia over Aboriginal people as a criminal threat to public safety on the streets (as reported in Eades 2008a). My examination (Eades 2004, 2006b, 2008a) of a specific Australian case – known as the Pinkenba case – examines the way in which courtroom talk is used to legitimize police abuse of Aboriginal people, both by drawing on and by contributing to widespread moral panic about Aboriginal people as a threat to public safety.

In the Pinkenba case, three young teenage Aboriginal boys were prosecution witnesses in the criminal case in which six police officers were charged with their abduction. Although the boys had criminal records, they were never charged with an offense on the night the police officers drove them out of town and abandoned them in a dark industrial swampy wasteland. In court, the usual relationship between Aboriginal witness and police was reversed: the boys were prosecution witnesses and the police officers were defendants. In my (2008a) book, I uncover the linguistic mechanisms used in the cross-examination to construct the identities of the boys not as victims of police abuse, but as lying criminals who are a threat to public safety when they are walking around the streets. For example, after asking the oldest witness (age 15) why the boys were walking around the shopping area where they were approached by police, one of the two defense counsels asked the question, “It’s not a bad place is it to steal money from someone?” (Eades 2008a: 153). Whether the witness answers yes or no to this question, the presupposition remains intact, that he is a person who can evaluate districts in terms of their suitability for carrying out a crime. A number of metapragmatic directives also carried the presupposition that the witnesses were lying criminals, such as “you must answer truthfully” (2008a: 163), and “please do not lie” (105), and “you’re going to sit there and you’re going to be asked question after question and you won’t be able to thumb your nose at people and commit offences there, do you understand that?” (216).

Another mechanism used throughout the cross-examination of the boys involved substituting their terms for their experiences with other terms which carry connotations of the boys as criminals. For example, all of the boys said in their examination-in-chief (when telling their story in answer to questions from the prosecutor) that they were “walking” or “walking around” that night when the police approached them and took them for a ride. But the defense lawyers substituted this description of this legal and common youth activity (“walking around”) with the phrase “wandering around.” There is a subtle difference here. “Walking around” is typically used with a purpose implied (when questioned, one of the boys said they were “looking”). On the other hand, “wandering around” collocates readily with the adverb “aimlessly.” And with the oldest witness, one of the defense counsel substituted this with “prowling around,” a phrase which implies being in search of prey (Eades 2008a: 129–35).

The linguistic mechanisms which were used by the cross-examining lawyers to construct the boys as lying criminals, and not victims of a police abduction, were successful. The magistrate hearing the evidence dismissed the charges against the police officers, finding that the boys “had no regard for members of the community, their property or even the justice system” and “no fear of the police” (Eades 2008a: 276). In fact, before making his decision, the magistrate had adopted the defense construction of the boys so thoroughly, that on three occasions during their cross-examination he addressed one of the boys as “the defendant” (Eades 2008a: 279). But it was the police officers who were the defendants (or the accused) in this case: the boys were complainants, and because of this, prosecution witnesses.

Analysis of the language used in the courtroom to construct the identities of these three Aboriginal boys highlights the importance of “power behind the discourse” in making sense of “power within the discourse,” in Fairclough’s (1989) terms. Arguing for a critical sociolinguistics which integrates macro-and micro-analysis, and which draws on social theory to understand such processes as moral panic and criminalization, I show how this case played an important role in the ongoing legitimization of police control over the movements of Aboriginal people. This control has been a site of struggle between Aboriginal people and the state since the earliest colonial times. Police have played a central role, initially in removing people from their lands, so that colonizing pastoralists could take it over. Then from the late 1800s police were the major agents in carrying out the forced removal of Aboriginal children from their families, under the so-called “protection” policies, resulting in what are now referred to as the “stolen generations.” Aboriginal people are still subject to excessive police control, for example being removed from public places, in a neocolonial perpetuation of this earlier colonial policing activity (Cunneen 2001). Analysis of courtroom talk in the Pinkenba case shows how language plays a central role in the legitimization of this police abuse, by constructing Aboriginal people as a law and order problem, best dealt with by police removal. An important finding from this study was that the Aboriginality of Aboriginal witnesses is not always as linguistically significant as it is socially and politically significant. But as the power of the state enacted through the legal process is essentially achieved through talk, then there is an important role for critical sociolinguistic analysis in examining the politics of intercultural communication in the legal process. Intercultural communication can involve more than culture and communication – power relationships should not be ignored.

The Culture of the Law: Worldview, Language Ideologies, and Linguistic Practices

The analysis of courtroom talk in the Pinkenba case reveals a number of assumptions about how language works, which underpin courtroom talk, and which can thus be seen as part of the culture of the law. These assumptions are examples of “language ideologies,” that is “ideas, images and perceptions about language and communication” which are “socially, culturally and historically conditioned” (Blommaert 2005: 253). These assumptions connect to linguistic practices, which are allowed within the legal process, but can be problematic for the delivery of justice. For example, lawyers are allowed to take up and discuss a witness’s words and phrases in isolation from the linguistic context in which they were spoken – such as the question the witness was answering, or the utterance in which the particular words or phrases were spoken. Such decontextualization, often accompanied by recontextualization, of the witness’s words, can be used for powerful and serious distortion of the witness’s story (see Eades 2008a: chapter 12).

A number of sociolinguists are investigating the culture and worldview of the legal process, its language ideologies, and related linguistic practices. These investigations are opening up a new perspective on intercultural communication in the law, namely that between members of the legal profession and those “outsiders” who have to participate in the legal process. For example, Matoesian (2001: 37–8) writes about the ideology of inconsistency, looking at how inconsistencies in a person’s story as told to different interviewers are treated in the legal process. Such inconsistencies are typically achieved interactionally, in the ways in which questions are asked and answers are given. But when it comes to assessing this inconsistency, which has been achieved interactionally, it is often conceived of as “logical” incongruity, and as an attribute or failing of an individual. It can also be central to the assessment of a witness’s truthfulness (see also Eades 2008a; Trinch 2003, 2005).

Another important contribution to the understanding of the culture of the law is Mertz’s work (e.g. 2007) on the socialization of law students. She shows that while students are explicitly taught to “think like a lawyer,” this “is in large part a function of learning to read, talk and write like a lawyer [which all] involves a distinctive approach to written texts and textual interpretation” (Mertz 2007: 42). Combining linguistic anthropology and discourse analysis, Mertz studied a semester of the first-year Contracts class in eight US law schools. The Socratic method is widely used in law school teaching. Rather than lecturing or using other pedagogical approaches such as problem-based learning, the Socratic method revolves around teachers (referred to in the US as “professors”) questioning students about cases assigned for pre-class reading. While there are variations in the way in this approach is used, it centers on the teacher quizzing individual students, while the rest of the class listens and waits until they are targeted for quizzing. Key to this teaching style is “combative dialogue and textual exegesis” (Mertz 2007: 4), which is also important in the practice of the law. But Mertz is interested in more than the interactional features of this approach. She shows how, using variations of this approach, teachers socialize students into the culture of the law.

At the base of the questions addressed in law school classrooms is the exercise of understanding written legal authority (in the form of case judgments), and applying relevant parts of it to the case in hand. This application involves sifting through stories and accounts of events and situations to distil relevant “facts,” and using legal reasoning to apply written legal authorities. Mertz show that although it is “apparently neutral in form, in fact the filtering structure of legal language taught to students is not neutral” (2007: 5). In learning to see the people who are involved in legal matters in terms of how they argue and strategize, law students learn that the law erases or ignores emotion, morality, and social context. Mertz points out a parallel with the way in which medical training “requires a hardening and distancing of students’ sensibilities from empathetic reactions to death and human bodies.” Similarly, “legal training demands a bracketing of emotion and morality (as it is commonly understood) in dealing with human conflict and the people who appear in legal conflict stories” (Mertz 2007: 121).

Given that this is how the legal process deals with everyday disputes and problems brought before it, it is hardly surprising that people not socialized into legal culture find the law a strange and alien system. Thus, for many people an encounter with the legal system is an encounter with another culture: ways of thinking, believing, and acting are at odds in many ways with other cultures. It is not just that a lawyer might use archaic terms and unusual syntax (see Tiersma 1999), and that there are many ritualized expressions, honorifics, and nonverbal behaviors. But ways of thinking about social problems and disputes, as well as ways of talking about them, are also distinctive in legal culture, as Mertz shows. Following Heffer (2005), we can see that law students are trained to adopt an approach to reasoning which is known in the fields of philosophy and psychology as the “paradigmatic mode of reasoning.” Characteristics of the paradigmatic mode of reasoning include a focus on objectivity and logical sequencing, and an appeal to definition, logical deduction, and authority. In his study of criminal trials, Heffer contrasts this paradigmatic mode of reasoning with the narrative mode which typifies everyday talk. The narrative mode is characterized by such features as a focus on subjectivity (including intention and belief), temporal sequencing, and an appeal to folk-psychological scripts and stories (Heffer 2005: 23). This contrast which Heffer found in the discourse of legal professionals in jury trials connects to Mertz’s work on law school socialization, as well as Conley and O’Barr’s (1990) study of talk in small claims courts, in which no lawyers are involved. Their study found that litigants differed according to whether they formulated and expressed their problems to the court in a rule-oriented or a relational approach. Litigants taking a relational approach focused on status and social relationships, emphasizing social networks and trying to introduce into the trial details of their social life, in an approach that parallels Heffer’s narrative mode in criminal trials. On the other hand, rule-oriented litigants interpreted disputes in terms of rules and principles that apply irrespective of social status, presenting their accounts as a deductive search for blame and addressing specific legal rules, in an approach that parallels Heffer’s paradigmatic mode in criminal trials. Although Conley and O’Barr found a continuum among both litigants and judges ranging from highly relational to highly rule-oriented, generally the rule-oriented litigants were more closely aligned to the legal process. Further, relational litigants were frequently evaluated as imprecise, rambling, and straying from the central issue.

These studies which highlight cultural assumptions and practices specific to the law raise important issues about the realities and possibilities of communication within the legal process between those socialized and practicing in this culture and outsiders such as defendants, litigants, witnesses, and jurors. Focusing on communication with the jury, rather than with witnesses, Heffer’s view (2005: 214) is that jury trials work by “bringing together the paradigmatic skills of the legal professionals with the narrative skills of the jury.” He does not see this as a contradiction, but a necessary combination in the deliberations required in criminal trials: jurors need to understand human actions in terms of actions, experiences and contexts (the narrative mode), but they also need to apply the law logically and view the events dispassionately (the paradigmatic mode). So, a major role of judges is in bringing together the two modes – narrative and paradigmatic. Heffer (2005: 176–80) analyzes an example of a judge doing this as he explains to the jury the offense of handling stolen goods. And Heffer (2006) provides innovative and practical suggestions about communicative approaches which might be adopted to bring together paradigmatic and narrative approaches in explaining to juries the central legal concept of “guilty beyond reasonable doubt.”

Another important contribution to the study of intercultural communication between members of the legal practice and “outsiders” dealing with the law is found in the work of Trinch (e.g. 2003, 2005). Trinch’s focus is on the transformations made by lawyers and paralegals of the stories told by women applying for protective orders. The legal interviewers make these changes in taking information from the (oral) interviews to present a legally acceptable written text, namely an affidavit to be presented in court. But the storyteller can be undermined later in court by attacks on what she is supposed to have said, based on the transformation of her initial story in this written report. And as Trinch points out, it is not always easy for the interviewer, who makes this narrative transformation, to know what parts of the initial story can be left out. Trinch’s (2003) examination of what is left out, how and why, provides revealing evidence of the recontextualization of stories in the legal process (referred to above), and of legal cultural assumptions and practices about how stories should be told within the law.

In her (2005) article, Trinch examines the ways in which some of the women in the study learned to produce legally accepted stories. She argues that a new concept is needed, namely intergenre, based on the familiar applied-linguistics term interlanguage. Interlanguage refers to the way in which people speak when they are acquiring a second language – before they are fluent speakers of the new language, they speak something “in-between” their own language and the target language. Trinch argues that there is a parallel with the process of learning to speak in a new genre, and thus her intergenre study is of Latina women learning to present an account for the legal system which is different from an oral story. Her analysis of the reports that the speakers presented (which fall short of the expected report genre, but are different from their oral stories) shows the problems which can arise in the legal system, with its ideology of inconsistency (discussed above). As Trinch (2005: 19) points out, intergenre “raises issues of authenticity for an adversarial system that demands consistency and allows for legal decisions to turn on constructions of credibility.”

Conclusion

Intercultural communication in the law is challenging and complex. Some of the complicating factors highlighted in sociolinguistic and anthropological linguistic research include:

NOTE

1 This chapter draws in part on earlier publications by the author on related topics, particularly Eades 2003, 2006a, 2008b, 2010.

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