On this page we will attempt to keep interested readers up to date on current developments that relate to topics in the book, any errors or omissions in the book that we feel should be noted, and any other material that we believe might be of interest to readers.
Chapter 3: "Consensual" Searches
It is worth noting that in California (and, not doubt, many other states) it is a crime not to show your driver's license on demand by an officer. Cal. Pen. Vehicle section 12951(b). As we suggest in the book, officers typically officers demand to see a driver's license by using the phrase "May I see your license?" To refuse this ostentible request is a crime. Yet how are suspects supposed to know that if an officer says "May I look in your trunk," they actually have a constitutional right to refuse??
See also Strauss, Marcy, Reconstructing Consent, 92 J. Crim. L. & Criminology 211 (2002).
Chapter 4: Interrogation, Confession, and the Right to Counsel
Invoking the Right to Counsel
For more on this issue, using the insights of literary theory, see David Aram Kaiser and Paul Lufkin, Deconstructing Davis v. United States: Intention and Meaning in Ambiguous Requests for Counsel, 32 Hastings Constitutional Law Quarterly (2005).
The problem of people (especially juveniles and mentally weaker people) continues. In October of 2004, David Allen Jones, a man who had spent 11 years in prison for three murders, was released when he was exonorated on the basis of DNA evidence. See Maura Dolan and Evelyn Larrubia, Telling Police What they Want to Hear, Even if it's False, L.A. Times, Oct. 30, 2004, at A1. Jones was pressured into confcssing that he had sex with the women at the scene of the crimes during interrogation that used methods similar to those described in Speaking of Crime. Recording of interrogations (see below) seems to be the only feasible solution to this problem.
A new book on the issue of interrogation is Richard A. Leo, Police Interrogations and American Justice (Harvard University Press 2007).
Recording of interrogation:
Currently, two states require, by judicial opinion, that interrogations be recorded. See Stephan v. State, 711 P.2d 1156, 1158 (Alaska 1985); State v. Scales, 518 N.W.2d 587, 592 (Minn.1994).
In addition, three States and the District of Columbia have passed legislation that requires recording for certain types of cases and interrogations. 725 Ill. Comp. Stat. Ann. 5/103-2.1; Me.Rev.Stat. Ann. tit. 25, § 2803-B(1)(J), 2004 Me. Legis. Serv. 780; Tex.Code Crim. Proc. Ann. art. 38.22, § 3; DC.Code Ann. § 5-133.20 (2003).
The Supreme Judicial Court of Massachusetts recently held in Commonwealth v. DiGiambattista (442 Mass. 423, 813 N.E.2d 516) that recording of interrogations was not absolutely required, but "when the prosecution introduces evidence of a defendant's confession or statement that is the product of a custodial interrogation or an interrogation conducted at a place of detention (e.g., a police station), and there is not at least an audiotape recording of the complete interrogation, the defendant is entitled (on request) to a jury instruction advising that the State's highest court has expressed a preference that such interrogations be recorded whenever practicable, and cautioning the jury that, because of the absence of any recording of the interrogation in the case before them, they should weigh evidence of the defendant's alleged statement with great caution and care. Where voluntariness is a live issue and the humane practice instruction is given, the jury should also be advised that the absence of a recording permits (but does not compel) them to conclude that the Commonwealth has failed to prove voluntariness beyond a reasonable doubt.." 442 Mass. at 533-34, 813 N.E. at 447-48.
Chapter 5 (understanding Miranda)
See also Michael J. O'Connell, William Garmoe, and Naomi E. Sevin Goldstein, Miranda Comprehension in Adults with Mental Retardation and the Effects of Feedback Style on Suggestibility, 29 Law and Human Behavior 359 (2005).
Richard Rogers, Lisa L. Hazelwood, Kenneth W. Sewell, Daniel W Shuman, and Hayley L. Blackwood, The Comprehensibility and Content of Juvenile Miranda Warnings, Psychology, Public Policy, and Law, Volume 14, Number 1, February 2008, 63.
Richard Rogers, Lisa L. Hazelwood, Kenneth W. Sewell, Kimberly S. Harrison, Daniel W. Shuman, The Language Of Miranda Warnings In American Jurisdictions: A Replication And Vocabulary Analysis, 32 Law & Human Behavior 124 (2008).
Chapter 6 (exact words)
For more on transcriptions, and how they are sometimes inaccurate representations of what was actually said, see
Bucholtz, Mary (1995). Language in evidence: The pragmatics of translation and the judicial process. In Marshall Morris, ed., Translation and the law. Amsterdam: John Benjamins. 115-129.
Esau, Helmut (1982). The “smoking gun” tape: Analysis of the information structure in the Nixon tapes. Text 2(4):293-322.
Fraser, Helen (2003). Issues in transcription: Factors affecting the reliability of transcripts as evidence in legal cases. Forensic Linguistics 10(2):203-226.
For an excellent position statement on some of the issues and problems raised by forensic speaker identification, made by some prominent members of the field, click on this link.
Chapter 8 (who wrote that?)
Author identification became
an important issue in a case involving Mark Zuckerberg, the founder of
Facebook. A certain Paul Ceglia has claimed that he is entitled
to half the value of Facebook, based largely on emails that he claims
were sent to him by Zuckerberg. Gerald McMenamin, who has written
extensively on this topic, has filed a report in court detailing his
forensic stylistic analsyis and concluding that it is probable that
Zuckerberg was not the writer of the emails in question. Other
experts, including Ron Butters, who has also done work in the field,
question whether any conclusions can be reached on relatively short
samples. See Ben
Your Email Personality, New York Times, July 24, 2011.
The website of the Crown Prosecution Service, which prosecutes crimes
England and Wales
has a chapter on scientific evidence. Our thanks to Peter French
pointing this out on the Forensic Linguistics listserver.
The website states that "[t]he analysis of texts to determine
is the subject of much debate among experts. Caution must, therefore,
exercised in the use or acceptance of evidence on the method of text
analysis." The Service then concludes that the practice "is not
considered to be sufficiently reliable to be used by the prosecution in
criminal proceedings." This conclusion is consistent with the
recommendations we make in our book, where we suggest that author
identification may be helpful in eliminating someone as a suspect, or
assisting prosecutors get a search warrant or gather evidence, but that
of the technique should not be admitted into evidence unless they can
to be sufficiently reliable.
For additional perspectives on author identification (including the history of authorship studies, the Lindbergh case and the Ramsey ransom note), see John Olsson, Forensic Linguistics: An Introduction to Language, Crime and the Law (2004). Prosecutors have recently suggested that Ramsey's parents are no longer being seriously taken as suspects. DeeDee Correll, JonBenet Ramsey's Family Cleared, L.A. Times, July 10, 2008, at A11.
An interesting cautionary
tale on author identification is the attempt to determine the identity
of the person who sent threatening letters (along with anthrax) to
various recipients in 2001. See David Freed, The Wrong Man, The Atlantic (May
Chapter 9 (solicitation, conspiracy, bribery)
Chapter 10 (threats)
The California Supreme Court recently decided an interesting case on threats. A high school student brought to school a poem labeled "Dark Poetry," and showed it to some classmates. The poem read in part: "I am Dark, Destructive, & Dangerous. I slap on my face of happiness but inside I am evil!! For I can be the next kid to bring guns to kill students at school. So parents watch your children cuz I'm BACK!!"
He was declared a juvenile delinquent for making a criminal threat, a violation of Cal. Penal Code section 422, and his case was appealed to the Cal. Supreme Court. The court held that the poem did not constitute a criminal threat, noting use of the word "can" in poem instead of "will," and finding that although the "poet" suggested he had the potential to kill, he did not threaten to actually kill or inflict harm. In re George T., 33 Cal.4th 620, 16 Cal. Rptr.3d 61 (2004).
United States v. Stewart is another interesting Ninth Circuit case involving threats (or perhaps solicitation). It involved a prisoner who told a fellow prisoner (a snitch, it turned out) that he would like to "string the motherfucker [a federal judge] up and cut her throat, his throat, and make it like a copycat so that people would do the same thing." He offiered $100,000 to do the killing, along with providing the necessary weapons. His lawyer's defense, that "It was jailhouse talk, macho talk among prisoners who want to be tough guys," fell on deaf ears--the Ninth Circuit held that his statements "can reasonably be interpreted as a serious expression of intent to harm," that the statements were therefore not protected by the First Amendment, and upheld the conviction. Justin Scheck, 9th Circuit: Death Threats Against Judges Not Protected Speech, The Recorder, 08-25-2005.
Apparently, the "political hyperbole" defense sometimes works, as discussed in this chapter, while the "macho jailhouse talk" defense is a loser.
p. 207: The reference
to an African-American minister's statement that "we will kill Richard
Nixon" gives the incorrect impression that the speaker was a minister
of the gospel. As Professor Elizabeth Traugott of Stanford
University has pointed out to us, the speaker was allegedly David
Hilliard, a minister (more exactly, the chief of staff) of the Black
Panther Party. See In re Grand Jury Witnesses, 322 F.Supp. 573 (N.D. Cal. 1970). This
puts a very different spin on the case.
For more on the Clinton impeachment, and whether Clinton lied when he denied having sexual relations with Monica Lewinsky, see Peter M. Tiersma, Did Clinton Lie?: Defining "Sexual Relations," 79 Chi.-Kent L. Rev. 927 (2004).
Roger Shuy's book, The Language of Perjury Cases
(Oxford 2011), presents some very interesting cases involving perjury,
along with Shuy's tips on how linguists analyze perjury cases and how
prosecutors should engage in careful intelligence analysis before
bringing a case.