Prof. Roger Shuy is an eminent linguist at Georgetown University, the author of many books and a frequent expert witness, he was even the subject of a profile in The New Yorker. His contributions to the Oxford Studies of Language and Law cover perjury, defamation, murder, fraud and other subjects. Nonetheless, Shuy could use some lessons in persuasive language, as least as regards his recent essay in the Chronicle of Higher Education. Here is how it begins:
When lawyers try to use linguists as expert witnesses, judges sometimes exclude them because, as one judge put it, “we all speak English here and we don’t need to hear from a linguist.” This is nonsense, of course, because linguists can aid juries to understand the phonetics, morphology, syntax, semantics, and implicatures in the relevant language evidence of both civil and criminal cases.
Now, that particular judge may have been wrong or misguided, but it is not “nonsense” for a court to apply legal standards for the admissibility of expert testimony, which requires minimally (in most jurisdictions) that the proposed witness’s “specialized knowledge will help the trier of fact to understand the evidence,” and also that the “testimony is the product of reliable principles and methods.” This calls for a case by case determination, and it is hardly “nonsense” to recognize that not every proposed linguistics witness will be helpful in every case.
More fundamentally, it is almost always a mistake to denigrate or disparage the other side, and it is likewise problematic to oversell your case. Shuy could have made exactly the same point with less loaded and less sweeping language. Sure, linguistics testimony has an important place in the courtroom, but his opening salvo – that it is nonsense to disagree – adds nothing to his argument, and in fact distracts from it.
And in any case, Shuy’s main example actually contradicts him. He tells the story of a Nevada prosecution, in which two county commissioners were accused of soliciting bribes to approve a legal brothel. The two men were recorded conferring in a café, and the tape, according to Shuy, was indistinct. According to the prosecution, one of the defendants said, “I would take a bribe, wouldn’t you?” But Shuy heard the exact opposite, “I wouldn’t take a bribe, wouldn’t you?”
According to Shuy, “I began by pointing out that recordings made in a noisy café with clattering dishes and competing conversations from other tables made the recording difficult to hear.”
Seriously? It does not take an expert witness for jurors to understand that it can be difficult to hear in a “noisy café,” which would be a matter of common experience and evident from the tape itself. Perhaps an audiologist could say something useful about the particular sound level, but this anecdote rather supports the observation of the ridiculed judge who said “we all speak English here and we don’t need to hear from a linguist.”
Shuy next says, “I replayed that short passage several times because jurors often get to hear a tape only once as it’s played by the prosecutor.” This is indeed “nonsense, of course,” as there is no doubt that the tape would have been played multiple times by defense counsel with our without Shuy’s testimony, and it even could have been replayed upon request during jury deliberations.
In addition, Shuy says that he “slowed down the speed of the tape,” as though that were some sort of linguistics insight. But lawyers have been slowing down tapes for as long as there have been recordings, most famously in the 1992 Rodney King beating case (in which slowing tape may well have made it less accurate).
The balance of Shuy’s article will be more useful to potential experts, as he explains the need to play the role of teacher while avoiding technical language. In the Nevada case, for example, he substituted the word “beats” for “meter” and “syllables.”
Nonetheless, it is hard to know how much help a linguist can provide a jury when it comes to deciphering spoken words. Did the commissioners say they “would’ or “wouldn’t” take a bribe? The ultimate decision rested with the jurors, who had to interpret the tape for themselves. Fittingly, it turns out that the jury was hung. Shuy does not tell us if there was a retrial.
The one time I had a linguist as an expert, it was to explain that, in context, the word "pimp" meant something like "ladies' man," rather than "man who profits from prostitution."
Funny coincidence that prostitution is the common thread here.
^^^^Speaking of linguistics and this subject area. If you are the President, it's a sexual relationship with a porn star that cost $130K If you an average Joe and paid $50 bucks for a BJ with a lady or man on Cicero Avenue, it would have been sex trafficking with a prostitute. See, Donald John Trump does make a positive contribution to culture, after all. Gosh, how could I be so foolish!