Sociolinguistics and the Legal Process

Part 1

Introduction

1

Using sociolinguistics to study the legal process

1. What is sociolinguistics?

2. What is meant by ‘the legal process’?

3. Some basic sociolinguistic principles

4. Introducing spoken language in the legal process

5. What can sociolinguistics contribute to the study of the legal process?

6. The impact of written legal language on spoken legal language

7. Different kinds of sociolinguistic analysis

8. Transcription

9. Different legal systems around the world

10. Outline of the book

11. How to use this book

12. Notes on terminology

13. Anglocentric orientation of this book

Assignments and further research

Using sociolinguistics to study the legal process

Language is central to the legal process: written laws, judicial decisions, police interviews, competing claims in a dispute, courtroom evidence, legal argument, mediation hearings, all of these events or products of the legal process are carried out through language, whether written or spoken or both. Lawyers have to be ‘good with language’ to succeed in their profession. Indeed, some might argue that success in any legal process depends to a considerable degree on the linguistic dexterity of participants, including witnesses, litigants and legal professionals.

This book is intended as a textbook for a university or college postgraduate or advanced undergraduate course in which sociolinguistics is used in an examination of the legal process. Some students will know nothing about the legal process, and some will know nothing about sociolinguistics. This chapter aims to address these two gaps at a fairly introductory level, so students from both backgrounds can go on to use the substantive chapters as part of the same course. Further background about sociolinguistics and law will be provided as necessary throughout the text.

1. What is sociolinguistics?

In the simplest terms, sociolinguistics is the study of language use in its social contexts. While linguistics primarily analyses the structure of language, sociolinguistics analyses language function and use. Modern sociolinguistics has developed since the 1960s, and most of the founders of various sub-disciplines within sociolinguistics are still alive today. Sociolinguistics often requires an understanding of principles and methods from linguistics, and there is often no hard and fast boundary between sociolinguistics and linguistics. Strictly speaking, some of the approaches, studies and publications discussed in this book would be described as ‘(socio)linguistic’, or ‘linguistic and sociolinguistic’. But to avoid repeated clumsiness, I will use sociolinguistics to refer to the analysis of language function and use, with the understanding that this often also incorporates some study of language structure. If you do not have a background in sociolinguistics, you are recommended to read Holmes (2008).

2. What is meant by ‘the legal process’?

All societies have systems of law which govern acceptable behaviour and which comprise social mechanisms for dealing with disputes. It is common to distinguish between formal and informal legal systems, just as between formal and informal education. This book is concerned with language in formal legal systems. For reasons explained in Section 9 below, the primary legal focus will be the common law legal system found in countries such as Australia, England, New Zealand, the United States and most of Canada. Legal anthropology mainly examines informal legal systems (sometimes referred to as ‘customary law’), and readers interested in pursuing this area should start with Conley and O’Barr’s (2005: Chapter 6) introduction to the area. The terms ‘legal system’ and ‘legal process’ can often be used interchangeably. I will mainly refer to the legal process because the interest of sociolinguists is in what happens in the process, specifically what people do in interactions that take place within the legal system.

3. Some basic sociolinguistic principles

Sociolinguistics is concerned with the complex relationship between language and society. There are three main ways in which this relationship can be conceptualised. First, much sociolinguistics in the 1960s–1990s proceeded from the axiomatic assumption that language reflects society. Such an assumption would view the hierarchical ways of addressing people in the courtroom – such as calling the judge your honour – as a reflection of the hierarchical authority structure of courtrooms. Second, an influential axiomatic assumption reverses the direction of the relationship between language and society, so that the hierarchical authority structure in courtrooms would be seen partly as the effect of such language usage as calling the judge your honour. This view that language determines aspects of society, or culture, or even thought, is associated with the work of early 20th century American linguistic anthropologists Benjamin Lee Whorf and his teacher Edward Sapir, and is often referred to as ‘the Whorfian hypothesis’.

Like so many other earlier dichotomies in the social sciences, these two opposite ways of thinking about the relationship between language and society have been deconstructed in the later part of the 20th century. Twenty-first century sociolinguistics assumes a dynamic and reciprocal relationship between language and society, so that language usage at the same time both reflects and shapes society. This third view can be seen as part of the wider approach in the social sciences, in which the earlier dichotomy between social structure and agency is also rejected, in favour of an understanding that the two are inseparable: it is the agency of individuals in social groups which creates, shapes, maintains, reinforces and changes social structures, which in turn limit and enable the agency of individuals. This axiomatic understanding of society underpins the best sociolinguistic work on language in the legal process. Indeed, the legal process is an ideal institutional site for the examination of this dynamic interrelationship between social structure and agency, as we will see. To understand language usage in any specific legal context is impossible without an examination of structural institutional aspects of the legal system. On the other hand, sociolegal studies of the law can be greatly enriched by an examination of situated language practices in specific legal contexts.

The social contexts of language use are of central importance in any sociolinguistic study. This book is organised according to the overarching legal contexts of courtrooms in Part 2, police interviews in Part 3, and then in Part 4, the lesser researched legal contexts of lawyer– client interviews followed by informal and alternative legal processes. In all of these contexts, the main focus will be on spoken language.

One of the basic investigative methods in the descriptive phase of sociolinguistic research is to look for patterns in language use. We constantly ask what happens in what contexts, with what people, and what results. We also pay attention to unusual occurrences, as they can be as illustrative of language use as regular patterned behaviour. At the analytical phase of research we ask why people use language in these ways in these contexts, and at the interpretative phase, we ask whether and how these patterns of language use matter.

Spoken language is characterised by variation. This variation is studied by linguists and sociolinguists along two dimensions: diachronic and synchronic. Diachronic variation is best summed up by saying that all languages change over time. You don’t have to do linguistic analysis to observe that English has changed since Shakespeare’s time. Even within three generations of your own family, you can probably observe some of this diachronic variation. It’s often easiest to notice in terms of vocabulary change, but linguists also observe changes in grammar, accent, meaning and language use. In my family, some members of the generation born in the 1920s pronounce the first sound in where or white differently from the first sound in were or wide. No one in the younger generations of our family does this.

Synchronic variation refers to differences in the ways in which language is used in the same time period, and is best summed up by saying that people speak differently in different contexts. If you have never observed this variation, try paying close attention to, or audiorecording, a friend in two quite different contexts (with their permission, of course). The variation is easiest to observe where these contexts differ considerably in terms of formality, for example in a bar and in a formal interview.

It is undeniable that all languages are constantly in a state of change – although there is no consistency in the extent to which such change in different languages is observable to the untrained analyst. Analogous in some ways to the situation with living organisms, when a language ceases to change, this is a fairly good indication that it is dying. But the popular view, especially among educators in some societies, is that language change can be prevented, and that it is a sign of slipping standards, or even moral decline. Linguists such as Lippi-Green (1997) have written about the problems which arise from such myths about the nature of language.

It is not just spoken language which is always in the process of change. The same is true of written language, although the rate of change and the extent of synchronic variation can be much less significant than with spoken language. But nevertheless, we can still see synchronic variation, for example depending on the formality of the written text. Letters between family members differ in grammatical structure and word choice from legal statutes. And examination of either of these types of writing over a few generations will provide evidence of diachronic change in written language.

Lack of understanding about differences between spoken and written language, and about variation in language use can be important in the legal process, as we will see in Section 2 of Chapter 7 and Section 4 of Chapter 8, respectively. There is a widespread popular view that the way in which language is written, especially after being carefully checked and edited, is ‘correct’. In this view, any ways in which spoken language deviates from such written norms amount to errors. Such a prescriptive view – how language should be written or spoken – reflects beliefs and value judgements about how people should act. But (socio)linguistics, for the most part, avoids prescriptive views and concentrates on description – describing the way that language is actually written or spoken. I say that this is what (socio)linguistics does for the most part, because there are some areas in which our discipline does venture into prescriptivism. These occasions on which we argue that language should or should not be spoken or written in a certain way arise from descriptive work on the social consequences of particular ways of using language. The best-known example comes from the area of language and gender, where sociolinguists have contributed greatly in the last three decades to the development of practical guidelines about how to avoid sexist and other forms of discriminatory language. Similarly, sociolinguists who examine and describe the impact on disadvantaged social groups of specific aspects of language use in the legal process, sometimes also advocate changes to language practices, such as to the ways in which interpreting works in court (e.g. Mikkelson 1998).

It is very common for people to speak differently from the way they write. There are many reasons for this: some are cognitive, relating to the greater opportunity for planning and revision with most types of writing than with most types of speaking. Other reasons are interactional: any kind of feedback that we receive from interlocutors while we are speaking can affect what we say. This feedback may be as minimal as non-verbal feedback from students during a lecture, or it may involve a friend overlapping or interrupting during a dyadic conversation. Within the single legal context of a courtroom trial, we may observe a continuum from formal written texts (such as a written affidavit, resulting from many earlier drafts), to formal spoken texts (such as a judgment being read from a prepared written text), to less formal written texts (such as contemporaneous notes in a police officer’s notebook), to formulaic scripted spoken texts (such as the oath to tell the truth), to formal spoken legal talk (such as legal argument between lawyers), to less formal spoken talk (such as a police officer’s oral evidence about the male person observed to be travelling in a northerly direction when apprehended in the said motor vehicle), to informal spoken talk (such as may be found in many interactions between witnesses and those who are questioning them, whether lawyers or judges). At the more formal end of such a continuum, there are less likely to be incomplete sentences than at the less formal end. Such a difference in the grammatical structure of language does not reflect the intelligence of the speaker or their educational level, as is commonly believed. Just as learned judges may well swear just as much as anyone else in the company of friends over a few drinks, so too grammatical informality can be observed by any of these participants at the less formal end of the spectrum of language variation in the courtroom.

Having established that language variation is ubiquitous and that it is related to social factors, rather than personal attributes such as intelligence, let us consider a key sociolinguistic term, namely ‘dialect’. Sociolinguists use this term in a neutral way, unlike the popular usage, where the word is often collocated with the word only, as in she only speaks a dialect. The word ‘dialect’ in popular usage tends to be derogatory, and indicates something less than a language, but it does not have this meaning in (socio)linguistics. Finding it easier to define in terms of the plural form ‘dialects’, we use this term to refer to forms of a language which are generally mutually intelligible, and which differ from each other in systematic ways, such as in accent, grammar, words and their meaning, and communication patterns. The notion of mutual intelligibility is not necessarily as simple as it might sound, and the distinction in some parts of the world between related languages and related dialects can be a tricky one, so linguists find the cover term ‘variety’ useful for referring to languages and/or dialects. Differences between social groups based on ethnicity or geographical and/or political space often correspond to the use of different language varieties. However, the variety that a person speaks is not determined by their ethnicity or geographical/political origin, but by the language variety/varieties that they were socialised in – that is the language variety/varieties they learned, mainly implicitly, from the people they interacted with. While the ability to acquire language is innate in all humans, the particular language variety which any individual acquires is one which is spoken to them and around them in their social environment as part of their socialisation. Primary socialisation occurs from birth and is the stimulus for learning your first language, but later socialisation in different social environments can result in learning additional languages (and note that some children learn more than one language as their ‘first languages’, if they are socialised in a multilingual environment).

4. Introducing spoken language in the legal process

So what is spoken language like in the legal process? Before you read some introductory comments, do Exercise 1.1 (in small groups or individually).

Exercise 1.1i

Examples (a)–(d) below come from the author’s observations of courtroom hearings. Example (e) comes from an audiorecorded police interview. Consider the brief contextual information given, and for each example

1) give an ordinary English translation of the utterance.

2) think of possible reasons why such an ordinary English utterance was not used.

3) discuss whether it matters that ordinary English was not used in this instance.

(a) Lawyer to judge during a trial:

I wonder if I could uplift from your honour the documentation.

(b) Lawyer to a police officer giving evidence during a trial:

In relation to the accused John Frederick Smith you prepared a two page antecedent form?

(c) Lawyer to judge during trial:

Your honour I’m sure my learned friend will concede that it was in fact the eighth of May.

(d) Lawyer during examination-in-chief in trial, asking defendant about his sister:

She’s got three girls? I withdraw that, three children?

(e) Police officer to 18-year-old suspect in a recorded interview in the police station: As I already informed you Jane, I’m making inquiries in relation to an amount of green vegetable matter which was located in the glove box of a motor vehicle today searched by myself and Detective Sergeant John Miller.

There are several observations we can make about the data in these examples. The most striking feature of the language in these examples are the words and phrases (= lexical items) in the legal register. The term ‘register’ refers to a language variety used in a particular context, or by a particular group of people, usually sharing the same occupation or the same interests. In (a) above, the lawyer could just as easily have said to the judge I wonder if I could take that paperwork back from you, and in (c), the lawyer could have said agree instead of concede. But legal professionals – lawyers, magistrates and judges – often use this legal register in their written and spoken communication with each other. The utterance given as (b) above shows that it is also used with police officers, in this instance when the police officer was giving evidence. Why is such complex legal language used in such instances of spoken communication?

To answer this question, we need to consider a number of factors. First, much of the training and day-to-day work of lawyers requires them to examine and study written law, which is very complex. (We will briefly discuss this in Section 6 below.) It is possible that some lawyers are not very good at switching from this complex legal register to everyday talk. And lawyers may become so used to saying in relation to instead of about that they don’t even notice that it sounds stilted to non-lawyers. There also appears to be a pervasive assumption in the legal process that written communication is more important than spoken communication. For example, in preparing an appeal to a higher court about a decision in a lower court, most lawyers will pore over the transcript of the lower court hearing. Even when this hearing has been officially audiorecorded and the lawyer could listen to what is said, it is the official typed transcript of this hearing which is counted as evidence, and which is the basis of the appeal lawyer’s work. It is hardly surprising then, that in court lawyers often speak in a way that addresses the transcript and future readers of it, as much as it does the people in the court that day, if not more. This is why in the utterance given as (d) above, the lawyer says I withdraw that, meaning something like Ignore that question or even Delete that question. It is not at all clear whether the witness understood what the lawyer meant, but the judge in court that day, and any legal professional reading the transcript later, would understand that he thought that the witness’s sister had three daughters, but realised as soon as he said it that maybe not all of her children were girls.

We also see within the legal process the workings of a more widespread societal assumption that formality indicates respect. From my observations of the lawyer who said the utterance given as (a) above, I formed the view that he is quite good at switching between such formal talk to the judge and quite informal talk to the witness, with questions such as Where does your brother Kim live? His use in (a) of the legal register involving formal sentence structure and two stilted lexical items (uplift and documentation) was possibly a part of his enactment of deferential respect to the judge. Such a stance is an integral part of the workings of the authority structure in court, and might also result in the judge extending patience to this lawyer and his witness. Thus such bizarre sounding spoken interaction in court that day may have been part of the intricate work being carried out by this lawyer. For example, he may have been thinking something like this: my next witness may be rather long-winded, and this might risk making the judge feel impatient. I’ll do all I can this morning to be particularly respectful to the judge.

There are other reasons why legal professionals use legal register (= legalese). Like any other profession, law has its own register, its ‘terms of art’ – words which have a specific technical meaning. To ‘translate’ such terms into ordinary English would often make lawyers’ legal talk more wordy. And when they are talking to other legal professionals this would be unnecessary and somewhat clumsy. For a lawyer to avoid using the term antecedent form to a police officer about the official list of previous convictions of the witness, would be like one computer technician asking another about a problematic computer without using specialised terms such as boot and USB port. Another reason why lawyers might sometimes use complex legal language to another lawyer or to a judicial officer during a courtroom hearing is explained by Tiersma (1999: 154). He says that lawyers may sometimes deliberately do this ‘to discourage their clients from interfering in the process and slowing it down’.

If you ask a lawyer about why they use complicated legal language, they will often say it is because they need to be precise, and this might also explain the use of the term antecedent form in (b) above. Precision is central to all dimensions of the legal process. A good example of the need for precision is found in (e) above. There are a number of lexical items in this example which seem more like the language between legal professionals than I typically hear addressed to laypeople in other legal contexts. Thus the use of informed rather than told, in relation to rather than about, and the placement of the time adverb today all make this a rather stilted thing to say to an 18-year-old. Does this formal and stilted way of talking to a suspect matter? Might it be hard for Jane to understand? Or, on the other hand, might it serve a useful purpose in signalling to her that this interview is serious business? What about green vegetable matter? Does anybody refer to marijuana as green vegetable matter apart from legal professionals? But there is probably a legal reason for this lexical choice: the police officer cannot legally assume that this vegetable matter is marijuana, until this has been proven by laboratory testing. This is a good example of the occasional need for technical stilted language in order to be precise, although a more common expression could probably have been used, such as green plants or green leaves or plant stuff. In Section 7.1 of Chapter 7, we will take up this issue in the discussion of ‘policespeak’.

But much of the language addressed to laypeople in the legal process – such as people being interviewed by the police, or witnesses (including defendants and complainants) in court – does not contain any special legal language. It can be much more straightforward, as in the examples in Extract 1–i from lawyers questioning a defendant in a criminal trial:

Extract 1–i Eades’ unpublished transcription of official audiorecording

1. (in examination-in-chief): And whereabouts were those chairs being thrown around?

2. (in cross-examination): Would you agree with me that you told the police on that night that ‘he threw me up against the china cabinet and smashed the glass’?

Most of the examples of legal register occur in talk between legal professionals, as in Examples (a), (b) and (c) in Exercise 1.1 above. In my experience, much of the language addressed to laypeople in the Australian legal system contains little, if any, of this specialised legal language (and Heffer (2005) makes the same report about trials in England and Wales). But many people who go through a formal legal proceeding end up feeling alienated by the way that language is used. While I’ve heard people complain about the big words used by lawyers, this is not a particularly accurate label. Much of what they are referring to appears to be the linguistic dexterity which lawyers have in using language to suit their legal purposes, and to present their version of events and situations. This involves such linguistic strategies as subtle word choice, embedding of presuppositions in questions, double negative questions and passive constructions, as we will see in Chapters 3 and 6. Lawyers are often skilled at language manipulation, and this skill, combined with the constraints on witnesses – for example being restricted to providing an answer to the most recently asked question – often leaves witnesses feeling confused, silenced, overwhelmed or contradicted.

The examples we have seen have given us a tiny glimpse at some of the workings of language in the legal process. With its focus on language function, sociolinguistics can investigate how language works in legal contexts. This investigation often entails examination of aspects of the form or structure of language as well, the traditional domain of linguistics (as contrasted to sociolinguistics). Our brief discussion of the aspects of legal register above mainly examined lexical examples, although you will have noticed unusual word order in (a) above with the object (the documentation) of the verb phrase (could uplift) coming after the prepositional phrase (from your honour) instead of immediately after the verb phrase. As we will see throughout this book, all levels of language are of interest in sociolinguistic studies of language in the legal process: phonological (or sound systems), morpho-syntax (or grammar), lexical (or word choice), semantic (or meaning) and pragmatic (or contextual usage).

5. What can sociolinguistics contribute to the study of the legal process?

Sociolinguistics can be a valuable tool in the examination of the workings of the legal process, contributing insights on a wide range of questions, such as these:

How can witnesses present themselves in the best light?

How can a lawyer destroy a witness’s version of events?

How can a lawyer subtly manipulate a witness’s story?

How can police officers ask questions in a way which presents a suspect in the most legally damaging light?

Can we tell whether a second language speaker of English understood the questions she was asked in a police interview?

What communication issues affect deaf sign language users in the legal process?

What impact does cultural difference have on a person’s participation in the legal process?

Is it fair to subject children to questioning in police interviews or courtroom hearings?

How do lawyers explain the law to their clients and explain their clients to the law?

How does language use in informal courts differ from language use in formal courts?

When mediation is used as an alternative to court, are disputing parties given more equal opportunities to argue their case than if they had taken their dispute to court?

How do indigenous courts work differently from other courts?

This textbook will address many questions of this nature. But, as we will see throughout this book, sociolinguistics can go further, making a valuable contribution to bigger issues of justice. A central concern of much of the recent and contemporary work in sociolegal studies is the failure of the law to deliver justice. In an important book which calls on sociolinguists to make a contribution to sociolegal studies, Conley and O’Barr (2005) lament the tendency of sociolinguistic studies to avoid examining the social consequences of the language patterns they have been finding in the legal process. They argue for a sociolinguistic approach which goes beyond description of language patterns to analysis of the role of such language patterns in the workings of the legal process. It is this approach which is taken in this book. Like Conley and O’Barr, I believe that rigorous sociolinguistic analysis can help us to understand the workings of the law and to see its shortcomings as well as its strengths. We will see that sociolinguistics can make important contributions to the central question about how social inequality is reproduced both in the legal system and through the legal system.

As this book draws on a wide range of sociolinguistic studies, I will introduce a number of sociolinguistic approaches and methods in Section 7 below. It should be pointed out, however, that not all scholars feel the need to label their particular type of sociolinguistics, and there are no hard and fast boundaries between several of the different approaches. My own theoretical orientation, which underpins this book, is critical sociolinguistics. But the book is by no means restricted to this approach in its consideration of sociolinguistic and related approaches to the study of language use in the legal process. Further, typical of much contemporary social science research, there is no canonical formulation of what counts as critical sociolinguistics. In my discussion in Eades (2008a), I explain that critical sociolinguistics is part of the wider critical turn in the social sciences. While there is a range of critical approaches, they all share a major aim, expressed by Blommaert (2005: 6) as ‘performing analyses that … expose and critique existing wrongs in one’s society’. Critical sociolinguistic analysis of language in the legal process enables us to expose and critique how and why the legal system fails to deliver justice, as we will see throughout this book, especially in Chapter 6 and Chapter 11.

6. The impact of written legal language on spoken legal language

Written legal language has a reputation for being wordy and hard to understand. This topic is outside of the scope of this book, which focuses mainly on spoken language in legal contexts, but readers are referred to Mellinkoff (1963) and Tiersma (1999). (See also Coulthard and Johnson (2007) and Gibbons (2003).)

We have already considered some of the reasons why spoken language in legal contexts such as police interviews and courtroom hearings can be hard for non-legal professionals to understand. But in addition to the reasons discussed in Section 4 above, we need to consider the particularly close relationship between written language and some spoken language in legal contexts. Police officers, lawyers and judicial officers are often very mindful of provisions of a particular written statute (or law) which is relevant to particular spoken legal contexts. Thus, they may talk about a particular issue to a layperson in terms of this statute. The obvious question is ‘why can’t they talk about it in ordinary language?’ to such a person. Even if they are aware that the layperson may find it hard to understand, as we will see in Sections 6 and 7 of Chapter 3, the legal professional may be concerned that their explanation in ordinary English may leave open the possibility for some error or grounds of appeal. All the more reason for laws and contracts to be written in ordinary English in the first place!

A good example occurred in an Australian magistrate’s repeated advice to a 13-year-old witness about his self-incrimination privilege.¹ This privilege, extended to anyone being questioned in a police interview or courtroom hearing, gives them the right to refuse to answer any question which might incriminate them, i.e. provide evidence of their guilt. This is consistent with the right to silence, and the fundamental principle that it is up to the state to prove a person’s guilt. (This is like the 5th Amendment to the Bill of Rights in the US which applies in any situation in which the state attempts to get incriminating evidence: hence the expression often heard on American television police or courtroom dramas I plead the 5th).

In this Australian case (to be discussed in Section 5 of Chapter 6), the child was a prosecution witness in a case against six police officers charged with abducting him and two of his friends. The witness was not under investigation for any criminal act of his own. But the defence lawyers questioned him at length about his criminal record – more about this than about the incident in which police told him and his friends to get into police cars, and then drove them out of town and abandoned them. When the lawyers asked questions like Have you ever thrown rocks at a light?, the magistrate was obliged to advise the witness of his self-incrimination privilege, as an answer could involve him talking about an incident for which he had not been ‘caught’. The magistrate constantly referred to this not as advice, but as a warning, which he usually gave with the formulaic expression I warn you that you are not obliged to answer any question which will incriminate you in relation to the commission of a criminal offence. He sometimes delivered it somewhat indirectly, by replacing the second person pronoun you with a third person form, such as the witness (and on two occasions with the erroneous third person form the defendant, erroneous because the child was not the defendant in this case, but the witness). On one occasion the magistrate asked this child witness if he knew what the words claim privilege mean? When the witness replied No, the magistrate said It means you can refuse to answer questions which might incriminate you- you follow- all you have to say is- I refuse to answer because the answer might incriminate me. It seems hardly likely to have helped this boy’s comprehension of what claim privilege means, by defining it in terms of questions which might incriminate you, which is itself a complex notion.

While this example shows the influence of written legal language on spoken legal language, this influence is not apparent in much of the talk addressed to laypeople.

Exercise 1.2ii

Imagine that you are a magistrate needing to explain the self-incrimination privilege to a teenager. How would you explain it? Use the magistrate’s formula above, as a point of departure, that is:

I warn you that you are not obliged to answer any question which will incriminate you in relation to the commission of a criminal offence.

You may want to consult Section 15 of the Queensland Evidence Act in order to clarify exactly what the privilege involves:

http://www.austlii.edu.au/au/legis/qld/consol_act/ea197780/

If you are a fluent speaker of a language other than English, try translating this advice into this other language.

Discuss the legal and linguistic issues involved in providing an explanation of this privilege in ordinary English (and in another language, if possible).

7. Different kinds of sociolinguistic analysis

Regardless of the particular approach or methodology undertaken, all sociolinguistic analysis has an empirical basis. We do not make claims about the relationship between language and society on the basis of introspection, philosophy or intuition. We gather evidence of actual language use – a person or people saying or writing something – and examine this language use in its social context. Depending on the nature of the particular research question(s) we are pursuing, certain approaches will be more suitable than others. This is not the place to catalogue sociolinguistic approaches with any depth. The following list introduces sociolinguistic approaches most commonly found in studies of language and the law (see Swann et al. 2004 for further information and introductory references). You will see that researchers often use more than one of these approaches in addressing their research question(s). There has been a tradition within sociolinguistics to distinguish between microanalysis, such as discourse analysis, and macroanalysis, such as survey studies of language choice in multilingual contexts. However, increasingly, the macro/micro divide is becoming harder to sustain, as many (but not all) scholars engaged in microanalysis, for example of courtroom talk, find that this is impossible to understand without examining the wider societal context (see Eades 2008a). Similarly, researchers find that understanding language use at the societal level is impossible without examining in detail actual instances of language use.

Ethnography of speaking/ethnography of communication studies the ways of speaking (or more broadly ways of communicating) in a speech community. It can be characterised as the study of who can talk to whom about what, where, when and how. It uses the anthropological approach of ethnography, in which researchers are interested in how members of a social group live, and in learning about their beliefs, values and practices from careful observation (rather than for example, interviews).

Discourse analysis studies language use beyond the sentence level, whether in face-to-face interactions such as conversations or interviews or public speeches, or written communication such as newspaper articles or codified laws. Analysis in this approach examines the details of actual talk, and is a type of microanalysis. It often uses audio- or videorecorded data, although it can use written data. The term ‘discourse analysis’ is used quite widely in the social sciences to refer to a range of approaches to the analysis of discourse. Sociolinguistic discourse analysis pays attention not just to the content of what is said but how it is said, examining linguistic dimensions, such as grammar, accent, word choice, turn-taking and context. Within sociolinguistic discourse analysis, there are several more focused traditions:

Conversation Analysis (CA) is a particular type of analysis of discourse, which has concentrated mostly on everyday conversations, but is increasingly being used also in the study of institutional talk, such as in courtrooms. Originating in the sociological tradition of ethnomethodology, CA has a primary focus on the structure of conversations, and on how this is cooperatively managed by participants.

Interactional sociolinguistics is another particular type of analysis of discourse, which, in contrast to CA, highlights contextual and cultural dimensions of language and interaction.

Critical Discourse Analysis (CDA) is discourse analysis which examines the ways in which language use (or discourse practices) reproduce and/or transform power relations within society.

Variationist sociolinguistics studies patterns and structures of language variation, often using quantitative analysis, e.g. to examine different ways of pronouncing the same word by a large number of speakers. Initially this approach correlated social variables such as age, gender and socioeconomic class with language variation. Increasingly this is being broadened to examine dynamic interactions between variations in ways of using language and ways in which speakers can actively fine-tune a wide range of aspects of their social identity.

Sociology of language focuses on society-level issues involving language. Topics include language choice and language planning in multilingual contexts. Traditionally this kind of analysis has used macroanalysis.

Critical sociolinguistics typically uses a range of sociolinguistic approaches (both macro and micro) in combination with social theoretical analysis to examine the role of language in power relationships.

Descriptive linguistics studies the structure of language and it complements and accompanies much sociolinguistic analysis. It uses a number of analytical approaches: phonetics and phonology encompass the study of speech sounds and sound systems, morphology and syntax make up the study of the structure of words and sentences (and is sometimes referred to with the term ‘grammar’); and semantics refers to the study of the meaning of words and expressions.

8. Transcription

As the section above has outlined, sociolinguistics often involves the study of what individual people say in specified contexts. Transcripts of recorded talk are central to analysis and reporting in this kind of sociolinguistic study. It might seem that transcription is straightforward – you just write down what is said. However, all transcription involves choices, both in what is written down and what is left out, as well as in how talk is represented. For example, do you write down all the sounds which are not recognisable words? What do you do when two people are talking at once and it is hard to make out what they are saying? How should non-standard words be represented – in the closest relevant Standard English spelling, or in phonetic symbols, or in eye dialect, that is using non-standard spelling conventions to convey the way the talk sounds, as in D’ya see the turdles? A number of scholars have addressed these issues, pointing out that there is no such thing as a neutral transcription and that researchers tend to make choices about transcription that best suit their audience and their theory. There is also a trade-off between the level of transcription detail and the amount which can be transcribed. Rough estimates from a number of researchers suggest that it takes at least six hours to transcribe the propositional content of one hour of talk, where the sound quality is excellent, the transcriber knows the speakers and the language and was present during the recording, and there is minimal overlapping of speech. It takes much longer if you include interactional and prosodic features such as overlapping talk, pauses, and changes in volume and pitch. Matoesian (1993: 52) reports that his detailed CA transcription of courtroom talk took approximately 50–60 hours of work for one hour of recording. So, depending on the quality of the recording, and the interactional detail to be transcribed, it can take between about six and 60 hours to transcribe one hour of talk. Students who plan to undertake research involving transcription are strongly encouraged to read Bucholtz (2000, 2007, 2009) and Edwards (2001). A comprehensive listing and explanation of some commonly used transcription conventions is found in Schiffrin (1994).

There is some inevitable variation in the transcription conventions used by authors whose data I quote from in extracts throughout this book. In the interests of clarity and readability, I have standardised transcriptions to some extent, using the conventions listed below. Some authors provide more transcript detail than others. Thus for example scholars who use official court transcripts are not able to provide information about pauses, overlapping talk, repairs and a range of prosodic detail, such as tone and volume. But quite a bit of this