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One of the things that I’ve found particularly irritating since becoming a criminal defense attorney is the way words change their meaning depending upon whether the potential beneficiary of the reformed definition is the prosecutor, or the accused person.

When I was an undergraduate, I couldn’t decide what I wanted to be when I grew up. I just liked learning. Consequently, I studied a lot of different disciplines, including philosophy (which I originally took because I liked logic), anthropology (which I took because I thought I liked people and wanted to know more about them), psychology (same as the reason I studied anthropology), and linguistics (because language is how people communicate ideas, so it tied together all the previously-noted interests).

In the area of philosophy, I shortly began to get interested in philosophy of language and philosophy of mind. That eventually lead to cognitive science and, among other things, “thinking” and consciousness.

As you can see, although there’s a bit of a spread of subject matter here, it all circles around similar themes: people, the way people think, and the way people communicate what they think.

One of the things that amazed me was that people are able to communicate at all. Philosophers of language including my favorites Grice, Quine and Davidson seemed — as I saw them, anyway — to spend some time ruminating on (among other things) problems of understanding concepts and the moving of those concepts amongst minds (in particular, how that happens).

In Inquiries into Truth and Interpretation, which began with the question “What is it for words to mean what they do?[,]” [1]Donald Davidson, “The Inscrutability of Reference” in Inquiries into Truth & Interpretation, p. 227 (1984). Davidson noted:

Quine’s thesis of the inscrutability of reference is that there is no way to tell what the singular terms of a language refer to, or what its predicates are true of, at least no way to tell from the totality of behavioural evidence, actual and potential, and such evidence is all that matters to questions of meaning and communication. [2]Davidson, supra.

Ultimately, if I read Davidson right (by no means a sure bet), there is a problem in that we cannot decide the meaning of what someone says without understanding a whole bunch of other stuff, like simultaneously figuring out what the person “believes, wants, hopes for, intends, and fears.” [3]Davidson, supra. As Davidson put it, “it is understanding that gives life to meaning, not the other way around.” [4]Donald Davidson, “The Social Aspect of Language” in Truth, Language, and History (2005), “Location 1562 of 4494.” I don’t know how to provide a good point cite: I’m using the Kindle version of the book right now and the page number seems to change for inexplicable reasons. At one point, the point cite would have been 121 of 350; at another, it appeared to be 120 of 350. I’m hoping the “location” doesn’t change around. If it does, I’m sorry: I tried. At any rate, you at least have the citation close enough to find it if you wish. And, one day, maybe someone will solve the problem of pagination and citation for ebooks.

I suppose that is true, because otherwise, the use of legal phrases like “beyond a reasonable doubt,” or the words “substantial” (as in “substantial evidence”), or “preponderance,” and numerous other pieces of legal patois would be really confusing. Once you understand, though, that one of the things you have to take into account includes the “totality of the circumstances” — to use yet another set of legal wiggle words which usually inures to the benefit only of the prosecution — and that part of that totality involves knowing whether the result of the definition will determine whether the prosecution loses, or the defense loses and, of course, that in today’s political climate, the prosecution doesn’t lose even if they deliberately try to have innocent people executed, then it becomes easier to always know the correct definition of the target phrase, or term, for the particular case in question.

That story about Connick v. Thompson, by the way, should scare the shit out of everyone. John Thompson was convicted of murder as a result of the prosecution deliberately hiding evidence of his innocence and spent 18 years in prison, including 14 on death row. According to news reports, he was a few weeks from being executed when the discovery was made. [5]Or, if you accept Justice Thomas’s version, “one month.” Since I have a hard time believing anything Thomas says, I give both his version and that of the news reports. He was subsequently exonerated and released from prison.

Interestingly, “Justice” Thomas’s opinion does the same thing with the word “single” that judges and “justices” historically do when it becomes necessary to rule against the defense: in his opinion, “Justice” Thomas uses the word “single” in a way that no ordinary user of the language would normally do. It’s that “totality of the circumstances” thing again. You see, at least two different prosecutors at at least two different points in time chose to conceal the fact that exculpatory evidence existed which would have prevented the execution of John Thompson.

After Thompson discovered the crime lab report, former assistant district attorney Michael Riehlmann revealed that Deegan had confessed to him in 1994 that he had “intentionally suppressed blood evidence in the armed robbery trial of John Thompson that in some way exculpated the defendant.” [6]Connick v. Thompson, slip opinion at 4, fn. 1.

Moreover, even after the evidence came to light, other prosecutors in the office disagreed about whether or not the evidence should be disclosed. [7]Thompson, supra, at 4.  As if that were not enough,

Undeterred by his assistants’ disregard of Thompson’s rights, Connick retried him for the Liuzza murder. Thompson’s defense was bolstered by evidence earlier unavailable to him: ten exhibits the prosecution had not disclosed when Thompson was first tried. The newly produced items included police reports describing the assailant in the murder case as having “close cut” hair, the police report recounting Perkins’ meetings with the Liuzza family, [citation], audio recordings of those meetings, and a 35–page supplemental police report. After deliberating for only 35 minutes, the jury found Thompson not guilty. [8]Thompson, supra, at 21, emphasis added.

In other words, there was yet another instance where evidence favoring John Thompson was withheld by the prosecution. And despite knowing that had happened, the head of the District Attorney’s office decided he should stand trial again for murder. And how flimsy was the case against him? “After deliberating for only 35 minutes,” the verdict was “not guilty.” [9]Thompson, supra, at 21.

Yet, “Justice” Thomas’s opinion notes:

We granted certiorari to decide whether a district attorney’s office may be held liable under § 1983 for failure to train based on a single Brady violation. [10]Thompson, supra, at 3, underlining added.

Despite the fact that apparently numerous prosecutors within that particular District Attorney’s office were confused, even after the evidence came to light, about whether or not it had to be turned over, despite the fact that in not one, but two separate trials, evidence favoring John Thompson was withheld by the prosecution, and despite a lower court’s recognition that “resolution of Brady issues was often unclear,” Thomas’s opinion clings to the idea that “single” is the right word.

Thomas’s opinion impliedly provides another window into this problem of words whose meaning changes depending upon the beneficiary. Normally, a reviewing court accepts the findings of fact of the fact-finders in the trial court unless there is “no substantial evidence” to support those findings. There is almost no discussion of that standard in Thomas’s opinion, or in the concurrences. What hints that this was even considered appear to brush aside the possibility the fact-finders could have found as they apparently did. [11]See Thompson, supra, at 23 (dis. opn. of Ginsburg, J.), et seq. The phrase “no substantial evidence” is one of those which regularly changes according to the beneficiary. Here it is simply ignored. Perhaps Thomas and the majority understood that the redefinition would be far too obvious.

I find this latest opinion of the United States Supreme Court particularly troublesome not just because it continues — and, when you consider the application to the word “single,” even extends — the practice of giving words a different meaning depending upon the beneficiary of the redefinition, but because this case goes farther than any other in making it clear that no matter how egregious the behavior of the prosecution, our courts will support it. Even our Supreme Court.

What can be done about this?

As Rick Hills has suggested,

We are in the business of interpreting words, so it seems odd that prominent philosophers of mind, meaning, and language are virtually invisible in legal scholarship.

And perhaps if more of us had some understanding of these issues, more would be made of it when courts deliberately shifted the standards, degrees, or amount of proof needed, while using the same words, depending upon which party will benefit. Perhaps if we started to call the courts on this practice — both publicly and in our briefs — we could come closer to developing a conventional meaning for terms; we could “solve the problem of the interdependence of belief and meaning by holding belief constant as far as possible while solving for meaning.” [12]Donald Davidson, “Radical Interpretation” in Inquiries into Truth & Interpretation, p. 137 (1984). Maybe then we would have a better chance of understanding and using these terms of art “for what it is ‘made for’.” [13]Donald Davidson, “Expressing Evaluations” in Problems of Rationality, p. 22 of 280, or location 419 of 3894, (Kindle Ed. 2004).

What I’d personally really like to see is for some linguistics or philosophy (of language) Ph.D. candidate to do what I would love to do, but for which I don’t have quite the expertise, nor the time, to do: a linguistic, or semantic, or some kind of analysis of court cases involving these various terms of art — “reasonable doubt,” or “substantial evidence” or “preponderance,” to name a few. I’ve no doubt that what seems clear to me as a criminal defense attorney — that the courts are either accidentally, or deliberately, intellectually dishonest when it comes to the application of these standards in criminal cases; that the “meanings” of these phrases obviously changes depending upon whose ox will be gored. Or not.

UPDATE 9/26/2016: Multiple links in this article have had to be removed due to them becoming broken since the article was written.



  1. Great article Rick, it is always good to look at the mechanics of what we do and examine new approaches, or alternative approaches to the fundamentals of the practice of law.

    I remember a conversion I a had with a Chinese National visiting the U.S. He was a scientist and very logical, and curious. His primary question for me about the American legal justice system was “who decides what a word in a statute means?” The more I tried to answer the question, the more I realized that a major problem with our system is the susceptibility of words to biased interpretation.

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