During my undergraduate years, I was particularly interested in philosophy, cognitive science and linguistics. Over the years I’ve learned (and forgotten) almost half-a-dozen languages. About the only two I still remember are sign language and Spanish. I even wrote a paper which must have gotten a lot of play in other universities, because when I once took it off the Internet, I received several emails from university students and even a professor, asking where it went. (It’s here now and, by the way, for some time has shown up first on a Google search for language contact and historical linguistics.) I was particularly fascinated with the concept of semantic drift.
So it’s no surprise that I pay particular attention to words and phrases within the legal framework in which I work today.
What I see disturbs me.
Certain words and phrases are critical landmarks in the geography of legal space. They set the standards by which things are judged. The way things are worded from the beginning — or as we say in seminars about such matters, the way the issues are framed at the start — will determine the end.
A Few Words About Loaded Words
This is why prosecutors love words like “victim,” “the People,” and pretty much any “loaded” word. Police officers, particularly when talking about an accused person, toss out words like “perp,” “perpetrator” and “suspect.” And although defense attorneys are not at all opposed to using loaded words, it seems to me we’re more often looking for words which are either neutral, personal, or (to the extent they are loaded) mitigating. So, for example, we prefer “complaining witness” to “victim,” “prosecutor” to “the People,” and we like to use our client’s names to remind folks that they are, after all, still human beings. Granted they may be human beings who have done some bad things, even some evil things; they are still humans. And they should be treated as such. Even if we think they didn’t treat others that way. After all, if we believe they did these things, do we actually want to emulate them?
Avoiding loaded words, though, also serves the ends of justice. When juries are already thinking of someone as a “suspect” rather than someone who has been accused of a crime, it encourages them to think of that person as having done the thing for which they’ve been accused, although they have not yet heard evidence proving guilt. Since many potential jurors and jurors forget that someone is “innocent until proven guilty,” they’re already on a slippery slope; it’s that much easier for the prosecution’s loaded words to get them sliding down it. And how horrible is that when it turns out the human being in front of the jury didn’t do what they’re accused of?
Wiggle Words & Slippery Legal Concepts
One area of linguistic analysis I’d love to see has to do with “wiggle words.”
Wiggle words are words which appear to have a clear meaning, but which actually do not. Their meaning changes depending on such things as who is using them and what they are trying to do with them. They’re called “wiggle” words because they allow people who have used them to “wiggle” away from a meaning you take from what they say when it turns out for one reason or another they don’t want their words to mean what you understood.
Some words are just inherently wiggle words. “Try,” for example, is a wiggle word. When someone says, “I’ll try to get that done by 5 p.m.” and they don’t, you won’t be able to hold them accountable. Someone gets angry and says, “You told me you were going to have this done by 5 p.m. I relied on you!” The other person says, “No, I said I’d try to get it done by 5 p.m.” And the idea is that you were wrong for relying on them; not that they’re wrong for having failed to do the deed by 5 p.m.
The legal world abounds in slippery legal concepts. I’ve noticed these things, but I’d sure love to see some “objective” studies. Here are some suggested words or phrases for any linguistically-oriented types out there who are looking for an idea for a research paper, or a master’s thesis.
- “Reasonable cause” — If you are a citizen, as opposed to a police officer or submitizen, “reasonable cause” will mean that it is reasonable for some ordinary person to believe some thing. By “ordinary” (another wiggle word) I mean you’re average person without any special mental challenges and not necessarily any extreme paranoia or cynicism.So, for example, if you saw someone driving down the street weaving across lines, you might think it’s reasonable to believe they’re drunk and someone should do something about that.
If you’re a police officer, “reasonable cause” means you just spotted a Hispanic, Black, or Asian driving down the road and you think you should do something about that.
- “Preponderance of the evidence” — If you’re a defense attorney and you have to show something by a “preponderance of the evidence,” you’ve got a really high hurdle to overcome. You probably can’t do it very easily, but you actually do have a chance of being able to do it with many judges. (I said “many,” not “most.”)If you’re a prosecutor and you have to show something by a “preponderance of the evidence,” you have to show the court that there’s a possibility that in some potential universe, a thing could have occurred. Because it’s a “only” preponderance, they don’t need a lot, but many argue as if this standard is something of the shade of “scintilla.” Because it’s not, the prosecutor sometimes is unable to win using this standard.
- “Beyond a reasonable doubt” — Defense attorneys seldom officially have to prove anything beyond a reasonable doubt. Theoretically, we don’t have to prove a lot of things. For example, we’re not supposed to have to prove that our client is innocent. That’s supposedly presumed. Until and unless the prosecution “proves” it by having a police officer tell the jury that he thinks it happened a particular way and the defendant is the one who did it.Prosecutors love to tell me what difficult jobs they have. “You defense attorneys have it easy,” they say. “We have to prove things to a jury beyond a reasonable doubt.” Yep, you do. You have to prove to that jury the guy whom some of whom were honest enough to say “must have done something, or he wouldn’t be here” before you managed to “rehabilitate” them and we couldn’t afford to waste our peremptory challenge on them did the crime.
But, seriously, you have a jury predisposed (especially when “death qualified”) to assume guilt, cops who testify “yeah, he did it,” complete with confessions he never made, and sometimes (e.g., gang cases) even just saying, “in my opinion, he did it,” and the jury wants the guy to prove he didn’t do it but I advise him not to testify. How hard is it, really?
And if he’s convicted on obviously bogus material, which we know because we know things the jury wasn’t allowed to hear, the appellate court (who will also know things the jury wasn’t allowed to know) will say, “but a jury believed he was guilty beyond a reasonable doubt, so we can’t overturn that.”
- “Substantial” — If you’re on the defense side and need to show something is “substantial,” that means you need one helluva lot of data. It’s a slightly more difficult thing than “substantial” means in ordinary life.If you’re a prosecutor? Look up “scintilla” in the dictionary.
- “Competent,” as in “competent evidence” — If you’re a defense attorney and have to show something you want to present is competent evidence, this means evidence which is pretty much unassailable.If you’re a prosecutor and you want to do the same, it means that somewhere, in some potential universe, you could find some idiot who would believe the evidence if he heard that someone heard the evidence and kinda sorta thought it was possible.
Where Are The Legal Linguists?
Now, to a substantial (but whose definition am I using?, *wink*) degree, I’m exaggerating. Yet there really are a significant (oops!) number of cases out there where you can see this happening. The meanings courts give to certain words differ depending upon who is using them and why.
And I think there’s reasonable cause for a linguistics major to consider doing her thesis on this, so we could get some kind of competent evidence that I’m right.