Imagine you were on the jury for this real-life murder and robbery case. Juan and his girlfriend Luisa come to the U.S. and overstay their visas. Juan and Luisa become friends with Arturo. Luisa sometimes goes out with Arturo. This makes Juan jealous. He asks Luisa to invite Arturo over to visit. When Arturo arrives, Juan tells Luisa to go into the bathroom. Then the two men argue, and Juan kills Arturo.
Juan takes Luisa to a motel, then disposes of the body and steals some jewelry from Arturo’s car. The next day Juan has Luisa help him clean up the bloody rug and tells her to sell some of Arturo’s jewelry. Juan then runs off with the money from the jewelry sales, leaving the U.S.
Luisa is the only person left to prosecute. She is arrested for co-conspiring to murder and rob Arturo. If convicted, she faces the death penalty.
In this “love triangle” situation, did Luisa co-conspire with Juan to kill Arturo? What evidence was there?
Consider what happened when the police interrogated Luisa. She had no English skills. She was alone in a room facing three officers, one of whom spoke Spanish. He interpreted for her, but he was neither a neutral third-party nor a qualified interpreter. The police officers did not make an audio recording of the interview. The legal reporter transcribed only the English conversation, not the Spanish spoken by Luisa, and not the police interpreter’s Spanish. That transcript became “evidence” of a confession that she co-conspired in the murder.
How significant was Luisa’s language disadvantage? What might have been lost in interpretation—and not just in terms of Luisa’s intended meaning? Her body language, pauses that might reflect planning time, use of intonation, and other aspects of oral communication couldn’t be captured in a transcript. Also, regarding the complex, two-part questions asked by the police, were Luisa’s “yes” or “no” responses meant to answer both parts of the questions, or just one?
These are some of the questions Margaret van Naerssen, Ph.D., raised about this case. Because of the complex linguistic factors involved, van Naerssen, who is the coordinator of Immaculata’s Cultural and Linguistic Diversity program, was contacted by Luisa’s attorney to serve as an expert witness in the case. She specializes in forensic linguistics and regularly serves as a consultant on cases that involve non-native English speakers. She has shared Luisa’s case (and a few other cases) in various presentations she has given to legal practitioners (judges and attorneys) to show how linguists can assist law enforcement officers and the courts to ensure that everyone—both native and non-native English speakers—has fair access to justice.
“Common myths affect how non-native speakers are viewed and treated in a legal system,” van Naerssen tells her audience. Your rational mind may be aware that these myths are false, she said, but it’s still easy to make subconscious assumptions based on these myths. And even if you don’t make assumptions, law enforcement officers or the opposing counsel (sometimes intentionally) may make them. Here are a few of the myths van Naerssen identified.
Myth #1: An adult living and working in the U.S. for several years should be able to understand and speak English. If such a person claims to understand only a little, the person is lying.
“Language proficiency really depends on many factors,” van Naerssen tells her listeners. English language learners “may feel they can get by with the level of English they have.” The fact that they have not progressed does not necessarily mean they aren’t smart enough to do so. The rate of language acquisition is affected by many variables, including people’s age, their motivation to keep developing their language skills, the time they have available for study, exposure to language that is not too far beyond their current ability, and other factors.
“Have you ever referred to a person’s English this way—‘He speaks broken English’?” van Naerssen asks. “Consider a beautiful jar that’s been broken. It is now seen as less valuable. But a non-native speaker’s English has never been whole. How can it have been whole if the learner has never reached a native-like level in the first place?” The speaker’s English is developing. Using the words “broken English” to describe people’s speech may reflect negatively on them, implying that they are lazy or careless. “Careful about that assumption!” van Naerssen warns.
To complicate matters further, non-native English-speaking suspects may nod and appear to agree with police or legal authorities. Respect for authority or fear may cause non-native speakers to want to be agreeable and avoid asking questions, even if they don’t fully understand the conversation. They may be hoping that they can save face and eventually grasp what is happening by continuing to listen. They may also be nodding simply to indicate they are listening. So nodding and saying “yes” may not mean that they are agreeing with what they hear.
Myth #2: A native speaker’s language skills are the same across reading, writing, speaking, and listening.
Even native English speakers don’t speak spontaneously at the same level as they do when they have time to plan what they are going to write, van Naerssen points out. Sometimes non-native speakers speak conversational English but don’t read or write in English. Depending on their educational background, they might not even read very well or at all in their first language.
Additionally, they can often understand more English than they can actuslly speak. “Think about young children learning their first language,” van Naerssen says. She gives an example of a conversation she had with her son when he was 4 years old and they lived near the ocean.
“Hey, Mom, I seed a green fog!” he said.
“Green fog?” she asked.
“No, a fog!”
“Oh—you saw a green frog?”
“Yes, a green fog!”
“He understood ‘frog,’” van Naerssen explains, “but still couldn’t pronounce F+R together for ‘frog.’ He also was telling me about something from the past, ‘seed.’ He understood my ‘saw’—but he hadn’t mastered the irregular past ‘saw’ in his own speech.”
The same principles apply to anyone learning a second language. It’s usually easier to understand communications spoken by someone else than it is to accurately and spontaneously speak a second language on your own.
Myth #3: A person’s communication skills in a second language reflect the person’s intellectual level.
“How intelligent would you sound now speaking your high school French?” van Naerssen asks jokingly. “Speakers bring existing, underlying cognitive abilities but may not have adequate second language skills to reflect their real cognitive abilities. Very frustrating…your ideas are locked up in a box.
“In Chinese I usually rehearse questions before I dare ask someone for help. I know I’ll sound stupid,” she says. “But my pride, as an adult, makes me want to take care of myself, not always have someone else help me out. Sometimes this happens in court with non-native speakers, when they think they can do without an interpreter, not realizing the complex language they will need. This can lead to serious problems.”
She advises against “talking down” to foreigners. It doesn’t help to speak very loudly, very slowly, or to use the tone of voice that people use with babies. “Non-native speakers can feel these modifications as judgments about them as individuals.”
Myth #4: A standard proficiency test, across skill areas, can determine if a person has adequate communication skills, including cultural knowledge, to interact effectively with law enforcement and legal practitioners.
“Language proficiency cannot be measured like a line,” van Naerssen notes. “Humans are complex. Language is complex.” We are not at a single number or score on the line. Language assessments should be relevant to the legal issues and to the language needs in the communication situation. She recommends using several different assessments, if possible, to get a more accurate sense of defendants’ language skills.
“A qualified expert can sometimes spot inconsistencies that might indicate possible untruthful language proficiency claims,” van Naerssen notes. It’s very difficult to fake a higher level of English proficiency that is consistently accurate. Also, intentionally and randomly answering test questions incorrectly can backfire if, for example, the person scores well on tougher questions and poorly on easier ones. “Inconsistencies can appear, just like when a criminal stages a [crime] scene to make it look like someone else did it,” van Naerssen notes.
Toward the end of her presentation, van Naerssen invites her audience to consider what it might be like to be in Luisa’s position—on trial for murder in a court in another culture, with very limited language skills, with problematic interpreting, and in a foreign legal system. In such a situation, could your statements constitute valid, reasonably reliable evidence against you?
After examining the transcript of Luisa’s police interview, van Naerssen concluded that since there was no record of what Luisa actually said, there was a very serious question about whether the “transcript confession” was valid evidence.
The case dragged on for a few years, but after numerous motions by Luisa’s attorney, and van Naerssen’s report, the judge ruled in Luisa’s favor. She was cleared and released from prison.
“Sometimes,” van Naerssen observes, “linguistics can help serve justice.”