Interesting news and cases relating to language and law

The following are some interesting tidbits, mostly from newspapers, that relate to language in the legal system.

Cyberbullying.  Bullying among children has probably always been been a problem, but it has taken on epic proportions as a result of the wide availability and use of social networks, Facebook in particular.  Much of the bullying (disparagement, insults, threats, etc.) is done by means of language, especially when it occurs online.  It occurs so often that it has produced a new lexical item: cyberbullying.  While it might sound trivial, Consumer Reports estimated in 2012 that 800,000 minors had been bullied on Facebook during 2012 (another statistic puts the number of victims at 15% of social media users between the ages of 12 and 17). 
    Facebook is aware of the problem, which violates its rules for members ("you will not bully, intimidate, or harass any user").  If a member reports bullying, the Hate and Harassment Team will remove the offending material.  But when a report is made by a third party (parent, teacher, friend, etc.), Facebook has to decide whether a posting is indeed a violation of the rules.  They use a device known as the Common Review Tool where a team of human beings looks over the complaints they receive and decides whether to allow or expunge the material. 
    Couldn't someone devise an algorithm that allows a computer to identify hateful or threatening language?  Some linguists are engaged in the analysis of the language of threats and suicide notes, for instance.  It turns out that this is a very complex process, since threats and insults are often made indirectly, and context and the relationship between the parties can be very important.  The comment "put on a wig and some lipstick" could be a hateful remark if made to a boy, especially one thought to be gay.
     As far as I know, there are no linguists studying the issue (perhaps a missed opportunity??), but a statistician named Henry Lieberman at MIT has developed precisely such an algorithm (called Bullyspace) that claims to identify around 80% of insults that were flagged as such by human testers.  Maybe linguists could get involved and improve that percentage.  See Emily Bazelon, How to Stop the Bullies, The Atlantic, March 2013, at 82.

Another example of "misconduct" by a juror (see item directly below this one) was reported with respect to a very high profile case in southern California against Bell city officials, who were alleged to have acted corruptly in taking very high salaries for very little work.  Following five days of deliberation, one of the jurors was dismissed for misconduct and replaced by an alternate.  Her misconduct consisted of going to a legal website to look up jury instructions, and she asked her daughter to look up the word "coercion."  Judge Kathleen Kennedy remarked that "I've repeatedly, repeatedly throughout this trial--probably hundreds of times--cautioned the jury not to do that" (referring to looking things up on the internet).  Corina Knoll & Jeff Gottlieb, Bell jurors ordered to begin anew after panelist is dismissed  (March 1, 2013, at AA1).  I should note that Judge Kennedy, according to my research, continues to use the old CALJIC instructions, rather than the plain language instructions (known as Calcrim; s
ee the jury instruction page of this website.) So, perhaps it is not so odd that jurors are looking things up on the internet.

CBS DC reported on January 31, 2013 that the jury that heard a murder trial against defendant Daniel Harmon-Wright in Culpepper, Virginia may have committed misconduct.  Following the verdict finding him guilty of manslaughter, two dictionaries and a thesaurus were found in the jury room.  The jury admitted that it used these sources to help define the words "malicious" or "malice."  There is a pending motion for a mistrial.  Reported in the National Center for State Courts Jur-E Bulletin (2-1-2013). 
    This is actually not very surprising, since malice (esp. in the phrase malice aforethought) has a very specific legal meaning. See the jury instruction page of this website. 

There has been a huge amount of debate among regarding the meaning of "vehicle," especially with respect to such implements entering parks.  I wrote about this issue in my article called A message in a bottle.  You could also consult the articles by Brian Bix or Ralph Poscher in the Oxford Handbook on Language and Law (and many other sources!).  Now the Supreme Court has ruled on the meaning of "vessel," and specifically the question of whether a floating house moored to the shore is a vessel, making it subject to federal admiralty law (and not local state regulation).  Lower courts had held that the houseboat in question was a vessel because it had been towed over the water on occasion.  The Supreme Court of the US, however, held recently that it was a "home" rather than a vessel.  This was a victory for the owner in this case, because he wanted the protections that state law affords to homes.  According to the court, to qualify as a vessel, the object must actually be used for transportation, using a reasonable observer test.  Lozman v. Riviera Beach, 133 S.Ct. 735 (2013).

Congress has recently been replacing what many people regard as outmoded or pejorative terminology with more modern equivalents.  In 2010 the term mental retardation was replaced in federal law by intellectual disability.  I generally agree with such sentiments, but it is worth noting that saying someone is retarded suggests merely that their development is relatively slower (more tardy) than that of others.  In 2012 the word lunatic was likewise banished.  This word is in some ways rather whimsical and euphemistic, suggesting that someone tends to howl at the moon (Latin luna "moon"). See Richard Simon, Lunatic Laws are Reworded, Los Angeles Times, Dec. 9, 2012, at A15.
    It goes to show that it is not so much the meaning of a word, but the way that it tends to be used, that can be problematic.  Of course, we should eliminate any hurtful terminology.  Yet if people's attitudes don't change, it will not be long before individual with an intellectual disability will become stigmatized and have to be replaced by yet another euphemism, it seems to me.  The ultimate hope is that avoiding a stigmatized word will eliminate the stigma.  I'm not so sure.
     This specific change also raises some interesting questions.  What will happen to the insanity defense?  In ordinary language, insane is also an offensive term.  And the same question for insane delusion in wills law.  Maybe we should just call it the mental defense, or refer to mental delusions.
    Meanwhile, the U.S. Census Bureau has decided to stop using the word Negro.  See Census Bureau Survey to stop Using "Negro," Los Angeles Times, February 26, 2012 at A9, which has led to some interesting discussion.

Although issues relating to language policy and the role of English seems to have died down somewhat in the U.S. during the past few years (no doubt, reflecting a decline in levels of immigration), the issue does come up now and again.  It seems that every year there is an effort to make English the official language of the federal government, for instance.  And there are routinely disputes about language use in the workplace.  In 2012 there was a lawsuit arising from a hospital in Delano (where Cesar Chavez led the farm workers' union many years ago).  A local hospital there had unofficially forbidden employees to speak "Tagalog and other dialects" among themselves, even in the break room or in the cafeteria, according to reports.  And people were reportedly mocked for their accents when speaking English. The hospital denied liability but settled the case for around $1 million.  Anh Do, Filipino Nurses Win Nearly $1 Million in Bias Settlement, Los Angeles Times, Sept. 18, 2012, at AA1.
   Author identification has been somewhat of a controversial issue among linguists, and it recently became an important issue in a case involving Mark Zuckerberg, the founder of Facebook.  A certain Paul Ceglia has claimed that he is entitled to half the value of Facebook, based largely on emails that he claims were sent to him by Zuckerberg.  Gerald McMenamin, who has written extensively on this topic, has filed a report in court detailing his forensic stylistic analsyis and concluding that it is probable that Zuckerberg was not the writer of the emails in question.  Other experts, including Ron Butters, who has also done work in the field, question whether any conclusions can be reached on relatively short samples.  See Ben Zimmer, Decoding Your Email Personality, New York Times, July 24, 2011.

    There was once a time when laws had names that expressed what they were meant to accomplish.  Consider the Endangered Species Act or the Civil Rights Act or the Marine Mammal Protection Act.  For the past decade or so, however, it has become increasingly common for sponsors of bills to turn the names of bills into political statements, sometimes called "attack titles."  It is also common for them to function as acronyms. A bill to repeal the new U.S. health care law was titled the Revoke Excessive Policies that Encroach on American Liberties Act, a.k.a. the REPEAL Act.  Other examples include the Big Oil Welfare Repeal Act, the Reducing Barack Obama's Unsustainable Deficit Act, and the Repealing Ineffective and Incomplete Abstinence-Only Program Funding Act.  In 1997, Representative Pete Stark became concerned about doctors trying to induce patients to agree to pay for additional services when they were in the examination room.  He sponsored a bill called the No Private Contracts to be Negotiated When the Patient is Buck Naked Act, also known as the Stark Naked Act.
    Fortunately, most of these bills were not enacted into law.  In fact, it seems likely that often they were not meant to be taken seriously, as the silly names suggest.  The problem, in other words, is not just highly politicized names, but also highly politicized bills.
Richard Simon, Putting Hot Air Up For a Vote, L.A. Times, June 20, 2011, at A1

    These days, oral argument in most US appellate courts is not so much lawyers arguing their clients' cases to the judges, but instead could better be described as argument between bench and bar.  A recent study found that the justices on the US Supreme Court asked an average of 133 questions per hour. Like cross-examination at trial, these questions are often not really requests for information, but invitations to debate.  One reason for all these questions (or pseudo-questions) is that at the time of argument, lawyers have laid out their case in extensive briefs, often aided by additional briefs from amici curiae.   Thus questions serve to probe or test an argument made by one of the parties. 
    According to the NY Times article, one justice who has not participated in the verbal interaction with lawyers is Clarence Thomas.  In the past 5 years, he has not asked a single question or made a single comment.  Justice Thomas claims that he maintains his silence out of respect for the lawyers--that he wants to hear their arguments.  Of course, if he read the briefs he would already know what the positions of the parties are.
Adam Liptak, Clarence Thomas Keeps 5-Year Supreme Court Silence, N.Y. Times, Feb. 12, 2011

    Los Angeles police arrested a Mexican immigrant, Candido Ortiz, and charged him with attempted murder.  He apparently spoke only an indigenous Mexican language, along with some very basic Spanish.  Thus, an interpreter was needed for his preliminary hearing, were a judge would take his plea.  The courts in L.A. have access to interpreters of over 100 languages, but in this case they were stymied.  They began, logically enough, with a Spanish interpreter, who soon realized that Ortiz seemed not to understand much Spanish.  The next hypothesis was that he spoke Zapotec, a Oaxacan language, but that proved incorrect.  He was then identified as a speaker of Mixe, a less common Oaxacan language.  An interpreter of Mixe was flown in from San Francisco, but he spoke Mixe alto, a dialect which Ortiz did not understand.  The next interpreter spoke Mixe bajo, but this was again the wrong dialect.  It turns out he spoke Quetzaltepec Mixe.  Apparently there are no qualified interpreters of this language in the U.S., but a university student who spoke it was found in Mexico.  He interpreted from Mixe into Spanish by telephone, and another interpreter in the courtroom interpreted the Spanish into English, a process called "relay interpreting."  When all else fails, the court interpreter's office sometimes sends someone to an ethnic restaurant in search of speakers of exotic languages.  Prosecutors in the case had a simpler solution: make him speak Spanish.  He's faking it.
Victoria Kim, How Do You Say 'Plea' in Chuukese?, L.A. Times, Feb. 21, 2009, at A1.

    Along the U.S.-Mexico border, immigrant-rights activists have been placing water bottles in areas where immigrants cross the border, since the area is extremely dry in places and immigrants sometimes die of heat and dehydration.  One such area is a wildlife refuge (the Buenos Aires National Wildlife Refuge), where it is illegal to dump "waste," which might be dangerous to the endangered species living there.  Three men were arrested for placing bottles filled with water in the refuge, which prosecutors claimed was a violation of the statute.  They were convicted at trial, but a federal court of appeals later held that placing water bottles in the refuge did not constitute "dumping waste."  That seems like the correct decision, since a bottle with water in it is not normally "waste."  But it does open the question of whether a border-crosser, having drunk the water, is legally required to carry the bottle to a proper disposal or recycling site.  Leaving behind an empty bottle probably would constitute "dumping waste," in my opinion.  Of course, if such a person were to come to the attention of law enforcement officials, deportation would be a more likely option.
Carol J. Williams, Conviction in Migrant-water Case Overturned, L.A. Times, Sept. 3, 2010, at AA3.

    A black supervisor at a Tyson Foods chicken plant was twice passed up for promotion and brought a lawsuit alleging racial discrimination.  He presented evidence that the white manager of the plant had the habit of referring to African-Americans as "boys."  The federal court of appeals held that this usage was "nonracial in context."  One would think that a court in Atlanta, of all places, would know a bit more about the historical (and, apparently, current) derogatory use of this word in reference to grown black men.
Adam Liptak, Appeals Court in Atlanta Again Rejects Racial Discrimination Claim, N.Y. Times, Sept. 6, 2010.

    Jurors in the corruption trial of Rod Blagojevich, former governor of Illinois, found him not guilty of almost all charges against him, much to the surprise and dismay of prosecutors, who believed they had an "overwhelming" case against him.  One of the causes of the verdict was the jury instructions, which went on for more than one hundred pages, along with a verdict form "as elaborate as some income tax forms."  It took the jurors several days to figure out what they were supposed to do.  One juror expressed "frustration that we didn't accomplish what we set out to do."   As they say, "garbage in, garbage out."
Monica Davey & Susan Saulny, Jurors Fault Complexity of the Blagojevich Trial, N.Y. Times, Aug. 21, 2010

    In an article published by the Journal of Experimental Social Psychology, researchers have reported on a study showing that people tend to distrust people who speak with a foreign accent.  This is consistent with other studies that show a "simplicity-sincerity effect"--people tend to find that a statement written in a clear font (one that is easy to read) is more likely true than more obscure fonts.  Even when subjects were told about this effect (i.e., that people have less trust in statements made by nonnative speakers), it persisted.  The study is reminiscent of the "powerless" speech style identified by William O'Barr in his book, Linguistic Evidence.  He likewise found that instructing subjects to ignore the effects of what he called the powerless speech style did little to counteract that effect (pp. 95-96).
Pamela Paul, An Accent Makes You Less Credible, Study Says, N.Y. Times, August 27, 2010