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On this date in 1670: a trial gets underway. The two defendants had been arrested several weeks earlier while preaching to a crowd in the street, and charged with unlawful assembly and creating a riot. Their trial, slated to begin on 1 September, had been pushed back to 3 September after preliminary wrangling between the judge and the defendants. And so on this date – 246 years ago today – the defendants were called before the bench.

The post Two Williams go to trial: judges, juries, and liberty of conscience appeared first on OUPblog.

When it comes to assessing someone’s sincerity, we pay close attention to what people say and how they say it. This is because the emotion-based elements of communication are understood as partially controllable and partially uncontrollable. The words that people use tend to be viewed as relatively controllable; in contrast, rate of speech, tone of voice, hesitations, and gestures (paralinguistic elements) have tended to be viewed as less controllable. As a result of the perception of speakers’ lack of control over them, the meanings conveyed via paralinguistic channels have tended to be understood as providing more reliable evidence of a speaker’s inner state.

Paradoxically, the very elements that are viewed as so reliable are consistent with multiple meanings. Furthermore, people often believe that their reading of another person’s demeanor is the correct one. Many studies have shown that people – judges included – are notoriously bad at assessing the meaning of another person’s affective display. Moreover, some research suggests that people are worse at this when the ethnic background of the speaker differs from their own – not an uncommon situation when defendants address federal judges, even in 2014.

The element of defendants’ demeanor is not only problematic for judges; it is also problematic for the record of the proceedings. This is due to courtroom reporters’ practice of reporting the words that are spoken and excluding input from paralinguistic channels.

I observed one case in which this practice had the potential for undermining the integrity of the sentencing hearing transcript. In this case, the defendant lost her composure while making her statement to the court. The short, sob-filled “sorry” she produced mid-way through her statement was (from my perspective) clearly intended to refer to her preceding tears and the delays in her speech. The official transcript, however, made no reference to the defendant’s outburst of emotion, thereby making her “sorry” difficult to understand. Without the clarifying information about what was going on at the time – namely, the defendant’s crying — her “sorry” could conceivably be read as part of her apology to the court for her crime of robbing a bank.

Not distinguishing between apologies for the crime and apologies for a problem with delivery of one’s statement is a problem in the context of a sentencing hearing because apologies for crimes are understood as an admission of guilt. If the defendant had not already apologized earlier, the ambiguity of the defendant’s words could have significant legal ramifications if she sought to appeal her sentence or to claim that her guilty plea was illegal.

As the above example illustrates, the exclusion of meaning that comes from paralinguistic channels can result in misleading and inaccurate transcripts. (This is one reason why more and more police departments are video-recording confessions and witness statements.) If a written record is to be made of a proceeding, it should preserve the significant paralinguistic elements of communication. (Following the approach advocated by Du Bois 2006, one can do this with varying amounts of detail. For example, the beginning and ending of crying-while-talking can be indicated with double angled brackets, e.g., < < sorry > >.) Relatedly, if a judge is going to use elements of a defendant’s demeanor in court to increase a sentence, the judge should be prepared to defend this decision and cite the evidence that was employed. Just as a judge’s decision based on the facts of the case can be challenged, a decision based on demeanor evidence deserves the same scrutiny.

The post Reading demeanor in the courtroom appeared first on OUPblog.

        

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By Dennis Baron

The Supreme Court is using dictionaries to interpret the Constitution. Both conservative justices, who believe the Constitution means today exactly what the Framers meant in the 18th century, and liberal ones, who see the Constitution as a living, breathing document changing with the times, are turning to dictionaries more than ever to interpret our laws: a new report shows that the justices have looked up almost 300 words or phrases in the past decade. Earlier this month, according to the New York Times, Chief Justice Roberts consulted five dictionaries for a single case.

Even though judicial dictionary look-ups are on the rise, the Court has never commented on how or why dictionary definitions play a role in Constitutional decisions. That’s further complicated by the fact that dictionaries aren’t designed to be legal authorities, or even authorities on language, though many people, including the justices of the Supreme Court, think of them that way. What dictionaries are, instead, are records of how some speakers and writers have used words. Dictionaries don’t include all the words there are, and except for an occasional usage note, they don’t tell us what to do with the words they do record. Although we often say, “The dictionary says…,” there are many dictionaries, and they don’t always agree.

As for the justices, they aren’t just looking up technical terms like battery, lien, and prima facie, words which any lawyer should know by heart. They’re also checking ordinary words like also, if, now, and even ambiguous. One of the words Chief Justice Roberts looked up last week in a patent case was of. These are words whose meanings even the average person might consider beyond dispute.

Sometimes dictionary definitions inform landmark decisions. In Washington, DC, v. Heller (2008), the case in which the high Court decided the meaning of the Second Amendment right to keep and bear arms, both Justice Scalia and Justice Stevens checked the dictionary definition of arms. Along with the dictionaries of Samuel Johnson and Noah Webster, Justice Scalia cited Timothy Cunningham’s New and Complete Law Dictionary (1771), where arms is defined as “any thing that a man wears for his defence, or takes into his hands, or useth in wrath to cast at or strike another” (variations on this definition occur in English legal texts going back to the 16th century). And Justice Stevens cited both Samuel Johnson’s definition of arms as “weapons of offence, or armour of defence” (1755) and John Trusler’s “by arms, we understand those instruments of offence generally made use of in war; such as firearms, swords, &c.” (1794).

The much less publicized case of Barnhart v. Peabody Coal Co. (2003) turned in part on the meaning of a single word, shall. In this case the justices all agreed that the word shall in one particular section of the federal Coal Act functions as a command. What they disagreed about was just how much latitude the use of shall permits.

In Peabody Coal the Court’s majority decided that s