The Judge as Linguist

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The Judge as Linguist^*

Peter M. Tiersma

In Rhode Island v. Innis,¹ a defendant was suspected of killing a taxicab driver with a shotgun. Once arrested, the police read him the customary Miranda warning.² The defendant consequently asked to speak to an attorney.³ The police then placed the defendant in a vehicle to be taken to the police station.⁴ Under the Miranda decision, once a suspect in custody asks to speak with a lawyer, all interrogation must cease until a lawyer is present.⁵ Thus, the officers in Innis could not question the defendant during the drive to the station.⁶ Importantly, the police had not yet found the murder weapon, which would doubtless provide important evidence against the accused.⁷ While en route to the station, one of the accompanying officers mentioned that there were a lot of disabled children in the area, and said, “God forbid one of them might find a weapon with shells and they might hurt themselves.”⁸ The defendant, expressing concern about the children, then showed the officers where the gun was located.⁹

The issue before the Supreme Court in Innis was whether the officers had engaged in “interrogation” or “questioning.” It would have been easy enough for the Court to dispose of the case by observing that the officers asked no questions of the defendant, but merely stated that they were worried about the schoolchildren. Instead, the Court concluded that Miranda’s prohibition against further “questioning” extends not only to literal questioning, but also to its “functional equivalent.”¹⁰ The Court ultimately held that the officers did not, under this definition, engage in questioning.¹¹

The Court correctly recognized that speech acts are often accomplished by indirect means, although one might dispute its ultimate conclusion. Consider the following sentence, said by a burglar with a gun to the occupant of a house: “I will kill your child unless you tell me where your money is.” Obviously, this is not just a statement about what may happen in the future. Implicit in the threat is a command to provide information (“Tell me where the money is”) or at least a question (“Where is the money?”).

Now compare this with what the police in Innis essentially told the suspect: “A disabled child may die unless you tell us where the shotgun is.” While not a threat to the defendant, the sentence conveyed that something very bad might happen unless he provided the information. It clearly functioned as a request for information, and was therefore the “functional equivalent” of a question.¹²

Consensual Searches

Another instance in which the Supreme Court analyzed the language of the police occurred in Schneckloth v. Bustamonte.¹³ There, the defendant challenged the constitutionality of a search of a car trunk in which police found incriminating evidence of the crime of possessing a check with intent to defraud.¹⁴ The police had stopped the car in which the defendant was riding because of minor vehicle code violations.¹⁵ Since the officers had neither a warrant nor other grounds to search the car, a search would have been constitutional only if the defendant or another occupant had voluntarily consented to it.¹⁶ After rummaging through the car itself, the officer asked the occupants: “Does the trunk open?”¹⁷ One of the occupants said “yes,” got the keys, and opened the trunk.¹⁸

Literally, the officer simply inquired whether the trunk was capable of being opened. The occupant’s response—to actually open the trunk—indicates that he understood the officer’s question as more of a request or command to open the trunk. This comports with linguistic research on indirect requests or demands. For example, asking a fellow diner, “Can you pass the salt?” is not merely a question regarding the diner’s capability to pass the salt, but a request or command to do so.¹⁹ If the addressee says “yes” but does nothing, she has acted inappropriately, or at best made a joke by playing on the literal meaning of the words. A similar historical example is the words attributed to King Henry II regarding his enemy, Thomas Becket. King Henry said to his knights: “Will no one rid me of this turbulent priest?” Not long later, four of Henry’s knights assassinated Becket.²⁰ “Does the trunk open?” is therefore not simply a question about the capabilities of the trunk, but is at least a request to open the trunk, or a command to do so.