In his 1990 paper “The Language of Perjury,” Peter Tiersma revisits the story of Tristan and Isolde. He notes that the medieval practice of trial by ordeal (specifically the ordeal of grasping burning irons), on which the story hinges, has been replaced over time by trial using legal decision making. This decision making he suggests, whilst not as haphazard as the sizzling irons, could be improved through recourse to linguistics. This light-hearted parallel between ancient torment and contemporary linguistics, so typical of Tiersma’s engaging writing, has informed my title, for it is in considering language study as a means to improve the administration of justice that Tiersma’s work has added particular fire to further scholarship and legal change. The second half of the title, adapting one of his recent co-authored book titles, Speaking of Crime, cues up my focus in this piece further by recognising concentration not on crimes, and the language through which they are committed and tried, but on criminal justice, and the language through which investigations are administered and understood. The subtitle additionally flags that in publications such as chapter 10 of Speaking of Crime, Tiersma investigates how the law construes utterances from the lay world. Elsewhere he focuses on the reverse of this process, examining how laypeople make sense of legal texts (e.g., 2001) or legally regulated texts (e.g., 2002). This is the direction examined here—the construal of the legal world by laypeople.
I have chosen to respond to several excerpts from Tiersma’s work that all analyse delicate relationships among intentions, actions, and outcomes expressed through language. Tiersma’s scholarship explores how normal conversational processes, such as those entailed by Grice’s maxims or those encapsulated by Searle’s writings on indirectness, take on particular significance in relation to law. He shows how this happens either because these conversational processes have particular meaning when they occur within legal settings (1990; 1993) or because they are taken in particular ways when legally assessed, potentially defining criminal offences (2005). Below, we see what happens when laypeople enter arenas where conversational norms are suspended.
Tiersma repeatedly reminds us that establishing a particular speech act’s meaning can be fraught with uncertainty. He notes that a question may easily be taken for a request or even a command (1993: 281) and that “threats are similar to warnings and predictions” (2005: 199), for example. A speech act whose function has received extensive scrutiny is that performed by a Miranda Warning or police caution. Do these wordings truly convey the sense of warning or cautioning that their names suggest or are they merely informing or even threatening or instructing (see, e.g., Kurzon 1996)? Tiersma’s work has prompted me to push this debate in a new direction by considering previously unpublished data that shows not what scholars, academics, or police officers make of these issues, but instead indicates perspectives of the laypeople who attempt to untangle them. The trigger for this was Tiersma’s observation that Miranda warnings are often accompanied by additional non-Miranda language and this talk can influence how the warnings themselves are understood (1993: 279). He illustrates by citing the case of Innis, in which a suspect was told that a weapon that the crime’s perpetrator had perhaps abandoned near the crime scene could get into the hands of children. This prompted the suspect to take the officers to the weapon, thus placing himself very much in the frame. The persuasive potential of co-text and context bears further examination, then.
In research interviews with suspects, an awareness that the meaning of the caution could be shaped by accompanying talk and actions is evident. One suspect noted, for example, I know lads who’ve been intimidated by the police, through talk alongside cautioning and even through strategic manipulation of circumstances. He specified, I know a couple of people who touch heroin and that (.) you know (.) and they [the police] will wait (.) they turkey them and then they’ll like go in and they’ll say “give us some information like we’ll let you go”. Yet as well as strategically exploiting the caution’s co-text to encourage talk, the reverse also occurs. Let me introduce an excerpt in which a suspect (name anoymised) recounts his conversation with a police officer when he was arrested:
2 have you and … I said to him myself “I’m taking this to eat and ur well not taking it
3 pinched to eat” is what it was and ur he turned round he said
5 to me at the moment”
7 before you say anything at all to me”
9 “we’ll (.) sort everything out from there”
11 you” he said cos- so you know he is pretty good like that