To be invited to contribute to a volume for Peter Tiersma is a daunting honour. He is the master of elegant argument and expression and a past master at choosing memorable examples—who can forget the Roman freeing his slave with a compulsory speech act realised by silence? Indeed, I was tempted to submit just an intriguing title and leave it to my readers to supply their own interesting content on the basis that “in some cases, silence … is used to communicate a relatively specific message” (Tiersma 1995: 6).
All of Tiersma’s writings are excellent teaching texts—the bibliography for my current forensic linguistics course includes five of his publications, plus, of course, the magnificent book, The Oxford Handbook on Language and Law (Tiersma and Solan 2012). I have also long admired Tiersma’s involvement in the re-drafting of the California Pattern Jury Instructions and always encourage my students to undertake research that will similarly have an impact outside the narrowly defined academic context. I am therefore delighted that three of my Brazilian doctoral students, introduced early to Tiersma, have chosen to research in topics related to silence, including the socially important areas of police interviewing, product warnings, and plagiarism.
The Right to Silence
The Brazilian constitution asserts that an “arrestee will be informed of his/her rights, among which is the right to remain silent,” (translation quoted from Jorge 2014). However, unlike in the United States and the United Kingdom, in Brazil there is no fixed text for police officers to recite, nor detailed instructions about how the right is to be conveyed and when. But, as all know from the writings of Ainsworth (2010), Shuy (1997), and Tiersma (op. cit.) on the Miranda warnings, the fact that suspects are told they have “the right to remain silent” doesn’t mean they actually do so in practice, and confessions made before the reading of the Rights have been ruled admissible.
This is similar in Brazil. Although there is a law affirming that unlawful evidence, that is evidence obtained through violation of the constitutional norms, will not be accepted and should be disregarded in the criminal process (Jorge op. cit.), it is not difficult to find cases where appeals against conviction have been denied on the grounds that the confession was a “voluntary act.” In our interactions with Brazilian police, we are urging them to adopt the English three-part model of: performing a fixed text; following this up, before any questioning begins, with a detailed explanation given by the police officer; and, essentially, rigorous enforcement by the judiciary, who must reject all evidence collected from suspects before they were cautioned.
Those who have never been arrested may wonder why anyone would ever say anything to a police officer after being told not only “You do not have to say anything” but also “Anything you do say may be given in evidence.” Yet at the same time, as Tiersma points out,
People commonly assume that someone who is wrongly accused of a crime would welcome the opportunity to explain why she is innocent; the defendant’s silence thus supports an inference of guilt (op. cit. 10).
Indeed, this “commonsense” view is embodied in a sentence added to the English Police Caution some 20 years ago: “but it may harm your defence if you do not mention when questioned something which you later rely on in court” (English Police Caution, 1994 Revision).
As a result, English juries are now told they can make inferences from the accused’s silence when being interviewed, even though at the same time they are not allowed to make any inferences from the other silence that Tiersma mentions—the option not to give evidence in one’s own defence.
There is a more subtle point to be made about silence. The majority of jurisdictions in the world allow the police to summarise what was said; indeed, in Brazil any speech that is actually reported appears only in indirect form in the third person—in other words the suspect does not have a “voice.” By contrast, for over a hundred years English judges have insisted on a verbatim record being made of the suspect’s locutions and not simply of his illocutions and perlocutions as interpreted by the interviewing officer. This access to the suspect’s voice is now embodied in the requirement in England that all significant interviews be audio-recorded.
There is one more point to be made about silence, which my colleagues in Aston University are currently working on with the local police. As noted above, the suspect in England is warned, “it may harm your defence if you do not mention when questioned something which you later rely on in court,” yet it is the police officer who controls the interview and he typically sees his task as needing to find more evidence to support a prosecution. Thus, he often talks across attempts by the suspect to provide what seem at the time to be irrelevant details. As Haworth (2010) points out, the police should give the suspect a chance to contribute whatever evidence s/he may think relevant.
We now have contact with two lecturers at police academies in Brazil and Mozambique, both, highly unusually, trained to the doctoral level in linguistics, and we are working with them to try to introduce changes to the system.
Tiersma observes that an adequate warning is one “whose content is understandable” and which conveys “a fair indication of the nature and extent of the danger” to the reader (2002: 55). The problem is that some product warnings are crucially silent, or, as Tiersma puts it, violate the “maxim of quantity,” either by providing no information at all and/or allowing the reader to make incorrect inferences (see Coulthard 2014 and Coulthard and Hagemeyer 2013 for a detailed discussion of a set of misinterpretable warnings accompanying a portable BBQ).
Using observations on warnings by Dumas (2010), Shuy (2008), and Tiersma (op. cit.), we are analysing, with the aim of improving, some of the guidelines on warnings produced by ANVISA, the Brazilian government’s Agency for the Control of Health Products, which is responsible for the guidelines on packages and package inserts. Shuy argues that warnings:
“should identify and describe the nature and danger of the risk. Then they should tell the reader how to avoid it” (2008: 72). Hagemeyer (2014) examines the ANVISA instructions for hair dye warnings and their realisation on three products. One of the required ANVISA warnings is do not use on eyelashes and eyebrows. Note that nothing is officially required by ANVISA in this warning about the nature of the risk involved. In fact, only one of the three products we examined spelled out the risk, which turns out to be severe—not following these instructions can lead to blindness. In her work on cigarette warnings in the 1990’s, Dumas criticised the use of factual statements including technical terms, like “Cigarettes produce carbon monoxide” with no explanation of the significance to be attributed to this statement. This problem is still alive and kicking in ANVISA-approved warnings labels—labels are required to list the contents, but not to indicate the potential dangers. Thus:
“Contains phenilenodiamines, resorcinol and ammonia”[;]
“Contains ammonia. May contain: diaminotoluenes, resorcinol and phenilenodiamines.”