Laurie L. Levenson
Words matter. That is the profound lesson of Peter Tiersma’s work on language and criminal justice. Sometimes, those of us in the criminal justice field get lost in the physical world of blood and guts. We naively think that what really makes a difference in a case are the murder weapons or fraudulent documents. While physical evidence is important, the most important evidence in most criminal cases is the testimony from witnesses. Witnesses provide the real DNA of criminal trials. Most criminal cases do not feature scientific evidence proving a defendant’s guilt beyond a reasonable doubt. Rather, jurors must rely on the collective recollection of the testimony of witnesses. It is those words that tell the story of the crime and it is in those words where reasonable doubt most often lies. Words, even with their ambiguities, provide the real corpus of a criminal case.
My brilliant colleague, Peter Tiersma, has written three compelling works regarding language and criminal law. His first, The Language of Perjury (Tiersma 1990), examined the dilemma of determining when a witness’s statements can be considered legally false. Poetically, Peter starts with the age-old question: “What is truth?” He focused on the challenges raised in the seminal case of Bronston v. United States,1 but today’s reader cannot help but think of the perjury accusations against President William J. Clinton during his impeachment hearings. The impeachment trials boiled down to determining what the word “is” meant when Clinton stated in his 1998 grand jury that “there’s nothing going on between” him and Monica Lewinsky at the time he was questioned. Tiersma’s genius was in giving us tools to make a determination that would be based upon something more than raw politics. While words might be “literally true,” the focus in perjury cases must be on how the witness intends the utterance to be understood. If perjury is a crime because it obstructs and misleads the decision maker, a person should be punished if he has the intent to cause such harm. This fundamental lesson continues to guide courts in the most high-profile of cases. In 2013 famed baseball giant Barry Bonds had his convictions for obstruction of justice affirmed because what he told the grand jury, although perhaps literally true, was still intended to mislead.2 Words have power and the intention of the speaker tells us whether that power is being used for good or wrong.
In 2005 Tiersma and his co-author, Lawrence M. Solan, continued this theme in their chapter on “Threats” in Speaking of Crime: The Language of Criminal Justice (Solan and Tiersma 2005