Coerced Confessions: The Discourse of Bilingual Police Interrogations (Language, Power and Social Process, Vol 25)

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Coerced Confessions

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Language, Power and Social Process 25

Editor Richard J. Watts

Mouton de Gruyter Berlin · New York

Coerced Confessions The Discourse of Bilingual Police Interrogations by Susan Berk-Seligson

Mouton de Gruyter Berlin · New York

Mouton de Gruyter (formerly Mouton, The Hague) is a Division of Walter de Gruyter GmbH & Co. KG, Berlin.

앝 Printed on acid-free paper which falls within the guidelines 앪 of the ANSI to ensure permanence and durability.

Library of Congress Cataloging-in-Publication Data Berk-Seligson, Susan. Coerced confessions : the discourse of bilingual police interrogations / by Susan Berk-Seligson. p. cm. ⫺ (Language, power and social process ; 25) Includes bibliographical references and index. ISBN 978-3-11-021348-5 (hardcover : alk. paper) 1. Critical discourse analysis ⫺ Social aspects. 2. Bilingualism ⫺ Social aspects. 3. Police questioning ⫺ Social aspects. 4. Intercultural communication ⫺ Social aspects. I. Title. P302.84.B47 2009 306.44⫺dc22 2009010492

ISBN 978-3-11-021348-5 Bibliographic information published by the Deutsche Nationalbibliothek The Deutsche Nationalbibliothek lists this publication in the Deutsche Nationalbibliografie; detailed bibliographic data are available in the Internet at http://dnb.d-nb.de. 쑔 Copyright 2009 by Walter de Gruyter GmbH & Co. KG, D-10785 Berlin. All rights reserved, including those of translation into foreign languages. No part of this book may be reproduced in any form or by any means, electronic or mechanical, including photocopy, recording, or any information storage and retrieval system, without permission in writing from the publisher. Cover design: Christopher Schneider. Printed in Germany.

To the women in my life: Amber Levanon Seligson, Maya, Dalia, and Tamar Levanon, and to the memory of Marta Berk

Acknowledgements This book would not have been possible without the invaluable feedback of a number of colleagues who heard early versions of various book chapters at the different conferences where I presented them. Speciﬁcally, I thank Ron Butters, Janet Cotterill, Malcolm Coulthard, Bethany Dumas, Diana Eades, Barbara Johnstone, Ruth Morris, Miriam Shlesinger, Roger Shuy, Larry Solan, Peter Tiersma, and Margaret van Naerssen, for the helpful comments that they made at these conference panels and in e-mail correspondence during the writing of these chapters. I owe a particular debt of gratitude to Barbara Johnstone for steering me intellectually during the years in which we were “next-door neighbor” colleagues in Pittsburgh, Pennsylvania – she at Carnegie Mellon University and I at the University of Pittsburgh. Her comments at Ph.D. dissertation defenses and in informal conversations helped me to formulate new paths of thinking and to shape my intellectual growth. I thank Equinox Publishers for giving me permission to incorporate a revised version of “Interpreting for the Police: Issues in Pre-trial Phases of the Judicial Process,” and portions of “The Impact of Court Interpreting on the Coerciveness of Leading Questions,” both of which had appeared in Forensic Linguistics: The International Journal of Speech, Language and the Law. I also thank Palgrave Macmillan for allowing me to publish revised versions of “The Miranda Warnings and Linguistic Coercion: The Role of Footing in the Interrogation of a Limited-English Speaking Murder Suspect,” which had appeared in Janet Cotterill’s edited volume, Language in the Legal Process (2002), and “The Elicitation of a Confession: Admitting to Murder but Resisting an Accusation of Attempted Rape,” which had formed part of Janet Cotterill’s volume, The Language of Sex Crimes (2007). Janet’s suggestions for revision on both of those book chapters were particularly helpful. My heartful thanks go to Mitchell A. Seligson and to our daughter, Amber Levanon Seligson, for their willingness to read through the entire book manuscript and to give me numerous insightful suggestions for revision. It is a proud moment, indeed, when a mother can acknowledge the value of a daughter’s corrective feedback. And while my mother, Marta Berk, passed away on August 1 of 2008, before the publication of this book, I thank her in memorium for her graciousness and patience with me whenever I would arrive at her door later than I had promised. Never one to complain, she always was happy to see me when I ﬁnally showed up. Finally, I wish to point out that in each of the detailed case studies that I analyze in this book I have deidentiﬁed the names of all persons, places and dates, in conformity with human subjects protection requirements.

Contents Acknowledgements

vii

Chapter 1 Introduction: language and institutional power 1. Coerced confessions and wrongful convictions 2. Explanations for wrongful convictions 3. Police-induced false confessions 4. Incipient bilingualism and coerced confessions: when the suspect has limited proﬁciency in the language of the law 5. Government response to the need for interpreting/ translating services in the administration of justice 6. Organization of the book

11 13

Chapter 2 Interpreting for the police: issues in pre-trial phases of the judicial process 1. The interpreting continuum 2. The problem of conﬂict of interest 3. Interpreters for the police: a review of appellate cases 3.1. Police ofﬁcers as interpreters and translators 3.2. The use of non-police personnel as ad hoc interpreters 3.2.1. Quality checking on ad hoc interpreters 4. Conclusions

15 16 18 23 24 31 34 36

Chapter 3 The Miranda warnings and linguistic coercion: the role of footing in the interrogation of a limited-English-speaking murder suspect 1. The Miranda Rights 2. Subversion of the Miranda rights of a limited-English speaker 3. The case: The People v. Alvarez 3.1. The linguistic achievement of coercion 3.1.1. Coercion by the police interpreter 3.1.2. Footing as co-interrogator 3.1.3. Failure to interpret utterances 4. Conclusions Appendix 1

38 39 46 46 48 50 51 60 62 65

1 3 4 8 10

x

Contents

Chapter 4 Coercion and its limits: admitting to murder but resisting an accusation of attempted rape 1. The linguistic construction of sexual violence through interrogation 2. Background of the case 3. The management of an accusation and resistance to it 3.1. Questioning strategies and forms of resistance 3.2. Resistance to invitations to narrate, preference for fragmented answers 4. The linguistic construction of violence 4.1. Constructing attempted rape; strategies of denial 4.1.1. Repetition as denial and resistance 5. Exposing one’s hand: a ﬁnal police tactic 6. Conclusions Chapter 5 Does every yeah mean ‘yes’ in a police interrogation? 1. Acquiescence: a cultural, linguistic, and psychological perspective 1.1. The psychological perspective on acquiescence, compliance, and suggestibility and their role in false confessions 2. The nature of the interrogations 2.1. Coerciveness and question type 2.2. Interrupting the narrative: the struggle for the ﬂoor 2.3. Monotonic intonation of questioning 2.4. Ambiguously worded, ‘semantically overloaded’ questions 2.5. Use of formal language 2.6. Admonitions to be truthful: expressions of doubt regarding the suspect’s honesty 2.7. The use of metacommentary 2.8. Recycling topics 2.9. Rephrasing the suspect’s answers 2.10. Repeated use of the word ‘fair’ 2.11. Putting words in the suspect’s mouth: co-constructing the narrative 3. The pattern of the suspect’s answers 4. Conclusion

71 72 74 76 79 80 84 86 91 95 97 101 102 108 110 111 113 118 119 122 123 127 128 129 133 134 135 141

Contents

Chapter 6 Pidginization and asymmetrical communicative accommodation in a child molestation case 1. When the police interpreter lacks proﬁciency in the detainee’s language 2. Linguistic analysis of the interrogation 2.1. Pidginization, communicative accommodation, negotiation for meaning, and code-switching: all in the mix 2.1.1. Negotiation for meaning and communicative accommodation 2.1.2. Code-switching, code mixing, and lexical insertion 3. The interrogation: a sociolinguistic interactional analysis 3.1. Pidginized English, pidginized Spanish 3.2. The functions of code-switching, code-mixing, and lexical insertion 4. A coercive interrogation Chapter 7 Confessing in the absence of recording: linguistic and extralinguistic evidence of coercion in a police interrogation 1. The absent tapes: the need for recording interrogations 2. Background of the case 3. Unreliability of the confession 3.1. Physical and psychological abuse: intimidation and excessive force 3.2. The sociolinguistic situation 3.3. Defective translation of the Miranda rights 3.4. The likelihood of comprehension difﬁculties 3.5. Linguistic analysis of the confession statements 3.5.1. The role of reported speech 3.5.2. Rivera’s statement: a vehicle for the deniability of police misconduct 4. Stance-taking in the examination and cross-examination of Detective Jimenez 5. Conclusion 5.1. Steps that could have been taken to increase the likelihood of a reliable confession Appendix 2

xi

142 144 146 147 148 150 151 153 155 158

171 172 175 177 178 179 180 183 184 186 188 190 198 199 201

xii

Contents

Chapter 8 Conclusions 1. The tip of the iceberg 2. Policy implications of this research

211 214 215

Notes References Cases cited Name index Subject index

218 225 248 250 253

Chapter 1 Introduction: language and institutional power Every day, in police stations across the United States, people confess to crimes that they have not committed. Confessing has serious repercussions for these detainees: many are convicted, imprisoned, and even executed, based on those confessions. Research has shown that confessions are the single most important piece of evidence that will sway jurors to convict defendants. With the advent of DNA evidence, however, there has been an increased awareness in recent years that many innocent defendants have confessed falsely and consequently have been wrongly convicted. Why do people confess to crimes that they have not committed? One key reason, research has increasingly shown, is police coercion. To make my case, I analyze linguistic coercion in interrogations among U.S. Latinos, with a special focus on the role that incipient bilingualism plays in this particular sociolinguistic context. The analytical framework that will be used to examine cases in which coerced confessions emerge is interactional sociolinguistics, with a speciﬁc focus on talk in institutional settings. Speciﬁcally, the book examines the interaction between police ofﬁcers and persons suspected of having committed felonies, in situations where the suspects have limited proﬁciency in the language of the institution. The crimes studied here are: murder, child molestation, attempted rape, and kidnapping. The larger sociolinguistic institutional context is the administration of justice system of the U.S.A. The local context comprises police stations in the cities in which these interrogations took place, and from an interactional perspective, the interrogation of suspects by the police. The book focuses on the interrogation of native Spanish-speakers having varying degrees of proﬁciency in English, by persons having varying levels of proﬁciency in Spanish. In essence, the book makes the case that institutional gatekeepers such as the police, by systematically failing to involve professional interpreters in the interrogation speech event, and by taking on an institutional role that should be designated to such nonpartisan professionals, create a speech situation that lends itself to coerced confessions. Out of this troubling stew emerge systematic violations of due process, on which the entire system of justice eventually rests. While others have looked at police interrogations, this book attempts to break new ground. Research on false confessions and the exoneration of persons convicted of felonies punishable by death thus far has left unexplored the factor of sociopragmatic failure related to intercultural communication problems. This

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Introduction: language and institutional power

book examines coercion from an interactional sociolinguistic point of view, taking into account the larger social context in which the local interaction is embedded, namely, highly asymmetrical power relations between interlocutors, and the simultaneous pressure on those in power to “rush to judgment” by resolving their cases rapidly. Placed in this research context, the analysis draws insights from critical interactional sociolinguistics. Following the lead of discourse analysts such as Fairclough (1995), Sarangi and Roberts (1999), Holmes and Stubbe (2003), and scholars who have studied discourse in sociolegal settings (Conley and O’Barr 1990, 1998; Cotterill 2002, 2003a; Drew and Heritage 1992; Ehrlich 2001; Matoesian 2001; Philips 1998), this book combines microlinguistic analysis with macrosocial understanding. The research presented here attempts to add to the growing body of work in critical discourse analysis, following in the footsteps of linguists such as Van Dijk (1987, 1993), Mey (1985), and Wodak (1989, 1995), all of whom share a perspective that focuses on “structural relationships of dominance, discrimination, power and control as manifested in language” (Wodak 1995: 204). At the same time, this research is consistent with the notions of ‘language ideology’ embedded in the work of linguistic anthropologists such as Woolard and Schieffelin (1994), Kroskrity, Schieffelin and Woolard (1992), Silverstein and Urban 1996, Baumann and Briggs (1990), Gal (1989), Heller (1994), Conley and O’Barr (1998), and Philipps (1998), all of whom see ideology as “socially situated and articulated in everyday practices” (Blommaert and Culcaen 1997). This book, which is qualitative in methodology and focuses on a series of case studies for its analysis, demonstrates that dominance, power and control can be achieved in interaction both by denying an interlocutor the ability to comprehend the speech of those who command the language of the institution in which the discourse is situated and, in addition, by denying him or her the ability to express him or herself fully in the interaction. In effect, not to provide communicative assistance to persons who are linguistically at a disadvantage is to put oneself in a position of dominance, power and control over them. Furthermore, if certain sorts of interlocutors (e.g., juveniles, the mentally disabled or cognitively impaired) have been shown to be particularly vulnerable to psychological pressure tactics when questioned by authorities such as the police, then an additional social group should be considered to be vulnerable, namely, persons whose proﬁciency in the language of the speech event and of the institution as a whole is limited. Since limited language proﬁciency is in large measure tied to immigrant status, in the context of U.S. administration of justice, I argue that Limited-English Proﬁcient (LEP) immigrants ﬁnd themselves at a distinct disadvantage in their encounters with U.S. judicial authorities. And in the speciﬁc situation of police interrogations, short of being provided qualiﬁed,

Coerced confessions and wrongful convictions

3

professional interpreters, the LEP suspect will ﬁnd him or herself in a position of far greater vulnerability than will a native English-speaking adult who is not cognitively impaired.

1. Coerced confessions and wrongful convictions With the advent of DNA evidence in the U.S. justice system, every passing day brings to light new revelations of people languishing in prison who have been wrongfully convicted of crimes that they did not commit. Legal experts such as Peter J. Neufeld and Barry C. Scheck of Yeshivah University’s Cardozo Law School, who are directors of the New York City-based “Innocence Project,” James S. Liebman, professor of law at Columbia University and head of a team investigating wrongful convictions in capital punishment cases, and Lawrence C. Marshall and Steven Drizin, professors of law and key ﬁgures in Northwestern University’s Center on Wrongful Convictions in Chicago, have spearheaded the movement to bring to light new evidence that would exonerate many of these innocent people. Following their pioneering lead, others in the ﬁeld of law have established forty-one innocence commissions in thirty-one states, as of 2005 (Gross et al. 2005: 528). A consequence of the work of these innocence commissions is the reversal of numerous capital punishment convictions. Liebman, writing in 2002, reports that thus far, “101 individuals sentenced to die during the current death-sentencing era have subsequently been acquitted of the capital offense and released” (Liebman 2002: 79). This empirical study of the judicial review outcomes of over 5,800 death verdicts coming out of thirty-four states that use the death penalty, including 1,004 U.S. counties that have the death sentence, ﬁnds that for the period 1973–1995, of the 4,500 verdicts that were reviewed on direct appeal, 41 percent had reversible ﬂaws, and of the verdicts that were not reversed at this stage of appeal, an additional 10 percent were reversed after being reviewed at the next highest level of appeal, the state courts. Among those death verdicts that were not overturned by the state courts 41 percent were overturned by federal courts (Liebman 2002: 80). Liebman (2002: 81) summarizes the ﬁndings of his research team with the following conclusion: “The upshot of this 23-year track record is that, for any given 100 fully reviewed verdicts, an average of 47 were reversed by the state courts, and 68 of the 100 were reversed by either the state or federal courts.” These are striking ﬁndings. Another study of wrongfully convicted prisoners on death row, Holmes (2002), ﬁnds that of 6,200 persons under capital sentences by state and federal courts during the period 1970 to 1992, “more than 40 percent [2,510] were

4

Introduction: language and institutional power

found to have been illegally convicted or sentenced in their ﬁrst trial” (Holmes 2002: 104), that is to say, whether they were guilty or innocent of the crime with which they were charged, some “grievous legal defect in the process” led to their conviction (Holmes 2002: 100). Of these 2,510 illegally convicted or sentenced persons, 688 (or 27%) were permitted a retrial, and of those whose retrial results were known at the time of Holmes’ study (a total of 243 persons), 58 (23.9%) were found legally innocent. Thus, a subset of illegal convictions comprises cases of wrongful convictions, that is, they involve persons who are actually innocent. And while these statistics reﬂect only cases of capital punishment, and overwhelmingly such cases deal with murder (98.3%), it can be argued that wrongful conviction is widespread in cases involving less serious offenses as well (Holmes 2002: 104). As a result of ﬁndings such as these, together with the fact that in one state, Illinois, with the re-institution of the death penalty in 1977, 12 men had been executed, yet during the same period 13 men sentenced to death had been exonerated, the governor of Illinois, George Ryan, in January 2000 declared a moratorium on executions, the ﬁrst such action in recent U.S. history (Marshall 2002: 83). With the moratorium, he appointed a commission to study capital punishment. After reading the recommendations of the commission, and suddenly aware of the defects in Illinois’ criminal justice system, the governor commuted the sentences of all of the 164 persons on death row in the state before leaving ofﬁce in 2003.

2. Explanations for wrongful convictions Why are persons wrongfully convicted? C. Ronald Huff, a professor of Criminology, Law and Society, summarizes the most common causes of wrongful convictions (Huff 2002: 93): . . . eyewitness error; overzealous law enforcement ofﬁcers and prosecutors who engage in misconduct, including withholding evidence; false/coerced confessions and suggestive interrogations [emphasis added]; perjury; misleading lineups; ineffective assistance of counsel; inappropriate use of informants or “snitches”; community pressure for a conviction; forensic science errors, incompetence, and fraud; and the “ratiﬁcation of error” (the tendency to “rubber stamp” decisions made at lower levels as cases move up through the system).

Huff (2002: 93) notes that usually more than one factor is at play in producing the error and that these factors interact with one another. Scheck, Neufeld and Dwyer (2000: Appendix 2), analyzing the factors that led to the wrongful convictions of sixty-two persons across the U.S., all of whom were exonerated by DNA evidence, ﬁnd that ﬁfteen of them (or 22 percent) had confessed to the crimes

Explanations for wrongful convictions

5

for which they were convicted. Other factors that played a role in these wrongful convictions, according to Scheck et al. (2000: Appendix 2) were, in order of frequency: mistaken identity, serology evidence, police misconduct, prosecutorial misconduct, defective or fraudulent science, microscopic hair comparison, bad lawyering, false witness testimony, the statements of informants/snitches, other forensic inclusions and the inclusion of DNA evidence. Drizin and Leo (2004) add to this list the factors of multiple confessions in a single case and police departments having a history of problematic interrogation tactics. The Chicago police department is one such department. The second largest police department in the country, it has been found by a team of University of Chicago legal scholars (Futterman, Mather, and Miles, “The Chicago Police Department’s Broken System”), to be the object of more complaints of brutality per ofﬁcer than the average for large departments in the country, and to be less likely to investigate abuse allegations seriously than do other police departments (1% rate of ﬁnding sufﬁcient evidence of abuse versus 8% nationally) (Saulny 2007: A23). In the period between 1999 and 2004, 1,774 brutality complaints per year were ﬁled by citizens against the Chicago police (Saulny 2007: A23). Complaints included the use of excessive force, conducting illegal searches, making false arrests, and sexual abuse. The accusations of police abuse and department neglect of such accusations were found to be most frequent in lowincome minority neighborhoods. Since the phenomenon of false confessions is related in part to the behavior of the police during their interrogation of detainees, researchers in this ﬁeld (Leo 2002: 37, 2008) call this particular phenomenon “police-induced false confession”. Leo (1992), comparing interrogation tactics used by the police prior to 1940 with those that are employed today, demonstrates that the regular use of physical coercion and psychological duress (“third-degree tactics”) have given way to new “more subtle and sophisticated psychological interrogation methods (Leo 2002: 37). As Leo (2002, 2008), Ainsworth (1995), Johnson (1997), and Kassin and Neumann (1997) point out, most people are not aware that policeinduced false confessions even exist. Leo (2002: 37) notes that, like many criminal justice ofﬁcials (especially police and prosecutors), most people believe in what I call the myth of psychological interrogation: that an innocent person will not falsely confess to police unless he or she is physically tortured or mentally ill (Ainsworth 1995; Johnson 1997; White 1997). This myth is, of course, completely false. The social science literature has amply documented that contemporary methods of psychological interrogation can, and sometimes do, cause cognitively and intellectually normal individuals to give false confessions to serious crimes of which they are entirely innocent (Gudjonsson 1992; Kassin 1997; Leo and Ofshe 1998).

6

Introduction: language and institutional power

One high-proﬁle case of the reversal of wrongful convictions related to false confessions is that of the “Central Park jogger”. In the spring of 1989, a 28-year old investment broker who was jogging at night in NewYork City’s Central Park, was found brutally beaten, raped, and left for dead. The severe injuries to her head left her in a coma, from which she awoke with no memory of what had happened to her. Five high-school aged boys were arrested and convicted of gang raping and viciously assaulting her. They were convicted and spent the following twelve years in prison. Their confessions to the police were instrumental in their being convicted. In 2002, a convicted serial rapist and murderer serving time in prison for his attacks on several women, admitted to having raped and beaten the Central Park jogger, and DNA evidence corroborated the truth of his claim. Partly as a result of his admission, the ﬁve young men, by then in their twenties, were freed. This came after the Manhattan district attorney’s ofﬁce ﬁled a motion with a judge to have their convictions vacated, a motion that was granted on December 19, 2002. The other reason why the district attorney decided to ask for a reversal of the convictions is that the confessions of the ﬁve adolescents were now seen to have been unreliable (e.g., the details they described “were often wildly inaccurate and inconsistent about ‘who initiated the attack, who knocked the woman down, who undressed her, who struck her, who held her, who raped her, what weapons were used in the course of the assault”’) (Saulny 2002). In fact, soon after the police interrogations, the boys recanted their confessions, and their defense attorneys argued that their clients had been coerced or tricked into confessing. Throughout the years that they spent in prison, they persisted in declaring themselves innocent of the crimes. This persistence was interpreted by a parole board as a lack of remorse for their crimes, and resulted in its refusal to reduce their prison terms (Dwyer and Saulny 2002: A24). Experts on police interrogation explained why these particular boys would have confessed to such a horriﬁc crime that they had not committed. Drizin considers interrogation to be inherently “antagonistic, accusatory and focused on leading questions rather than on open lines of inquiry” (Saulny 2002). Furthermore, police interrogators sometimes lie: “they claim to have evidence that they don’t really have or confessions from accomplices. The more compliant, na¨ıve or cowed by authority a suspect is, the more likely that person is to confess – honestly or falsely” (Saulny 2002). Drizin points out that the young or mentally ill when undergoing interrogation are especially vulnerable to pressure tactics, and that one of the ﬁve youths in the Central Park jogger case had a second-grade reading level even though he was sixteen, and that another one, a ninth grader, had an IQ of 87. Finally, there is the factor of length of the interrogation: the boys were interrogated from between 14 and 30 hours. According to psychologists

Explanations for wrongful convictions

7

Wrightsman and Kassin (1993), when people are interrogated over prolonged periods of time, they become tired, and also come to the conclusion that denying a role in the crime will not get them far, and so they say what they believe the police want to hear – in short, they confess falsely. The adolescent defendants in the Central Park jogger case represent one among 125 ‘proven false confessions’, that is, confessions in which “the innocence of the defendant who confessed is or should be beyond dispute” (Drizin and Leo 2004: 9). These proven false confessions occurred between 1971 and 2002, although 32% of them occurred within the most recent ﬁve-year period. Drizin and Leo (2004: 10) account for this striking ﬁnding with the explanation that either police-induced false confessions are rising or they are coming to light more frequently. Their analysis of the data demonstrates clearly that “a suspect’s age is strongly correlated with the likelihood of eliciting a false confession” (Drizin and Leo 2004: 14). The vast majority are young adults in their twenties or thirties, and more than half of the false confessors in their sample are under the age of 25. A third of the sample were minors (under the age of 18). Nearly all of the false confessors (92%) were men. The nature of the crime that a suspect is accused of plays an important role in false confessions: 83% of the proven false confession cases dealt with murder, and the second most commonly occurring crime associated with false confession is rape (Drizin and Leo 2004). The scholars account for these ﬁndings with the explanation of Samuel Gross (1996), namely that, “police-induced false confessions – as well as wrongful convictions based on police-induced confession – are more likely to occur in the most serious cases because there is more pressure on police to solve such cases” (Drizin and Leo 2004: 16). Lengthy interrogations are also found to be related to false confessions, a ﬁnding consistent with Wrightsman and Kassin’s (1993) observation. Drizin and Leo discover the striking ﬁnding that whereas routine interrogations in the U.S. last less than two hours, among interrogations that resulted in proven false confessions 80% lasted more than six hours, about 60% lasted more than twelve hours, and 37% lasted longer than a day. These are important ﬁndings, because they conﬁrm the impressions of observers who had noticed that innocent suspects undergoing lengthy interrogations had their resistance worn down, and that interrogation length was correlated with the use of psychologically coercive interrogation techniques. Today, DNA evidence and the use of audio or video recording of interrogations can protect a false confessor from being convicted of a crime s/he did not commit. Nevertheless, of the 125 factually innocent false confessors who constituted Drizin and Leo’s sample, 34% were convicted. Of those for whom sentencing information was obtainable, it was found that 91% had received

8

Introduction: language and institutional power

sentences of longer than ten years (Drizin and Leo 2004: 22). Most of them eventually were ofﬁcially exonerated and/or released from prison. However, the fact that such a substantial percentage of the false confessors were convicted and spent years in prison, which is consistent with the ﬁndings of experimental studies (Kassin and Neumann), implies that “confessions may be ‘uniquely potent’ relative to other forms of (falsely) incriminating evidence in their ability to cause wrongful convictions” (Drizin and Leo 2004: 30). Some false confessors, fearing a negative outcome of a jury trial, opt for a plea bargain instead. In the case of these 125 defendants, of those who risked a trial (and 19% did so), 78% were convicted, “despite the fact that neither the speciﬁcs of their confessions nor any independent evidence supported the prosecutor’s assertion of their guilt while in most of these cases considerable evidence contradicted it” (Drizin and Leo 2004: 31). These ﬁndings are consistent with parallel ﬁndings reported by Leo and Ofshe (1997), who analyze the conviction rates of sixty false confessors. Yet another study of exonerated defendants (Moran 2007), all of them on death row, ﬁnds that in 65% of 124 cases found between 1973 and 2007, malfeasance was a factor in the decision to exonerate. The average number of years that had elapsed from the time of sentencing to the time of exoneration, in other words the period of incarceration, was 9.2 years. In yet another, more recent study of exonerations, the ﬁrst systematic analysis of DNA-based exonerations, Garrett (2008), ﬁnds that of 200 defendants proven innocent, 16% were false confessors, and two-thirds of them were juveniles, mentally retarded, or both.

3. Police-induced false confessions The behavior of police detectives at custodial interrogations has been shown to have its own impact on inducing innocent suspects to admit to crimes that they have not committed. The impact is what have been called ‘police-induced false confessions.’ Such confessions, in turn, are considered to fall into ﬁve distinct types: voluntary, stress-compliant, coerced compliant, coerced-persuaded, and non-coerced persuaded (Ofshe and Leo 1997). This categorization is an extension of a tri-partite typology previously developed by Kassin and Wrightsman (1985). According to Leo (2002: 42), who delineates the typology developed in Ofshe and Leo (1997), ‘voluntary false confessions’ come about either without police interrogation or during interrogation but with minimal pressure from the police. Such confessions are made for a number of different reasons, among them being a desire for notoriety, attention or fame, the desire to help or protect

Police-induced false confessions

9

the true perpetrator of the crime, and the inability to distinguish between reality and fantasy (Kassin 1997; see also Gudjonsson 1993). ‘Stress–compliant false confessions’ (known also as ‘coerced-compliant false confessions’ [Memon et al. 1998: 139]) in contrast, result from the pressures of custodial interrogation, whereby the suspect feels overwhelmed by “the interrogation environment, the interrogator’s interpersonal style, and the interrogator’s techniques and strategies” (Leo 2002: 42; Ofshe and Leo 1997). Ofshe and Leo characterize this type of environment as one that is a cramped and unfamiliar setting, isolation from social contact and social support, and inability to have any control over the pace, length or intensity of the questioning (Leo 2002: 42). Leo’s (2002: 42) characterization of the interrogation style that is typical of stress-compliant false confessions should be reiterated here, since it will be shown that many of its features were present in the interrogations that I analyze in this book: these interpersonal styles are a source of distress “as they exert pressure on the suspect to confess, they may, by turns, be confrontational, insistent, demanding, overbearing, deceptive, hostile, and manipulative.” ‘Coerced compliant false confessions,’ in contrast, are ones in which “a suspect confesses in order to escape or avoid an aversive interrogation or to gain a promised reward” (Kassin 1997: 225; also Gudjonsson 1993: 227). Such confessions are the result of coercive interrogation techniques, such as threats and promises, and sometimes end in the suspect’s terminating the interrogation (Ofshe and Leo 1997; Leo 2002: 43). ‘Coerced-persuaded false confessions,’ the fourth type (known also as ‘coerced-internalized false confessions’ in Gudjonsson 1993: 228), are characterized by coercive interrogation techniques that result in the suspect’s temporarily doubting the accuracy of his memory, leading him to “believe that he probably did, or logically must have, committed the crime under question; and confess to it, despite having no memory or knowledge of participating in or committing the offense” (Leo 2002: 43; Ofshe and Leo 1997). Interestingly, coerced-persuaded false confessions are characterized as being jointly constructed between the interrogator and the suspect. Finally, ‘noncoerced-persuaded false confessions’ are similar to coerced-persuaded ones in terms of structure and logic; however, rather than being the result of “coercive interrogation techniques,” they are the product of “tactics and techniques of modern psychologically sophisticated accusatorial interrogation” (Leo 2002: 43; Ofshe and Leo 1997). The categorization scheme of Ofshe and Leo (1997) omits one additional confession type and that is the ‘fabricated confession’. According to Gudjonsson (1993: 220), such confessions are alleged by suspects or defendants not to have been made by them at all, but rather fabricated by the police. The police, in turn, allege in such cases that “the defendant made the confession but refused to sign

10

Introduction: language and institutional power

it” (Graef 1990, as cited in Gudjonsson 1993: 220). According to Gudjonsson, sometimes suspects do in fact sign confessions that have been fabricated by the police. While the deﬁnitions presented above serve a useful purpose in distinguishing between the various false confession types, they are not very informative in illuminating the speciﬁc interrogation techniques that result in such unfortunate outcomes. When techniques are mentioned at all, they are couched in psychological terms rather than in sociolinguistic interactional terms. Thus, ‘confrontational,’ ‘overbearing,’ ‘insistent,’ and ‘demanding’ to be properly understood need to be characterized in a linguistic manner.

4. Incipient bilingualism and coerced confessions: when the suspect has limited proﬁciency in the language of the law The preceding discussion has reviewed the research ﬁndings on the various factors that promote the likelihood of false confessions. However, those factors do not include any mention of one important element: language proﬁciency. The thesis of this book is that the issue of proﬁciency in the language of the interrogation is one that has been overlooked in the research on false confessions. In a country characterized by a constant, steady inﬂux of immigrants, many of them having no documentation that would allow them to live or work legally, the justice system faces the challenge of providing language services to this ever-growing LEP population, and the ﬁrst contact that most LEP persons have with the justice system is with the police. In the post-9/11 era, at both the federal and state levels of jurisdiction, there is a mood of greater vigilance over undocumented persons entering the country, stemming from the narrower issue of national security and fears of terrorism.1 These fears have resulted in a tougher treatment of persons who are caught living in the U.S.A. illegally, including keeping them under detention in jail-like holding cells while they await hearings in court. With respect to immigrants who are convicted of crimes, the Immigration and Naturalization laws themselves are partly responsible for lengthy sentences (Rodriguez 1999). According to Rodriguez, when defendants are in the country illegally, they face two choices: either be deported or stay in prison while they appeal their case, no matter how long that may take. The increased mood of vigilance over undocumented persons has led to a new phenomenon: cooperative agreements between federal immigration authorities and county or local law enforcement agencies, giving law enforcement ofﬁcials the right to exercise immigration enforcement powers. As of 2008 there were ﬁfty-seven such agreements, known as 287G. One of them enabled a Nashville,

Government response

11

Tennessee police ofﬁcer to pull over a Mexican woman in her ninth month of pregnancy for a routine trafﬁc violation normally punishable by a citation, have her locked up in a medium security section of the county jail, and a few days later have her guarded by a sheriff’s ofﬁcer while she gave birth in a hospital, cuffed to the bed by one foot. After two days of hospitalization, during which time the woman nursed her infant, the woman was sent back to jail, where authorities took away from her the breast pump that had been given to her by hospital staff. After two days of separation from her baby, she developed a breast infection and the baby developed jaundice. All of this happened because she was an undocumented person and because she had been deported from the U.S.A. previously, twelve years earlier (Preston 2008: A1 and A15).

5. Government response to the need for interpreting/ translating services in the administration of justice Language proﬁciency in the context of police interrogations becomes an issue in two ways: the suspect may not have sufﬁcient proﬁciency in English to communicate with the police ofﬁcer, and the ofﬁcer may not be proﬁcient in the language of the suspect. This problem has come to the attention of one highlevel government agency that oversees the administration of justice system of the U.S.A.: the Department of Justice (DOJ). The response of the DOJ has been the implementation of an executive order (#13166) issued in 2000 by President William Clinton, called “Improving Access to Services by Persons with Limited English Proﬁciency”. At the moment when this order was decreed, the Assistant Attorney General for Civil Rights issued a Policy Guidance Document, entitled “Enforcement of Title VI of the Civil Rights Act of 1964 – National Origin Discrimination Against Persons with Limited English Proﬁciency”, which has come to be known as the “DOJ LEP Guidance.” Executive order 13166 mandates that federal agencies must “assess and address the needs of otherwise eligible persons seeking access to federally conducted programs and activities who, due to Limited English proﬁciency, cannot fully and equally participate in or beneﬁt from those programs and activities” (U.S. Department of Justice 2001: 3). The Guidance advises federal departments and agencies to “take reasonable steps to ensure ‘meaningful’ access [to LEP individuals] to the information and services they provide” (U.S. Department of Justice 2001: 3). On beginning to implement the Guidance, the Civil Rights Commission sponsored a Stakeholder Conference in 2000, which was attended by representatives of about sixty of the ninety-ﬁve federal departments or agencies and advocacy groups that represent LEP populations, to learn of their views on

12

Introduction: language and institutional power

how to implement Executive Order 13166 in three areas: oral interpretations, written translations, and outreach. Among the attendees were representatives of the Federal Bureau of Investigations (FBI), the U.S. Marshalls Service, and the Immigration and Naturalization Service (INS). Out of this conference emerged a ‘language assistance plan,’ which concluded that “enhanced language assistance measures are warranted” for the following DOJ components: the Civil Rights Division, Immigration and Naturalization Service, Executive Ofﬁce of Immigration Review, U.S. Marshalls Service, Bureau of Prisons, Community Relations Service, Federal Bureau of Investigation, Drug Enforcement Administration, and Executive Ofﬁce for United States Attorneys. ‘Enhanced language assistance,’ in turn, was operationalized as recommendations to these agencies that they advise LEP persons that they have the option of obtaining the services of an interpreter on their own, at their own expense, or that they can utilize the services of a competent interpreter provided by the relevant agency. Each agency was told that it “should take reasonable steps appropriate to the circumstances to ensure that it provides interpretative services only through individuals who are competent to provide interpretative services at a level of ﬂuency, comprehension, and conﬁdentiality appropriate to the speciﬁc nature, type and purpose of information at issue.” In addition, the agencies were advised to establish a series of ‘uniform language assistance initiatives’, both oral and written, such as having in place bilingual or multilingual staff and appropriate translations of commonly requested information, including “waivers and other law enforcement or detention-related documents affecting important rights and privileges” (U.S. Department of Justice 2001). The DOJ LEP Guidance reﬂects a response of the federal government to the language needs of a growing immigrant population. How this was to be effectuated in face-to-face interaction with law enforcement ofﬁcers was not speciﬁed. One organized attempt at the local level to put into practice the federal mandate is the Summit/Lorraine, Ohio Project, which represents a joint effort of a sheriff’s ofﬁce and a police department, with advice from a national committee comprising professional court interpreters, interpreter trainers, and linguistics scholars. The task force conducted a survey of forty-eight law enforcement agencies in the state of Ohio to ﬁnd out what sorts of practices were in effect in their dealings with the LEP population within their jurisdiction. The survey found that 67% of these agencies have no standard procedure for the use of interpreters for LEP persons, but that those that do generally rely on family and friends of LEP persons or bilingual police ofﬁcers to interpret in a variety of situations, including domestic violence. Those agencies that do not have standard procedures make use of police ofﬁcers, secretaries, janitors, relatives of the victim, jail inmates and “just about anyone on scene” to serve as interpreters

Organization of the book

13

for police questioning, roadside stops, domestic violence, and jail bookings (Summit/Lorraine Project 2004: 32). The task force elaborated a set of prohibitions on the use of non-professional interpreters by law enforcement agencies. Speciﬁcally, the use of children, family members, friends, bilingual ofﬁcers or employees regardless of level of bilingual competency for police interrogations, or bilingual inmates to interpret “should be expressly prohibited except where there is imminent danger of serious physical harm or death to any person” (Summit/Lorraine Project 2004: 32, emphasis added). Professional interpreters always should be utilized by law enforcement personnel, the task force recommended. This recommendation is echoed by the National Association of Judiciary Interpreters and Translators (NAJIT 2006: 2), which considers the role of police ofﬁcers as either interpreters or bilingual interrogators to be a highly restricted one: “If the ofﬁcer’s foreign language skills were previously tested and documented, bilingual ofﬁcers can conduct police business in a foreign language in emergency situations where no exchange of sensitive information is requested” (emphasis added). NAJIT warns that because the use of bilingual police ofﬁcers has resulted in an increasing number of “poorly handled interactions,” which have proved to be prejudicial to defendants in court, the practice is ill-advised and, therefore, qualiﬁed interpreters should be the rule instead. The set of ‘model practices’ outlined in the task force recommendations represents an ideal to be striven for. In reality, across the U.S.A. law enforcement agencies make use of the sorts of ad hoc interpreters reported in the task force’s survey, as will be demonstrated in chapter 2. Chapter 2 reviews appellate cases covering the period 1965 to 1999, involving issues related to interpreting in police work. The ﬁndings are consistent with the Ohio survey results, revealing the judicial thinking that underlies the general tendency of both trial and appellate courts to dismiss the arguments of defendants that they have not been afforded equal justice for lack of qualiﬁed interpreters in the pre-trial phases of the judicial process.

6. Organization of the book Chapters 3 through 8 of this book present case studies involving Latino detainees who underwent custodial interrogations by the police without the presence of a non-partisan court interpreter. Chapter 3 presents a case in which an appellate court reversed a murder conviction on the basis of improper conduct by a police detective and his partner, who had been designated interpreter for the detective and the suspect. Chapter 4, which is based on the same case, shows that a young

14

Introduction: language and institutional power

man with very limited proﬁciency in English can resist police attempts to elicit a confession to attempted rape. Whereas the detective/interpreter in chapters 3 and 4 can be seen to be limited in his ability to speak Spanish, the interrogators in chapters 5 and 7 are ﬂuent Spanish/English bilingual Latinos. Although they share the detainees’ mother tongue, in both cases their ethnicity does not match that of their detainee interlocutors. In the case analyzed in chapter 5, the interactional behavior of the police detective is shown to be coercive and succeeds in producing a confession from the suspect. In the other case, while there is no recording of the interrogation speech event, there is linguistic and extralinguistic evidence indicating that the detainee was treated brutally. In fact, his case is so convincing that it has been taken up by a team of innocence project lawyers. Chapter 6 analyzes the interrogation of a highly limited English-speaking Latino by an equally limited speaker of Spanish. The result is a sociopragmatic breakdown in communication (Thomas 1983). The detainee decided to plead guilty of the crime of which he was accused – child molestation – rather than to risk being convicted by a jury and possibly spending his life in prison. Nevertheless, he was released on probation after a brief incarceration, the evidence against him being weak enough to persuade the judicial authorities of the defendant’s credibility. In sum, this book seeks to demonstrate that the role of language in contexts of bilingual police interrogations has been overlooked as a signiﬁcant factor in prompting confessions. If some of these confessions are false, it is because police interpreters are unable to remain in interpreter footing, and may not see themselves as anything but police ofﬁcers. This book does not, of course, seek to determine the guilt or innocence of the defendants whose cases are analyzed. Rather, the book seeks to determine if the accused received due process of law.

Chapter 2 Interpreting for the police: issues in pre-trial phases of the judicial process The role of interpreters in legal settings has become relatively formalized for proceedings that take place at the tail end of the judicial process, that is, in speech events that are bound to the courtroom. At the front end of judicial process, however, where the crime scene and police station hold center stage, no such guarantee exists for the person in need of interpreting services. This chapter examines the problematic nature of interpreting in the initial phases of judicial process. The chapter addresses several issues of interest to forensic linguistics. One of these is the absence of clear-cut demarcations between certain sorts of legal actors and others (e.g., court interpreters, community interpreters, and police interpreters). Other issues include the legitimacy with which such actors perform their function (i.e., the authorization backing them to carry out their designated roles), and the shifting of roles between one sort of ofﬁcial function and another (e.g., between interrogating ofﬁcer and interpreter). The evidence presented here seeks to show that categories such as ‘court interpreter’ and ‘legal interpreter’ are cover-terms that encompass the work of a broad range of actors routinely found on the forensic scene. I will try to demonstrate that in the legal speech context of the police interview and/or interrogation (held either at the crime scene or at the police station)2 , persons alternately known as ‘interpreters’ and, sometimes mistakenly, as ‘translators’3 come in various forms. Sometimes they are trained for their work. However, just as often not, they move in and out of their designated role into other roles, not ofﬁcially called for. In addition, by virtue of their relationship to either their employer or to the party for whom they are interpreting, they sometimes violate some of the basic rules of the interpreting profession. Evidence for the problematic nature of interpreting and translating associated with police work will be drawn from a review of appellate cases, in which the issue of interpreting was either a basis for appeal or taken note of in some way by the courts. Whereas the setting in which police interpreting is carried out is typically an out-of-court legal environment, the product of such interpreting is a written version of what an examinee has reported to an ofﬁcially designated interviewer. Thus, the product of this type of speech event is often a written record, in the form of a verbatim-like transcript of the sort produced by court reporters. In addition, police interrogations of crime suspects are frequently audio

16

Interpreting for the police: issues in pre-trial phases of the judicial process

or videotaped, which serves the dual purpose of providing police transcribers with the basis for their transcriptions and leaving for attorneys a visual and/or oral record of what was said at a given interrogation for future reference in case the suspect is tried for the crime. The present analysis will show that the activity of interpreters and translators in police interviews, interrogations and related law enforcement investigative work has frequently been viewed as problematic by defendants in criminal cases, evidence of this being the numerous instances of appeals of convictions on precisely this basis. The bases for such appeals have to do with the qualiﬁcations of the interpreters or translators who served the police. The most frequent criticism leveled at interpreters/translators at work in police questioning is that they have failed to administer to detainees the Miranda warnings, or cautions, as will be shown below. Secondly, the interpretations and translations of police ofﬁcers are often questioned when these ofﬁcers have played an active role in arresting the suspect (e.g., in cases where the translator of covertly taped telephone conversations later used as evidence in court was the undercover police ofﬁcer, or in some instances, police informant, who is alleged to have helped entrap the defendant). Thirdly, the interpretations/translations of police ofﬁcers are often objected to by defense attorneys on the grounds that they constitute hearsay. Finally, a common reason for appealing convictions on the basis of poor interpreting is the use of family members or friends of the accused at police interrogations. Such interpreters, too, have been faulted by defense attorneys for less-than-objective interpreting. A review of speciﬁc cases, which follows, will shed light on the sorts of arguments that lawyers have made in appealing convictions.

1. The interpreting continuum Whether it is inside the police station or out in the streets, from the observer’s standpoint there appears to be a constant element of unpredictability as to what sort of interpreter will be employed by the police at any given moment. In the course of police investigations of crimes, as the appellate cases reveal, the role of the interpreter is played by police ofﬁcers (both undercover and overtly distinguishable), police informants, employees of the police station other than ofﬁcers, relatives of detainees or suspects, co-conspirators of suspects, children of crime victims, respected members of the community, fellow inmates of prisoners, and even detainees themselves. This leads me to ask the fundamental question, “Are there any limits on who can be called on to serve as an interpreter in a legal setting?” The answer lies in the distinctions among ‘court interpreting’, ‘legal interpreting’, and ‘com-

The interpreting continuum

17

munity interpreting’. As Benmaman (1997), P¨ochhacker (1997) and Roberts (1997) point out, the distinctions among these three concepts are generally fuzzy. Roberts (1997: 8), in her attempt to clarify the “nebulous concept” of community interpreting, considers community interpreting to subsume within it public service interpreting, medical interpreting and legal interpreting, but points out that the term ‘community interpreting’ is often used synonymously with all three, as well as with the terms ‘cultural interpreting’, ‘dialogue interpreting’, ‘ad hoc interpreting’, and ‘liaison interpreting’. What they all have in common, she says, is “the fact that they are all used for interpreting in a setting other than a conference” (Roberts 1997: 8). For her, community interpreting is the sort of ad hoc interpreting deﬁned by Collard-Abbas (1989: 81, as cited in Roberts 1997: 8) as, “the type of interpreting done to assist those immigrants who are not native speakers of the language to gain full and equal access to statutory services (legal, health, education, local government, social services).” Roberts (1997: 15), citing the work of Giovanni (1992), notes that the community interpreter usually tries to establish a positive connection with the client, taking on both an “assistance” approach as well as an “advocacy” approach. Furthermore, the community interpreter typically is a volunteer (Roberts 1997: 18). All of these observations have a direct bearing on the type of interpreting that frequently goes on in police interviews. The term ‘legal interpreting’ has been used interchangeably with ‘court interpreting’ and ‘judiciary interpreting’, Benmaman (1997: 180) notes. Colin and Morris (1996:xii), for example, use a single term, ‘court interpreter’, to include interpreters who perform interpreting in the courts as well as those who work in other sorts of legal settings. Benmaman chooses to distinguish between these terms, explaining that court interpreting (synonymous with ‘judiciary interpreting’) “is but one form of legal interpreting which shares many common characteristics with other types of legal interpreting” (Benmaman 1997: 181). Benmaman (1997: 181) deﬁnes legal interpreting and court interpreting in the following way: Legal interpreting refers to all situations in the legal domain in which interpreter services are performed. These situations include: interviews in law enforcement ofﬁces at the local, state and federal levels; attorney-client interviews, which may occur in the attorney’s ofﬁce, in a public service agency, or at a jail; depositions; administrative hearings in state and federal agencies dealing with such issues as social security, worker’s compensation, unemployment and disability, and immigration and naturalization; landlord/tenant disputes; family court matters; grand jury hearings; interviews with probation and other court-related agencies; and all court appearances in the various stages of civil and criminal litigation. Court interpreting refers normally to simultaneous and consecutive interpretation, and sight

18

Interpreting for the police: issues in pre-trial phases of the judicial process and written translation provided for court ofﬁcials and minimal-English speaking litigants during evidentiary and non-evidentiary proceedings. This term includes interpreting during interviews in case-related matters outside the courtroom.

Benmaman goes into detail delineating the differences between legal interpreting and court interpreting, noting, among other things, that the primary focus of activity of court interpreters is the courtroom, whether they are staff employees of a court system or are employed by different courts on a contractual basis. However, and this is of greatest relevance to the present analysis, despite the differences, says Benmaman,“. . . the code of professional responsibility of the interpreter in any legal setting is the same,” and “whatever the setting, and most unequivocally in any legal setting, the interpreter must maintain standards of professional performance to allow for the exchange of information without misrepresentation, or interjection of personal bias” (Benmaman 1997: 184). The present study will show that in legal settings other than the courtroom itself, a continuum of interpreter types is at work, from non-professional community interpreters (such as friends and family members of the person needing interpreting services), to volunteer interpreters who have had some professional training, to judicial staff with little or no training in interpreting but who are called in to interpret on a regular basis because they are bilingual, to staff court interpreters who either may or may not hold state or federal certiﬁcation. Appellate cases do not always reveal clearly what the qualiﬁcations were of the interpreter present at a police interview or interrogation, or of the translator responsible for converting non-English tape-recorded speech (e.g., covertly taped telephone conversations, non-English dialogue between bilingual police ofﬁcer and suspect) into English-language transcripts. Nevertheless, of importance to those interested in forensic linguistics is the fact that the product of such interpreter/translator interventions, namely police transcripts, are routinely submitted at trial for evidentiary purposes. One therefore ought to question the validity of some of those transcripts, given their potential importance to both defense counsel and prosecution alike.

2. The problem of conﬂict of interest A key issue in what should be considered necessary qualiﬁcations for serving as a legal interpreter is the question of impartiality, together with the closely related issue of conﬂict of interest. To my knowledge, in every code of ethics written for court interpreters and legal interpreters there are explicit warnings regarding the need for interpreter impartiality and the consequent requirement that interpreters must excuse themselves from a given assignment whenever a

The problem of conﬂict of interest

19

conﬂict of interest on their part either exists or merely has the appearance of existing. Several illustrations of interpreter guidelines support this contention. For example, two handbooks currently in use in the United Kingdom, Non-English Speakers and the English Legal System: A Handbook to Good Practice for those Working in the Legal System across Language and Culture (Corsellis 1995) and the 1996 edition of the syllabus for the Diploma in Public Service Interpreting (Institute of Linguistics Educational Trust) both refer to the need for impartiality and the requirement that the interpreter “disclose immediately if the interviewee or immediate family is known or related” (Institute of Linguistics Educational Trust 1996: 23). The latter guide speciﬁes (Institute of Linguistics 1996: 24) that “the interpreter must be reasonably satisﬁed that . . . s/he is, and is seen to be, in a position of neutrality. Interpreters should not accept assignments involving relatives or people with whom they are closely involved at work or at home or in situations where the interpreter’s impartiality might be challenged without prior consent of both the English and non-English speaking clients.” With respect to interpreting for the police, in particular, another set of guidelines used in England, the Metropolitan Police Handbook (Colin and Morris 1996: 29) warns interpreters to avoid, “becoming personally involved in an investigation; assisting prisoners, witnesses or victims; having contact with anyone involved in a case (this includes families, witnesses, solicitors, etc., as well as the person you are actually interpreting for) other than in an ofﬁcial context . . . ” Colin and Morris (1996: 46), referring to the use of police ofﬁcers as interpreters for arrested persons in England and Wales, say that, “A police ofﬁcer is not necessarily prohibited from interpreting at an interview of a detained persons, although the practice is undesirable for reasons of impartiality. However, when an interpreter is needed in order for the suspect to obtain legal advice, a police ofﬁcer is not allowed to act as interpreter.” Mildren (1999: 137), writing about the situation ofAustralianAboriginal people in the criminal justice system, faults the Australian police for utilizing friends of prisoners as their legal interpreters. Concurring with Cooke (1998), Mildren (1999: 137) states that, “. . . the role of the prisoner’s friend is in conﬂict with that of the interpreter. The latter must be impartial, but the former is required to be partisan. Prisoner’s friends are rarely competent interpreters; their main function is to advise the suspect, and to assist him during the interviewing process to choose freely whether to speak or to remain silent.” In the U.S.A., wherever states or state-related institutions (e.g., the National Center for State Courts) have taken measures to guarantee quality interpreting in the judicial system, they have included the requirement of impartiality on the part of court interpreters. In a set of model guidelines for state courts related to court

20

Interpreting for the police: issues in pre-trial phases of the judicial process

interpreting (Hewitt 1995: 202), the National Center for State Courts includes “impartiality and avoidance of conﬂict of interest”, which is deﬁned as follows: “Interpreters shall be impartial and unbiased and shall refrain from conduct that may give an appearance of bias. Interpreters shall disclose any real or perceived conﬂict of interest.” A commentary on this canon is provided (Hewitt 1995: 202–203) by the book of guidelines: “The interpreter should avoid any conduct or behavior that presents the appearance of favoritism toward any of the parties. Interpreters should maintain professional relationships with their clients, and should not take an active part in any of the proceedings. The interpreter should discourage a non-English speaking party’s personal dependence.” Then, specifying the “circumstances that are presumed to create actual or apparent conﬂicts of interest for interpreters where interpreters should not serve,” the guide includes cases in which “the interpreter is a friend, associate, or relative of a party or counsel for a party involved in the proceedings” (Hewitt 1995: 203). Consistent with these guidelines are those listed in the Standards of Professional Conduct and Responsibilities for Members of the Judiciary Interpreters Association of Texas, which speciﬁes that a conﬂict of interest on the interpreter’s part exists when “the interpreter is acquainted with any party to the action (excluding judges and lawyers)” (Berk-Seligson 2002: 230). The code of ethics speciﬁes, in forceful language, that interpreters are prohibited from giving advice of any kind to the non-English speaking person, “even when requested to do so,” and advises interpreters to refer the client to his/her counsel for advice (Berk-Seligson 2002: 230–231). Similarly, a code of ethics proposed by the New Jersey Supreme Court Task Force on Interpreter and Translation Services includes wording regarding the need for court interpreters and legal translators to maintain impartiality “in all matters and toward all parties and should avoid any appearance of bias,” which means that “Court interpreters and legal translators should not render services in any matter in which they are associates, friends, or relatives of a party or of counsel for a party” (Berk-Seligson 2002: 235). Federal guidelines on ethical conduct for court interpreters, embodied in the “Code of Professional Responsibility of the Ofﬁcial Interpreters of the United States Courts,” reiterate the canons agreed to by state associations, namely that they must interpret “accurately and faithfully without indicating any personal bias, avoiding even the appearance of partiality,” and the mechanism for maintaining impartiality is “avoiding undue contact with witnesses, attorneys, and defendants and their families, and any contact with jurors” (Gonz´alez et al. 1991: 585). Interestingly, no mention is made of interpreters needing to excuse themselves from a case if they are friends or family of the defendant or plaintiff. The wording of the federal canons is vaguer than that found in state-related organizations.

The problem of conﬂict of interest

21

Noticeably absent from all of these guidelines is any mention of the possibility of bias on the part of police ofﬁcers, or associates of police ofﬁcers, when acting as interpreters. However, as the review of appellate cases below will show, despite the fact that court interpreter guidelines do not mention this potential problem, defense attorneys of persons convicted of various sorts of crimes are increasingly becoming aware of the inherent conﬂict of interest present in situations where law enforcement ofﬁcers unexpectedly play the role of interpreter. The fact that court interpreting guidelines all make reference to the need for interpreter impartiality suggests the pervasiveness of this problem for those who work in the profession. The problem often stems from the fact that clients for whom legal interpreters provide their services become emotionally dependent on their interpreters, seeing them as potential saviors, providing not only a linguistic, but also a cultural and psychological haven, as Morris (1999: 6) notes. Altano (1990: 99), referring speciﬁcally to the witness-interpreter relationship, calls it “intricate”. He explains, “The degree to which a stranger may rely on the interpreter, both emotionally and practically, may come as a surprise, yet it is more the rule than the exception,” and while it is important for the interpreter to maintain a professional distance from the party, “court interpreters may admit to a certain empathy for the witness and the circumstances” (Altano 1990: 99). Thus, says Altano (1990: 100), while the judge may be able to keep him or herself aloof from defendants and witnesses, “the court interpreter is perched precariously between professional impartiality and a complex link to the witness.” If this is the case in the courtroom proper, the chances of impartiality in less formal legal settings are apt to be lower, where not forty pairs of eyes are on the interpreter, but only two (e.g., those of a police ofﬁcer and a detainee). The present review of appellate cases dealing with interpreting issues related to police investigations reveals that the use of inappropriate interpreters (as deﬁned by institutions that provide guidelines for professional interpreters) is quite common, although the use of such potentially biased interpreters, surprisingly, is not generally a basis for appeal. Why this is so is not known, although speculation would lead one to two explanations. First, in contrast to much of Europe, the interpreting/translating profession in the U.S.A. has neither enjoyed high prestige nor has it had a history of professionalization. Unlike in many European countries, where professional interpreters/translators are required to study the theory and methods of this ﬁeld at the university level, and higher degrees or certiﬁcates in interpreting/translating are commonly available, in the U.S.A. formal education in this ﬁeld is not a requirement of employment in virtually any type of occupational sphere, be it legal or medical, and programs of study at colleges and universities are few and far-between (see Berk-Seligson 2002, chapter 10, for details). The highest level of interpreter certiﬁcation in

22

Interpreting for the police: issues in pre-trial phases of the judicial process

the U.S.A., that attained by passing the Federal Court Interpreters examination, tests knowledge of grammar and vocabulary equivalent to two years of university education. In Belgium and Holland (Hertog 1996) and in Sweden (SchwedaNicholson 1999), for example, interpreters/translators are required to complete four years of education beyond secondary school, including specialized training in translating and interpreting. They are also more highly paid compared to legal interpreters in the U.S.A. A second reason why the use of inappropriate interpreters is not a common basis of appeal in American courts is that judges and lawyers are poorly educated about the interpreting/translating profession, and generally operate under the common misconception that being bilingual is not merely a necessary but also a sufﬁcient qualiﬁcation for competence in interpreting/translating. Most are unaware of the specialized skills required to perform simultaneous and consecutive interpreting, and of the particularly arduous cognitive efforts that high quality interpreting demands. When interpreting is questioned at the appeals court level, it is the quality of interpretations that comes under scrutiny (i.e., were there errors made in the conversion of source language to target language). Interestingly, guidelines for court interpreters make no mention of the possibility of bias or conﬂict of interest on the part of law enforcement ofﬁcials. Nevertheless, the majority of defense counsel grounds for appeal related to the investigative phase of a defendant’s judicial processing in cases involving court interpreters have to do with the actions of either police ofﬁcers serving as interpreters or of interpreters who work for the police force. It is also worthwhile noting, in this respect, that it is not always clear from appellate reviews whether the ‘police interpreter’ in a given case was in fact a police ofﬁcer, since in many cases the word ‘interpreter’ is used without a modiﬁer, as is the misused term ‘translator’ when clearly the oral medium, rather than the written one, was involved. Therefore, frequently it remains unclear whether the person referred to was a staff court interpreter employed by a nearby courthouse, a freelance interpreter working for an agency that has a contractual relationship with the police headquarters, a bilingual employee of the police station, or even a bilingual police ofﬁcer who serves as an interpreter on an as-needed basis. For this reason, it is difﬁcult in many cases to tell from the appellate judgments exactly what sort of interpreter was at work, when the quality of the interpreter’s performance is not in question. This indeterminacy stems from the fact that in any given case involving a person whose proﬁciency in the language of the courts is limited, a chain of interpreters will have been utilized, of the types just mentioned (Colin and Morris 1996). The review of appellate cases that follows gives us an inkling of what sorts of interpreters serve as links in that chain, particularly at the nexus where police work comes into play.

Interpreters for the police: a review of appellate cases

23

3. Interpreters for the police: a review of appellate cases Using a Lexis-Nexis computerized search procedure, I examined appellate cases from 1965 to 1999 in California, Florida and New York. Spanish-English interpreting comprises over 90% of interpreting in state and federal courts in the U.S.A., and most likely in municipal courts as well, which is why Spanish-English interpreting is the focus of this book. California, Florida, and New York were selected as the focus of this chapter because they have a large number of Spanish speakers. In addition, the three states chosen represent demographic concentrations of three important subgroups of the U.S. Hispanic population: Mexican-Americans in California (a subgroup that typiﬁes the Southwest region of the country), Cuban-Americans in Florida, and Puerto Ricans and Dominicans in New York. The cases were searched by using the key word ‘police’ with the stem ‘interpret-’, and ‘police’ with the stem ‘translat-‘. Of a total of 112 appellate cases that emerged through the search procedure, forty-seven came from California, seventeen were from Florida, and sixty-four were from New York. All of the California and Florida cases were examined, and forty-eight of the total New York cases were selected.4 Many cases were rejected for analysis on the basis of their irrelevance to the study. Irrelevant cases appeared because the computer search blindly produces cases where the key words appear in close proximity. Thus, for example, since the key words were ‘translat-‘ and ‘interpret’, in a ﬁfty-word proximity to the word ‘police’, the search would bring up the two former lexemes even when they were used in a more general, abstract sense (e.g., “this judicial principle translates into . . . ”), and not in the technical sense of rendering Language 1 as Language 2. With these irrelevant cases winnowed out of the original pool, forty-nine cases remained for analysis. Evidence emerging from this corpus of appeals indicates that police ofﬁcers routinely are used as interpreters in the earliest investigative phases of a criminal case as well as during interviews and interrogations carried out in the police station. They also are used as interpreters of audio- or video-recorded non-English language statements of suspects/detainees, which they convert into English for police stenographers, or else translate and type themselves. In addition, they either interpret orally for stenographers, or translate and type themselves, taped-recordings gathered covertly by other police ofﬁcers during undercover operations. Finally, they often must testify in trials regarding the role they have played as interpreters or translators during the investigative phases of given cases. Police activity as interpreters/translators has led defense attorneys of convicted persons to question such activity for various reasons, as will be shown below.

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Interpreting for the police: issues in pre-trial phases of the judicial process

3.1. Police ofﬁcers as interpreters and translators The following section presents cases in which police ofﬁcers served as interpreters. Many of these cases led to appeals on the part of the convicted defendants, but few convictions have been overturned. Ortega v. State represents one of the successful cases in which a conviction was in fact reversed on grounds involving the use of a police ofﬁcer to interpret for a jury a defendant’s sworn statement at his custodial interrogation. Ortega v. State. In the 1998 appellate case of Jorge Ortega v. State of Florida, Ortega, the appellant, who had been convicted for conspiracy to trafﬁc in cocaine, argued that the trial court had erred in allowing a law enforcement ofﬁcer to translate for the jury the Spanish portion of a videotaped statement he had given to the police under interrogation. Ortega’s argument was that since the police ofﬁcer had been one of the ones to take the statement from him, he then should not have been permitted to act as interpreter in court, especially not for the purpose of interpreting the videotaped statement. The three judges were in agreement that an error had occurred with respect to the police detective’s “translation” of the statements. Apparently the police detective/interpreter, during the videotaping of Ortega’s statement to the police, had done only summary interpreting for Ortega (i.e., reducing his testimony to the “gist” of it), rather than, as Acting Chief Judge Blue put it, providing a “literal translation” (i.e., verbatim interpretation) on the videotape. In contrast, the detective had “acted as interpreter for the other detective” (which I take to mean that he had done consecutive or simultaneous interpreting for him). Furthermore, in a pretrial motion, the defense attorney had asked the judge to “have the videotape translated by a proper and sworn translator.” This motion was denied by the trial court, and when the defense objected to the prosecution’s introduction of the testimony at the trial, the objection was overruled as well. The jury watched the videotape, and in order to answer the prosecution’s questions, the detective who had acted as interpreter was allowed to provide a more extensive rendition than the one he had given on the videotape, at the police station. When Ortega took the stand, he testiﬁed that the detective interpreter had not translated everything accurately on the videotape. In his appeal, Ortega argued that the trial court had erred when it overruled his objections and allowed the detective/interpreter (named Formosa) to translate statements that were heard on the videotape. The panel of judges agreed. Their argumentation is worth quoting: “We agree and see several problems with the procedure used below. First, Detective Formosa was involved in the case and therefore lacked at least the appearance of impartiality that one would expect of an interpreter. While the appointment of a translator is generally a matter for

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the trial court’s discretion, the translator should be qualiﬁed and impartial . . . Second, while Detective Formosa took the oath for a witness, he was not required to take the oath set forth for interpreters and translators under section 90.606, Florida Statutes (1995).” Judge Blue cited another Florida case (Hutchens v. State, 469 So. 2d 924 (Fla 3d DCA 1985)), in which an appeals court had found it an error to allow the jury to listen to a lengthy tape-recording in Spanish, “without having such recording translated into English for the jurors by an interpreter sworn to give a faithful and accurate translation, despite the defendant’s clear, but overruled, request that he do so.” Ortega’s conviction was reversed. People v. M´arquez. A recurring issue that appears among the cases of police ofﬁcers serving as interpreters is that of the proper administration of the Miranda rights, or police caution. An appellate case coming out of the California Supreme Court involving the improper handling of the Miranda warnings by a police ofﬁcer interpreter, People v. M´arquez (1992), comes to a different conclusion about the defendant’s appeal. M´arquez was convicted for the ﬁrst-degree murder of Ascenci´on Hern´andez, and for the second-degree murder of Anel Rodr´ıguez, which he committed in the course of a robbery and burglary, respectively. The defendant testiﬁed at his trial that after his arrest he was questioned by a Spanishspeaking detective by the name of Parrott, and that Detective Parrott promised him that his pregnant wife (who was also in custody, not for any involvement in the murders, but because illegal drugs had been found in their apartment) would be released if he told the detective what she wanted to hear. M´arquez testiﬁed that he had answered “yes” to everything that Detective Parrott asked, but that he had not understood everything she said because he could not understand her Spanish (People v. M´arquez 1992: 4). The defendant’s girlfriend (whom he referred to as his wife) also testiﬁed that she had had difﬁculty in understanding Detective Parrott’s Spanish. At an Evidence Code hearing, M´arquez made a motion to suppress the statements he had made at the police station on the ground that the Miranda warnings given to him there were constitutionally defective. Speciﬁcally, he argued that he had not waived his Miranda rights knowingly and voluntarily, and that he had made his statements involuntarily, on the understanding that if he made them, his pregnant wife would be released (People v. M´arquez 1992: 8). His implication was that the detective had used coercive tactics on him. Detective Parrott, in contrast, testiﬁed that she had in fact informed M´arquez of his Miranda rights and had done so by reading them from a Spanish-language printed card. However, a court interpreter who was asked to examine the wording of the Miranda rights that had been read to the defendant expressed the opinion that some of the words on the card might have been confusing.

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The California Supreme Court found that Detective Parrott had in fact read the defendant his rights, and that he had understood them, and that he had given them up freely and voluntarily. Thus, the appellate court upheld the trial court’s ﬁndings. Most interesting from the perspective of the present study is the fact that the defendant contended that the trial court had erred in failing to exclude his statement on the grounds of due process, “because the police ofﬁcer was also an investigating ofﬁcer and an interested party, and the statements were not taperecorded.” The opinion of the California Supreme Court was that the defendant “mischaracterized” the record as to Detective Parrott’s ﬂuency in Spanish. She testiﬁed that she was ﬂuent as to everyday matters and the Spanish spoken in the area defendant is from, but that her Spanish might be lacking when it came to an intellectual discussion. Defendant’s characterization of Detective Parrott as an interested party and improper interpreter is premised on authorities and standards relating to court interpreters at trial. Detective Parrott was not acting as a court interpreter; she functioned as a facilitator for the police investigation. Thus the standards for court interpreters have no application.

The court ended by adding, “Finally, the argument for excluding statements unless they are tape-recorded has been made and rejected before” (See People v. Marshall (1990) 50 Cal. 3d 907, 925). The decision of the court was to afﬁrm the conviction of M´arquez. The position taken by the California Supreme Court, that police ofﬁcer interpreters are different from interpreters who work in court is surprising, but reﬂects the reality of the situation: apparently the former are not expected to adhere to the kinds of ethical codes that professional court interpreters are told to follow. If police ofﬁcer interpreters are fundamentally “facilitators for the police investigation”, then there would appear to be a position of bias inherent in this role, a bias in the direction of helping the police obtain what they need for the successful resolution of a case. From this perspective, police ofﬁcer interpreters are considered to be no different from community interpreters, except that the party for which they serve as advocate is the police department, rather than the detainee. People v. Gonz´alez. In a high-proﬁle case in which eighty-seven people died in a ﬁre at a New York social club, the improper interpretation of the Miranda warnings became a ground for appeal. Julio Gonz´alez, who admitted to and was convicted for setting the ﬁre, claimed that he had not been given his Miranda warnings (People v. Gonz´alez 1991). The Supreme Court of New York ruled, however, that there had been only minor discrepancies in translation when the police reiterated the defendant’s rights to him before he made his videotaped statement, and that these discrepancies were inconsequential. The appellate judges

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reasoned that although the detective interpreter had not “mouthed a ritualistic formula”, he had in fact “conveyed the substance of the Miranda rights” to the defendant (People v. Gonz´alez 1991: 1–2).5 Evidence of the adequate interpreting of those rights, argued the judges, was the defendant’s “calm demeanor and cooperative manner”, as captured on videotape. These were indications of the voluntary nature of Gonz´alez’s confession, according to the judges. In addition, they stressed that simultaneous interpreting had been carried out, and that the ofﬁcer who had acted as interpreter for Gonzalez was ﬂuent in Spanish. People v.Torres. Another recurring theme that appears in appeals cases involving police interpreters is that of hearsay. Eight such cases appear in the corpus. Speciﬁcally, the issue is whether statements made by a defendant through an interpreter while in police custody during the investigative phase of a case can be considered hearsay when quoted in a trial. People v. Torres (1989) is typical of such cases. Since the California Court of Appeal was particularly thorough in reviewing the case law pertinent to the issue, it is worthwhile highlighting here the most important arguments that were made. The opinions of the three appellate judges, who concurred with one another, merit quoting because of the distinction that they make between court interpreters who normally work in the courtroom and interpreters who come into play at earlier phases of the judicial process, such as at police interrogations. FidelTorres was convicted of being an accessory after the fact to the homicide of Jesus Rodriguez, and was sent to state prison for two years. Torres’ friend, Mario L´opez, had killed Jes´us Rodr´ıguez because he believed that Rodr´ıguez was having an affair with his wife. Because Torres drove Rodr´ıguez to the scene of the homicide and away from it, he was found guilty of being an accessory after the fact. One of the grounds on which Torres appealed the conviction was that the testimony at his trial by the police ofﬁcer who had served as his interpreter at the police station was hearsay. On the night of his arrest, Torres spontaneously – in highly limited English – admitted to Sergeant David Knickerbocker, the ofﬁcer assigned to investigating this case, his role in the homicide. His admission came forth without any interrogation on Sergeant Knickerbocker’s part. After the admission was made, questioning began, without a reading of the Miranda rights to Torres. In the course of the questioning, at the point when he wanted to ask Torres about his role in the murder, Sergeant Knickerbocker called in a Spanish-speaking ofﬁcer, Dale Wagner, to read the Miranda warnings to Torres in Spanish. Before the arrival of Ofﬁcer Wagner, Torres volunteered that L´opez had forced him to drive at gunpoint to and from Rodr´ıguez’s house. At the trial, the defendant moved to exclude this volunteered statement, but the court denied the motion. Torres

28

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contended, in his appeal, that the court had erred in admitting the statement that he had volunteered. The defendant argued that the statement was inadmissible because it was the tainted product of a previous Miranda violation. The appellate court disagreed. Of greater interest to the present analysis is Torres’ contention regarding testimony given by a police interpreter who had assisted him during a subsequent interrogation, three days after his arrest and incarceration. At that time, Torres called the police from jail to say that he wanted to make a statement concerning the Rodr´ıguez homicide. He was interviewed in jail by Sergeant Greer, a detective who could neither speak nor understand Spanish, with Ofﬁcer Wagner once again serving as his interpreter. Torres was advised of his Miranda rights, but waived them.6 At the trial, Wagner was asked about his qualiﬁcations as an interpreter, and testiﬁed that his translations of Sergeant Greer’s questions and Torres’ answers had been accurate. Interestingly, the appeals court does not mention what Sergeant Wagner’s qualiﬁcations were, nor does it suggest that a certiﬁed interpreter should have independently veriﬁed the accuracy of the interpretations. When Sergeant Greer was put on the witness stand, he was asked about the statements that Torres had made during the police interview. It was at this point that the defense objected, calling Greer’s testimony hearsay. The objection was overruled. In his appeal, Torres contended that, “Sergeant Greer’s testimony was inadmissible hearsay because Greer testiﬁed not to defendant’s statements but merely to the translations made by Ofﬁcer Wagner” (People v. Torres 1989: 6). To support his contention he cited three early Supreme Court decisions (People v. John 1902; People v. Ah Yute 1880; People v. Lee Fat 1880). In all three cases the prosecution tried to have testimony given by the defendant at a previous judicial proceeding admitted into evidence. The Supreme Court ruled that in each case, “the testimony constituted inadmissible hearsay, because the reporter transcribed ‘[the statements] from the lips of the interpreter, and not from the defendant”’ (People v. Torres 1989: 6). The Supreme Court held that the trial court should not have allowed a witness to testify to what the interpreter says the declarant stated, but that instead, it should have been the interpreter or some other witness who understood the statements of the declarant to be the one to testify (three other California Court of Appeals cases are cited to bolster this argument) (People v. Torres 1989: 6). In the case of Torres, however, the California appellate court ruled that the holdings of the early Supreme Court cases were not applicable, because, “In those cases, the interpreters were ofﬁcers of the court and were not speciﬁcally selected by parties who desired to communicate with each other but needed

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an interpreter to do so” (People v. Torres 1989: 6) The appellate court argued that, “When two persons speaking different languages select an interpreter as a medium of their communication, the interpreter is regarded as their joint agent for that purpose. Therefore, the statements of the interpreter ‘are regarded as the statements of the persons themselves; and like any other admission may be shown by the testimony of any person who heard them without calling the interpreter as a witness”’ (People v. Torres 1989: 6). This is equivalent to saying that, “A party may make an interpreter his agent to communicate; when this has been the case, the interpreter’s statements are virtually the extra-judicial admissions of the party’s agent, and thus are receivable, from anyone who heard them, without calling the interpreter” (Wigmore, Evidence, par.812, subd. (4), p. 283) n2, as cited in People v. Torres 1989: 6–7). The appellate judges noted, however, that not all jurisdictions have accepted this agency analysis, and that those that have not “hold that any extrajudicial statement made through an interpreter is inadmissible as hearsay when the witness understood the statement, not as originally spoken, but as translated by the interpreter” (People v. Torres 1989: 7). Of particular relevance to the subject of this analysis is the comment of the chief judge that, “The agency theory applies to statements made through an interpreter unless circumstances are present which would negate the presumption of agency. Factors tending to refute such an inference include a substantial possibility that the interpreter had a motive to misrepresent, such as an interest in shifting suspicion to the accused and away from the interpreter, or a lack of capacity or demonstrated incompetence on the part of the translator” (People v. Torres 1989: 7). Furthermore, the court concluded, The fact that the interpreter is a law enforcement ofﬁcer or other employee of government does not prevent the interpreter from acting as the declarant’s agent, even as here where the defendant is being investigated by law enforcement. Moreover, the fact that the interpreter was selected by only one of the parties, in this case Sergeant Greer, does not negate an agency relationship. If the declarant knowingly and willingly uses the services of an interpreter selected by another, the interpreter is ‘deemed to act for both parties, and the statements made by the [declarant] consequently [become] original evidence the same as if the [declarant] had himself ﬁrst selected the interpreter.’ In sum, one must look to the totality of the circumstances, e.g., whether the declarant understood the interpreter’s role, and whether the declarant freely spoke through the interpreter (People v. Torres 1989: 7).

The appellate court took note of the fact that the defendant had been informed that a police ofﬁcer would serve as the translator and made no objection to

30

Interpreting for the police: issues in pre-trial phases of the judicial process

Ofﬁcer Wagner acting in that capacity. Nor did the defendant, at the time of his appeal, question Wagner’s qualiﬁcations as an interpreter, or the accuracy of his interpretations. The court added that Wagner testiﬁed under oath as to his qualiﬁcations, and to the accuracy of his interpretations at the police interview. One has to wonder, however, whether an indigent, non-native English speaker being held in jail in connection with a homicide is in any position to reject the interpreting assistance of a police ofﬁcer. For example, in the case of Torres, since there was no lawyer present, what real alternative did Torres have? Can we call this an “agency relationship”? One could certainly say that in the case of a defendant hiring his own interpreter to speak for him and render questions into his mother tongue for him that this would more evidently seem to be an “agency relationship”. But to call the situation of the average poor immigrant in the hands of two police ofﬁcers one of “free choice”, and to consider the police ofﬁcer/interpreter his “agent”, is to stretch one’s credulity. The California Court of Appeal upheld Torres’ conviction. In the numerous cases involving police ofﬁcers as interpreters, some situations seem inherently susceptible to unprofessional interpreting, speciﬁcally the inﬂuence of bias. One such situation is that of the undercover detective who ends up translating covertly taped conversations between himself and the defendant. This type of police work is common to cases involving the criminal sale of a controlled substance (i.e., narcotic drugs). Cases in point are People v. Lanfronco (1991) and People v. Brown (1998). Brown, convicted of selling cocaine to an undercover police ofﬁcer in his home, objected to the admission into evidence of a transcript based on an audio-tape of the drug deal, since it was the police ofﬁcer himself who transcribed the tape and interpreted the Spanish language used on the tape. The appeals court upheld the conviction. Similarly, in the case of Pe˜na v. State (1983), the defendant, after being convicted for the crimes of conspiracy to commit a felony and dealing in stolen property, appealed on the ground that the detective who had made an audio-recording of his (the defendant’s) statement was the one who translated the tape and prepared the transcripts. The transcripts, in turn, were later read to the jury during his trial. Moreover, the same detective testiﬁed to the accuracy of the transcripts at the trial. The contention of the defendant was rejected by the appellate court, which argued that the detective had been available for cross-examination at the trial, and therefore the defendant indeed had had his right to confront witnesses against him. Questioning the accuracy of transcripts produced by police ofﬁcers acting in the capacity of interpreters and subsequently translators is not uncommon. While some have been mentioned already in the context of other interpreting issues, there are others still (e.g., People v. Barajas (1978)). The very act of

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admitting into trial evidence a written confession that has been transcribed by a bilingual police ofﬁcer is sufﬁcient grounds for some defendants to appeal their conviction (e.g., People v. Ventura (1998)). In contrast to appeals that are based on the use of police interpreters or translators is Yanis v. McGuire (1983), which deals with a law enforcement ofﬁcer who seemed to have the qualiﬁcations for work as an interpreter, but who chose not to serve in that capacity. Yanis, a New York City police ofﬁcer, was found guilty of refusing to report to the detective room of the police station where he worked, to aid in a homicide investigation by interpreting the interview with a Spanish-speaking witness. He not only failed to show up, but he also failed to notify his superior ofﬁcer that he had not done so. Yanis was refusing to act as an interpreter because he was not being compensated monetarily for this “special skill.” In addition, he felt unqualiﬁed for the job. A postscript to this counterpoint is the recent movement among some municipal governments in the U.S.A. to establish differential pay scales for persons with exactly such special skills. The police department in the city of Omaha, Nebraska, for example, in an effort to satisfy the needs of an ever-growing Hispanic population, in the mid1990s initiated a program in “Spanish survival skills for police ofﬁcers”, training monolingual English-speaking police ofﬁcers in a level of Spanish proﬁciency that it deems sufﬁcient for dealing with routine, low-level infractions such as trafﬁc violations. It also considered a certiﬁcation program in Spanish interpreting for bilingual police ofﬁcers. Newspaper and journal articles have appeared referring to similar efforts being made in Chicago, Illinois and Phoenix, Arizona, efforts arising from the need in such cities for Spanish-speaking police ofﬁcers, and the desire of such ofﬁcers to be given compensation for their special skills. The implementation of pay scales for bilingual skills thus might serve to institutionalize the practice of assigning interpreting duties to police ofﬁcers.

3.2. The use of non-police personnel as ad hoc interpreters Thus far this chapter has focused on interpreting and translating inside the police station by police personnel. However, when police ofﬁcers are sent out to investigate the reporting of a crime, it is not always, or even usually, the case that the ofﬁcers who are charged with carrying out the investigation speak the language of a non-English or limited-English-speaking witness or suspect. The likelihood of a police ofﬁcer speaking a language less commonly spoken than Spanish is especially slim. Therefore, of necessity, the police have to rely on the presence of bilingual persons in the immediate vicinity of the area of investigation who can serve as spur-of-the-moment interpreters. These on-the-

32

Interpreting for the police: issues in pre-trial phases of the judicial process

spot interpreters may even be asked to accompany a witness or suspect to the police station if the language of the latter is not spoken by anyone employed at the police precinct, and if the precinct has no policy of employing professional interpreters through either commercial agencies or a nearby courthouse. When bilingual police ofﬁcers are not available at police stations, sometimes bilingual employees who are not police ofﬁcers themselves are called in to serve as interpreters. A case in point is Alzate v. State (1985). Convicted and sentenced for trafﬁcking in cocaine, the defendant appealed the conviction on the grounds that his consent to being searched had not been voluntary. The appellate court mentions that a Spanish-speaking employee, who was not a police ofﬁcer, was asked by the ofﬁcers to serve as interpreter for the detainee. While Alzate remembered her reading the Miranda warnings to him, he could not remember if anyone told him, or told her to tell him, that he did not have to sign the waiver of the rights consent form – written in Spanish – which he signed. Probably the most frequently used ad hoc interpreters are relatives of the person being questioned. This is so for the obvious reason that if the crime took place in or around the perpetrator’s or victim’s house, there may very well be relatives of that person present when the police arrive. Relatives who end up being ad hoc interpreters very often are children. In one case (In re Carlos P. 1998), a thirteen-year old burglary suspect ended up being interpreter for himself as well as for his grandmother. In this particular case, the detective in charge of questioning the suspect did not bother to seek the services of an interpreter, not even those of a fellow police ofﬁcer or other precinct employee. Instead, he asked the boy to interpret the Miranda rights to himself and to his grandmother, his legal guardian. The request by the police ofﬁcer that the boy act as interpreter for his grandmother results from laws stipulating that if a suspect or detainee is a minor, then his or her guardian must also be explained the Miranda rights, so that the guardian can give the child assistance. The absurdity of delegating to a suspect the duty of serving as interpreter for himself, not to mention for his guardian, was not lost on the appellate judges. The opinion of Judge John M. Hunt (In re Carlos P. 1998: 4) was as follows: When the detective relied on the respondent to translate his own Miranda warnings into Spanish, the detective delegated to the respondent a function that properly belonged to the police. The detective could not relieve himself of this responsibility since he could not know and did not testify that the respondent correctly translated any or all of the warnings for his grandmother. Moreover, given the respondent’s age, the ofﬁcer could not assume that he so understood and appreciated the nature of his constitutional rights that he could interpret and explain them correctly.

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In another case involving children as interpreters for the police (People v. Marrero 1976), the son of a man convicted of ﬁrst degree robbery served as interpreter for his father both at the time of the arrest and at the police station. The use of children as interpreters has its precedents in non-legal community interpreting. In fact, scholars specializing in interpreting/translating have been studying the process by which children become “natural translators” (Bullock and Harris 1997; Harris 1978; M¨uller 1989; Vald´es et al. 1999). These scholars see in child interpreters the seeds of professional interpreters/translators. Various other sorts of relatives, beyond offspring, have been used by the police as ad hoc interpreters. In a case involving a Serbo-Croatian who was convicted of ﬁrst-degree manslaughter (People v. Jordan 1985), the police used the detainee’s brother to interpret the Miranda rights to him. The Supreme Court of New York upheld the conviction. In a case dealing with sexual battery against a child (Bauta v. State 1997), the child’s mother acted as interpreter for the police ofﬁcer who questioned her child. In an ironic choice of family member as interpreter, police appointed the victim of a burglary to be the interpreter for the detainee, who also happened to be his brother (People v. Kourani 1998). Since the language of the detainee was Arabic, ﬁnding a more impartial available interpreter may have been problematic for the police. Other family members called in to be interpreters have included an uncle by marriage (Chao v. State 1985), and, in a rape case, the detainee’s uncle (People v. Prahl 1986). Non-family members are recruited by the police to serve as momentary interpreters because they happen to be around when the police arrive and they speak the language of either the victim, the witness, or the suspect, depending upon the circumstances. Thus, the following sorts of persons have been used as interpreters by the police: the employer of the victim of a robbery (People v. Feliciano 1989); a Thai-speaking store owner whose wife, the manager of the store, was murdered and whose employee in the store was also murdered in the same incident (People v. Siripongs 1988); a migrant farm worker who happened to be riding in the car of another migrant farm worker who subsequently was convicted of second-degree murder (LaSalle v. State 1966); a Chinese-American businessman who served as an interpreter in a vehicular manslaughter case in which the defendant was a personal acquaintance of his (People v. Duck Wong 1976); a Russian-speaking doctor working in the psychiatric ward of a hospital, who was claimed by the defendant not to have sufﬁcient command of Russian and to have failed to administer the Miranda warnings (the defendant, accused of murdering his mother, obtained a reversal of his conviction and a new trial was ordered for him (People v. Turkenich 1988). In the case of a nine-month old baby’s drowning death in a bathtub, the baby’s mother was questioned by

34

Interpreting for the police: issues in pre-trial phases of the judicial process

the police with the aid of a Spanish-speaking hospital social worker and a child welfare agency caseworker (People v. Torres 1995). In some of the more dubious choices of interpreter, the detainee’s girlfriend was asked to interpret for him (People v. Santos-Sosa 1996); in two cases conﬁdential informants working with undercover agents served as interpreters for the detainees (People v. Ali (Chaudry) 1993 and People v. Romero 1991); in another case a confederate of the suspect involved in the illegal sale of cocaine, while still in the home of the suspect, was asked by an undercover police ofﬁcer to interpret for him and a conﬁdential informant (Herrera v. State 1988). In another case, a fellow prison inmate of a defendant convicted of multiple murder, on occasion served as an interpreter for the conversations between the defendant and police ofﬁcers (Maqueira v. State 1991). Finally, in what turned out to be an ironic choice of interpreter by the police, a person who was asked by a police ofﬁcer to assist him as a possible interpreter at the scene of the arrest of a suspect, turned out to be in possession of a package containing twentyone packets of cocaine, which he immediately threw to the ground, and upon which the man was arrested. So, the ad hoc interpreter turned out to be a detainee, and subsequently a convicted defendant (People v. Villa, a.k.a. Mocada 1989). 3.2.1.

Quality checking on ad hoc interpreters

Defense attorneys and trial judges occasionally check on the quality of the interpreting or translating that was performed in the course of police work, when the interpreters or translators in question had no professional qualiﬁcations for the role. This usually happens at the time of the trial. This is an excellent practice, and should help to remedy the sorts of problematic interpreting situations reviewed above. Evidence of the existence of such quality checking is found in the following cases: Herrera v. State (1988), People v. Ledesma (1988), People v. M´arquez (1992), People v. Ali (1993), and Pe˜na v. State (1983). In the case of Herrera v. State (1988), the ad hoc interpreter whose interpretations were checked – a man by the name of Alberto Arce – was a confederate of the defendant, Orlando Herrera. The two of them, plus another man, were in the process of selling cocaine to an undercover police ofﬁcer when they were arrested. The police ofﬁcer did not speak Spanish, the language in which the three co-defendants were conducting their business transaction. Arce, being bilingual, acted as interpreter for the undercover detective, who was covertly tape-recording everything that was being said. At the trial, a court interpreter was asked to interpret the statements that Herrera had made in Spanish during the drug deal, as a check on Arce’s interpreting ability. The court interpreter’s

Interpreters for the police: a review of appellate cases

35

rendition corroborated Arce’s interpretations, which was welcome news for the prosecution but not for the defense. In a similar case involving the illegal sale and possession of narcotic drugs, People v. Ali (1993), undercover agents tape-recorded conversations in English, Urdu and Punjabi, between the defendant and themselves during a heroin sale. The conﬁdential informant who served as a go-between in the transaction later translated portions of the transcription of the tape, as he was a native speaker of Urdu and also understood Punjabi. The defense attorney stipulated at the trial as to the accuracy of the conﬁdential informant’s translation, but it is not clear from the appellate judgment on what basis he was able to do so. One would have to assume that some sort of independent checking procedure had been utilized, before the attorney could make such a stipulation. Certainly in the undercover heroin sting operation that was at the heart of People v. Lanfronco (1991) there was some sort of quality check on the undercover police detective’s translations of tape-recorded dialogue between the defendant, the defendant’s confederates and himself, because a “language expert” was brought to the trial by the prosecution to testify regarding the accuracy of the police ofﬁcer’s translations. Interestingly, the defense objected to the failure of the prosecution to play the tape-recordings to the jury with the aid of simultaneous interpreting by a court interpreter. Nevertheless, the trial court ruled that the transcripts of the tapes were admissible, and that playing the tape in court was not necessary. Sometimes, however, a trial court will indeed order a court-appointed interpreter to interpret for a jury portions of a tape-recorded police interrogation that have been previously translated and admitted into evidence. And even if discrepancies are uncovered in the process, they may not necessarily be considered to be prejudicial to the appellant. In a case of murder by stabbing (People v. Ledesma 1988), for instance, the appellate court ruled that whatever discrepancies appeared between the translation and the subsequent in-court interpretation were “either unrelated to the stabbing or inconsequential,” and that therefore, “No prejudice to appellant resulted from any initial error in translation” (People v. Ledesma 1988: 10). Translations of the Miranda warnings, even if they are written out on the back of a printed card, can also become subject to trial court scrutiny for a determination of their accuracy. As mentioned previously in the discussion on People v. M´arquez (1992), at the trial of Gonzalo M´arquez M´arquez a court interpreter evaluated the Spanish language translation of the Miranda rights that had been read to the defendant, and found some of the words confusing. Although they constitute only ten percent of the corpus, the cases referred to above provide evidence of an element of caution in the manner in which some lawyers and trial judges accept the interpreted or translated statements

36

Interpreting for the police: issues in pre-trial phases of the judicial process

of defendants who have been forced to rely on the services of ad hoc interpreters/translators while they were in police custody. Thus, it appears that the use of such interpreters/translators has been questioned not only by appellate courts, but by trial courts as well.

4. Conclusions The appellate evidence that has been presented here leads to the conclusion that interpreters used by the police at the scene of a crime or even in the police station are a highly heterogeneous lot. Yet, no matter who the interpreter is during the interrogation of a detainee in a police station, the product of such interrogations, namely, a transcript of what was asked and what was answered, can be used as evidence at a trial. It remains an open question as to whether lawyers and judges, in reading such transcripts, are aware that a chain of interpreters/translators may have been at work in any given case in which a police agency has utilized such assistance in its investigation. Furthermore, if they are aware of the multiple instances of interpreting and translating that have been employed along the way, do they stop and question whether or not all of the links in the chain were professionals in this ﬁeld? Colin and Morris (1996: 23), who in addition to being analytical observers are themselves professional legal interpreters, warn that, “Engaging unskilled people to provide interpreting services means building a weak link into the legal process”. While in some cases professional interpreters/translators may be at work at certain points in a police investigation,7 in other cases, as this appellate review has shown, interpreters may have been selected for the job on the spur of the moment, having had no prior training. In effect, in any given instance of police work, community interpreters, bilingual police ofﬁcers, and legal interpreters may have played a role. The product of their performance may in turn become subject to the scrutiny of court-appointed interpreters, who – from the perspective of certiﬁcation and other sorts of qualiﬁcations – themselves are a heterogeneous group in U.S. state courts. As this review has shown, at issue is not merely the capability of the individual for interpreting through his or her possession of a highly sophisticated, cognitively complex set of skills, but also the conﬁdence of both the legal system and the accused in this person’s willingness to uphold the ethical guidelines of the profession, particularly neutrality and lack of bias toward the people whose speech s/he is either interpreting or translating. It is especially with respect to the Miranda rights that such neutrality frequently has been questioned. In the case of interpreting the Miranda rights, or in Britain, its equivalent – the ‘caution’ – even when the interpreter is a highly

Conclusions

37

competent professional and has no conﬂict of interest with respect to the person who is being questioned, problems can emerge. As Russell (2000) convincingly shows, depending upon the manner in which a police ofﬁcer states and explains the caution, its rendition in the target language by a trained, impartial interpreter will be smooth, or alternatively, disﬂuent and inaccurate. The successful renditions of an interpreter depend not only on his or her own competence, but on the verbal behavior of the person for whom s/he is interpreting. As always, it takes two to tango. This overview has demonstrated that defense attorneys are becoming more aware of the issues raised by the use of non-professional interpreters/translators in the course of policework. From the perspective of social policy, what is called for is a more extensive utilization of professionals in this very sensitive phase of the administration of justice and the education of judges in this regard.

Chapter 3 The Miranda warnings and linguistic coercion: the role of footing in the interrogation of a limited-English-speaking murder suspect

The previous chapter has reviewed appellate cases involving the use of interpreters by the police. In this chapter I examine a speciﬁc case, one in which the police can be considered to have used linguistic coercion on a Limited-English speaking murder suspect. I will show how the right against self-incrimination was systematically denied the suspect, and reveal the ambiguous role played by a police ofﬁcer designated as ‘interpreter’ for the interview. In addition, I will show why this speech event was in fact an ‘interrogation’ and not an ‘interview,’ and that the police ofﬁcer assigned the task of interpreting for the interrogating police detective and the detainee moved half-heartedly into this interpreter ‘footing,’ and kept sliding back into police detective mode.8 I will demonstrate that the police detective/interpreter used the dual role to his advantage, to give himself extra leverage in manipulating the detainee into producing a confession to the crimes with which he was charged. If linguistic coercion implies one speaker exercising power over another, then perhaps nowhere does linguistic coercion have a potentially more consequential impact on an interlocutor than in legal settings. Since the locus of linguistic power in legal speech situations often resides in the right to ask questions and the concomitant right to expect answers, it is no wonder that in the courtroom lawyers have an exceptionally large measure of control over the testimony of witnesses and defendants. Some of this control derives from question form (Berk-Seligson 1999a; Danet and Kermish 1978; Danet, Hoffman, Kermish, Rafn and Stayman 1980; Rigney 1999; Woodbury 1984). Attorney control over witness answers comes also from the sequencing of questions in the chain of question/answer adjacency pairs (Atkinson and Drew 1979; Dunstan 1980) and from the repetition of questions (Atkinson and Drew 1979; Matoesian 2001). Attorneys are not the only ones who exercise control over witness or defendant answers; judges also hold this type of power, as Philips (1998) demonstrates in her analysis of change of plea hearings, and Conley and O’Barr (1990) show in the more informal setting of litigation court. If the courtroom proper and more informal courtroom-like settings are coercive contexts for those who are placed in the position of answering questions, then the speech situation of the police interview or police interrogation is almost

The Miranda Rights

39

certainly more coercive from the perspective of asymmetrical power relationships, since (1) there is no judge present to control the interrogators’ behavior and (2) a lack of cooperation with the police can be a cause for concern on the part of the person who is being questioned in terms of their physical safety. Those in custody fear the potential of abuse from the questioner. It is not by chance that interrogation manuals written by the police for police interrogators speciﬁcally advise them not to handcuff or shackle the suspect during the interrogation (Inbau, Reid and Buckley 1986: 40; Van Meter and Bopp 1973: 41), or be armed in the interrogation room (Inbau et al. 1986: 41), or “deny him the human comforts he is entitled to,” i.e., the right “to use the bathroom occasionally, eat at regular times, drink water occasionally . . . ” (Van Meter and Bopp 1973: 51). Such manuals go out of their way to make these points because, as they themselves acknowledge, police brutality toward detainees has been common in the past and continues to exist in the present. In recent years, several high-proﬁle cases of police brutality at the time of arrest, all of them involving African-American, Afro-Caribbean or African detainees, have reached trial courts in the U.S.A. – Rodney King in Los Angeles, and Abner Louima in New York City, being perhaps the most widely known.9

1. The Miranda Rights In this chapter I examine the process of linguistic coercion by the police, and demonstrate how it affected the outcome of a case involving a Limited-English speaking murder suspect. I also show how the right against self-incrimination was systematically denied the suspect, and reveal the ambiguous role played by a police ofﬁcer designated as ‘interpreter’for the interview. In addition, I will show why this speech event was in fact an ‘interrogation’ and not an ‘interview,’ and that the police ofﬁcer assigned the task of interpreting for the interrogating police detective and the detainee moved half-heartedly into this interpreter ‘footing,’ and kept sliding back into police detective mode. I will demonstrate that the police detective/interpreter used the dual role to his advantage, to give himself extra leverage in manipulating the detainee into producing a confession to the crimes with which he was charged. In 1966, the U.S. Supreme Court decided in the case of Miranda v. Arizona that before interrogating suspects, the police were required to warn them of their constitutional rights. Speciﬁcally, the Fifth Amendment to the Constitution provides, that “no person shall be compelled in any criminal case to be a witness against himself.” In addition, the Sixth Amendment provides that “in all criminal prosecutions, the accused . . . shall have the assistance of counsel for

40

The Miranda warnings and linguistic coercion

the defense.” Thus a suspect must be warned (1) that he has a right to remain silent, and that he need not answer any questions; (2) that if he does answer questions, his answers can be used as evidence against him; (3) that he has the right to consult with a lawyer before or during the questioning of him by the police; and (4) that if he cannot afford to hire a lawyer, one will be provided for him without cost to him. Furthermore, according to Miranda, “. . . if the suspect indicates, at any time or in any manner whatsoever, that he does not want to talk, the interrogation must cease. The interrogator is not privileged to ‘talk him out of’ his refusal to talk” (Inbau, Reid and Buckley 1986: 220). Police ofﬁcers carry plastic cards with the Miranda warnings printed on them. Typically, the cards list the warnings in the following manner: 1. You have the right to remain silent. 2. Anything you say can and will be used against you in a court of law. 3. You have the right to talk to a lawyer and have him present with you while you are being questioned. 4. If you cannot afford to hire a lawyer, one will be appointed to represent you before any questioning, if you wish. 5. You can decide at any time to exercise these rights and not answer any questions or make any statements. Inbau et al. (1986: 222) point out that the Supreme Court did not specify that the ﬁfth warning had to be read aloud to the suspect, merely that the police had to honor the wishes of the suspect, if he changed his mind about answering their questions during an interrogation. And to proceed with an interrogation required that the suspect “waive” his Miranda rights. A waiver is some sort of verbal statement by the suspect to the effect that he is willing to answer the questions of the police. Furthermore, the police have to be assured that suspects “knowingly and intelligently waive those rights and agree to answer questions or make a statement.” Their method of obtaining such assurances is by asking a question such as, “Do you understand each of these rights?” This is normally done immediately after the reading of the warnings. Police ofﬁcers do not necessarily have to read the Miranda rights from a printed card.They are permitted to paraphrase them.The danger here, as Cotterill (2000) has recently shown in her analysis of the ‘police caution’, the United Kingdom’s equivalent of the Miranda warnings, is that there is great variability in the way that different police ofﬁcers paraphrase the warnings, and that in the process of paraphrasing, the police often make the warnings less comprehensible than they are in the printed version that appears on the ‘caution card’. Shuy (1998: 53) demonstrates that even when the police read directly from the card, their performance as readers is often so poor, that comprehension of the Miranda

The Miranda Rights

41

warnings is adversely affected. Shuy (1998: 55) further points out that even if the Miranda warnings are read well, “their sequencing has a strange illogicality”, so that persons being read their rights do not realize that the ﬁrst decision that they have to make is whether to ask for a lawyer, and that the decision to speak or remain silent should be made after that decision, rather than before. As a result of factors such as the ones identiﬁed by Shuy and Cotterill, the issue of the comprehensibility of warnings such as Miranda or the U.K. caution is a serious one. In the U.S.A., as opposed to the U.K., there is no standardized written version of the Miranda warnings. Every jurisdiction has the right to use the wording it chooses. Thus, according to Rogers et al. (2007: 179), there are at least thirty-one different versions of Miranda warnings used by state police (Helms 2003) and sixteen different versions used at the county level in New Jersey alone (Greenﬁeld et al. 2001). The empirical study of Rogers et al. (2007: 1), which analyzes 560 Miranda warnings used across the U.S.A., ﬁnds that their “wording and sentence complexity vary dramatically from jurisdiction to jurisdiction”, and while some of them require only a 2.8 grade level of education to be able to understand them, others would require a post-graduate education. Thus, lack of standardization is an important factor in accounting for the varying degrees of comprehensibility of the Miranda warnings. Nevertheless, standardization of such types of warnings has not solved this problem, as one study of the U.K. caution demonstrates. The research of Shepherd et al. (1995: 1) ﬁnds that of 109 people who were asked to listen to the police caution, on average about half of it made sense to them: “About one in four actually understood the ﬁrst element, one in eight the second, and one in three the third.” Perhaps most disturbing is the ﬁnding that over half of the people who participated in the study considered the caution to be pressuring or a threat. Comprehensibility is just one of many linguistic issues that need to be considered when one examines the Miranda warnings, as Shuy (1997) notes. Other problematic aspects of the Miranda warnings, according to Shuy (1997), are as follows. First, coercion of a suspect can come in the form of verbal dominance or control: Intimidation can result both from physical force and from verbal force. If suspects are dominated by verbal force without regard for their individual desire or volition, the result is coercion as much as it would be from physical force. (Shuy 1997: 179)

Van Meter and Bopp (1973: 50) concur, advising police interrogators to refrain from using “duress”. They deﬁne duress as a “state of mind,” or “emotional strain,” or “emotion distress”. They warn that, “Anything the interrogator says or does which affects or inﬂuences the mind of the suspect to the degree that he is beyond his own choice of complying or denying, can be construed to be

42

The Miranda warnings and linguistic coercion

duress”, and that if duress was considered to have been used, it would vitiate the suspect’s confession because the courts would consider it to be unreliable (Van Meter and Bopp 1973: 50). A second problematic issue related to the Miranda Rights is that detainees may not fully understand what it means “to have an attorney present”. Often they think of other authority ﬁgures that they would like present to help them, and call for their mother, their priest, or their parole ofﬁcer instead (Shuy 1997: 185–186). A third reason why the comprehensibility of Miranda rights cannot be taken for granted is that it is not clear what “remain silent” means. It can be construed as saying absolutely nothing, or saying nothing substantive about the alleged crime, or even engaging in small talk (Shuy 1997: 188). Finally, it is not clear when the police are justiﬁed in concluding that a suspect has changed his/her mind about their willingness to talk to the police again, if they have previously indicated that they choose to remain silent (Shuy 1997: 194). Despite the fact that the Miranda rights have been in place and have been routinely read to suspects since 1966,10 seasoned trial lawyers comment that they do not have the intended effect, since many suspects tend to ignore them. A lawyer who at one time served as inspector general of the U.S. Justice Department in the 1990s says that, “Even with the Miranda safeguards, criminal suspects still make incriminating statements and confess to crimes with surprising frequency” (Bromwich 1999). Statistics support this surprising generalization: it is estimated that 80 to 90 percent of suspects waive their Miranda rights and talk to the police (Greenhouse 2000). Unfortunately, many of those who are considered to have waived their rights in fact tried to claim them, but to no avail – their efforts to obtain a lawyer and to remain silent until counsel appeared were ignored by the police (Ainsworth 2008). Even more disturbing is the frequency with which appellate courts turn down the appeals of defendants who post-conviction argue that they had tried to invoke their Miranda rights, but that the interrogating police ofﬁcers disregarded their efforts to do so. A striking example of the failure of the justice system to support defendants’ efforts to invoke one of their Miranda rights, namely the right to have a lawyer present at their interrogation, is the U.S. Supreme Court decision in Robert L. Davis, Petitioner v. United States (1994). The issue brought before the Supreme Court was whether the defendant had clearly invoked his right to an attorney. The military trial record shows that about an hour and a half into the interrogation by the Naval Investigative Service, which was holding the defendant on suspicion of murder, the defendant said, “Maybe I should talk to a lawyer.” After a short break and another hour of questioning, Davis said, “I think I want a lawyer before I say anything else.” The military trial court sentenced Davis to “con-

The Miranda Rights

43

ﬁnement for life, a dishonorable discharge, forfeiture of all pay and allowances, and a reduction in rank to the lowest pay grade” (Davis v. U.S., 512 U.S. 452, page 2). On appeal, a Navy Marine Corps Court of Military Review upheld the conviction, rejecting Davis’s contention that he had been denied the right to a lawyer at his interrogation. So, too, did the U.S. Supreme Court. Justice Sandra Day O’Connor, writing for the Court, gave the following arguments in support of the ruling. Justice O’Connor explained that the U.S. Court of Military Appeals was aware that three different approaches had been developed by state and federal courts to “a suspect’s ambiguous or equivocal request for counsel”: Some jurisdictions have held that any mention of counsel, however ambiguous, is sufﬁcient to require that all questioning cease. Others have attempted to deﬁne a threshold standard of clarity for invoking the right to counsel and have held that comments falling short of the threshold do not invoke the right to counsel. Some jurisdictions . . . have held that all interrogation about the offense must immediately cease whenever a suspect mentions counsel, but they allow interrogators to ask narrow questions designed to clarify the earlier statement and the [suspect’s] desires respecting counsel (36 M. J. 337 (1993) at 341).

The opinion of the Supreme Court was that, “if a suspect makes a reference to an attorney that is ambiguous or equivocal in that a reasonable ofﬁcer in light of the circumstances would have understood only that the suspect might be invoking the right to counsel, our precedents do not require the cessation of questioning.” The Court’s position was that “the suspect must unambiguously request counsel” (Davis v. US, 512 US 452 (1994), page 4). While a suspect does not have to speak “with the discrimination of an Oxford don”, he must express his desire for an attorney clearly enough that a “reasonable police ofﬁcer in the circumstances would understand the statement to be a request for an attorney” (Davis v. US, 512 US 452 (1994), page 4). Justice O’Connor admits that “requiring a clear assertion of the right to counsel might disadvantage some suspects who – because of fear, intimidation, lack of linguistic skills, or a variety of other reasons – will not clearly articulate their right to counsel although they actually want to have a lawyer present”; however, she adds, the Court needs to keep in mind “the other side of the Miranda equation: the need for effective law enforcement” (Davis v. US, page 5). Thus, the Court rejects phrases such as “I might want a lawyer” as being actual requests for an attorney, and upholds the right of the police to continue questioning a suspect who has used such a phrase. Justice David H. Souter wrote the dissenting opinion on the decision. He found that Miranda case law points in the direction of law enforcement ofﬁcials stopping their interrogation and asking a suspect to make his choice clear, when

44

The Miranda warnings and linguistic coercion

they “reasonably do not know whether or not the suspect wants a lawyer” (Davis v. US, 512 US 452 (1994), Souter, page 2). Justice Souter (page 2) displayed a keen sensitivity to the plight of those who do not have high proﬁciency in English: . . . criminal suspects who may (in Miranda’s words) be “thrust into an unfamiliar atmosphere and run through menacing police interrogation procedures” . . . would seem an odd group to single out for the Court’s demand of heightened linguistic care. A substantial percentage of them lack anything like a conﬁdent command of the English language . . . many are “woefully ignorant” . . . ; and many more will be sufﬁciently intimidated by the interrogation process or overwhelmed by the uncertainty of their predicament that the ability to speak assertively will abandon them.

Judge Souter, being sensitive to the needs of the “timid or verbally inept”, expressed the minority opinion that in cases where a suspect undergoing custodial interrogation ambiguously states that he wants a lawyer to be summoned, the interrogators should restrict their questions to verifying whether he indeed is asking for a lawyer (Davis v. US, 512 US 452 (1994), Souter, page 6). As a result of the variety of factors referred to above, many suspects confess to crimes that they have not committed. This fact receives further conﬁrmation in an important work on the subject, Troubling Confessions, by Peter Brooks (2000). Brooks adds to the voices of those who question the truth of many of the confessions that are made by suspects in custody, despite the fact that these suspects had been told their Miranda rights. As Brooks (2000: 31) explains, The courts, including the Supreme Court, have been lenient in interpreting the rules imposed on interrogators, so that many forms of trickery are permitted– including lies about evidence inculpating the suspect, fake confessions by confederates – and statements made before the suspect is “Mirandized” are often allowed on the grounds that the suspect was not yet subject to custodial interrogation . . . and even statements clearly taken in violation of Miranda rules may lead to “fruits” that are admissible into evidence. Suspects continue to talk, to give confessions (including some later discovered to be wholly false) because the pressure to talk is too great to resist.

Shuy (1998: 15) concurs, explaining that one reason why so many suspects confess to crimes, despite being given the Miranda warnings, is that “the laws regarding police interrogation permit the police to lie, to ﬂatter, to adduce, to ask questions roughly, to play act, to trick, and to cajole.” One such law is the 1969 Supreme Court decision that gives tacit recognition to the necessity for trickery and deceit during police interrogations (Yeschke 1997: 84). A further factor weakens Miranda, Brooks argues: most people believe that to remain silent in the face of questions by the police gives the impression of guilt.

The Miranda Rights

45

Suspects therefore willingly enter into an interlocutionary relationship with the police interrogator (Brooks 2000: 31). This relationship is a bond, an affective bond instigated by the interrogator, which “contains, and activates, elements of dependency, subjugation, fear, the desire for propitiation, the wish to appease and to please” (Brooks 2000: 35). If there is often an affective bond between interrogator and suspect it is not there by chance. Police ofﬁcers are trained to establish rapport with the person they are interrogating, evidence of this being the advice to this effect that police interrogation manuals offer. Aubry and Caputo (1980: 200), for example, recommend “the sympathetic approach” as “an excellent all-around approach” to police interrogation. Inbau et al. (1986: 78) advise the sympathetic approach in interrogating the emotional suspect, the individual who “has a strong sense of moral guilt – in other words, a ‘troubled conscience”’; for such suspects, they recommend the use of “expressions of understanding and compassion with regard to the commission of the offense as well as the suspect’s present difﬁculty.” Van Meter and Bopp (1973: 79) emphasize that before an interrogator begins to discuss speciﬁc facts related to the crime, he should establish rapport with the suspect, that is, “a harmonious or sympathetic relationship.” Yeschke (1997: 84) recommends that the interrogator “empathize with and help the subject rationalize his or her participation and save face when talking about it.” It is revealing that Yeschke, a former FBI agent not trained in linguistics, independently discovered the theory of Brown and Levinson (1978) and its notion of positive face wants. Leo (2008: 124), who has studied over 2,000 felony cases involving police interrogations and confessions, ﬁnds that American police have minimized the impact of Miranda: They have developed multiple strategies to avoid, circumvent, nullify, and sometimes violate Miranda and its invocation rules in their pursuit of confession evidence. Because American police have learned to “work Miranda” to their advantage (i.e., to issue the warnings in strategic ways that will result in legally accepted waivers or to interrogate without the necessity of providing warnings), Miranda has become a “manageable annoyance” – the anti-climax of custodial questioning – to American police that once waived does not affect the subsequent interrogation because it does not prohibit any post-waiver interrogation techniques, and suspects rarely invoke their rights following the warnings.

Leo (2008) and Leo and White (1999) show how the police accomplish this. For example, they recast the interrogation as a noncustodial interview, they construct “implicit” waivers, deemphasize the signiﬁcance of the Miranda warnings, and persuade suspects to waive Miranda. Through mechanisms such as these, the police talk suspects out of their Miranda rights.

46

The Miranda warnings and linguistic coercion

2. Subversion of the Miranda rights of a limited-English speaker The case that is analyzed here deals with a suspect who tried to invoke his Miranda rights, and did so repeatedly. On fourteen occasions during his ﬁrst interrogation by the police, the detainee expressed the desire not to talk about the details of the crime for which he was being held in custody. As the transcripts of the interrogation show, the police ignored his wishes, time and time again. Most interestingly from the vantage point of those who study interpreting in legal settings, the person assigned to interpret for him and for the interrogating police detective, himself a police ofﬁcer, was as guilty as the ofﬁcial interrogator, if not more so, of violating the suspect’s Miranda rights. The case brings to light a problem largely ignored by the courts, namely, that a police ofﬁcer who is taking on the role of interpreter may subvert that role, and use it to help seduce a suspect into confessing to a crime he did not commit. From a discourse analysis perspective, this paper will provide evidence to show that in fact both police ofﬁcers, including the one assigned the role of interpreter, were engaged in the speech event of interrogation throughout the course of their interaction with the suspect, despite his repeated statements indicating that he wished not to talk about the topics that they brought up. Noteworthy are the discourse aspects of the speech event that the appellate judges chose to comment on, and the discourse features that they ignored. Particularly interesting from a discourse perspective, is that the appellate court’s opinion included the verbatim text of much of the interrogation, with the turns at talk intact, rather than summarized.Thus, the speech behavior of the police detectives was at the heart of the arguments made by the appeals judges in their decision on the case.

3. The case: The People v. Alvarez In 1996, in a large city, an eighteen-year old Mexican man was arrested by the police and charged with ﬁrst-degree murder and attempted rape. He had been caught running away from the scene of the crime, a row of hedges dividing a parking lot, where the semi-nude body of a young woman was found. The defendant, Carlos Rivera Alvarez, convicted for her murder, is believed to have begun “a stabbing frenzy” behind the hedge, according to Judge Russell (Court of Appeal 19XX: 2), who wrote the opinion for the appellate court that was considering the appeal of his conviction.

The case: The People v. Alvarez

47

According to Judge Russell, two police ofﬁcers began interrogating Alvarez: Ofﬁcer Calhoun, a monolingual English speaker, and Ofﬁcer Larson, a bilingual English/Spanish speaker of European descent. Larson spoke Spanish with a heavy English accent, and evidenced numerous grammatical and lexical deﬁciencies in his ability to speak Spanish. As Judge Russell put it (Court of Appeal 19XX: 2), “The format was that Ofﬁcer Calhoun’s questions in English were translated into Spanish by Ofﬁcer Larson, who then translated defendant’s answers into English for the record.” In other words, Larson was assigned the role of interpreter. And that is exactly how Ofﬁcer Calhoun introduced Ofﬁcer Larson to the suspect. The interrogation began at 4:03 in the morning, and ended one and a half hours later. However, it was split into two sessions: the ﬁrst conducted by Ofﬁcer Calhoun, and the second led by Ofﬁcer Larson, who was temporarily left alone with the suspect, and who continued the interrogation. Judge Russell points out that the defendant had not eaten anything on the evening of the murder, but had drunk eight or nine beers. After asking the suspect a number of questions required on their “booking sheet”, such as his name (which he gave falsely), address, height, weight, unusual physical markings on his body, occupation, and so on, Calhoun asked Larson to read the suspect his Miranda rights. Larson did so, in Spanish. Larson also was careful to establish that the suspect had understood those rights, by asking the suspect to explain to him what he thought each of the rights meant. Alvarez paraphrased the rights, and afterwards signed a document stating that he understood all of them.11 It is worth noting that Larson included in the list the ﬁfth right, the right to halt the interrogation at any moment after it had begun. After the reading of the rights, Calhoun offered Alvarez another glass of water, which the latter accepted. The ﬁrst question asked by Calhoun was, “Luis, can you tell us what happened tonight? Can you tell us what happened?” 12 To this, the suspect replied, “No, no puedo” (‘No, I can’t’). Larson, rather than interpreting the answer in English, pretended not to understand, saying “¿C´omo?” (‘What?’), to which Carlos Alvarez reiterated his previous answer, “No puedo” (‘I can’t’). Larson did not accept this as a ﬁnal answer, challenging it with a repetition of his reply, implying disbelief: “¿No puede?” (‘You can’t?’). Thus, from the very outset, Larson began to put himself in a police detective footing, aligning himself with Calhoun as part of the interrogating team. Repeatedly, throughout the interrogation – either in the presence of Calhoun when ofﬁcially playing the role of interpreter, or when alone with the suspect – Larson similarly challenged the answers of Alvarez, by using the mechanism of repeating his answer, usually with a question intonation.

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The Miranda warnings and linguistic coercion

Even at Alvarez’s trial, the judge ruled that the defendant’s Miranda rights had been violated because in spite of his repeated attempts to end the interrogation, the police ofﬁcers persisted in questioning him. The trial court judge determined that Alvarez had invoked his right to remain silent after Ofﬁcer Calhoun ﬁrst asked him about meeting a girl on the night of his arrest. The appellate court agreed, and found the two police ofﬁcers’“failure at the ﬁrst interrogation session to respect his invocation of his right to remain silent was sufﬁciently egregious as to constitute a violation of due process and thus taint as involuntary the confession made at the second interrogation session” (Court of Appeal 19XX: 9). What the defendant said at the ﬁrst interrogation, a portion of which is presented by the appellate court as evidence of the Miranda violation and is reproduced below, was considered by the appellate judges to be “tantamount to a confession”. In contrast, at the second interrogation session, which occurred just a few hours after the ﬁrst one and which the defendant voluntarily requested from his jail cell, the defendant made a full confession. It is the fact that the defendant kept trying to cut off questioning, to no avail, that led the appellate court to conclude that the defendant’s Fifth Amendment privilege of not incriminating himself had been denied him, and that therefore the incriminating statements he made were a product of compulsion. 3.1. The linguistic achievement of coercion How did Ofﬁcers Calhoun and Larson successfully obtain a confession during their ﬁrst interrogation of him? It is worthwhile presenting the appellate court’s view on how the interrogation was coercive. First of all, the interrogation sequence cited by the judges in their ruling constitutes strong evidence of the coercive tactics of the police ofﬁcers. While some speciﬁcs of the questioning strategies are mentioned, it is primarily the repetition by the suspect of his desire not to talk about the crime that the appellate court singles out. The judges do note, however, that each time the defendant expressed this wish, “. . . the ofﬁcers ostensibly agreed to talk about other matters, but they soon resumed questioning him about aspects of the incident. The ofﬁcers’ conduct conveyed the unmistakable message that defendant’s rights were meaningless” (Court of Appeal 19XX: 15). The court characterized the police ofﬁcers as therefore having a “callous attitude” toward the defendant. In addition to presenting the text of what for them was the most damaging aspect of the interrogation, the appellate judges mentioned some of the objectionable points in the interrogation that immediately preceded that phase. What follows are the portions of the defendant’s answers, which in their totality inculpate him, as highlighted by Judge Russell (Court of Appeal 19XX: 3):

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Asked by Ofﬁcer Calhoun to “[e]xplain to me how you feel,” defendant answered: “I feel badly. I feel . . . I feel that I am bad with myself.” Defendant acknowledged that he had a “quite serious” problem, and that that problem was why the police had stopped him. Defendant had never had “a problem like this before,” and had never had problems with the police. After he got defendant to admit having carried a large knife that night, Ofﬁcer Calhoun asked: “I know you met a lady tonight . . . True?” Defendant responded that “I feel bad answering the question.” Ofﬁcer Calhoun stated: “I can see the tears in your eyes. I know what happened tonight made you very, very bad feeling. Okay, feel bad about that. I know it’s in your mouth. What you want to tell me is right in your mouth. It just needs a little pushing to get it out . . . But we take it a, a little at a time.”

What is it about these questions and answers that the appellate court found objectionable and evidence of coercion? While the appellate judges did not say it, it is clear from a look at police interrogation manuals that the police ofﬁcers are following tried and true interrogating strategies, yet some of them are considered by the courts to be coercive. First of all, police interrogators are advised not to refer to the crime itself at the outset of an interrogation, but to call it the ‘business’ or ‘situation’ or ‘problem’ (Van Meter and Bopp 1973: 75, 87–88). The strategy is for the interrogator to keep to him/herself the facts of the crime, withhold as much information from the suspect as s/he can, so as to be able to obtain the version of the story provided by the suspect and compare it with whatever is known by the interrogator to be true. Ofﬁcer Calhoun succeeds in getting Alvarez to admit that he was carrying a lethal weapon on the night of the murder – a foot-long knife. He also appeals to the suspect’s emotions. The suspect conforms to what Inbau et al. (1986: 77) refer to as ‘emotional offenders’. According to these professional interrogators, an emotional offender is one “who ordinarily experiences a considerable feeling of remorse, mental anguish, or compunction as a result of his offense. This individual has a strong sense of moral guilt – in other words, a ‘troubled conscience”’ (Inbau et al. 1986: 78). Calhoun capitalizes on the emotional state of Alvarez, telling him he sees tears in his eyes, and agreeing with him that he must feel bad. He also is cajoling him into confessing what he did. Calhoun follows standard interrogation procedure in making the suspect believe that he and Larson “pretty much know what happened” (page 43, lines 10–11); in other words, that they know the facts of the crime and Alvarez’s role in it. When Alvarez insists that he does not want to talk about it, Calhoun, in typical police interrogator fashion, refers to speciﬁc incriminating evidence that he now has against him (ﬁnding the knife in the bushes, the presence of blood on the knife, on the suspect’s shoes, and pants pocket), implying that it is no use denying his actions in the crime, that he might as well confess since the police

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have all the evidence they need (although at this point we do not know if the police had in fact found the knife). He prefaces the list of damaging evidence with a motive he has ﬁgured out for Alvarez: that he had wanted to hurt the victim a little, had wanted to scare her (page 43, lines 18–19). While there is no question that Ofﬁcer Calhoun is conducting an interrogation, judging by the tape-recording and its transcription, what is puzzling is the behavior of Ofﬁcer Larson, since he begins shifting into interrogator mode.

3.1.1.

Coercion by the police interpreter

It is the thesis of this chapter that Ofﬁcer Larson, in serving as interpreter for Ofﬁcer Calhoun and the suspect, never saw himself as primarily or even secondarily an “interpreter”. And neither did Calhoun consider him fundamentally to be an interpreter at the interrogation. Nor did the appellate court. Throughout the appellate opinion, Judge Russell refers to Larson as a “police ofﬁcer”. In his only reference to Larson’s role as interpreter he mentions it merely to establish the contextual background of the interrogation, saying, “At 4:03 a.m., Ofﬁcers Calhoun and Larson began interrogating defendant. Ofﬁcer Calhoun did most of the questioning. The format was that Ofﬁcer Calhoun’s questions in English were translated into Spanish by Ofﬁcer Larson, who then translated defendant’s answers into English for the record” (Court of Appeal 19XX: 2). Nevertheless, the court reporting service that typed the transcript of the interrogation designates the ofﬁcers as “Sergeant Calhoun: Interrogator” and “Detective Larson: Interpreter”. Furthermore, the title that appears on the cover page of the transcript is “Interview with Carlos Alvarez aka Luis Gonzales,” indicating that the trial court had classiﬁed the speech event as an “interview” rather than an interrogation. Despite this, all references to the questioning of the defendant by Calhoun and Larson in the appellate court’s judgment are to the two “interrogation sessions” that they had led. Thus, while the ﬁrst questioning of the suspect should have been merely an interview, it was in reality an interrogation. Shuy (1998) makes a set of very useful distinctions between the language of the police interview and that of the police interrogation. In general, what distinguishes the two is that “Interviewers make use of less of their power than do interrogators. An interview probes but does not cross-examine. It inquires but does not challenge. It suggests rather than demands. It uncovers rather than traps. It guides but does not dominate” (Shuy 1998: 12). Interrogators, in contrast, “challenge, warn, accuse, deny, and complain. They are more direct. They demand and they dominate” (Shuy 1998: 13). Larson was supposed to be the “interpreter” in the interrogation of Alvarez. However, he behaved as an interrogator, performing interpreting services in a

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faulty and half-hearted way, for the most part helping Calhoun carry out his part in the interrogation. As will be demonstrated below, Larson’s unwillingness to remain in the ‘footing’ of interpreter is evidenced in three ways: (1) he aligns himself with Calhoun as a co-interrogator, making references to both of them in his interpretations of Calhoun’s questions, when in fact Calhoun refers only to himself; (2) he behaves in classic interrogator mode when left alone with the suspect; (3) he fails to interpret many of the questions and statements of Calhoun, and the responses of Alvarez, thereby violating the basic norms of legal interpreting. 3.1.2.

Footing as co-interrogator

Upon interpreting the questions and statements of Calhoun, Larson often inaccurately interprets the latter’s use of ﬁrst-person singular reference, rendering it in Spanish as ﬁrst-person plural. As can be seen in the Extracts 1–5 below, Larson’s rendition of Calhoun’s utterances refers to the two of them, even though Calhoun is speaking only for himself. Speciﬁcally, Larson changes Calhoun’s ﬁrst-person subject and object pronouns from singular to plural, with corresponding morphological changes in the verbs. This indicates that Larson is not satisﬁed with simply being an interpreter in this event; he wants to be a member of an interrogating team. In Extract 1, below, Calhoun is trying to establish certain facts concerning the whereabouts of Alvarez on the evening of the murder and his activities that night. The suspect has just told him that he spent the previous night sleeping outdoors, in the corridors of an apartment complex. The words highlighted in bold print represent the discrepancies between source language and target language ﬁrst-person pronouns. No other interpreting discrepancies are noted here, even though they abound. The English rendition of Larson’s Spanish utterances are those of the ofﬁcial court interpreter. Extract 1 1 2 3 4 5 6 7

Calhoun: In the walkways? Okay. Ahh, you told . . . you said . . . you told me you had some beer today. What else did you do . . . today? Did you just walk around town? What did you do? Larson: Usted dice . . . usted dice, nos dice que estaba tomando cerveza hoy d´ıa. ¿Qu´e m´as hizo hoy d´ıa? ‘You say . . . you say, you tell us that you were drinking beer today. What else did you do today?’

In Extract 2, Calhoun is trying to get Alvarez to tell him why he feels bad about himself. He is playing on the suspect’s sense of guilt and remorse, trying to bring him to the point of admitting his guilt in the murder.

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Extract 2 1 2 3

Calhoun: Explain to me how you feel. Larson: D´ıganos c´omo se (u)13 ‘Tell us how you (u)’

At a key point in the interrogation, Calhoun is cajoling the suspect to narrate “what happened” on the evening of the murder. He had opened the questioning with the same vaguely worded probe, but without allusions to Alvarez’s courage. Now, however, he has the suspect in a highly emotional state, having just admitted that he had “never done this before”, although still not specifying what he had done. Extract 3 1 2 3 4 5

Calhoun: Okay, I know it will take a lot of courage, but can you tell me what happened? Larson: Dice que sabe que tomar´a bastante coraje pero ¿nos puede decir qu´e pas´o esta noche? ‘He says he knows it will take a lot of courage, but can you tell us what happened tonight?’

6

In another pivotal moment of the interrogation, Calhoun wantsAlvarez to believe that he knows that Alvarez had met the murder victim that night. In Extract 4, he makes one of the most sensitive, and speciﬁc statements thus far in the interrogation: he links the suspect to the murder victim. Extract 4 1 2 3

Calhoun: Now I . . . I know you met a lady tonight. A young lady tonight. Larson: Sabemos que conoci´o a una muchacha esta noche. ‘We know that you met a girl tonight.’

One of the most striking pieces of linguistic evidence indicating that Larson considers himself to be a police detective/interrogator, rather than an ad hoc interpreter, is the language he uses in administering Alvarez the Miranda rights. His repeated use of the ﬁrst-person plural pronoun, ‘we’ and ‘ us,’ and an even more explicit reference to the suspect’s willingness to talk ‘to me and with this detective’ are indicative of his view of himself, his footing, vis à vis the suspect. Extract 5 1 2 3 4 5

Larson:

Okay, el n´umero dos por atr´as dice, “Conociendo perfectamente sus derechos, desea usted hablar conmigo y con este detective aqu´ı ahora o hacer alguna declaraci´on? ‘Okay, number two on the back says, “Knowing your rights perfectly, do you wish to talk to me and with this detective here now or to make some statement?”’

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Gonz´alez: S´ı. ‘Yes.’ Larson: Okay. Si desea hablar con nosotros, ponga la palabra “s´ı” y tambi´en necesitamos que ﬁrme su nombre aqu´ı donde dice: “signature of defendant”. Y ﬁrma aqu´ı. . . . Okay. ‘If you wish to talk with us, put the word “s´ı” and also sign your name. Okay, and on side number one we also need you to sign your name here where it says: “signature of defendant”. . . . ’

14

At the end of the reading of the rights, Calhoun announces for the record that Larson had just read the suspect his rights, and asks Larson to “give me a statement concerning his understanding those rights, and, uh, if he has agreed to talk or what.” Larson responds that “Luis” has said that he understood those rights, and he mentions each of the rights, one by one. He ﬁnishes his response to Calhoun with the following statement, which becomes the ‘go-ahead’ signal for the questioning to begin: “. . . and understanding these rights to remain silent, he agreed to, to talk with us.” Larson is not alone in seeing his role as detective/interrogator: Calhoun, too, demonstrates an ambivalence with respect to Larson’s role in the speech event. He alternates between referring to himself, only, as interrogator, and plural reference, using the subject pronoun ‘we’. One of the most striking examples of Calhoun’s inclusionary pronominal usage, where ‘we’ refers to himself and Larson, and possibly even to ‘the police department’ with all of its forensic experts, is his listing of the evidence that they have against Alvarez. This comes after a sequence of questions by Calhoun which gives the suspect a possible justiﬁcation for having become violent with the victim, namely, whether she had done something to provoke him, for example, had she attacked him. To all of Calhoun’s questions Alvarez replies either “I don’t know” or “I don’t remember.” Upon receiving a reply of “I don’t remember, I should not like to talk more about this”, Calhoun suddenly becomes aggressive in his interrogation approach – a ploy that is part of classic interrogating – and begins listing everything that he and Larson purportedly know about the suspect’s involvement in the murder. Extract 6 1 2 3 4 5 6 7

Calhoun: Okay. (Pause) We found a knife . . . in the bushes. There was blood on the knife. It was your knife and we will be able to tell because of your ﬁngerprints. . . . Calhoun: There was blood on the knife. We will be able to tell whose blood it is. If it was yours from if you cut yourself, or if it was from somebody else. . . . Calhoun: We know that there’s blood on your clothes. . . . Calhoun: And we will also know if that’s from him14 or from somebody else. . . .

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Calhoun: We know that there’s blood on your shoes, and we will be able to tell if that blood is yours or from somebody else. . . . Calhoun: There was blood in your pants pocket from when you put your hand in your pants. We will be able to tell if that blood was yours or somebody else’s, because we took your blood sample. . . . Calhoun: We’ll be able to take trace evidence from your hands and match it to other evidence. . . . Calhoun: I would simply like for him, if he can, to tell me why. Larson: Nosotros simplemente quisi´eramos que usted nos diga por qu´e. ‘We would simply like for you to tell us why.’

After this listing of the pieces of key evidence that ‘they’ have, Calhoun ends his implicit accusation with ﬁrst-person reference (line 15), addressing Larson directly, and Alvarez only indirectly. Larson, hearing the litany of forensic pieces of evidence the police claim they have against the suspect, changes the ﬁrstperson singular ‘I’ and ‘me’ to plural ‘we’ and ‘ us’, thereby including himself among those who possess all of this evidence against the detainee. This puts him in a more powerful position relative to the detainee than if he were merely an interpreter. 3.1.2.1. Moving into interrogator footing Intruding himself into Calhoun’s self-references as a police ofﬁcer is one thing. Behaving in interrogator mode is another. Larson minimizes his role as interpreter and insists on establishing a police interrogator footing both in the presence of Calhoun and in his absence (at one point, Calhoun leaves the interrogation room for a while). His behavior when Calhoun is away is considered by the appeals court to be particularly “egregious”, but not because he is out of role, but because he so ﬂagrantly violates the suspect’s Miranda right to halt the questioning when the latter no longer wishes to speak. Taking on the role of interrogator while he is purportedly an interpreter for another police ofﬁcer would be unimaginable in a comparable situation where an interpreter is working with a lawyer and a witness who is undergoing cross-examination on the witness stand. But this is not a courtroom; this is a police interrogation room. Evidence of the attempts by Larson to preserve his status as police detective/interrogator, even while he is supposed to be serving as interpreter for Calhoun and Alvarez, can be found in the fact that he often asks the suspect questions on his own accord. This generally happens whenever he feels that Calhoun is not being successful in getting adequate responses from Alvarez. Other evidence of Larson’s interrogator footing while being on interpreter duty is his regular challenging of the suspect’s answers. By repeating Alvarez’s answers, usually with a question intonation, he indicates a lack of acceptance of

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these answers, and an attitude of incredulity. Extracts 7 and 8 below demonstrate both of these phenomena. Extract 7 demonstrates how Larson momentarily leaves behind his interpreter role, and steps into interrogator footing. He does so to help Calhoun obtain a more informative answer to his question. The question was, where did he get the knife that was used as the murder weapon. It is worth noting that even though Alvarez is willing to answer Calhoun’s question, despite the numerous “I don’t know” answers he gives, Larson does not ﬁnd the answer satisfactory (line 6), and probes further. He thus acts in typical police interrogator fashion. Extract 7 1 2 3 4 5 6 7 8 9 10

Calhoun: Okay. Where did you get the knife? Larson: ¿D´onde consigui´o este cuchillo? Alvarez: (u) lo encontr´e en un basurero. ‘I found it in a garbage can.’ Larson: ¿D´onde? (u) ‘Where? (u)’ Alvarez: Bueno, donde hab´ıa varias cosas tiradas. ‘Well, where there were various things thrown away.’ Larson: He says he found it in a trash can along with other things that were thrown out, thrown out.

Another instance of the police interpreter acting as interrogator comes after Alvarez has in effect admitted to stabbing the young woman he followed from the subway station, although at this point he still has not made a full, formal confession. For this reason Calhoun continues to pressure him psychologically, recycling a topic (Shuy 1998) that he has brought up numerous times already, namely that something very bad happened to Alvarez that night. In Extract 8, below, Larson on his own initiative asks Alvarez if he knew before Calhoun’s announcement to him, that the young woman had died. The purpose of the question is not to elicit any new factual information, but to make him even more psychologically vulnerable to confessing. Extract 8 1 2 3 4 5 6 7 8 9

Calhoun: I’m sorry for you Luis. A very bad thing that happened to you here. (Pause) You didn’t want to hurt her, did you? Alvarez: No entiendo lo que dice. ‘I don’t understand what he is saying.’ Larson: ¿Usted no quiso hacerle tanto da˜no? ‘You didn’t want to hurt her so much?’ Alvarez: No quiero hablar m´as. No quiero hablar m´as de nada. ‘I don’t want to talk more. I don’t want to talk more about anything.’ Larson: ¿No sab´ıa que estaba muerta?

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‘You didn’t know that she was dead?’ Alvarez: No. No quiero hablar m´as. No quiero saber nada m´as. ‘No. I don’t want to talk more. I don’t want to know anything more.’ Larson: ¿No quiere saber nada m´as? ‘You don’t want to know anything more?’ Alvarez: No, no quiero (u). No s´e. ‘No, I don’t want (u). I don’t know.’

17

Larson’s repetition (in line 13 of Extract 8) of the suspect’s statement about not wanting to know anything else, which immediately follows his unmotivated question regarding Alvarez’s knowledge that the victim had died, can be interpreted as an additional move to make him look blameworthy. It gives the suspect the clear message that there is more that they, the police, know about the crime, and by implication, about Alvarez’s involvement in it. One gets the impression that Alvarez feels that if he heard more of the details of the murder, he would be drawn more deeply into the police net. He seems to know intuitively, even without a lawyer present, that to answer the substantive questions about the crime would be to implicate himself in it. Larson’s discourse strategy of repeatingAlvarez’s answers whenever he wants to cast doubt on their veracity or genuineness of feeling is one frequently used by police ofﬁcers. It is the equivalent of saying to someone, “Are you sure about that?” “Is that what you really feel?” “Is that what really happened?” Note the repetition sequences involving Larson, in the extract below. Extract 9 follows a question from Calhoun about Alvarez’s being stopped by a police ofﬁcer as he was running near the place where the victim’s body was found. Extract 9 1 2 3 4 5 6 7

Calhoun: Do you know where you were running to? Larson: ¿Sab´ıa ad´onde , ad´onde iba a, a correr? ‘Did you know to where, to where you were going to, to run?’ Alvarez: No. Larson: ¿No sab´ıa, no? ‘You didn’t know, no?’ Alvarez: No.

To Calhoun’s question, “The problem that you had was, was very bad. Is that how you got the scratches on your hand?” Alvarez’s response is silence. When Calhoun prods him with a code-switch, “It’s true? ¿Es verdad?” Alvarez replies “No s´e” (‘I don’t know’), which rather than to interpret in English, Larson questions, asking, “¿No sabe?” (‘You don’t know?’). There is no verbal response

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to this question from the suspect, although there may have been a nonverbal sign indicating negation. All that is heard on the tape is Larson’s English response to Calhoun, “He says he doesn’t know.” It is clear from the pattern of “No s´e” (‘I don’t know’) answers that they are used by Alvarez when he is unwilling to admit damaging evidence to the police. For example, he answers “No s´e” to Calhoun’s question about whether he met a girl that night, or why he had leaves in his hair, or whether he had been in some bushes that night. And each time he answers “No s´e” Larson questions him with, “¿No sabe?” Larson’s pattern of questioning Alvarez’s “I don’t know” answers should be interpreted as an unwillingness to accept them. He knows that they could not be true, since he and Calhoun are relatively sure that they have the right person in custody for this crime. The constant refusal to accept “I don’t know” for an answer is a form of coercion. It represents a way of pressuring Alvarez into divulging incriminating information. In fact, at one point Calhoun asks Alvarez to clarify whether these “I don’t know” answers mean that he doesn’t understand, or that he doesn’t know the answer to the question. When Calhoun asks this question in reference to whether Alvarez had met a girl that night, the latter answers, “Pues, (pause) pues, cuando digo que no s´e, es que me siento mal contestar a la pregunta” (‘Well, (pause) well, when I say that I don’t know, it’s that I feel bad answering the question’). So Larson might be correct in doubting the truth of these “I don’t know” answers; nevertheless, these answers represent Alvarez’s method of preserving his Miranda right not to talk to the police, and Larson’s challenging repetitions of these refusals must be interpreted as a way of subverting the suspect’s attempts at not incriminating himself. The appellate court makes mention only of the repeated statements byAlvarez to the effect that he would “not like to talk about this” or would “not like to talk any more,” which are clear-cut invocations of his Miranda rights. The court does not, however, pay as much attention to the pattern of Larson’s responses to the “I don’t know” answers. Larson’s behavior with respect to the “I don’t know” statements is just as coercive as his interrogating behavior in its other forms. The discussion above deals with Larson’s behavior while he is serving as interpreter for Calhoun and the suspect. However, once Calhoun has left the room and Larson is alone with Alvarez, he becomes solely and completely a police interrogator. Most insidious, perhaps, is his manipulation of his ofﬁcial interpreting role to further his more important goals as interrogator. Speciﬁcally, Larson appeals to Alvarez’s Hispanic ethnic identity and the fact that he is a Spanish speaker, as a way of ‘claiming common ground’, since he, Larson, is also a Spanish speaker, as opposed to Calhoun, who is not.15 He capitalizes on his ability to communicate with Alvarez in Spanish. Thus, he begins the

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interrogation with the statement, “Okay. Ah, creo que tuvimos un, una, una problema en que estaba, yo estuve tratando de traducir por el otro. Okay?” (‘Okay, I think that we had a, a, a problem in that I was, was trying to translate for the other one. Okay?’). Larson capitalizes on the fact that Calhoun could not speak to Alvarez in Spanish, and uses it as a way of trying to induce the latter to open up to him, in Spanish. Extract 10 presents Larson’s discourse strategy for persuading Alvarez to begin making admissions of guilt to him. Extract 10 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15

Larson:

Umm, y al, al traducir y a hablar con usted y tambi´en con el o . . . con Dick [Calhoun], ¿Okay?, umm, yo sent´ı que usted m´as o menos quiere hablar, pero ten´ıa problemas en hablar con un, una persona que no le entiende muy bien. ‘Umm, and while, while translating and talking with you and also with the oth . . . with Dick, Okay, umm, I felt that you more or less want to talk, but you had problems in talking with a, a person that doesn’t understand you very well.’ Alvarez: Um hum. Larson: Okay? Alvarez: Um hum. Larson: ¿Hab´ıa un problema en hablar con Dick porque e´ l no, no sab´ıa hablar castellano? ‘Was there a problem in talking with Dick because he, he didn’t know how to speak Spanish?’ Alvarez: No. Sino que no quiero hablar m´as. ‘No. It is just that I don’t want to talk more.’

Clearly, Larson’s ploy does not work. Alvarez did not say much to Calhoun because he did not want to implicate himself in the murder. It was not because Calhoun was not a Spanish-speaker. And even though Larson is speaking in Spanish to Alvarez, Alvarez still resists his attempts to pry information from him. He keeps referring to how bad he is feeling, and how he would rather not talk about his “problem”. Larson then tries another strategy, one which has been used by other interrogators and which the courts have ruled in prior cases to be fundamentally coercive: the appeal to religion and conscience. The full text of the interrogation demonstrates how Larson the interrogator brings up the subject of the “errors” that Alvarez may have committed in the past, and alluding to the “problem” that he had had that night, links it to Alvarez’s Catholicism and to the fact that he himself is a Catholic. Larson manages to get Alvarez talking about his religious training as a youngster, about his love for God, the consequent need for repentance when one has erred, and the danger of going to hell if one does not confess one’s sins. The appellate court (Court of Appeal 19XX: 14) quotes from case law to justify ﬁnding fault with Larson for using this strategy:

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59

[A] state law enforcement ofﬁcer conducting an interrogation of one accused of crime may not use his own or the suspect’s personal religious beliefs as a tool to extract admissions of guilt . . . [para.] Religious beliefs are not matters to be used by governmental authorities to manipulate a suspect to say things he or she otherwise would not say. The right to worship without fear is too precious a freedom for us to tolerate an invasion and manipulation by state ofﬁcials of the religious beliefs of individuals, including those accused of crime. These tactics constituted “deliberate means calculated to break the suspect’s will.”

Manuals on criminal interrogation such as Aubry et al. (1980: 198), however, teach interrogators to use the theme of religion, if the suspect is religious, in order to play upon his or her emotions. The appeal to religion is intended to make the suspect feel the moral seriousness of the crime, and to bring about a guilty conscience in him or her. Thus, there is a striking contradiction between the advice given by interrogation manuals and the position of the courts in this regard. The appellate court singles out other discourse strategies as well, ones that are used by Larson and Calhoun alike, which contribute to the coerciveness of the interrogation: their use of “recurring themes”, for example, speciﬁcally, that Alvarez should “overcome his unwillingness to talk about aspects of the crime,” and that he should “agree to talk at a later time” (Court of Appeal 19XX: 15). The court refers to the interrogation as constituting “relentless questioning”, whose intended purpose was to give the suspect the clear impression that the questioning would not end until his will broke. Larson was more guilty of such behavior than was Calhoun: he was more insistent on getting Alvarez to talk. What, speciﬁcally, did the court ﬁnd objectionable in the style of questioning? Upon examining the data we see that every time Alvarez said that he did not want to talk about his problem, or about what had happened earlier in the evening, Larson would ask him, “When will you want to talk about this? Tomorrow?” or else he would question him on his reasons for not wanting to talk at that moment. At other times he would change the subject, trying to give Alvarez the impression that he was complying with his desire not to talk further about the events of the evening. But then within one or two turns at talk,16 Larson would switch back to the topic of what had happened that night, and the serious problem that the suspect had. Thus, it became abundantly clear to Alvarez that Larson in his interrogation, and Calhoun when he conducted the questioning, were not giving up on ﬁnding out the details of the crime. In discourse analytical terms, each police ofﬁcer in his own right would “recycle” the topics of interest to them: the murder and the suspect’s involvement in it. Similarly, the subtheme of blood is recycled several times: that the victim’s blood was found on the suspect’s shoes, in his pants, on the knife

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whose handle bore his ﬁnger prints. In the language of professional criminal interrogators, this is an approach known as “constant repetition of one theme”, and consists of “repeating the same questions or line of questioning over and over again” (Aubry et al. 1980: 210). This recurrent pattern of recycling topics, through the mechanism of changing the topic whenever the suspect invokes one of his Miranda rights but then abruptly dropping that topic and shifting back to the true topic of interest to the interrogator, is one of the tactics for what has been called by police interrogator experts as the strategy of “keep the talk going” (Van Meter and Bopp 1973: chapter 7). As Van Meter and Bopp (1973: 94) point out, in their advice to the police, “An interrogation goes along only as long as the interrogator can keep it going. It is up to you to keep the conversation ﬂowing.” 3.1.3.

Failure to interpret utterances

That Larson does not wholeheartedly accept the role of interpreter is evidenced by his failure to interpret much of what is said at the interrogation: many of the questions and statements of Calhoun, as well as the answers of Alvarez remain as uttered, without interpretation by Larson. Yet, during the phase of the questioning in which Calhoun is trying to obtain incriminating evidence from the suspect, Larson is careful to interpret the questions and the answers for the record (the interrogation is being audio-recorded, for future transcription). Subsequent to Larson’s own interrogation of Alvarez, however, when Calhoun returns to the interrogation room with a glass of water for Alvarez and resumes the interrogation, Larson does not resume his interpreting duties. Perhaps this happens because he had been in interrogating mode for quite a while, and had not switched back into interpreter footing yet. This failure to take on his interpreting obligations, however, makes for “trouble”, in the sense of Schegloff, Jefferson and Sacks (1977). Things do not go smoothly. Calhoun and Alvarez, each in his own right, need the interpreting services of Larson, which he is not providing. Extract 11, below, reveals the trouble spots caused by Larson’s general failure to take on the responsibilities of an interpreter. At the opening of this episode in the interrogation, Calhoun has just entered the room and Larson is still interrogating Alvarez. Calhoun in effect interrupts Larson’s questioning. Extract 11 1 2 3 4 5

Calhoun: Larson: Calhoun: Alvarez: Calhoun:

I was just gonna tell him this here. Okay. Luis? Um hum. I just did the laboratory tests.

The case: The People v. Alvarez 6 7 8 9 10 11

Alvarez: Calhoun: Alvarez: Calhoun: Alvarez: Calhoun:

12 13 14

Alvarez: Larson:

15 16

Alvarez:

17 18

Larson:

19 20

Alvarez:

21 22

Calhoun:

23 24 25 26 27 28 29 30

Alvarez: Calhoun: Alvarez: Calhoun: Alvarez: Calhoun: Alvarez:

31 32

Larson:

33 34 35

Calhoun:

36 37 38

Calhoun: Larson:

39 40 41

Alvarez:

61

Um hmm. The blood . . . on your knife . . . the blood on your clothes. Um hum. It was hers. Um. It was hers. Okay, we just got done with those tests and it was hers. And on your shoes and your pants . . . on your hands, it was hers. Yeah. ¿Entiende lo que dijo? ‘Do you understand what he said?’ S´ı, que la sangre es de ella. ‘Yes, that the blood is hers.’ ¿Una problema con eso? ‘A problem with that?’ (u) No s´e. ‘I don’t know.’ (sigh) (Pause) I don’t know what to tell you, Luis. Uh, it is a very terrible problem like you said. Hum. Blood in your pants pocket . . . blood on your shoes. It was all her blood. Yeah. She died. She what? She died. ¿Qu´e dice? ‘What is he saying?’ Est´a muerta. (She is dead.) (Pause) Is something wrong? (Long pause) What do we need to do Luis? ¿Qu´e tenemos que hacer? ‘What do we have to do?’ No s´e. ‘I don’t know.’

This interrogation episode is carried out essentially without interpreting. When Alvarez asks Calhoun for a repetition of his statement that the young woman has died (line 28), on hearing it for the second time from Calhoun he asks Larson in Spanish to tell him what Calhoun had said, implying that he should interpret Calhoun’s words into Spanish for his beneﬁt. Most likely he has understood Calhoun’s statement, but needs a conﬁrmation of it in Spanish, since the news is so upsetting. If Larson were in interpreter footing, as he ought to be, there would

62

The Miranda warnings and linguistic coercion

be no “trouble” of this sort. Larson would routinely be interpreting everything said between the interrogator and the suspect. But he does not see himself essentially as an interpreter, but rather, as an interrogator. For this reason, in line 18, after corroborating with Alvarez that he, Alvarez, understood what Calhoun had announced to him, about the blood on his clothing being that of the stabbing victim, Larson suddenly asks a question that only a police detective would. By asking Alvarez if he has a problem with this latest forensic ﬁnding, Larson is baiting him, goading him into saying something about his connection to the girl’s blood and, by implication, to the stabbing of the girl. And yet, Alvarez refrains from opening up and disclosing details – despite having only an eighthgrade education, a lack of experience with the law, and a hangover aggravated by exhaustion from not having slept at all that night. All of these factors were taken note of by the appellate court. Nevertheless, as the questions continue following this point in the interrogation, he begins to break, and confesses to having had contact with the murder victim as he followed her out of the subway station. The interrogation is soon to end.

4. Conclusions Carlos RiveraAlvarez’s ﬁrst-degree murder conviction was reversed by the Court of Appeal.17 In their ruling, the judges referred to the “ﬂagrancy of the ofﬁcial misconduct”, and considered the illegality to have a “quality of purposefulness”: That its purpose was intended to reduce the defendant’s resistance to the interrogating ofﬁcers’ desire for a confession is likewise beyond dispute. That purpose was effected by a persistent disregard of defendant’s constitutional right to remain silent and not incriminate himself. With respect to ﬂagrancy, this is a glaring example of police misconduct. (Court of Appeal 19XX: 17)

The appeals court explained that its rationales for reversing the conviction were (1) the general goal of deterring improper police conduct, and (2) assuring trustworthy evidence, as guaranteed by the Fifth Amendment (Court of Appeal 19XX: 17). Speciﬁcally, the court hoped to “instill in those particular ofﬁcers, or in their future counterparts, a greater degree of care toward the rights of an accused” (Court of Appeal 19XX: 17). In short, the reversal of Alvarez’s conviction was intended to serve as a deterrent against future such misconduct. From a discourse perspective, the two police ofﬁcers in this case had engaged in “extensive badgering and softening up” of the suspect, to use the accusatory terminology of Alvarez’s defense attorney. These are lay terms for the discourse phenomena described previously: topic recycling, repetition, appeals to common

Conclusions

63

ground (e.g., shared religious beliefs), concern for the interlocutor’s positive face needs (e.g., expressions of empathy and sympathy). The case of Carlos Rivera Alvarez centers on police violation of the Miranda rights. While the defense attorney and appellate court were in agreement on how the police interrogators effectuated their misconduct, they seem to have overlooked one important element in this instance of police wrongdoing, and that is that one of the police interrogators was not properly executing the role that he had been delegated with, namely, legal interpreter. As I explain in chapter 2, legal interpreters are expected to adhere to a set of norms required by their profession, yet it is an open question whether in all the documented criminal cases in which the police have served as interpreters, the police have abided by those norms. The police detective assigned the role of interpreter in the Alvarez interrogation ﬂagrantly ignored the guidelines of legal interpreting. At the same time, he became an active participant in helping the designated interrogator coerce a confession from the suspect. He in effect became an interrogator. Such a shift in footing has been noted in other sociolegal settings where interpreters are at work (Berk-Seligson 1999b; Berk-Seligson and Trinch 1999), and seems to be par for the course in community interpreting contexts other than legal ones (Davidson 2000; Roy 2000; Wadensjõ 1998). These shifts in footing indicate that social interaction is a collaborative effort, and interpreters become part of that collaborative effort, working toward the goal shared by the designated interviewer and the interviewee. Police interviews and interrogations stand in marked contrast to other types of community interpreting events. There is no presumption on the part of detainees or of interrogating ofﬁcers that the goal of the interrogation is to better the quality of life of the person being questioned. In short, this is fundamentally an adversarial speech situation. In contrast, in most other community interpreting contexts, interviewers and interviewees do not presume an adversarial relationship from the very outset, although in particular instances even a medical interview can turn into a hostile encounter. Typically, in community interpreting contexts, interpreters place themselves in an advocacy footing with respect to the client. They generally have the client’s best interests in mind. The case of The People v. Alvarez demonstrates the dangers of using the police as interpreters at interrogations. The danger is that the police interpreter will not remain in interpreter footing, but will shift back and forth between interpreter and police interrogator. The potential for this to happen is particularly great because, as in other situations involving legal interpreters, the suspect or defendant may assume at the outset that the person who has been assigned to help him or her understand what the interrogator is asking, is actually trying

64

The Miranda warnings and linguistic coercion

to help him or her in a broader sense and is taking his or side (Berk-Seligson 1990, 2000; Morris 1999). Thus, to play the role of interpreter when one really considers him/herself to be in police detective footing, is one way of subverting the Miranda rights. It is a way of seducing a suspect into talking. To be a bilingual police ofﬁcer assigned the role of interpreter at an interrogation is to give oneself a great advantage as a detective, and that is the enhanced ability to manipulate the detainee. This advantage puts the Miranda rights in greater jeopardy than usual, for a police detective who is in the footing of interpreter might easily turn out to be a wolf in sheep’s clothing.

Appendix 1 Extract of ﬁrst interrogation of Carlos Alvarez, aka Luis Gonz´alez18 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 29 30 31 32 33 34 35 36 37 38 39

Calhoun: Okay. You, you met a, a girl tonight, didn’t you Luis? Larson: ¿Conoci´o a una muchacha esta noche? ‘Did you meet a girl tonight?’ Alvarez: No s´e. No s´e. No recuerdo. ‘I don’t know. I don’t know. I don’t remember.’ Larson: He says he doesn’t know. He doesn’t remember. Calhoun: It’s a bad thing that happened tonight, right? Larson: ¿Fue una cosa mala que pas´o esta noche, no? ‘It was a bad thing that happened tonight, no?’ Alvarez: S´ı, pero (pause) no, no quisiera seguir hablando de eso. ‘Yes, but (pause) I shouldn’t, I shouldn’t like to continue talking about that.’ Larson: Okay, he doesn’t want to continue talking about this. Calhoun: Okay. Can we talk about some other things? Larson: ¿Podemos hablar de otras cosas? ‘Can we talk about some other things?’ Alvarez: S´ı. S´ı. (u) Larson: Yes. Yes. (u) Alvarez: Yeah, if we want. Calhoun: Okay. Were, were you gonna go back to Mexico soon? Larson: ¿Iba a regresar a M´exico reci´en? ‘Were you going to return to Mexico recently?’ Alvarez: Quer´ıa estar all´a en diciembre. ‘I wanted to be there in December.’ Larson: He wanted to be there in December. Alvarez: Por la navidad. ‘For Christmas.’ Larson: For Christmas. ... Calhoun: Okay. Ah, would you tell him that, ah (pause) we . . . we pretty much know what happened? Larson: Okay. Luis, generalmente nosotros sabemos que pas´o. ‘Okay. Luis, generally we know what happened.’ Alvarez: Um hum. Calhoun: I would . . . I need to ﬁll in just a couple of areas. Larson: Necesitamos saber qu´e pas´o en unos a´ reas que todav´ıa no est´an muy (u). ‘We need to know what happened in some areas that are not yet very (u).’ Calhoun: Okay. Did she attack you in any way? Did she hurt you in any way? Larson: Este muchacha, ¿le atac´o a usted o le, le hizo da˜no a usted?

66 40 41 42 43 44 45 46 47 48 49 50 51 52 53 54 55 56 57 58 59 60 61 62 63 64 65 66 67 68 69 70 71 72 73 74 75 76 77 78 79 80 81 82 83 84

Appendix 1 ‘This girl, did she attack you or did she hurt you, you?’ Alvarez: No recuerdo. ‘I don’t remember.’ Larson: He doesn’t remember. Calhoun: Okay, Did you want to hurt her just a little bit? Did you just want to scare her? Larson: ¿La quiso . . . ? (unintelligible) ‘Did you want . . . ?’ Calhoun: Did you just want to try to scare her a little bit? Larson: ¿La muchacha esta noche . . . La quiso asustarla, nada m´as . . . esta noche? ‘The girl tonight . . . did you want to scare her, nothing more . . . tonight?’ Alvarez: No recuerdo, no quisiera hablar de esto m´as. 19 ‘I don’t remember, I should not like to talk more about this.’ 20 Larson: He doesn’t remember, and he doesn’t want to talk about this anymore. ............................................................................ Calhoun: I would simply like for him, if he can, to tell me why. Larson: Nosotros simplemente quisi´eramos que usted nos diga por qu´e. ‘We would simply like for you to tell us why.’ Alvarez: No, no quiero hablar de esto m´as. ‘No, I don’t want to talk more about this.’ Larson: He doesn’t want to talk about this anymore. Calhoun: Okay. (Pause) He doesn’t want to talk to us anymore about this or he doesn’t want to talk to us anymore, period? Larson: ¿No, no quiere hablar de esto espec´ıﬁcamente o no quiere hablar en todo? ‘You don’t want to talk about this speciﬁcally or you don’t want to talk in all (sic)?’ Alvarez: Me siento mal. No quisiera hablar de nada. (I feel badly. I should not like to talk about anything.) Larson: ¿C´omo? ‘What?’ Alvarez: Me siento mal y no quisiera hablar de nada. ‘I feel badly, and I should not like to talk about anything.’ Larson: He says he feels bad, and would rather not talk about anything like that. Calhoun: Okay. What do you think is going to happen now? What do you think is going to happen to you? Larson: ¿Qu´e piensa usted que va a pasar ahora? ‘What do you think is going to happen to you?’ Alvarez: Pues, no s´e. Pienso que tal vez me metan a la carcel. 21 (Well, I don’t know. I think that perhaps they will put me in jail.) ............................................................................ Larson: Okay. Hay . . . hay un porque no quiere hablar? 22 ‘Okay. Is there . . . is there a why [sic] you don’t want to talk?’ Alvarez: Porque siento que no es el momento. ‘Because I feel that it is not the time.’ Larson: ¿No es el momento? Okay. Cuando usted dice que no es el momento, ¿por qu´e dice eso?

Appendix 1 85 86 87

Alvarez:

88 89 90 91 92

Larson:

93 94

Alvarez:

95 96

Larson:

97 98 99 100 101

Alvarez: Larson:

102 103 104 105 106 107

Larson:

108 109

Alvarez:

110 111

Larson:

112 113 114 115 116

Alvarez: Larson:

117 118 119

Alvarez: Larson:

120 121

Alvarez:

122 123

Larson:

124 125 126 127 128 129

Alvarez: Larson:

67

‘It isn’t the time? Okay. When you say that it is not the time, why do you say that?’ Porque yo me siento mal. No quiero recordar eso. Quisiera por el momento olvidar, olvidarme del problema que tuve. Me siento cansado. ‘Because I feel badly. I don’t want to remember that. I should like, for the moment, to forget, to forget the problems that I had. I feel tired.’ ¿Siente cansado? ‘You feel tired?’ Y no quisiera hablar m´as. ‘And I should not like to talk more.’ Okay. ¿Qu´e tal si hablamos un poquito m´as, okay? Yo tengo unas dudas en qu´e pas´o. ‘Okay. How about if we talk a little more, okay? I have some doubts in (sic) what happened.’ Uh huh. ¿Okay? Ah, yo sien . . . Bueno, yo ,. . . yo tambi´en, yo no estoy . . . Bueno. Generalmente yo estoy durmiendo a estas horas, okay ?Entonces, tambi´en tengo cansan . . . des . . . cansado,? ‘okay? ‘Okay? I fee . . . Well, I . . . I also, I am not . . . Well. Generally I am sleeping at this time, okay? Then I am also ti . . . res . . . tired, okay?’ ............................................................................ Okay. ¿Usted es de M´exico, no? ‘Okay. You are from Mexico, no?’ Estoy . . . s´ı estuve en M´exico. ‘I am . . . yes I was in Mexico.’ Okay. Okay. ¿Qu´e? usted dice que . . . que quiere olvidar todo que pas´o esta noche, ¿piensa que puede? ‘Okay. Okay. What? You say that . . . that you want to forget all that happened tonight. Do you think you can?’ (u) Okay. Cuando usted ha hecho errores en, en el pasado. ‘Okay. When you have made errors in, in the past . . . ’ Um hum. Okay. ¿C´omo ha pasado por los errores? ‘Okay. How have you passed by (sic) the errors?’ No s´e qu´e clase de errores. I don’t know what kind of errors. Bueno, no importa qu´e clase, okay? Yo he aprendido que . . . lo mejor manera para . . . para sobrevenir un error o un problema es de hablar de, del problema. ‘Well, it doesn’t matter what kind, okay? I have learned that . . . the best way to . . . to overcome an error or a problem is of [sic] to talk of the problem.’ Huh. ¿Okay? Y el problema que ten´ıa esta noche, ahhhh, es, es un poquito grave, ¿okay?

68

Appendix 1 ‘Okay? And the problem that you had tonight, ahhhh, is, is a little serious, okay?’

130 131 132 133 134 135 136 137 138 139

Alvarez: Larson:

140 141 142 143 144

Alvarez: Larson:

145 146 147

Alvarez: Larson:

148 149 150 151

Alvarez:

152 153

Larson:

154 155 156

Alvarez: Larson:

157 158

Alvarez:

159 160 161

Larson: Alvarez:

162 163 164

Larson: Alvarez:

165 166

Larson:

167 168 169 170

Alvarez:

171 172 173 174

Larson:

Yo, yo s´e que usted tambi´en sabe eso, pero a veces es, es mejor de hablar de este problema para que usted puede, ¿c´omo se dice?, umm, dejar que los sentimientos sale un poquito. ‘I know that you also know that, but sometimes it is, it is better of (sic) talking of this problem so that you can–how do you say?–um, let the feelings come out a little.’ Okay. Ahora usted tiene todo el sentimiento de esta noche aqu´ı en su pecho, okay? Nadie sabe lo que est´a pasando. Nadie sabe lo que est´a . . . lo que pas´o. ‘Now you have all the feeling of tonight here in your chest, okay? No one knows what you are thinking. No one knows what you are . . . what happened.’ Um hum. Okay. Usted, usted s´olo sabe qu´e, qu´e estaba sintiendo. ‘Okay. You, only you know what, what you were feeling.’ Um hum. ¿Okay? Ah, nosotros estamos aqu´ı tambi´en para sentir lo que usted sintiendo. ¿Entiende? Okay? Ah, es cat´olico, no? ‘Okay? We are also here to feel what you are feeling. Do you understand? Okay? You are Catholic, no?’ S´ı, soy cat´olico. ‘Yes. I am Catholic.’ Okay, y . . . bueno . . . ¿ha, ha hecho puro catecismo, por los clases? ‘Okay, and . . . well . . . have you done only catechism, through the classes?’ Uh huh. Okay. ¿Qu´e, qu´e le han ense˜nado en los clases? ‘Okay. What, what have they taught you in the classes?’ Pues, el amor a Dios, el respeto a Dios. ‘Well, the love of God, the respect for God.’ Um hum. Y la manera que se puede vivir junto a El. ‘And the way that one can live by Him.’ Um hum. (u), respetarlo, pues, siguiendo lo que El dice. ‘(u) to respect Him, well, following what he says.’ Okay. Yo tambi´en amo a Dios. ¿Okay? Yo, yo s´e que una de las cosas b´asicas de, de la iglesia es el arrepentimiento, ¿no es as´ı? ‘Okay. I also love God. Okay? I, I know that one of the basic things of the church is repentance, isn’t that right?’ S´ı. ‘Yes.’ Okay, y tambi´en yo s´e que uno de los pasos b´asicos de el arrepentimiento es que a . . . admitimos que erramos. Okay? No, no podemos seguir adelante sin . . . sin decir que . . . que hab´ıa un problema. Okay? Y ahora nosotros estamos tratando de

Appendix 1 175 176 177 178 179 180 181

Alvarez:

182 183

Larson:

184 185 186 187 188

Alvarez:

189 190

Larson:

191 192

Alvarez:

193 194

Larson:

195 196

Alvarez:

197 198

Larson:

199 200

Alvarez:

201 202

Larson:

203 204

Alvarez:

205 206

Larson:

207 208

Alvarez:

209 210

Larson:

211 212

Alvarez:

213 214

Larson:

215 216

Alvarez:

217 218 219

Larson:

ayudarle..en este respecto. ¿Me entiende? ‘Okay, and I also know that one of the basic steps of repentance is that we . . . we admit that we erred. Okay? We can’t, we can’t continue forward without . . . without saying that . . . that there was a problem. Okay? And now we are trying to help you in this respect. Do you understand me?’ S´ı. ‘Yes.’ Okay. Yo s´e que es importante que usted nos hable de este problema. Porque si no habla de, a nadie usted va a, a caer, ¿entiende? ‘Okay. I know that it is important that you talk to us about this problem. Because if you don’t talk of, to anyone you are going to, to fall. Do you understand?’ S´ı. ‘Yes.’ Okay. Y por eso queremos hablar un poco. ‘Okay. And therefore we want to talk a little.’ Pero es que no, no quisiera yo. ‘But it is that no, I shouldn’t like to.’ ¿C´omo? ‘What?’ No quisiera hablar de eso. ‘I shouldn’t like to talk of that.’ ¿Quiere hablar de esto m´as tarde? ‘Do you want to talk about this later?’ Quiz´as. ‘Perhaps.’ Bueno, cuando di . . . dice quiz´as, qu´e quiere decir quiz´as? ‘Well, when you say . . . say perhaps, what does perhaps mean?’ M´as tarde, ma˜nana. ‘Later, tomorrow.’ ¿Ma˜nana? ‘Tomorrow?’ Tal vez. ‘Maybe.’ ¿Tal vez quiere hablar ma˜nana? ‘Maybe you want to talk tomorrow?’ S´ı. ‘Yes.’ ¿Pero no quiere hablar ahora? ‘But you don’t want to talk now.’ No ahora. ‘Not now. ¿Por qu´e? ‘Why?’

69

70 220 221 222 223 224 225 226 227 228 229 230 231 232 233 234 235 236 237

Appendix 1 Alvarez: Pues, quisiera relajarme . . . pensando en el error que comet´ı. M´as cosas. ‘Well, I should like to relax . . . thinking about the error that I committed. More things.’ Larson: Sobre (u) ‘About (u)’ Alvarez: Sobre mi vida, sobre lo que voy a hacer, sobre lo que va a pasar conmigo. ‘About my life, about what I am going to do, about what is going to happen to me . . . Right now I don’t have the slightest idea what is going to happen to me.’ ............................................................................ Larson: Um hum. Okay. ¿Sabe qu´e ha pasado esta noche? ‘Um hum. Okay. Do you know what has happened tonight?’ Alvarez: S´ı, yo s´e qu´e ha pasado. ‘Yes, I know what has happened.’ Larson: Okay. ¿Qu´e ha pasado? ‘Okay. What has happened?’ Alvarez: De eso es lo que no quiero hablar. ‘That is what I don’t want to talk about.’

Chapter 4 Coercion and its limits: admitting to murder but resisting an accusation of attempted rape Chapter 3 has shown how a suspect’s right not to incriminate himself was systematically denied him by two police detectives, despite his frequently repeated statement that he did not wish to talk about the crime that they were alluding to – murder. Yet during another interrogation by the same police ofﬁcers, the suspect – Carlos Rivera Alvarez – took on a different stance, actively resisting the intimation that he had attempted to commit a sexual crime. This chapter analyzes that interrogation. A recurring issue within the ﬁeld of Language and the Law is how power is enacted linguistically in the day-to-day interactions between institutional authorities and those who come into contact with them. Power in sociolegal proceedings is generally assumed to reside in actors vested with such authority by the institutions that employ them. Such power can clearly be seen to be held by police detectives engaged in interrogating crime suspects, as has been seen in chapter 3. Nevertheless, detainees are not completely powerless participants in such speech events. Evidence drawn from the second interrogation of Carlos Rivera Alvarez, who was being held for murder and attempted rape, reveals the linguistic mechanisms that detainees can make use of when they resist police attempts to implicate them in a crime. Surprisingly, even a Limited-English speaking undocumented Hispanic youth, presumably in an entirely powerless position, can manage to employ strategies of resistance despite the asymmetry of power.23 I will show that a detainee can make use of the very same mechanisms used by his interrogators, and employ them to resist their efforts to elicit a confession from him. Speciﬁcally, the use of vague and euphemistic language, repetition, and fragmented rather than narrative answers become the suspect’s defensive tools for maintaining a posture of innocence. Taking on a stance of resistance, he refuses to yield to the pressures placed on him to confess. This chapter will demonstrate that coercive interrogation techniques have their limits: when a detainee feels strongly enough about a facet of his identity that is under attack, he will put up a resistance. In the case of Carlos Alvarez, the aspect of his identity that he so fervently defended was his sense of machismo, or virility. There is no question as to his guilt in the murder: his defense attorneys at the appellate stage state this quite explicitly. What is at issue is the second charge, attempted rape, and Alvarez’s conviction for it at the trial court stage of judicial

72

Coercion and its limits

process is what his lawyers attempt to appeal. Their efforts are unsuccessful. The conviction is upheld. A microlinguistic analysis of the interrogation techniques used by the police in their second interrogation of Alvarez will show how detectives can construct an accusation of sexual violence over a series of question/answer sequences. This chapter thus focuses on the power held by interrogators – speciﬁcally police ofﬁcers – to extract information from the interrogated, and the power held by the interrogated, namely the ability to withhold information being sought after. In short, this chapter focuses on power and resistance. The case of Carlos Alvarez deals primarily with murder and only secondarily with attempted rape. An analysis of the interrogation shows that the tactics used by Ofﬁcers Calhoun and Larson are ones of gradually constructing a portrayal of the detainee as a would-be rapist, and depicting his failed rape attempt as the principal motive for the murder. The enigma facing the analyst is why the police were successful in eliciting a confession to murder, a crime that carried with it the threat of life imprisonment or the death penalty, but failed in their attempt to obtain a confession to what was, at least in terms of potential penalties, a less serious crime – attempted rape. Only when a full understanding of the detainee’s sociocultural background is posited as one of the explanations for this paradoxical ﬁnding can this enigma be understood.

1. The linguistic construction of sexual violence through interrogation A number of studies of language in legal settings have shown that sexually violent behavior, including rape, can be constructed by interrogators through a variety of linguistic means. Matoesian (1995, 1999, 2001) and Conley and O’Barr (1998) make the point that while the ordinary tactics used by attorneys for cross-examining witnesses typically result in a domination of examinees, in rape trials such strategies will go even further, producing a “revictimization of the victim”. Whether it is through lexical choice, such as a repeated reference to the victim’s “having pantyhose on” (Conley and O’Barr 1998: 36), or syntactic form, such as the use of statements rather than questions, or aspects of conversational structure, such as the management of sequence type and the restriction of topics through the manipulation of question/answer sequences (Matoesian 1993: 100), lawyers have been shown to dominate women on the witness stand who make accusations of rape. Atkinson and Drew (1979: 258), using a conversational analytic methodology as does Matoesian (1993, 1995), demonstrate how a lawyer can convey his skepticism of the testimony of the victim of an

The linguistic construction of sexual violence through interrogation

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alleged rape by repeating her statements and by prefacing those repetitions with the phrase, “You say”. Drew (1992: 472), in analyzing the speech of lawyer and alleged victim in another rape trial, discovers the devices that a lawyer will use to discredit the witness, among them being offering “alternative and competing descriptions or versions of events.” Atkinson and Drew (1979), Matoesian (1993), and Conley and O’Barr (1998) all point out that rape victims on the witness stand at times try to defend themselves against the unﬂattering characterizations of them insinuated by lawyers, but that their efforts at countering such insinuations more often than not fail. Alleged rape victims are not the only ones who defend themselves against the insinuations of lawyers. Those who are accused of rape also have been found to marshal their linguistic forces against interrogators who try to cast them in a blameworthy light. Ehrlich’s (2001) analysis of acquaintance rape hearings and trial proceedings involving a college student accused of sexual assault ﬁnds that the accused used a constellation of syntactic features which together comprise a “grammar of non-agency”, and that he used this grammar to divest himself of responsibility for any actions that could be construed as constituting sexual violence. The grammar identiﬁed by Ehrlich functioned to (1) mitigate agency, through adverbials such as ‘perhaps’, (2) diffuse agency, by representing events as consensual and reciprocal, (3) obscure agency, through the use of agentless passives, and (4) eliminate agency, via the use of unaccusative constructions (i.e., “intransitive verbs which take as their grammatical subjects non-agents or non-causers of the actions or processes designated by the intransitive verbs” (Haegeman and Gueron 1999, as quoted in Ehrlich 2001: 49)). Matoesian (1999), too, examines the ways in which a man accused of sexual violence defends himself under interrogation. Analyzing the testimony of William Kennedy Smith at his high-proﬁle rape trial, Matoesian shows how the defendant deﬂected the insinuations of the prosecutor by taking on the footing of “expert witness”, namely physician, and as such countered the prior testimony of an authorized expert, a physician who had testiﬁed as to the injuries sustained by the alleged victim. Resistance to questioners in courtroom settings is not limited to rape cases. The research of Cotterill (2003b) and Harris (1989) shows that defendants in other sorts of criminal cases use a variety of linguistic strategies to resist the power and control of attorneys, and Philips (1998) comes to similar conclusions with respect to the interaction between defendants and judges. Philips demonstrates that in the process of changing their plea from ‘not guilty’ to ‘guilty’, defendants regularly resist confessing to those acts that judges deem necessary for establishing a ‘factual basis’ for a guilty plea. Defendants in such a context regularly use three types of resistance: denial (“Defendants often directly deny

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some element of a crime for which there must be evidence”), obscurity (“Defendants often give responses to questions that are uninterpretable or obscure so that they really do not make sense and do not contribute to a relevant court record”) and mitigation (“Defendants frequently contribute information to the factual basis that appears intended to remove blame from themselves, and in some cases to put it onto others, or to present their actions in a light that shows them to have intentions of a positive, blameless, or simply human kind, which in other circumstances might have positive consequences and be viewed favorably”) (Philips 1998: 93). In short, resistance to those who usually hold power in a courtroom apparently is more widespread than what might be expected. The case analyzed in this chapter deals with the linguistic construction of sexual assault, but not at the trial court stage. Rather, the context is that of a police interrogation in the investigation of a crime. The study focuses on the management of an accusation by the police shortly after they have arrested a young man whom they suspect of murder and attempted rape, and the resistance of that suspect to the accusation.

2. Background of the case Chapter 3 reviewed the case of eighteen-year old Carlos Alvarez, an undocumented young man of Mexican origin who had been charged with ﬁrst-degree murder and attempted rape and subsequently was convicted of both crimes and sentenced to life imprisonment without possibility of parole. Four years after his arrest, an appellate court reversed the conviction of ﬁrst-degree murder (not freeing the defendant, but decreasing the time he was to spend in prison), yet it upheld the attempted rape conviction. The basis for the reversal of Alvarez’s conviction, argued the appeals court, was the use of coercive interrogation tactics by the police in extracting a confession from him. As the reader will recall, Alvarez was considered by the court to have been caught running away from the scene of the crime, a row of hedges dividing a parking lot adjacent to a metro station. In the words of the appellate judge who wrote the opinion, “the semi-nude body of a young woman was found” behind the hedge, the place where the defendant was believed to have begun “a stabbing frenzy” (Court of Appeal, page 2). The wording used by the judge hints strongly at a sexually motivated type of murder: the fact that the victim was semi-nude and young. It also depicts the perpetrator as having been out-of-control, in that he had stabbed her repeatedly. The judge also points out that the defendant had not eaten anything on the evening of the murder, but had drunk eight or nine beers. From this commentary the reader is meant to infer that Alvarez must

Background of the case

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have been inebriated on the night of the murder, a factor that could lead to the reasonable assumption of an out-of-control defendant, and to partially account for his violent behavior. From the perspective of the attempted rape charge alone, this case has all the earmarks of what sociolegal scholars call ‘stranger rape’, which has been distinguished from ‘acquaintance rape’ (Ehrlich 2001, 2007; Figueiredo 2000; Tiersma 2007). Also called ‘real rape’ (or ‘prototypical rape’) as opposed to ‘simple rape’ (Estrich 1987), the former is generally depicted as involving an armed stranger who jumps out from behind bushes. Simple rape, in contrast, occurs between two people who know each other: they may be on a date, they may be supervisor and employee, or someone a woman has just met at a bar. Generally there is no weapon involved and no noticeable sign of injury on the victim. Estrich cites the study of Kalven and Zeisel (1966), which demonstrates that the criminal justice system is much more likely to prosecute and convict a person accused of ‘aggravated rape’, that is, ‘real rape’than it is a person accused of ‘simple rape’. Figuereido’s (2000) empirical study of rape cases adds a further dimension to what is considered by the justice system to be a ‘real rape’ case: the victim is either a young girl or a respectable old woman. Carlos Alvarez perfectly matches the description of the prototypical, stranger rapist. Alvarez underwent two interrogations, both conducted by Ofﬁcer Calhoun, the monolingual English-speaking police detective, with the aid of Ofﬁcer Larson, the non-Hispanic Spanish/English-speaking bilingual detective acting as interpreter. The ﬁrst interrogation began at 4:03 in the morning and the second – initiated at the request of Alvarez – started at noon of the same day. In short, both interrogations were carried out within twenty-four hours of the murder, when the sequence of events surrounding it were still fresh in the detainee’s mind. The appellate court considered the ﬁrst interrogation to have yielded what was “tantamount to a confession” by the suspect under coercive conditions, and for this reason anything he had said during the second interrogation was to be considered “tainted” by the coercive nature of the ﬁrst one. It is the thesis of this chapter that the defendant’s verbal behavior in reaction to police coercion during the ﬁrst interrogation superﬁcially appears to be different from that which he displayed during the second one, namely, that at the ﬁrst interrogation he simply refused to provide factual information related to the murder by repeatedly saying that he felt bad and did not wish to talk about his “problem”. Clearly he was doing his utmost to resist the efforts of the police to induce him to confess to the murder. By the end of that interrogation, however, he implicated himself sufﬁciently to be considered by the police to have confessed. The second interrogation, which ofﬁcially he himself had requested, albeit at the urging of the police, focused on the accusation of attempted rape. While

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he ostensibly seemed to be answering the detectives’ questions, the manner in which he did so represents a form of resistance, one that is different from the approach that he used at the ﬁrst interrogation. It is the nature of this other type of resistance that will be addressed in this chapter.

3. The management of an accusation and resistance to it The accusation of attempted rape begins with the police suggesting to the suspect a motive for his attack on her. The suggestion occurs two-thirds of the way into the ﬁrst interrogation, and is mentioned in passing, à propos of nothing that had been said thus far, from a discourse point of view totally disconnected from what had been said immediately prior to it. After talking about “the problem” that Alvarez had had earlier that evening – never once specifying the nature of the problem he was alluding to – Calhoun suddenly asks him some pointed questions about the behavior of the young woman he had met in the parking lot of the metro station. The signiﬁcance of the line of questioning is that it suggests to the detainee a justiﬁcation for actions that he has not yet admitted to, but which he can foresee could be upcoming in nearby question turns. Thus far in the interrogation, no mention has been made of the topic of murder, rape, or even of anyone having been injured in any way. Extract 1 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20

Calhoun: Okay. Ah, would you tell him that, ah (pause) we . . . we pretty much know what happened? Larson: Okay. Luis, generalmente nosotros sabemos qu´e pas´o.24 ‘Okay. Luis, generally we know what happened.’25 Alvarez: Um hum. Calhoun: I would . . . I need to ﬁll in just a couple of areas. Larson: Necesitamos saber qu´e pas´o en unos a´ reas que todav´ıa no est´an muy (inaudible). ‘We need to know what happened in some areas that are not yet very (inaudible).’ Calhoun: Okay. Did she attack you in any way? Did she hurt you in any way? Larson: ¿Este muchacha, le atac´o a usted o le, le hizo da˜no a usted? ‘This girl, did she attack you or did she hurt you, you?’ Alvarez: No recuerdo. ‘I don’t remember.’ Larson: He doesn’t remember. Calhoun: Okay, did you want to hurt her just a little bit? Did you just want to scare her? Larson: ¿La quiso . . . ? (inaudible) ‘Did you want . . . ?’ (inaudible) Calhoun: Did you just want to try to scare her a little bit? Larson: ¿La muchacha esta noche . . . La quiso asustarla, nada m´as . . . esta noche? ‘The girl tonight . . . did you want to scare her, nothing more . . . tonight?’

The management of an accusation and resistance to it 21 22 23

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Alvarez: No recuerdo, no quisiera hablar de esto m´as. ‘I don’t remember, I should not like to talk more about this.’ Larson: He doesn’t remember, and he doesn’t want to talk about this anymore.

The interrogation sequence presented in Extract 1 is important both from a discourse perspective and from the standpoint of doing policework in interrogation contexts. By proposing a rationale for the suspect’s having stabbed the victim (lines 9, 15 and 18), the police are giving him a way out, a plausible and psychologically excusable reason for the acts they believe he committed. By shifting the responsibility for his actions onto the victim (i.e., if she had not provoked him, he would not have killed her), the detectives are empathizing with him, and conveying the impression that they can understand what might have led him to take such an action against a young woman. The strategy is highly successful, because once the detainee really starts to talk, in the second interrogation, he uses the same justiﬁcation provided him by the police, sometimes using their very phrases, over and over again. Noteworthy is the use of the active voice with agent-naming when Calhoun asks if the girl had attacked Alvarez. Clearly it is to make the girl look blameworthy, and Alvarez’s violence simply a reaction to being attacked. Similarly, in accounting for Alvarez’s behavior toward the young woman, by asking him if he “wanted to hurt her just a little bit”, “just wanted to scare her”, Calhoun is making Alvarez’s actions appear to be less weighty, of less consequence, and easier to comprehend. In short, the detective is mitigating the gravity of the crime, a common police tactic for eliciting a confession (Napier and Adams 1998; Yeschke 1993). Afﬁrmative answers by Alvarez to his questions would imply that if he did attempt to rape her and then murdered her in the botched attempt, then his acts could be considered to be not premeditated. Only at one other point during the ﬁrst interrogation does the topic of whether the young woman had hurt Alvarez arise, and this is when Detective Larson is left alone with him. Calhoun had left the room purportedly to ﬁnd out the results of laboratory tests performed on the blood stains he claims were found on Alvarez’s clothing. Extract 2 1 2 3 4 5 6 7

Larson: Luis, okay. El o . . . Dick ya le dijo que nosotros podemos hacer, okay, en cuanto a las huellas, um, sangre y todo eso . . . ‘Luis, okay. The oth . . . Dick already told you what we can do as far as the prints, um blood and all that is concerned . . . ’ Alvarez: S´ı. ‘Yes.’ Larson: . . . okay? Quisi´eramos saber qu´e pas´o antes que podemos ver el sangre y todo,

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okay? Es (pause) quisiera saber . . . , quisi´eramos saber si, si hab´ıa un problema donde este muchacha hizo algo a usted o dijo algo a usted . . . ‘. . . okay? We would like to know what happened before we can see the blood and all, okay? It’s (pause), I would like . . . we would like to know if there was a problem where this girl did something to you or said something to you . . . ’ Alvarez: No. Larson: . . . ¿que le provoc´o, okay? Porque no . . . usted tiene dieciocho a˜nos. Es . . . est´a joven todav´ıa, okay? Nun . . . nunca ha hecho nada malo en su vida. Okay. Nunca ha estado en un c´arcel. Nunca ha . . . ‘. . . that provoked you, okay? Because . . . you are eighteen years old. You are still young, okay? You have never done anything bad in your life. Okay. You have never been in a jail. You have never . . . ’ Alvarez: No.

In Extract 2 (lines 8–9, 14), Larson brings up the topic of whether there was something in the behavior of the young woman that had provoked Alvarez, either by word or by deed. At this point in the questioning, Alvarez denies any such provocation. Subsequently, in the second interrogation, he will pick up on this notion, and will use it in his defense. Five turns later Larson asks Alvarez to do him the favor of telling him whenever he remembers something of the incident, even if he does not want to talk about it, rather than to keep saying, “I don’t remember.” Larson’s topic-initiation is followed up by a pointed question regarding whether what happened that night was sexual in nature (Extract 3, lines 1–2). Extract 3 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19

Larson: Okay. Voy a estar un poquito franco a . . . aqu´ı ahora, okay? ¿Um, algo sexual pas´o esta noche? ‘I am going to be a little frank h . . . here now, okay? Did something sexual happen tonight?’ Alvarez: ¿Conmigo? ‘With me?’ Larson: Um hum. Alvarez: No. Larson: ¿Nada sexual? ‘Nothing sexual?’ Alvarez: Nada sexual esta noche. ‘Nothing sexual tonight.’ Larson: Okay. ¿Qu´e . . . quiso que, que algo as´ı pasa? ‘Okay. What . . . did you wish that, that something like that would happen?’ Alvarez: No. Larson: Esta mujer, est . . . esta muchacha, mujer, ¿quiso conocerla? ‘This woman, thi . . . this girl, woman, did you want to know her?’ Alvarez: No quisiera hablar m´as. ‘I shouldn’t like to talk more.’

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No further reference is made in the ﬁrst interrogation to the possibly sexual nature of the encounter between suspect and victim, and the lexical stem ‘sex-‘ and its derived forms, ‘sexual’, and ‘sexy’, are not mentioned again. Neither is the word ‘rape’ ever uttered. Nevertheless, Larson has made his point, and with the cat out of the bag about what the detectives suspect, Alvarez is now aware that the line of questioning may turn in this direction once again. In fact, it becomes the exclusive focus of the second interrogation.

3.1. Questioning strategies and forms of resistance Overt questions regarding sexual assault come only in the last quarter of the three-hour long interrogation session, and they are made not by Calhoun, but by Larson, who ofﬁcially is there to serve as interpreter. The questioning strategy used by Calhoun is to get the suspect to relate chronologically his actions on the evening of the murder, including the hours before the encounter between Alvarez and the victim took place. A number of questions relate to information required for the police intake sheet (e.g., correct name, height, weight, nationality, occupation, place of work, names of closest relations living nearby). While most of these questions do not pose problems for the average U.S. resident or citizen, for undocumented persons living in the U.S.A. answering questions even as mundane as these is problematic. In the case of Carlos Alvarez, he had already lied once to the police, giving a false name at the initial interrogation. When asked for his social security number – in the U.S.A. one of the most basic, multi-purpose forms of identiﬁcation – he has to admit to not having one. When asked the seemingly innocuous question, “What occupation do you have? What do you do for work?” his response is the expression of a desire not to reveal this (in his words, “Quisiera, si es posible, que no se supiera nada de, de mi trabajo” ‘I would wish, if it is possible, that nothing be known about, about my work’). It is clear from subsequent questions that he is trying to protect his brother and cousin, with whom he shares an apartment and through whom he has found employment, and who most likely are also undocumented workers. He might even be attempting to protect the identity of his employer, who may have broken the law in hiring him. Calhoun does not press the point regarding his occupation. Following a routine strategy recommended by police interrogation manuals (Aubry and Caputo 1980; Van Meter 1973), he works at establishing an amicable, empathetic relationship with the suspect. It is clear from the beginning of this interrogation session that Alvarez is not willing to be completely forthcoming. One indication of his desire to withhold information is his assertiveness, described above, in claiming the right to privacy

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in the interest of protecting his next-of-kin. In fact, he assumes a defensive posture at the very outset of the session by asking if his parents or guardians could be present at the interrogation. Larson explains to him that when he informed Alvarez of that right at the beginning of his initial interrogation, he believed Alvarez to be a juvenile. Since Alvarez was over eighteen years of age, that right no longer applied to him, Larson explains, by way refusing his request. 3.2. Resistance to invitations to narrate, preference for fragmented answers One of the most salient characteristics of Alvarez’s answers to police questions is the use of fragmented style. Fragmented answering style, characterized by brief, unelaborated answers to questions, stands in contrast to narrative style. The research of O’Barr (1982) and his colleagues (Conley, O’Barr and Lind 1978) ﬁrst brought to light the impact of such styles on listeners, speciﬁcally when they are used by witnesses on the stand and the listeners are jurors. They found that witnesses who answer attorneys’ questions in the lengthier, more elaborated, narrative style give the impression of being more competent and socially dynamic than are witnesses who answer in a fragmented style. Alvarez’s style of answering the questions of Calhoun and Larson is consistently fragmented, and in those rare instances when he does provide a narrative answer, it is merely to repeat information he has given in previous answers, without adding anything to what is already known. My interpretation of his unwillingness to speak in narrative style is that this way of speaking represents a strategy of self-defense, a continuation of the stance taken in the earlier interrogation, namely, not to say any more than absolutely necessary. Since the police are trying to elicit narrative types of answers, and the interrogation process is slow-going, the fragmented answers represent a case of the violation of Grice’s (1975) maxim of quantity, that is, they do not say enough, and therefore do not satisfy the conversational needs of the interlocutors. Extract 4, below, vividly demonstrates the pattern of fragmented answers that Alvarez gives. Extract 4 1 2 3 4 5 6 7 8 9

Calhoun: Did you, ahh . . . when you were coming back to Kensington, did you see a girl? Larson: Al regresar a Kensington, ¿conoci´o o vi´o una muchacha? ‘Upon returning to Kensington, did you meet or did you see a girl?’ Alvarez: In metro? Larson: Uh huh. Alvarez: No. Calhoun: Okay. When you got back to Kensington, you got off the metro, and where did you go then? Larson: Okay. Al regresar a Kensington, sali´o, baj´o del metro, ¿d´onde se fue de all´a?

The management of an accusation and resistance to it 10 11 12

Alvarez:

13 14 15 16

Larson: Calhoun: Larson:

17 18

Alvarez:

19 20

Larson:

21 22 23 24 25

Alvarez: Larson: Calhoun: Larson:

26 27

Alvarez:

28 29 30 31 32 33 34

Calhoun: Larson: Calhoun: Larson: Calhoun: Larson:

35 36

Alvarez:

37 38 39 40

Larson: Calhoun: Larson:

41 42

Alvarez:

43 44 45 46

Larson: Calhoun: Larson:

47 48

Alvarez:

49 50 51 52 53 54

Larson: Alvarez:

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‘Okay. Upon returning to Kensington, you went out, got off the metro, where did you go from there?’ All´ı conoc´ı a una muchacha. ‘There I met a girl.’ Okay, he said that there he met a girl. At the metro station? A la estaci´on del . . . ¿conoci´o a la muchacha? ‘To the metro station . . . you met a girl?’ Afuera de la de Kensington, de la estaci´on de metro de Kensington. ‘Outside of the Kensington one, the Kensington metro station.’ ¿Fuera de la estaci´on, en el lote de estacionar? ‘Outside of the station, in the parking lot?’ Uh huh. Okay. He said in the parking lot of the metro station. Did you talk to her? ¿La habl´o? ‘Did you talk to her?’ S´ı. ‘Yes.’ Ah, that was yes? Yes. He did talk with the girl? Yes. Ah, did you walk with her? ¿And´o con ella? ‘Did you walk with her?’ S´ı. ‘Yes.’ Yes. Where did you walk to? ¿Ad´onde and´o? ‘To where did you walk?’ No s´e, camin´e con ella como dos blocs, tres blocs. ‘I don’t know, I walked with her about two blocks, three blocks.’ He says that he walked with her for two or three blocks. Were you still talking with her? ¿Estaba hablando o charlando con ella? ‘Were you talking or chatting with her?’ S´ı. ‘Yes.’ Yes. O sea, sea, an . . . cuando, cuando anduve con ella, anduve, pos cuando platiqu´e con ella, anduve platicando con ella (inaudible) un bloc conmigo. ‘Or that is, that is, I wa . . . when I walked with her, well when I chatted with her, when I walked and chatted with her (inaudible) one block with me.’

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Larson: Uh huh. He says he was walking and talking with her for about a block. Calhoun: And then what happened? Larson: Okay. ¿Y qu´e pas´o de all´ı? ‘Okay. And what happened from there?’ Alvarez: (Pause) Pues, pas´o, pas´o eso. ‘(Pause) Well, it happened, that happened.’ Larson: Okay, he said this, this passed, that happened. Calhoun: Were you arguing when you were talking with her? Larson: ¿Hab´ıa una lucha de palabras? ‘Was there a ﬁght of words?’ Alvarez: No. Larson: No? Calhoun: Tell me what she looked like. Larson: ¿Puede describir la, la muchacha? ‘Can you describe the, the girl?’ Alvarez: Bueno, alta . . . ‘Well, tall . . . ’ Larson: Tall. Alvarez: Bueno, de pelo corto. Well, short hair.’ Larson: Short hair. Calhoun: Dark? Dark hair? Alvarez: No, como, como casta˜no. ‘No, like, like chestnut.’ Larson: ¿Casta˜no? Es un poquito m´as oscuro que, que caf´e, no? ‘Chestnut? Is it a little darker than coffee-colored, no?’ Alvarez: S´ı. ‘Yes.’ Larson: Okay. Calhoun: Dark? Larson: Ah, yeah. A little darker than just plain brown. Calhoun: Okay. Ah, do you remember what she was wearing? Larson: ¿Se recuerda de qu´e llevaba ella? ‘Do you remember what she was wearing?’ Alvarez: ¿De qu´e qu´e? ‘What?’ Larson: ¿Qu´e estaba llevando . . . la ropa? ‘What was she wearing . . . the clothing?’ Alvarez: Llevaba un short y una sudadera, I think. ‘She was wearing shorts and a sweatshirt, I think.’ Larson: ¿Una qu´e? ‘A what?’ Alvarez: Sudadera. ‘Sweat shirt.’ Larson: ¿Qu´e, qu´e es una sudadera?

The management of an accusation and resistance to it 100 101 102 103 104 105 106 107 108 109 110 111 112 113 114 115 116 117 118 119 120 121 122 123 124 125 126 127 128 129 130 131 132 133 134

83

‘What, what is a sweat shirt?’ Alvarez: Como un sueter. ‘Like a sweater.’ Larson: Okay, wearing shorts and a sweater. Calhoun: Do you remember the colors? Larson: ¿Los colores, se recuerda? ‘The colors, do you remember?’ Alvarez: Eran oscuros. ‘They were dark.’ Larson: Dark. Calhoun: Okay. Was she carrying anything? Larson: ¿Estaba llevando algo con ella? ‘Was she carrying something with her?’ Alvarez: No . . . Una mochila, creo. ‘No . . . A knapsack, I believe.’ Larson: ¿Una mochila? ‘A knapsack?’ Alvarez: Una mochila, um hum . . . ‘A knapsack, um hum.’ Larson: Okay, ah, she was carrying a bag. Calhoun: Okay. You’re talking with her . . . did she have anything else with her? Larson: ¿Ah . . . mientras que estaba, o estuvo ha . . . hablando con ella, ahh, ten´ıa ella algo m´as . . . con ella . . . a, adem´as de este po . . . pochila? ‘While you were, or you were ta-. . . talking with her did she have something more . . . with her . . . be-. . . besides this po-. . . ”pochila”?’ Alvarez: Ten´ıa una, una patineta. ‘She had a, a skateboard.’ Larson: Una patineta, ¿qu´e es una patineta? ‘A skateboard, what is a skateboard?’ Alvarez: Es con lo que andan los, los muchachos. ‘It’s what the, the kids go around with.’ Larson: Okay. Alvarez: En las calles. ‘In the streets.’ Larson: Okay. She had a skateboard.

The police need a description of the victim from a suspect to make sure that the person they have in custody is a potential suspect. In other words, they need to match the appearance of the crime victim with the description given of her by the suspected perpetrator of the crime. Physical descriptions naturally lend themselves to narrative types of characterizations. Most adults would provide details of height, weight or build, hair length and color, color of skin when relevant. When Calhoun says (line 67), “Tell me what she looked like”, he is requesting a physical description that includes some of these details. When the request for

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a description fails, he has to work harder at obtaining the information he wants, and resorts to asking a series of speciﬁc questions to elicit these characterizations. For example, in providing a description of someone’s clothing, one would include color in referring to particular items of apparel, but Alvarez does not. His minimal answers force Calhoun to generate additional questions about a given referent. Without such prompts, Alvarez’s descriptions are inadequate for Calhoun’s purposes. The suspect is not being totally cooperative conversationally, but then he has a reason not to be. Perhaps the most glaringly uninformative answer to a question that was intended to produce a narrative reply is the one in response to Calhoun’s (line 56), “And then what happened?” Calhoun’s expectation is an account of the attack on the woman. Alvarez’s answer, “Well, it happened, that happened,” in its total lack of information, reveals nothing about what he did or she did after they had walked together for a block. In its substantive vacuousness it says a great deal, however: it indicates that the subject is a highly sensitive one for the suspect. Seeing that Alvarez is not willing at this point to describe the incident on his own accord, Calhoun changes gears and asks a speciﬁc question about the nature of their conversation during the one-block walk, namely, had Alvarez been arguing with her. He is successful in eliciting a “Yes” response.

4. The linguistic construction of violence The scenario that the police attempt to construct together with the suspect is that he tried to pick up a young woman a block away from the metro station, and that she rejected his advances. Calhoun repeatedly asks Alvarez if the girl pushed him or yelled at him, implying that such actions on her part could have provoked him to attack her. To the question as to whether she had pushed him, he replies, “Un poco” ‘A little’. Later in the interrogation, however, he reveals that she tried to push him away from her, jabbing him in the stomach with her elbow, only after he had grabbed her by the throat from behind and ﬂashed a knife in front of her face. So, while in fact she had pushed him, the pushing was not what provoked him to violence, but rather came in response to the violent act that he had initiated against her. Nevertheless, the suggestion of the detective that perhaps she had pushed him, and that this in turn might have made him “a little furious” (which he denies, saying that he had not been angry, but simply depressed and feeling rejected because the girl had rebuffed him, telling him to get away from her) will be used by Alvarez in subsequent go-arounds. He begins to incorporate into his story the fact that she had hit him in the stomach with her arm, and repeats this detail in the numerous tellings that the police elicit from him.

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The sexual inuendo is introduced gradually by the two detectives, with questions as to whether Alvarez wanted to go home with her, wanted to spend the night with her, whether he liked her, and whether he thought she was pretty. To most of these questions his initial answers are in the negative. Several times he denies forcefully that she was pretty, and to the question, “Did you like her?” he answers: “No, no mucho. Pues, pues, fue una mujer y . . . pero no, no me gust´o a tal grado como para haberla asesinado” ‘No, not much. Well, well, she was a woman and . . . but no, I didn’t like her to such a degree as to have murdered her’. This is a very strange comment, particularly in light of the fact he had already confessed to the murder. The police detectives try to ﬁnd out what he had said to her during that oneblock walk during which, according to Alvarez, they were “chatting”. Alvarez is completely reticent about the content of that interchange. He eventually divulges, after several attempts by Calhoun to ﬁnd out the nature of the conversation between them, that he had asked her about how to get to a certain street, and that she was helpful enough to give him directions. But immediately after that he began saying things to her which put her off, and which prompted her to tell him to leave her alone. He never does reveal what sorts of things he said to her that would have produced such a reaction. It is conjectured that he was using pickup lines, in Spanish known as piropos. These range in content from relatively innocuous, ﬂattering comments to highly offensive lascivious remarks, often about the woman’s body (Achugar 2002; Fuentes 2001). Upon being told by her to go away, he reports, he grabbed her by the arm, then put his hand around her throat, and pulled out a knife – which he claims to have found somewhere in the street, earlier in the day – and held it in front of her face. His explanation for pulling out the knife is that he simply wanted to scare her, because she had made him feel depressed and rejected. Once he had her in his grip and the knife close to her face, she struggled to free herself and in the process, “threw herself to the ground”, a strange reaction when one is trying to get away from an attacker. It is more likely that either he knocked her to the ground or else that she fell in the struggle. Nevertheless, in the numerous times that he was asked to describe his actions and those of the girl, Alvarez never waivered from this version of the story, as unlikely as it may sound to an impartial observer. Alvarez several times describes sticking the knife into the girl. At ﬁrst he admits to only one stab, but after repeated questioning carried out in cyclic fashion, he acknowledges two stabs, and after further challenges from Calhoun, entertains the possibility of having stabbed her three times, but no more than that. An examination of her body revealed multiple stab wounds.

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Why did he stab her, Calhoun asks? Alvarez’s answer is that she screamed, which frightened him. He stabbed her to stop the screaming. When Calhoun asks him if her screams were “very loud”, Alvarez responds with a highly mitigated characterization of them, “M´as o menos” ‘More or less.’ He thereby is minimizing the terror the girl must have been experiencing, and thereby verbally reducing the amount of harm he was inﬂicting on her. Whereas Alvarez is not answering the questions in any way that could be considered to be narrative style, he does provide enough information to conﬁrm the admission he made at the ﬁrst interrogation, that he had stabbed the young woman twice. And he has been told by Calhoun that she died, which comes as devastating news to him, since he realizes the implications of this for him. Yet whenever either of the detectives alludes to a sexual motivation for his violent behavior, he denies the assertion. The section below presents evidence for the linguistic construction of attempted rape effectuated by the police, and the steadfast rejection by Alvarez of any such characterizations of his behavior. 4.1. Constructing attempted rape; strategies of denial Calhoun’s strategy for eliciting a confession to attempted rape is to gather bits of incriminating facts from the suspect, facts which in and of themselves do not necessarily indicate sexual violence, but which when viewed in their totality would point to such a conclusion. Alvarez, despite his youth and inexperience with the U.S. criminal justice system, can follow the drift of Calhoun’s questions, and makes every attempt to counter the implications. Even the supposition expressed by the detective that Alvarez must have been “upset” by the girl’s rejection of him is dismissed by the suspect, partly because Larson incorrectly rendered the adjective ‘upset’ as enojado ‘angry’, aggravating the illocutionary force of Calhoun’s adjective. Alvarez ﬂatly denies having felt angry, replying with, “No, estaba espantado, asustado” ‘No, I was frightened, scared.’ By portraying himself as ‘frightened’ and ‘scared’, he is presenting himself not as the aggressor, but in a sense as a victim, and therefore not to be blamed. Something that she did frightened him. What Alvarez overlooks is that his feelings of fear come as a result of the girl’s screams, and the girl began screaming only after he began the cycle of physical violence: grabbing her by the neck, and brandishing a knife in front of her face. Her screams were heightened by the stabbing itself, and this in turn frightened him even further, he told the detectives. Once he started stabbing her, according to Alvarez, and her body lost the strength to resist him, he was faced with what to do with her. At this point he began dragging her behind a nearby hedge, very likely for the purpose of hiding her body from the view of passersby.

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The core of the interrogation component focusing on the theme of attempted rape deals with how the suspect moved the victim’s body, and where he moved it to from which starting point. Calhoun zeroes in on whether Alvarez was pulling on the girl’s clothes or holding onto a part of her body as he was dragging her. He also wants to know the position she was lying in as she was being dragged. It is not clear to an analyst, at this point in the questioning, why the distinction is an important one. Alvarez ﬁrst insists that he dragged her only by the arm (el brazo). Larson, the faulty interpreter that he is, incorrectly renders brazo as ‘blouse’. Since the issue of whether she was being pulled on the ground by her clothing or by a body part is a crucial point for Calhoun in his interpretation of the events, this seemingly small interpreting error causes much confusion, especially since the ‘sweat shirt’ the girl was wearing was already rendered incorrectly as ‘sweater’. One can presume that Calhoun, having seen the body and the clothing of the victim, would have known at the time of the interrogation what she really had been wearing, and could disentangle this ever more convoluted knot of contradictions. By the end of the interrogation Alvarez has admitted to dragging the victim by her waist, pulling her by the shorts. He alters his story minimally, as the police point out inconsistencies between his portrayal of events and the physical evidence that they report to have found at the crime scene. In an effort to clarify the sequence of events that constitute the murder and what they believe was an attempted rape, Calhoun draws a diagram for Alvarez, asking him to help pencil in the key actors of the scenario, and the key physical objects in the locale where the events took place (e.g., shrubs, a tree, and so on). Calhoun wants Alvarez to show him on the sheet of paper where he stabbed the girl, where he dragged her to, and how he moved her from point A to point B. Larson, the interpreter, in the meanwhile, increasingly becomes an active interrogator in the speech event, principally by tagging his own questions onto those of Calhoun as he works to interpret them into Spanish. Calhoun uses the diagram as a way of pulling the story from Alvarez, since the routine interrogation procedure he had been using was turning out to be unsuccessful in budging Alvarez from a version of the events that did not mesh with the scenario that he, Calhoun had reconstructed from the physical evidence. The questioning goes on for quite a while with the diagram being drafted and redrafted as they speak.At one point, Larson asksAlvarez to reenact the dragging there in the interrogation room, volunteering to act as a live mannequin in place of the victim. The detective apparently is down on the ﬂoor, asking him to show him how he carried her, using a typical indirect speech act of request, “¿Puede mostrarme para que entendemos c´omo la llev´o?” ‘Can you show me, so that we can understand how you carried her?’ Alvarez’s reply is a ﬂat refusal: “No, no puedo” ‘No, I can’t.’He will not go along with the game. It may be too disturbing

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to do the reenactment, less than twenty-four hours after the real event. Another possible reason for his unwillingness to cooperate with Larson is that of the two detectives, he is the more aggressive. It is Larson who usually asks the overtly challenging questions. Calhoun is much more low-keyed and empathetic in his interrogation approach. The two may simply be following a “good cop/bad cop” routine. Alvarez shows resistance to the questioning by continuing to refer to the crimes with vague, unspeciﬁc expressions. While helping Calhoun draw a map of the crime scene, he is asked to identify where the street is in relation to the parking lot, and to locate the bushes and trees that played a signiﬁcant role in the events. Larson at one point asks Alvarez to identify a mark he has made on the map. Alvarez’s answers to Larson’s questions demonstrate an unwillingness to name his crimes, even though he is willing to provide a certain amount of information on one of them. Ironically, the suspect is merely capitalizing on verbal mechanisms that the detective himself had provided for him. It was Larson who had ﬁrst used the term ‘problem’ to refer to Alvarez’s violent actions, and the suspect adopted this term and used it in subsequent questioning, as a way of not incriminating himself.26 Extract 5 shows that Larson continues to refer to the euphemism ‘problem’, this time coupling it with the murder weapon, ‘knife’. The notion that Alvarez had had a problem with the knife conveys the impression that there was something problematic about the knife, that it was giving Alvarez trouble. Alvarez, therefore, is made to look like the inadvertant, unfortunate victim of knife troubles. Just as uninformative as the noun ‘problem’ is the neutral demonstrative pronoun esto ‘this.’ Its lack of speciﬁcity allows Alvarez to protect himself, in that by using it he is able to avoid giving a name to the illegal acts that are being hinted at. In its vagueness, the word esto encompasses both the stabbing itself and the interaction between assailant and victim immediately preceding it. Its use, therefore, is a form of resistance to a line of questioning that the detainee knows could be damaging to the case that the detective is attempting to build against him. Extract 5 1 2 3 4 5 6 7 8 9

Larson: Y esto aqu´ı? ‘And this here?’ What is this here? Alvarez: Esto, aqu´ı fue donde, donde pas´o esto. ‘This, here was where, where this happened.’ Larson: Okay, this “x” you’ve marked on your drawing is, is where you had the problem with the knife, where you stuck her? Alvarez: S´ı, aqu´ı fue el problema. ‘Yes, here was the problem.’

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The episode within the overall interrogation speech event that can be clearly demarcated as the overt beginning of the accusation of sexual assault comes after the crime scene map is completed. A ‘pre-accusation’ (a prefatory announcement preceding the accusation) is uttered by Calhoun (line 1), followed by a warning from him that Alvarez had better tell the truth. And then suddenly, unexpectedly, a reference to the victim’s bra, and its irregular placement on her (Extract 6, line 10). Extract 6 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 29 30 31 32 33 34 35 36

Calhoun: Okay. I have a tough question for you, tough question. Larson: Ah, tenemos una pregunta bien dif´ıcil. ‘Ah, we have a very difﬁcult question.’ Alvarez: Um hum. Calhoun: But the truth is necessary. Larson: Pero es necesario que sabemos la verdad. ‘But it is necessary that we know the truth.’ Alvarez: S´ı. ‘Yes.’ Calhoun: When you left her there, her bra was up. ¿Verdad? ‘True?’ Alvarez: S´ı. ‘Yes.’ Larson: ¿Al dejarla all´ı, la ropa de ella fue . . . estaba bien levantada? ‘Upon leaving her there, her clothing was . . . was raised up a lot?’ Alvarez: Uh hum. Larson: ¿Verdad? ‘True?’ Alvarez: S´ı. ‘Yes.’ Larson: Yes. Calhoun: Ah, how did it get that way? Larson: ¿C´omo lleg´o a ser eso? ‘How did that come to be?’ Alvarez: Es que, cuando ella estaba aqu´ı, yo, yo la agarr´e del sueter de aqu´ı y la agarr´e del brazo y entonces cuando yo la jal´e se le alz´o la ropa. Y, y la, la agarr´e del brazo y la agarr´e del sueter y la, la jal´e as´ı. ‘It’s that, when she was here, I, I grabbed her by the sweater from here and I grabbed her by the arm and then when I pulled her, her clothing came up. And, and I grabbed her, her by the arm and I grabbed her by the sweater, and I pulled her, her like that.’ Larson: He says when he was pulling her he was, he had grabbed her by the arm and by the sweater, and it came up while he was grabbing her . . . or pulling her. Calhoun: Okay. Another tough question, Carlos. Larson: Okay. Otra pregunta muy dif´ıcil. ‘Okay. Another very difﬁcult question.’

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Calhoun: Her dress and underwear were pulled down, almost all the way to her feet. Larson: Okay. Los pantalones y tambi´en los pantalones anteriores estaban bajadas hasta 27 las, las tornillos? ‘Okay. The pants and the forward pants were lowered to the, the screws.’ Alvarez: Um hum. Larson: Okay. ¿C´omo lleg´o a ser eso? ‘Okay. How did that come to be?’ Alvarez: Cuando la mov´ı a ella, la jal´e de la ropa tambi´en . . . ‘When I moved her, I also pulled her by the clothing . . . ’ Larson: ¿usted la, la jal´o a la ropa? ‘You pulled on the, the clothing?’ Alvarez: Porque cuando ella, ella la, la llev´e y la puse . . . y ella dijo que “no” y la, la agarr´e de la ropa y la jal´e, cuando le jal´e, cuando la puse all´ı le jal´e la ropa, y ella dijo que “no” y, y sac´o sangre por la boca. ‘Because when she, she, I carried her, her and I put her . . . and she said “no” and I grabbed her, her by the clothing and I pulled her, when I pulled on her, when I put her there I pulled on her clothing and she said “no” and blood came out of her mouth.’

The pre-accusation performed by Calhoun, which precedes the accusatory declarative utterance containing the critical lexical item ‘bra’, functions to orient Alvarez thematically to sexual activities. It does so because the word ‘bra’ is charged with sexual innuendo: not merely an item of apparel, it is a garment that covers women’s breasts, which both in European-American and Latin American mainstream cultures are associated primarily with sexuality. For this reason, Calhoun’s statement that the victim’s bra was pulled up carries with it the accusatory implication that Alvarez, who was struggling with the young woman, was in some way responsible for the bra’s being out of place, the underlying implication being that Alvarez wanted to see her naked breasts. Alvarez’s minimal response can be interpreted either as a back channel, indicating that he was following what Calhoun was saying, or it can be understood to be agreement with the detective. In and of itself it remains ambiguous. For this reason, Larson (line 17) follows up Alvarez’s minimal response with a request for agreement, and Alvarez cooperates, with a minimalist “S´ı”. Since Alvarez is not forthcoming and does not volunteer any further information, Calhoun must press him (line 22), about how the bra came to be there. Alvarez’s answer (lines 25–27) is basically a repetition of statements he had made earlier, adding one piece of new information, se le alz´o la ropa ‘her clothing came up’. The grammatical construction of this phrase is similar to the sorts of “unaccusative constructions” found in the testimony of the college student accused of sexual assault in Ehrlich (2001). This sort of syntactic construction has been shown to be used by Spanish speakers in Costa Rica (Berk-Seligson 1983)

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as well as in the U.S.A. (speciﬁcally in courtroom testimony) as a mechanism of blame-avoidance (Berk-Seligson 1990). By using this sort of construction, and capitalizing on the grammar of non-agency, Alvarez is resisting any possible interpretation of Calhoun’s that he pulled her bra up deliberately. Calhoun uses a pre-accusation a second time (line 34), with the same type of wording (“Another tough question”), which serves as a warning that the question may not be one that the suspect would wish to answer easily or willingly. Again, it is not a question, as Calhoun claims it to be, but a statement, about the victim’s dress and underpants being pulled down, almost to her feet. Unfortunately, Larson mangles the rendition of this statement in Spanish, mistaking ropa interior ‘underwear’ for ropa anterior ‘previous clothing’ and rendering ‘ankles’ as tornillos ‘screws’, no doubt because of its phonetic resemblance to tobillos ‘ankles.’ It is amazing that Alvarez can understand the question. Apparently his ﬁrst-hand knowledge of the context, that is, the situation involving the victim and himself, gives him sufﬁcient background to piece together what Larson is getting at. The two accusatory insinuations portray a women who is naked, from the breasts down to her feet. Yet this is not said explicitly at this point in the questioning, it is only implied. Much later in the interrogation, it will be enunciated quite bluntly. This time it is Larson who acts entirely as if he were a police interrogator, repeating the question that Calhoun had asked after the ﬁrst implicit accusation, “How did that come to be?” Alvarez’s explanation is not very informative, since it essentially repeats what he had said in a nearby answer turn. The only new elements he adds to his previous explanation (that he had been pulling her and dragging her, including pulling on her clothing) is that she kept saying “no” during this episode, and that blood was coming out of her mouth. 4.1.1.

Repetition as denial and resistance

The most striking aspect of the detainee’s approach to handling the questions of the detectives, besides answering them in fragmented fashion, is the use of repetition. He uses both “self-repetition” and “allo-repetition” (repetition of others), to use a distinction of Deborah Tannen’s (1989: 54). He also uses exact repetition as well as paraphrase (both of his own words and those of others). Tannen’s review of the numerous functions of repetition in conversation is worth reproducing here. Comparing its uses in the creation of meaning in conversation, she says (Tannen 1989: 51):

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Coercion and its limits . . . repetition also functions on the interactional level of talk: accomplishing social goals, or simply managing the business of conversation. Some functions . . . include: getting or keeping the ﬂoor, showing listenership, providing back-channel response, stalling, gearing up to answer or speak, humor and play, savoring and showing appreciation of a good line or a good joke, persuasion (what Koch 1983 calls “presentation of proof”), linking one speaker’s ideas to another’s, ratifying another’s contribution (including another’s ratiﬁcation), and including in an interaction a person who did not hear a previous utterance. In other words, repetition not only ties parts of discourse to other parts, but bonds participants to the discourse and to each other, linking individual speakers in a conversation and in relationships.

Of Alvarez’s numerous self-repetitions, both isolated lexical items and phrases, some seem to be stalling devices and many function as strategies of persuasion. At the same time, however, they function to deny certain actions and to resist the efforts of the interrogators to implicate him in them. In short, most of Alvarez’s repetitions are “repetitions of denial and resistance”. Such repetitions can empower a detainee with a strategy for self-defense in the face of a situation of asymmetrical power relationships, where the one being questioned is generally the one lacking in power in the interaction. As will be shown below, the use of nearly word-for-word repetition by a detainee, with barely any new information added to an answer, is a way for a detainee to avoid talking about a topic that s/he wishes to circumvent. By repeating his or her answers, a detainee gives the illusion of behaving in a cooperative manner with the authorities: s/he is answering their questions. The detainee keeps on talking (Van Meter 1973), and that is one of the strategies of police interrogators, namely, keep the talk going. However, when the talk consists almost entirely of repetitions – both exact and paraphrased – and the replies do not always meaningfully answer the questions, then it can be said that repetition is functioning as a tool of resistance. As a resistance mechanism, it can serve to deny an accusation. One of the most frequently repeated themes in Alvarez’s answers is that he grabbed the young woman and pulled out his knife only because he wanted to frighten her, not to hurt her. It should be noted that early in the interrogation, Calhoun had suggested to him this possibility (see Extract 1), and so the wording of the answers below should be seen as an allo-repetition of Calhoun’s words. Thus, Calhoun has inadvertantly provided him with a defense strategy, and Alvarez latches onto it as a way of defending himself, although in so doing, he admits more and more. The following extracts comprise question/answer sequences in which this theme is reiterated by Alvarez; they occur at different points in the interrogation.

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Extract 7 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15

Larson (interpreting for Calhoun): ¿Le peg´o a ella cuando ella le hizo sentir furioso? ‘Did you hit her when she made you feel furious?’ Alvarez: No, no le pegu´e, pero la agarr´e. La agarr´e, la abrac´e con la mano, porque la quer´ıa espantar. ‘No, I didn’t hit her, but I grabbed her. I embraced her arm with my hand, because I wanted to frighten her.’ Larson: Espantar, ¿qu´e quiere decir ‘espantar’? ‘Frighten, what does ‘frighten’ mean?’ Alvarez: Pues la, la agarr´e con la mano por el cuello. ‘Well I grabbed her, her by the neck with my hand.’ Larson: Um hum. Alvarez: Y, y, y le saqu´e el cuchillo. Le ense˜ne´ el cuchillo para que se espantara . . . para que (inaudible) para que se, se asustara. ‘And, and, and I drew the knife on her. I showed her the knife so that she would be frightened . . . so that (inaudible) so that she would be scared.’

Calhoun, in trying to elicit the story of how the incident began, asks Alvarez to tell him what he had said to the young woman when he approached her. He extracts from a reticent Alvarez that after asking her for street directions, he told her that he liked her, and then she told him to go away. He then told her that he did not like her, and feeling rejected and depressed, grabbed her and pulled the knife on her. Extract 8 1 2 3 4 5 6 7 8 9 10 11 12 13

Calhoun: Okay, and do you remember what she said back? Larson: ¿Se recuerda usted qu´e dijo ella a usted? ‘Do you remember what she told you?’ Alvarez: No, creo que fue cuando la, cuando me acerqu´e a ella y la agarr´e y la espant´e con, con el cuchillo. ‘No, I believe that was when, when I approached her and I grabbed her and I frightened her with, with the knife.’ Larson: Okay, he believes that’s when he got close to her and grabbed her. Calhoun: Okay. How did you grab her? Larson: ¿C´omo le agarr´o? ‘How did you grab her?’ Alvarez: La agarr´e por el cuello y le ense˜ne´ el cuchillo. ‘I grabbed her by the neck and I showed her the knife.’

Somewhat later Calhoun asks Alvarez to explain to him in greater detail how he held the knife in relation to the young woman. To this, Alvarez replies, “Con esta mano la agarr´e as´ı y se lo puse en frente el cuchillo en la cara” ‘With this hand I grabbed her like this and I put the knife in her face.’ And when Larson

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asks whether the knife was far away or close to her, Alvarez repeats, “O sea, la agarr´e con el brazo por el cuello y, y le pu . . . puse el cuchillo delante de la cara” ‘That is, I grabbed her with my arm by the neck and, and I pu . . . put the knife in front of her face.’ Other themes that are expressed by Alvarez in nearly an identical fashion throughout the questioning are (1) the woman hit him in the stomach with her arm/elbow; (2) then threw herself to the ground, screaming; (3) he knelt beside her on the ground, grabbed her by the throat to stop her screaming, and stabbed her because (a) she wouldn’t stop screaming, and (b) this frightened, scared him; (4) he dragged her along the ground, by the waist, pulling her by her clothes and by her arm, over to a tree to hide her behind it; (5) he did this to her because she had rejected his advances and consequently made him feel bad and depressed. Each of these themes is probed into by the police many times over in cyclic fashion during the three hours of questioning, in accordance with routine police interrogation procedure, and each time Alvarez uses almost identical phrasing to describe the events and the scene. Interestingly, often these unvarying descriptions represent illogical, defective responses to the questions they are intended to answer. They become rote, pat phrases that the suspect can pull out whenever he needs an answer. For example, he never provides a satisfactory answer to Calhoun’s question as to why he was kneeling over the girl. Why hadn’t he just run away after she “threw herself to the ground” out of fear of him, screaming? If he was frightened by her screams, why didn’t he run away? What would induce him to kneel down beside her on the ground?Alvarez’s answer to this is just a repetition of how scared he felt, and how he wanted her to stop screaming. His response leaves the linguistic investigator as dissatisﬁed with the explanation as were the two police detectives. Alvarez’s behavior did not make sense, given his overwhelming state of fear. The statement that he felt frightened and scared recurs more frequently than perhaps any theme. Partly it is because the police repeatedly ask him if he felt angry at the girl, if that is why he stabbed her. Alvarez steadfastly holds to his “contrasting version” (Drew 1992) of his state mind: he was not angry, he was merely frightened. These repudiations of the police allegations are carried out with consistency and ﬁrmness. He never hesitates (his are not delayed responses), and generally begins his reply with the negative marker, “No”, followed by, a description of how he felt: mal ‘bad’, asustado, espantado ‘scared, frightened’. He is very clear about this, and does not want to be accused of acting out of anger. Thus, he remains resistant to the end about this point, and does so by using the very same words to create his “competing version” (Drew 1992) of the story.

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5. Exposing one’s hand: a ﬁnal police tactic Throughout most of the interrogation the two police detectives are gradual and indirect in their approach to building up an accusation of attempted sexual assault. However, there comes a point toward the end of the session when they lay their cards on the table, and tell Alvarez quite explicitly what their alternative version of the story is. At a point midway through the interrogation Larson asks, as he had done once before, at the ﬁrst interrogation, if Alvarez had wanted to “know” the girl in the Biblical sense – in the sense of having sexual relations with her – and deﬁnes the word for him. Alvarez ﬂatly denies that this had been his desire. He does not like the word ‘sexual’ to be used in describing his desires or his actions. Nevertheless, much later in the questioning he admits that when he tried to “get to know her” it had crossed his mind that after “chatting” on the street maybe she would be willing to spend the night with him, that he would have liked to make love to her once they had gotten to know each other. He makes the point of saying that he would never go to bed with someone he didn’t know, and that he was not one to frequent cabarets – which in Mexico are topless dance bars or strip-tease clubs – or to pay women to sleep with him. It is quite clear from his remarks, however, that he considered “getting to know” a woman as something that could happen in the span of a short walk down a street late at night. In the last segment of the interrogation Calhoun asks Larson to, “Tell him that, ah, as a man, I think he wanted to have sex with her,” to which Alvarez replies, “No, yo nunca (inaudible)” ‘No, I never (inaudible).’ Unfortunately, Larson renders ‘wanted’ as quiso ‘attempted to, tried to.’ This is predictable for a non-native speaker of Spanish because ‘wanted’ is the past tense form of the English verb, and so Larson uses the preterite tense form of the verb querer ‘want.’ However, the verb querer has a special meaning in the preterite: it means ‘tried to’ or ‘attempted to’. To say the equivalent of ‘wanted to’ in Spanish would involve using the imperfect tense (quer´ıa). It is likely that Larson’s rendition, quiso is understood by Alvarez as meaning ‘you tried to’ have sex with her, rather than ‘you wanted to’. In the case of an attempted rape charge, this is a crucial difference. The preterite form quiso in the utterance in which it was placed constitutes a direct accusation of attempted rape. It is no wonder that Alvarez so ﬂatly denies it. In constructing the accusation of attempted rape, Calhoun points out the scratches on one of Alvarez’s hands. He interprets their presence as signs that the victim had scratched him as she was struggling to fend him off. Alvarez ﬂatly rejects this possibility, explaining that the scratches were the result of putting his hand in the pocket that held the knife (i.e., he claims that he cut himself with

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the knife). Calhoun rejects this theory, telling him that the marks left by a cut look very different from scrape marks. After this out-and-out dispute, Calhoun pulls out yet another revelation: that they, the police, had found something else on Alvarez’s hands, besides scrapes – something that smelled like vaginal ﬂuid. When Larson explains that this substance comes from “where we do pee-pee”, Alvarez vehemently denies any wrongdoing of this nature, saying, “No, nunca toqu´e all´ı” ‘No, I never touched there’. Calhoun, by now, openly confronting Alvarez with supposedly known facts, points out that there were ﬁngerprints of Alvarez’s on her legs. To this he replies that because he pulled on her pants, perhaps he accidentally brushed against her legs, but that he “never, never touched the, that part of her body.” Finally, Larson, not mincing his words and always the more aggressive interrogator, says to Alvarez: “Okay. Bueno lo que estamos diciendo, Carlos, okay . . . es que nosotros creemos que lo que pas´o es que usted quiso tener o hacer amor con ella” ‘Okay. Well, what we are saying, Carlos, okay . . . is we believe that what happened is that you wanted to have or to make love with her’. Oddly, Alvarez responds with a minimal, “Um hum,” not denying Larson’s assertion. This is followed by another challenging statement from Larson, that he and Calhoun believe that perhaps this happened because she didn’t want to make love with Alvarez. When asked by Larson if this is true, Alvarez denies it, saying, “No, porque yo nunca le habl´e de hacer eso” ‘No, because I never talked to her about doing that’, that is, he continues, he never told her that he had any desire to make love to her. This is interesting because it implies that he believes that only by saying something explicit to the woman about wanting to make love to her would it count as an expression of his desire to do so. Apparently he believes that some sort of speech act is required (e.g., a request for permission to have sex) for a man to be considered to have made a sexual advance. Actions without words would not be sufﬁcient, from his standpoint. At the very end of the session Calhoun asks Alvarez to tell the truth – saying that Alvarez had told the truth about the stabbing, but that it was time to tell the truth about everything. At this Alvarez says that he does not know what “everything” refers to, because he has told everything. Nevertheless, the detectives press him about whether he had gotten angry at the woman, Larson telling him that getting angry would have been all right for him to do – thereby mitigating the gravity of the crime. One more time Alvarez denies having felt anger. Through the probing of the detectives, he admits that during the event he knew that he was doing something bad, and when asked by Larson, “What is, what, what was the . . . this something bad?” all that he was willing to say was, “Pues, agarrarla, ense˜narle el cuchillo” ‘Well, grabbing her, showing her the knife’. This is far less than what the detectives were trying to elicit from him. Therefore

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at this point they give up, and bring the interrogation to a halt, although not without ﬁrst asking Alvarez if he had ever been to see a psychiatrist. Noting burn marks on his neck and chest, they must suspect a history of physical abuse.

6. Conclusions The case of The People v. Alvarez demonstrates that detainees undergoing police interrogation, even when subjected to what appellate courts deem to be “coercive” interrogation techniques, have within their power the ability to resist such coercive questioning tactics. By limiting themselves to fragmented answers and avoiding elaborated, narrative style, and by making ample use of self-repetition and allo-repetition, detainees suspected of felonies – such as attempted rape – to a great degree can thwart the efforts of the police to force confessions from them. The implication of this ﬁnding is that even under coercion, suspects can be considered to hold at least some measure of power over their interrogators, and that is the power of resistance. This is a ﬁnding at variance with much of the research based on trial testimony, most of which focuses entirely on the power to control testimony that is in the hands of the interrogator. One especially interesting ﬁnding emerging from the present analysis is that those being interrogated use as their tools of resistance the very tactics provided them by their interrogators. The common tactic used by police detectives of not naming the crime about which they are questioning a detainee, and referring to it as “the problem” or the “situation” can be picked up by the detainee to avoid mentioning the act for which s/he is being held. Similarly, when police detectives suggest a motive for the purported act of a detainee (e.g., anger at the victim), and behave sympathetically toward them, telling them that it is understandable for someone in the suspect’s situation to have been provoked into committing a serious crime, the detainee can exploit the suggested motive and capitalize on it during subsequent questioning, using it as a defensive strategy. Thus, verbal tactics used by the interrogator can be seen as potentially capable of subversion by the interrogated, serving the latter’s own strategic interactional needs. At the same time, the interrogator provides the suspect with euphemisms, which make it easier for him to extract a confession. In the particular case of Carlos Alvarez, no matter how many times the police suggest that it was anger that motivated him to stab a young woman, the suggestion does not have the perlocutionary effect on the suspect that they intend it to have. He does not adopt it as a motive for his violent behavior. To the end he remains resistant to the notion that he was angry at the victim, admitting only to feelings of rejection and depression.

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Since there was sufﬁcient evidence of attempted rape to uphold a conviction on appeal, what then accounts for Carlos Alvarez’s persistent resistance to the police detectives’ accusation against him? And why would he confess to murder but resist the accusation of sexual wrongdoing? Several possibilities suggest themselves, all of them at the level of conjecture, but all of them reasonable. Perhaps it is a combination of them that accounts for the seemingly paradoxical behavior of the suspect. One reason why he may have resisted the accusation of sexual wrongdoing is that this was the crime that he felt most guilty about, and probably the one he had in mind when he began to behave in a menacing way toward the young woman. It is unlikely that he was planning to murder anyone that night, but it is very likely that, in his drunken state, he was looking for a woman to have sex with. From his perspective, his crime was attempting to force himself sexually on this unfortunate woman who crossed his path. The murder was unintended; it happened to result from a sexual crime gone awry. In fact, in his drunken state, Alvarez was unaware that he had done so much damage to her that she had died. The shock and grief he expressed at the ﬁrst interrogation when the police informed him that the victim had died are evidence that he was not thinking clearly or perceiving the situation accurately when he ran away and left the young woman hidden behind some bushes. When the police gave him a seemingly excusable reason for attacking her, namely, that perhaps she had done something to hurt him, he seized on this rationale, and used it for the rest of the interrogation. The police, by seemingly ameliorating Alvarez’s responsibility for the violence, gave him a false sense of security, that is, they gave him the impression that the attack on the girl was understandable in the light of her behavior toward him, and that therefore what he did was not so terribly reprehensible. Thus, if stabbing the girl could be excused by the police as a justiﬁable action on his part, then what remained to be held accountable for was the attempted rape, which he may have felt was a crime and which left him feeling very bad about himself. From this perspective, he ﬁts into the category of ‘denier’, a term proposed by Scully (1990: 38) to describe convicted rapists who “admitted that rape is usually impermissible, but argued that in their particular case, there were justiﬁcations that made their behavior appropriate, if not right.” Deniers can be distinguished from ‘admitters’ in this respect. Another possible explanation for why Alvarez denied the attempted sexual assault is that a second charge, added on to the murder charge, would result in a longer prison sentence if he were convicted of both. Perhaps he was not aware of prison sentence norms in the U.S.A., and if not, he would not have known that for murder he could get either the death penalty or life in prison without the possibility of parole, but that for the crime of rape he could be sentenced to

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only three-to-eight years in prison by a state court. The disparity in sentences for the two crimes is quite sharp in the state in which he was living. In Mexico City, in contrast, the difference in sentencing for simple intentional homicide and rape is not as striking: it is from eight-to-twenty years for homicide, and from eight-to-fourteen years for rape. This makes the punishment for the crime of rape weightier in Mexico City than it is in the state where the attempted rape took place, both in relative and absolute terms, and since it is unlikely that in eight months of living in that state Alvarez would have learned the details of its criminal justice system, he probably was still thinking along the line of the Mexican legal framework, if in fact he had any knowledge of it at all. Therefore, from a sentencing perspective, the idea of going to prison for rape would have been daunting to him. Finally, a contributing factor in his unwillingness to confess to attempted rape might be the element of machismo, that is, assertive or aggressive manliness, or the “cult of virility” as one psychologist has deﬁned it (Goldwert 1985). Oral communication to me from college-educated Mexicans, the writings of Mexican feminist writers (Poniatowska 2000; Torres 1997), and the analysis of a U.S. anthropologist studying “the meanings of macho” in a working class colonia (‘housing development’) in Mexico City (Gutmann 1996), all consider machismo to be a contributing factor to the relatively low rape rates in Mexico. The Mexican observers explain that rape denotes a lack of virility, because a “real man” would not need to go so low as to force a woman to have sexual intercourse with him; he should be able to seduce her without forcing her. And so to rape a woman is a vilifying crime in Mexico and embarrassing to the man who resorts to it. One might conclude that Carlos Alvarez’s resistance to the accusation of attempted rape may have had to do with all of the factors mentioned above. Explanations of human behavior are usually multi-faceted, and it would be difﬁcult to conceive of the denial of an action as serious as rape to have been caused by a single motive. It is not surprising, therefore, that the police in this case questioned the suspect about the burn marks on his body and about whether he had a history of psychiatric problems or not. Alvarez’s strategy of not giving any more information than absolutely necessary, yet still managing to give the appearance of conversational cooperation with his interlocutors, proved to be a successful one. He never relented on the accusation of attempted rape. He was, nonetheless convicted of it, and even though his murder conviction was reversed, the sexual assault conviction was not. What this analysis has tried to show is that power in social interaction does not lie with any one participant, not even in sociolegal contexts such as police interrogations. Thus, while one might easily assume that all the power in such

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speech events would be in the hands of the interrogator, the ﬁndings presented here demonstrate that this is far from true. A suspect undergoing police interrogation has the power to withhold narrative style discourse and the power to ﬁll a conversational turn with what are merely repetitions of substance provided in previous turns. Thus, like soldiers who are trained to provide only their name, rank and serial number to their captors, suspects who wish to resist implications of criminal wrongdoing have some powerful verbal resources at their disposal.

Chapter 5 Does every yeah mean ‘yes’ in a police interrogation? The interrogation of Miguel Peralta, a twenty-year-old U.S. Latino male, by a bilingual Latino police detective succeeded in producing a confession of murder from him and resulted in his eventual conviction for that crime. He was accused of stabbing to death Louise Patterson, an elderly woman, and owner of a convenience store located in a rural area largely populated by migrant farm workers. According to the public defenders assigned to the case, no physical evidence was found tying Miguel Peralta to the murder. The only evidence the prosecution had to successfully convict him was his confession. This chapter shows, however, that by using an interactional sociolinguistic analytic approach to the police interrogations of Peralta – focusing on the questions of the interrogating ofﬁcer and the responses of the suspect, it can be argued that the “confession” was in fact either a false confession or an unreliable one. The police, and evidently the jury, considered the suspect’s answers to their questions to constitute a confession, because they overwhelmingly took the form of ‘yeah’ and were interpreted as providing incriminating evidence of his involvement in the murder. Overwhelmingly, the detective’s questions can be seen to be controlling (i.e., largely belonging to the category of ‘leading questions’). The fact that the suspect’s answers emerged as a string of virtually unvarying ‘yeah’ tokens – used 278 times – is particularly striking. The virtual absence of register-shifting in these response tokens deﬁnes the mechanical manner in which he answered the questions. The analysis will demonstrate that the string of ‘yeahs’ he produced represents an extreme case of ‘gratuitous concurrence’ (Eades 2008; Liberman 1981; Mildren 1999; Walsh 1999) or ‘acquiescence response set,’ and that some of these tokens are not afﬁrmations at all, but back channel signals indicating that the suspect was paying attention to the speech of his interrogator. While such gratuitous concurrence has been documented as common among Australian Aboriginal speakers, their prominence in the answering style of a U.S. Latino farmworker points to what this chapter suggests is a more general phenomenon: acquiescence in the interrogation process to authority ﬁgures by the socially powerless, resulting in unreliable or even false confessions. This chapter ﬁrst examines the questioning strategies of the police detective who played the principal role in each of four interrogation events, showing how his interactional behavior invited acquiescent responses from the suspect. The chapter then presents an analysis of the suspect’s answers to those questions.

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1. Acquiescence: a cultural, linguistic, and psychological perspective Suspects in a murder case can be interrogated by police detectives repeatedly. When such suspects confess, and the evidence supporting the confession is weak or non-existent, as it was in the Miguel Peralta case, the question that should be asked is whether this was a false or, at a minimum, unreliable confession, and if so, was it extracted through improper police interrogation tactics? The suspect in this case was considered to have confessed to murder because he answered ‘yeah’ repeatedly to a series of questions, providing what was interpreted as incriminating evidence of his involvement in the murder. Miguel Peralta explained that he and a friend had been hired by a local thug to steal the accounting books of a convenience storeowner, Louise Patterson, because they contained, among other entries, a record of the debts of the thug and his associates. According to the defendant’s account, there was no intention of killing the elderly woman. However, when she caught them in the act and began screaming, to silence her, one of them beat her to the ground and the other stabbed her to death. The suspect described his role in the break-in, including details of how he stuck the knife into her and how he had tried to pull it out. The evidentiary record does not support this account. According to the defendant’s defense attorneys, no physical evidence was found linking him to the murder. And when the capital punishment case came up for trial, it ended in a hung jury, although subsequently, in a second trial the defendant was convicted. His confederate, who had helped implicate Peralta by entrapping him in a covertly tape-recorded telephone conversation monitored by the police, pled guilty to armed robbery. He was also imprisoned for his role in the burglary gone awry. Miguel Peralta’s defense attorneys asserted that it was not their client who had killed the storeowner, but rather the confederate. The question for those who analyze language in legal settings is how the police succeeded in obtaining a confession from the suspect, and from a linguistic standpoint, what actually constituted the confession. It will be argued in this chapter that by responding in the afﬁrmative to most of the questions posed to him, the suspect constructed a confession, when in fact what he was doing was repeatedly engaging in gratuitous concurrence. In his case, answering in the afﬁrmative took the unvarying form of the lexical item ‘yeah.’ What would not have been apparent to a jury panel reading the police transcript or listening to the tape-recorded interrogation, is that the confessional interrogation session immediately followed a prior interrogation, one that had not been recorded. And so, when the detective is heard asking questions on the tape, they are questions to which he believes he knows the answers based on

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a version of the events that had just emerged in a prior interrogation. We have no access to that ﬁrst interrogation, and neither did the jury, since it was neither audio nor video recorded. Thus, the ofﬁcial record of the interrogation in reality represents the ‘second time around’ for questioner and respondent. It is a ‘second telling’ on the part of the detainee, and we have no way of knowing to what degree open-ended questioning was involved and whether narration was encouraged or even permitted during the ﬁrst interrogation. Most importantly for analysts of speech in interaction and for critical sociolinguists are the facts that (1) the primary strategy of the detective was to use controlling question forms and (2) the repetitive, unvarying lexical item ‘yeah’ used in response to nearly all of the questions represents an extreme (but, I believe common) case of ‘gratuitous concurrence.’ Gratuitous concurrence is a notion ﬁrst documented by Liberman (1981, 1985) among Aboriginal English speakers of Australia, and conﬁrmed by Eades (1994, 2008), Mildren (1999) and Walsh (1994, 1999), all of them observers of Australian Aboriginal persons. Liberman sees gratuitous concurrence as a form of accommodation, a protective device used by Aboriginals in dealing with Anglo Australians, taking the form of agreeing with whatever the Anglo Australians want, even if they do not understand what is being asked of them (Liberman1981: 248–249). He considers gratuitous concurrence to be a feature particular to Aboriginal Australian cultural ways of speaking, an outgrowth of their desire to “keep our talk harmonious” (Liberman 1985: 234). For this reason, they use a “strategy of acquiescing to the suggestions of their court interrogators” (Liberman 1985: 234). Eades (1994) warns that this strategy puts Aboriginal Australians at risk in legal settings, since it leads them to give up their right to maintain silence in the absence of defense attorneys. Eades (2008) believes that the strategy of gratuitous concurrence used by Australian Aboriginal people may appear to be similar to ones used by other sociocultural groups, and that such other groups may be acquiescing out of fear, or in the case of second language speakers, because of a lack of understanding. She considers the gratuitous concurrence that is found among Australian Aboriginal people to represent the Aboriginal tendency to keep surface harmony, and work behind the scenes to deal with disagreements, rather than being merely a response to colonization and subjugation, a position consistent with Liberman’s. The phenomenon is not limited to Australian Aboriginal people, however. Among many Meso-American social groups – especially peasants, blue collar workers, and indigenous peoples – the desire for surface harmony and the avoidance of open interpersonal conﬂict is a commonly found strategy, particularly in the context of interaction in asymmetrical social and power relationships (e.g., worker/employer, tenant/landlord). My own personal experience of living in a

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rural Costa Rican village impressed this cultural trait on me. I have observed it while living in Mexico and El Salvador as well. Evidence from comparative studies of interview behavior among U.S. Hispanics, Mexicans, and Americans of European ancestry reveals that while answering batteries of questionnaire items, U.S. Hispanics and Mexicans alike display a behavior that is similar to that displayed by Australian Aboriginal people as reported by Eades: they acquiesce to the interviewer, exhibiting a phenomenon known as ‘acquiescence response set.’ Speciﬁcally, they agree with statements presented to them or answer ‘yes’ to questions, regardless of content. To test this, survey researchers typically ask respondents nearly identical questions, reversing the semantic polarity of the questions from one version to another. People who exhibit acquiescent response set will answer “yes” to both the negatively and positively worded questions. In one study (Ross and Mirowsky’s 1984), for example, comparing the responses of non-Hispanic whites and Mexican-Americans in El Paso, Texas, with those of Mexicans in Ju´arez, Mexico, the Mexican respondents from Ju´arez showed greater levels of acquiescent responses than did the Mexican-Americans from El Paso and the non-Hispanic whites.28 In a study carried out in Latin America, Landsberger and Saavedra (1967) found that acquiescence is frequent among Spanish speakers, but that it is closely related to educational level (there is greater likelihood of acquiescence among less well educated respondents than among the better educated). Mar´ın and Mar´ın come to similar conclusions in their study of U.S. Hispanics versus non-Hispanic whites: education and acculturation levels correlate with acquiescence among Hispanics. The existence of acquiescence among U.S. Hispanics has been seen as functional for them, as a “self-presentation strategy of individuals who are relatively powerless in society . . . Acquiescence becomes a deferential, submissive and nonresistant response. By giving deferential responses, powerless people present a ‘good face’ to the other members of society and may become more accepted” (Mar´ın and Van Oss Mar´ın 1991: 104, citing Ross and Mirowsky 1984). And even though education plays a role in determining the level of acquiescence among U.S. Hispanics, “ethnicity in and of itself seems to be playing a role” as well – the acculturation level of the Hispanic respondents in one study being a predictor of acquiescence (Mar´ın and Van Oss Mar´ın 1991: 104). The existence of acquiescent response as a cultural feature of Spanish American ways of speaking has been noted by authors writing for non-academic audiences. A cultural guidebook such as Noble and Lacasa (1995: 34), which makes broad generalizations about Spanish American culture, points out that in some parts of Spanish America, “. . . people who are frank, open, and direct are considered to be rude and blunt. In some places, people who feel that the

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one speaking to them is of a higher social status will answer ‘yes’ to a question just to please the speaker.” The empirical studies of acquiescent response set among Latinos together with generalizations such as those of Noble and Lacasa are bolstered by and consistent with the ﬁnding of gratuitous concurrence in judicial speech events among aboriginal people of Australia. Additional support for the thesis that gratuitous concurrence is likely to emerge in the interrogation of a great many people of different Latin American origins comes from cross-cultural research on politeness. In one study of Mexican-American request strategies (Arellano 2000) it was found that farm workers used indirect and mitigated forms of requests during interactions in which the hearer had power over them. In other words, authority and level of imposition had a signiﬁcant impact on the choice of request strategy employed by these U.S. Latinos. In a study comparing advice-giving and suggesting among lower-class Chicanos and middle-class Anglos (‘Anglo’ being the term used in the U.S. Southwest for persons of European descent), based on Brown and Levinson’s (1987) notion of politeness and using naturalistic data, Youmans (2001) ﬁnds that Chicanos tend to use positive politeness strategies, whereas Anglos prefer to use negative politeness strategies. Koike’s (1998) study of supervisor/assistant teacher interaction in which both conversational partners were of Mexican origin, ﬁnds that both interactants very often oriented themselves toward their own and their interlocutor’s positive face needs, and consequently employed a wide range of mitigating strategies, such as hesitation markers, attenuations, minimizing expressions, and rising intonation. Further evidence of a marked preference for mitigation in Mexican discourse comes from FelixBrasdefer (2004). His study of speech acts of rejection among male college students living in Tlaxcala, Mexico demonstrates that there is a clear preference for mitigation when carrying out rejections when the relationship between interlocutors is characterized by [+power] and [+distance]. An additional study focusing on social interaction in Mexico is Schrader-Kniffki 2004. This investigation examines a conﬂictual interaction between Zapotecs (an indigenous Mexican group) and a Mexican non-indigenous Spanish speaker, and demonstrates that Zapotecs’ “way of interacting with members of the out-group has the function of avoiding conﬂict and showing respect and, is therefore used as a politeness strategy” (Schrader-Kniffki 2004: 163), to the point where Zapotecs accept requests and promise to carry them out even when they know that they cannot fulﬁll the promises. Schrader-Kniffki (2004: 162) refers to the “compliance” of Zapotecs in their interaction with out-group members, in that they prefer to avoid rejecting requests by Hispanophones (i.e., will acquiesce to them) so as to avoid conﬂicts.

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Several other studies come to similar conclusions regarding the desire on the part of different Latin American groups to maintain harmony in social relations, and the consequent reliance on linguistic strategies to achieve such harmony. Ruzickova’s (2007) study of customer requests in Cuban service encounters, for example, which tests Brown and Levinson’s theory in a Hispanic cultural context, ﬁnds that Cubans display a greater concern for positive politeness than they do for negative face wants and that their interactional goal is to achieve successful and harmonious transactions. Ruzickova points out that the service encounter in Cuba is not a particularly face-threatening or risky context, and that Hern´andez-Flores’ (2004) analysis of Spanish conversations may be correct in suggesting that “mitigation and repair are primary functions of politeness in situations that are inherently unfavorable to face,” in contrast to the Cuban service encounter, in which “politeness may serve to enhance face rather than to repair face damage” (Ruzickova 2007: 237). It could be argued that a police interrogation represents a simultaneously positive and negative face-threatening situation par excellence for a person suspected of a serious crime. Comparative research emanating from Latin America and Spain ﬁnds that speakers of Peninsular Spanish are more direct than Latin American speakers of Spanish. Furthermore, when compared to Spaniards who are speaking indirectly, Latin Americans sound more tentative (M´arquez Reiter 2002). Findings from Ecuador (Placencia 1994), Peru (Garc´ıa 1993), and Chile (Puga Larrain 1997) indicate that Spanish speakers in these countries are characterized as indirect, formal and deferential in certain contexts. Linguistic tentativeness, indirectness, and deference, are three qualities that might well be related to acquiescence. Culture as a factor to be taken into account when interacting with interviewees in legal contexts has been highlighted in the training of those who routinely work with defendants and witnesses who do not speak or understand the language of the law: court interpreters. The annual conferences of U.S. organizations such as the National Association of Judiciary Interpreters and Translators (NAJIT) regularly feature workshops on cross-cultural communication differences that can affect the way in which jurors are impacted by the verbal and nonverbal behavior of Limited English Proﬁcient speakers giving testimony. The impact of cross-cultural differences in eye contact and gaze patterns among the non-U.S. born is often pointed out by court interpreters to attorneys and is included in textbooks aimed at training court interpreters (De Jongh 1992; Frankenthaler 1982; Gonzalez et al. 1991).29 Despite all of this research, the inﬂuence of culture on interviewees’ answers to police interrogators’ questions has not been given much scholarly attention in the U.S.A. The work of Cole and Maslow-Armand (1997) and Ainsworth (1993) stand out as exceptions in this regard. Cole and Maslow-Armand’s (1997: 193,

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196) study of “The Role of Counsel and the Courts in Addressing Foreign Language and Cultural Barriers at Different Stages of a Criminal Proceeding” ﬁnds that, Cultural and language barriers may affect whether a defendant is able to make a voluntary confession, knowingly and voluntarily consent to a search, waive the right to a trial by jury, or fully understand the elements of the charge, the rights waived, and the effect of the plea in a plea bargain proceeding.

With regard to the Miranda rights alone, Ainsworth (1993) notes that ethnic minorities in the U.S.A. have more difﬁculty asserting their rights than do Americans of European descent. A legal scholar trained in linguistics, she refers to a number of ethnic groups that “use indirect and hedged speech patterns more frequently than do speakers of standard English,” even when they are speaking English, and who consequently have especially great difﬁculty in invoking their right to have an attorney present at their interrogation by police ofﬁcers (Ainsworth 1993: 318–319). The list of ethnic groups she mentions includes speakers of African American English Vernacular, Arabic, Farsi,Yiddish, Japanese, Indonesian, and Greek. Gonz´alez (2003), a specialist in court interpreting training and second language acquisition issues, helps ﬁll the lacuna on the impact of culture on Hispanic answers to police questions. Testifying before the International Court of Justice, she has pointed out (Gonz´alez 2003: 6–7): . . . a tendency on the part of Mexican nationals to acquiesce to all demands by authority ﬁgures and answer all questions put to them even if they do not understand them. In an effort to be cooperative and even affable, Mexican nationals often have a tendency to “pretend” that they understand, that they can speak and understand English. Perhaps this is done out of pride, but most often it is because of the cultural conditioning which requires them to speak to authority even if they cannot speak the language.

Gonz´alez has discovered, furthermore, that, “. . . Mexican nationals believe that they will be let go if they talk to interrogators, and feel that they must acquiesce to those in positions of authority” (Gonz´alez 2003: 8). Forensic linguists Solan and Tiersma (2005) agree that cultural factors can inﬂuence the discourse behavior of immigrants during police interrogations. Citing the appellate cases of Cuban, Mexican, and Chinese defendants in American courts, Solan and Tiersma (2005: 84) explain that these defendants waived their Miranda rights “. . . only because in their original cultures it was unthinkable to refuse to cooperate with the police.” These scholars point out that in some countries, “. . . confessions are highly valued and lead to lighter punishment,” and so “refusing to cooperate with authorities may have dire consequences” (Solan and Tiersma 2005: 84).

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In sum, U.S. Hispanics display acquiescent behavior not only in social science research surveys, where the perceived social distance and social power differential between interviewer and interviewee can be moderately but not exceedingly great, but also in the speech situation (Hymes 1972) of the police interrogation, which will create a far greater social and power differential between interlocutors, whatever their ethnicity (Heydon 2005; Shuy 1998; Solan and Tiersma 2005; Wrightsman and Kassin 1993). In the case at hand, in which a U.S. Hispanic is interrogated under suspicion of ﬁrst-degree murder, it would not be surprising if the detainee responded to questions in an acquiescent fashion. Ethnicity is an important factor that helps account for why a suspect in a homicide case would have answered nearly all of a detective’s questions in a superﬁcially afﬁrmative way. When other factors are added to it, such as the suspect’s youth, limited educational attainment, and most importantly, the intimidating nature of the speech situation and the asymmetrical power relationship between the suspect and the detective, then the probability of gratuitous concurrence is very high. From a conversation analytical perspective, the nature of the police detective’s ﬁrst-part in relation to the detainee’s second-part of the adjacency pair question/answer (Sacks 1992; Schegloff and Sacks 1973) will have its own explanatory weight in accounting for the nature of the answer.30 Speciﬁcally, as will be shown, controlling, or coercive questions result in particular sorts of answers. Very often they call for agreement with the questioner.

1.1. The psychological perspective on acquiescence, compliance, and suggestibility and their role in false confessions According to research, acquiescence, compliance and suggestibility are three factors that have been identiﬁed as leading to false confessions. With respect to acquiescence, forensic psychologists such as Gudjonsson (1989a, 1989b, 1990, 1991, 1992, 2003), Kassin and McNall (1991), and Wrightsman and Kassin (1993) and more general social psychologists consider it to be a response style: acquiescence is “the tendency to agree rather than to disagree with propositions in general” (Lentz 1938). It has also been considered to be a personality trait related to submissiveness and eagerness to please (Finlay and Lyons 2001). As Paulhus puts it, “Some individuals, called yeasayers, tend to agree with statements or say “yes” to questions; other individuals, called naysayers, tend to disagree with statements or say “no” to questions,” and the tendency is believed to emerge when the person being interviewed is uncertain, or is characterized as having a high-anxiety personality (Paulhus 1991: 47). Nevertheless, some

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researchers have found that acquiescence interacts with social status variables such as race and education (Bachman and O’Malley 1984; DeLamater and McKinney 1982), and that “complex statements required in much survey research are highly susceptible to acquiescence in agree-disagree, interrogative, or true-false format” (Paulhus 1991: 47, emphasis added). Two other factors identiﬁed by forensic psychologists as playing a role in false confessions are interrogative suggestibility and compliance. The notion of interrogative suggestibility, ﬁrst developed by Gudjonsson and Clark (1986) is deﬁned by Gudjonsson (1991: 280) as, “the extent to which within a closed social interaction, people come to accept messages communicated during formal questioning, as the result of which their subsequent behavioral response is affected.” Interrogative suggestibility, according to Gudjonsson (1986, 1989b) as opposed to ordinary suggestibility, involves the elements of uncertainty and the presence of a stressful situation. In addition, the interrogator is able to manipulate the element of uncertainty, so as to affect the interviewee’s susceptibility to suggestions. Finally, characteristics of the interviewee can affect his/her her suggestibility, for example, the types of coping strategies that the interviewee uses during stressful questioning. Gudjonsson’s (2003) research ﬁnds a signiﬁcant relationship between acquiescence and suggestibility. A third related psychological concept that is relevant to false confessions is compliance. Compliance, according to Gudjonsson (1990), is considered to be distinct from suggestibility, in that suggestibility “does not require an internal acceptance of the request” and is mediated by variables such as eagerness to please and avoidance of controversy (Wrightsman and Kassin 1993: 97). Gudjonsson’s empirical studies ﬁnd that there is a certain overlap between the constructs of suggestibility and compliance, in that both are mediated by variables such as the ones just mentioned; nevertheless, he argues, they are distinct concepts. To sum up, my thesis is that whereas the psychological characteristics of persons being interrogated do indeed play an important role in accounting for their acquiescent and compliant behavior in a police interrogation, cultural factors are crucially important as well, as too are other extralinguistic and linguistic elements present in the speech situation and the speech event, most notably the verbal and non-verbal behavior of interrogators. In short, the interplay of individual psychological attributes and sociocultural background in what is an inherently intimidating setting can create a situation that is ripe for a false confession. While the speech setting in and of itself can intimidate the socially vulnerable (e.g., the young, ethnic minorities, persons without legal residential status, the cognitively handicapped), intimidation can be accomplished to a great extent through social interaction as well.

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Does every yeah mean ‘yes’ in a police interrogation?

What follows is an analysis of the interaction between a detective and a suspect over the course of four separate interrogations. It will be shown that the interrogation strategies employed by the detective when coupled with the acquiescent verbal behavior of the suspect – largely through the mechanism of gratuitous concurrence – resulted in a coerced confession to murder.

2. The nature of the interrogations As noted in the introduction to this chapter, one of the most problematic aspects of the evidence available on the nature of the police interrogations in which Miguel Peralta was treated as a suspect is that several of them were not recorded (either in audio or video format), and that those interrogations that were in fact recorded represent a ‘second telling’ (Trinch and Berk-Seligson 2002) by the suspect. The second telling included facts that the police had a particular interest in hearing about. There is no way of knowing what sorts of questions were asked and how those questions were answered in the interrogations that immediately preceded the audio-recorded ones. According to Shuy (1998), a hallmark of effective interrogations and valid confessions is the full recording of all interrogation sessions. From the perspective of the police, “by not taperecording the ‘actual’ confession, the police invite disagreement and challenge” (Shuy 1998: 188), and so recording interrogations from beginning to end can be advantageous to the interrogators. It can be even more vital to those being questioned, in that fully recorded interrogations almost certainly help to reduce the frequency of coercive tactics by the police (Donovan and Rhodes 2000; Drizin and Colgan 2001; Johnson 1997; Kamisar 1977; Kane 1993; Ofshe and Leo 1997; Sullivan 2004; Weisberg 1961; Westling 2001; White 1997).31 In the case of Miguel Peralta, the absence of audio recordings of the interviews that immediately preceded the tape-recorded interrogations on the basis of which Peralta’s ofﬁcial ‘statements’ (i.e., signed afﬁdavits) were taken, constitutes a glaring gap in the analyst’s – and juror’s – possible knowledge of how Peralta was questioned and how he responded. The absence of such recordings casts a shadow of doubt on the validity of whatever Peralta said the ‘second-timearound,’ at what the justice system considers to be his ofﬁcial interrogations. Peralta’s statement made to the police on May 18, 2002 (11:55 a.m.), considered by the prosecution to be inculpatory, was obtained in a manner that can be considered to have produced unreliable statements because of the nature of the questioning approach used by the lead detective. That approach was characterized by the following features: (1) the preponderance of controlling or coercive questions and the infrequent use of open-ended questions and questions that lend

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themselves to narrating; (2) the cutting off of the suspect’s answers on those few occasions when open-ended questions were made available to him, thereby preventing him from completing his narrative answers (i.e., his narrative answers tended to be interrupted by the detective); (3) the repeated, frequent use of a monotonic, declarative intonation pattern in the majority of the questions asked during the interrogation speech event, thereby creating a series of statements rather than true questions – statements suggesting that the forthcoming answer be in the afﬁrmative; (4) the use of ambiguously worded questions, speciﬁcally, ‘multi-barreled’ questions and questions that can be considered to be ‘semantically overloaded’; (5) the use of formal language, an intimidating element for someone who had attained a limited formal education, and particularly so for someone whose command of the English language was not nativelike; (6) the creation of a veiled threatening tone through repeated admonitions to the suspect that he “answer carefully” because he was “under oath”; (7) the use of metacommentary, in particular, references to statements made by the suspect, functioning as a mechanism for expressing disbelief; (8) the recycling of topics, such that the detective repeatedly went back to the same subject matter, implying that the answers that he was being given were not acceptable to him; (9) the rephrasing of the suspect’s answers, resulting in the introduction of lexical items that altered the sense of the suspect’s statements; (10) repetition of the word ‘fair’ both for the purpose of eliciting the suspect’s agreement with the interrogator’s version of the events in question, as well as for the purpose of getting the suspect to state that he had been treated well during the questioning; and (11) putting words in the suspect’s mouth, that is to say, co-constructing the narrative. Each of these verbal strategies is analyzed in the sections below.

2.1. Coerciveness and question type Linguists who specialize in the ﬁeld of language and the law, particularly in the area of forensic linguistics, have distinguished question types according to their degree of coerciveness. This is to say that differences in question form can be considered to represent corresponding differences in control over an answer. Distinctions along these lines, within the context of analyzing question/answer sequences in legal settings, have been made by Berk-Seligson (1999), Bresnahan (1979), Danet et al. (1978, 1980), Gibbons (2003), Loftus (1979), Maley and Fahey (1991), Newbury and Johnson (2006), Shuy (1998), and Woodbury (1984). While some of these scholars break down the classiﬁcation more ﬁnely than others, among those whose classiﬁcatory scheme is relatively detailed there is agreement that open-ended questions, such as “Tell me what happened that

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Does every yeah mean ‘yes’ in a police interrogation?

night” or “What did you see that night?” are generally the least coercive, in that they give the examinee the greatest leeway, or freedom to answer in the way that s/he wants, and are used to elicit free narratives.32 These questions are sometimes called ‘broad Wh- questions’, Wh-questions being those that start with wh- or h-, as in ‘who’, ‘what’, ‘why’, ‘where’, ‘when’ and ‘how’. Narrow Whquestions, in contrast, ask for speciﬁc information. Both categories have been labeled under the rubric of ‘information seeking questions’ by Maley and Fahey (1991), who distinguish this group from a variety of other types, which they call ‘conﬁrmation seeking questions’. Maley and Fahey ﬁnd that in the context of the courtroom, information seeking questions predominate in direct examination, and are rarely used in cross-examination, where control over a testifying witness is crucial for the examining attorney. Conﬁrmation seeking questions, on the other hand, they ﬁnd enable the lawyer to take on the role of story teller in the trial process. Conﬁrmation seeking questions include question types such as declaratives, with or without tags and polar interrogatives (i.e., ‘yes/no questions’, such as “Did you see her body?” “Were you inside the car at the time?” “Are you afraid of him?”). Declaratives are statements rather than questions. As explained below, they can be subdivided into ones that end in either a falling or level intonation, and therefore sound like true statements, and ones that end in a rising intonation, in which case they sound like questions, although their syntactic form is still that of a statement. I refer to declaratives as ‘prosodic questions’ (Berk-Seligson 1999), following Woodbury (1984). According to Danet and Bogoch (1980), declaratives, with or without tags, represent the most coercive types of questions used in the courtroom. ‘Tags’, also called ‘tag questions’, are declarative sentences followed by a tag – a tag being a copy of the verb in the main clause, but a negative copy if the original is positive, and a positive copy if the original is negative.33 Examples of tags would be, “You saw her lying there, didn’t you?” or “You didn’t see her body, did you?” Declaratives, with or without tags, have generally been placed at the extreme end of the continuum of coerciveness of question type. They are coercive because they suggest their own answer. They are normally, therefore, put into the category of leading question. Interrogative yes/no questions (also called ‘grammatical yes/no questions’) are considered to be coercive, although somewhat less so than declaratives. They are coercive because they limit the examinee in his/her choice of answer. The only possible answers to such questions are “yes”, “no”, and “I don’t know”. Somewhat less coercive, and therefore next on the scale of coerciveness, are ‘choice questions’. These are phrased with the conjunction ‘or’: “Was it a blue jacket or a brown one?” “Were you in the store then or in the car?” They are still highly coercive questions since they greatly limit the range of possible answers.

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Maley and Fahey’s study demonstrates that question form inﬂuences the way in which courtroom evidence emerges and plays an important role in determining the degree of control that lawyers exert over respondents. Danet et al.’s studies (1978, 1980) have found this to be so, as well. This is now considered by scholars of language and the law to be a well established fact. Moreover, it is accepted as fact by trial lawyers, evidence of which can be found in trial law training manuals and in articles written by legal scholars (Aron et al. 1989; Jeans 1993; Keeton 1973; Mauet 1996; Ogle et al. 1980; Packel and Spina 1984; Wigmore 1942). On the basis of these distinctions, all of the questions posed to Miguel Peralta in the four interrogations in which he participated and for which there are corresponding audio-recordings and transcriptions were analyzed. Speciﬁcally, I analyzed the interrogations of: April 1, 2002, with Tony Rodr´ıguez and Alan Bentley serving as interrogating detectives; April 10, 2002, Tony Rodr´ıguez and Bill Cartwright, interrogators; May 18, 2002 (11:55 a.m.), Tony Rodr´ıguez and Joe Montero interrogating; May 18, 2002 (8:05 p.m.), Tony Rodr´ıguez and Nick Franklin interrogating. Table 1 provides a breakdown of all the questions asked of the suspect, by question type.34 An examination of Table 1 reveals that of the 927 questions posed (all categories listed except the ‘Imperative’ and ‘Semantically Overloaded’ questions), 689 were of the coercive types (i.e., all types except Wh-, Requestions (Modals) and Requests for Narratives). In other words, 74% of the questions were of the coercive type. Given Shuy’s (1998, chapter 10) characterization of “effective interrogations” and “valid confessions”, on this criterion alone these were ineffective interrogations that could lead to invalid confessions. In the third interrogation, the one considered to be the session in which Peralta confesses to the homicide, 341 of the 473 questions, or 72%, were of the coercive type. More strikingly, in the evening interrogation of that same day, in which Peralta wants to change some of his testimony, 50 of the 62 questions, or 81%, were of the controlling type.

2.2. Interrupting the narrative: the struggle for the ﬂoor One sign of coercive questioning is interrupting the examinee in mid-answer. This is particularly serious when the answer that the examinee is giving is in narrative form, since narrative answers are considered by the police to be ideal answers for the purposes of information-gathering. As Shuy (1998: 177) points out, “Conventional wisdom of police interrogation is ﬁrst to permit the suspects to tell their stories, uninterrupted, before any probing takes place.” Shepherd’s

8

3

31

6

48

April 1, 2002 (3:04–3:29 pm) Tony Rodr´ıguez and Alan Bentley

April 10, 2002 (12:30–12:50 am) Tony Rodr´ıguez and Bill Cartwright

May 18, 2002 (11:55 am–1:08 pm) Tony Rodr´ıguez and Joe Montero

May 18, 2002 (8:55–9:05 pm), Tony Rodr´ıguez and Nick Franklin

Totals

283

29

113

54

87

181

3

92

18

68

147

12

83

19

33

Interrogative yes/no

Choice questions

30

0

22

3

5

197

7

111

26

53

23

2

14

3

4

18

3

7

5

3

Requestions Requests (modal for interrogatives) narrative

Non-coercive type questions Rising declaratives

Whquestions

Falling/ level declaratives

Coercive type questions

Tag questions

Table 1. Question types used in interrogations of Miguel Peralta

46

4

32

2

8

Semantically overloaded questions

114 Does every yeah mean ‘yes’ in a police interrogation?

The nature of the interrogations

115

(1991) analysis of ethical police interviewing and Mortimer’s (1994) advice to the police on “asking the right questions” concur with Shuy: effective interviewing should allow for lengthy, uninterrupted narratives. In the two extracts below (#1 and #2), interruptions are clearly in evidence. I draw these from the second and third interrogations, respectively. In the third interrogation, a seventy-three minute long speech event, Miguel Peralta was interrupted eight times. During the second, shorter interrogation, which lasted twenty minutes, the questioning took on a more aggressive character with a fastpaced questioning style. That interrogation was marked by four interruptions of Peralta’s answers. It is during this interrogation session (see Extract 1) that Detective Rodr´ıguez tries to discredit Peralta’s testimony, pointing out discrepancies in it (e.g., whether the woman he lives with is really his wife or just his girl-friend) and openly accuses him of lying (lines 38 and 44–45). In the process he interrupts the suspect repeatedly (transcript page 13, lines 15, 18; page 14, line 1 and 17; page 15, line 14; Extract 1, lines 44 and 79). Extract 1 demonstrates that even when Peralta appears to be invited to narrate, the invitation is not genuine. In lines 13–15, Detective Rodr´ıguez gives him the opportunity to bring up anything that had not been covered up to that point during the questioning and which Peralta considers to be important enough to mention. The suspect brings up the subject of his alibi (line 16): that he was home, babysitting. Whereas this could have been interpreted by Peralta as an opportunity to provide a full-blown narrative, clearly it is not what Detective Rodr´ıguez had in mind. Before Peralta is even allowed the chance to continue with his alibi, Rodr´ıguez begins to question him about it (lines 21 and 23), thereby forcing Peralta to interrupt him in mid-question (line 20), to provide further information that could establish his alibi, namely, that his wife works from four to twelve, the implication being that he was needed at home to baby-sit for their child. However, Detective Rodr´ıguez shows no interest in hearing any details of the alibi, and instead challenges Peralta’s claim that he is married to the woman with whom he lives, thereby questioning Peralta’s honesty. When at the end of the session Detective Rodr´ıguez asks the pro forma question of how he, the suspect, had been treated during the interrogation and if any threats had been made to him, Peralta gives a vaguely negative answer (he mitigates it with the term ‘kind of’, line 74), and when Rodr´ıguez brushes aside Peralta’s implication, Peralta defends himself, interrupting Rodr´ıguez in a loud fashion (lines 82–83). Peralta’s attempts to interrupt Rodr´ıguez are in reaction to not being allowed to have a full turn at talk. Detective Rodr´ıguez interrupts Peralta repeatedly in his attempt to obtain a description of the physical appearance of two alleged confederates, the “two Mexicans”. Extract 2 demonstrates these interruptions in lines 5, 14, and 16.

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Does every yeah mean ‘yes’ in a police interrogation?

The interruption in line 5 not only halts Peralta’s answer in mid-stream, but it simultaneously serves to co-construct his characterization. It puts words into the suspect’s mouth. In sum, Extracts 1 and 2 demonstrate Detective Rodr´ıguez’s efforts to control the ﬂoor, both by interrupting Peralta and by limiting his opportunities to narrate. This tight control occasionally results in the suspect’s efforts to grab the ﬂoor back, often by means of interruptions. In effect, Peralta struggles for access to the ﬂoor. Extract 1 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 29 30 31 32 33 34 35 36

Rodr´ıguez: My recollection is that before, unless there was a misunderstanding, ah you had Moncho and two Mexicans in the store and one out in the car, for a total of four people, what you’re saying now is there were ﬁve people. Peralta: I’m saying, yeah there were four inside the store and one outside. Rodr´ıguez: That’s, that’s true and accurate. Peralta: Yeah. Rodr´ıguez: And before when you had told me you didn’t know who any of the Mexicans were, now you’re telling me that you . . . Peralta: No I just seen two of them, one, I don’t know, but I know, I know that these two used to work on the farm. Rodr´ıguez: And no identiﬁers at all . . . Peralta: I don’t know anything about them. Rodr´ıguez: Mr. Peralta is there anything that we haven’t asked you on this tape today, tonight so far that you haven’t volunteered that’s important that you’d like to add to the tape. Peralta: That after four o’clock I was home. I was babysitting. Rodr´ıguez: The day of the homicide. Peralta: Yeah. Rodr´ıguez: Does your . . . Peralta: My wife works twelve, around four to twelve. Rodr´ıguez: Is she really your wife. Peralta: No just my girlfriend, well my ﬁanc´e. Rodr´ıguez: What’s her name. Peralta: Lorraine O’Donnell. Rodr´ıguez: Okay and she works at Tanner’s Run. Peralta: Yeah. Rodr´ıguez: Which, which depot, or which station. Peralta: Ah the one in Stillwell. Rodr´ıguez: Stillwell. Peralta: Yeah. Rodr´ıguez: Okay. And what you’re saying is on March the 8th you were home in time, and I know this because before we went on tape we covered this . . . Peralta: Yeah. Rodr´ıguez: For her to drive your Nova to work and get in by . . . Peralta: She always drive, drive my car. Rodr´ıguez: By four o’clock.

The nature of the interrogations 37 38 39 40 41 42 43 44 45 46 47 48 49 50 51 52 53 54 55 56 57 58 59 60 61 62 63 64 65 66 67 68 69 70 71 72 73 74 75 76 77 78 79 80 81

117

Peralta: Yeah. Rodr´ıguez: Why did you tell me these untruths if you will on the ﬁrst statement. Peralta: On the ﬁrst time I talk to you, you know, I’m, I don’t feel comfortable, I don’t know I was scared . . . Rodr´ıguez: What did you tell me tonight about ah Moncho. Peralta: I thought I could, I tell you I say this to him, I say that, ah you know everybody’s think, think I’m a rat (unintelligible) so . . . Rodr´ıguez: Is that why you didn’t tell us the truth on the ﬁrst statement as far as times and as far as having seen these two Mexicans. Peralta: Yeah, yeah, nervous, you know, sometimes like it’s it’s tough out there like on T.V., like real cop stories, they think you’re a rat, next day you’re killed or, you know, kinda gets your nerves. Rodr´ıguez: Your recollection of March, March 8th when you were in Louise’s store is that you were wearing the shoes you have on now. Peralta: Yeah. Rodr´ıguez: A pair of jeans . . . Peralta: I don’t remember ah light or dark, but I think it was the dark ones. Rodr´ıguez: And, ah, either a blue and white or a brown shirt. Peralta: Yeah. Rodr´ıguez: And the two sneakers that you gave me tonight when I was in your apartment you were not wearing either one of those pairs. Peralta: No. Rodr´ıguez: Investigator Cartwright. Cartwright: Nothing. Rodr´ıguez: Mr. Peralta is there anything else that I haven’t asked you that you’d like to add to the tape. Peralta: I don’t know what to say. Rodr´ıguez: That I haven’t covered at all. Is there anything else that you can think of that either needs to be corrected or added to what we’ve covered. Peralta: No. I tell you what, exactly what I remember, that I remember (unintelligible). Rodr´ıguez: I’m sorry could you say that again please. Peralta: I’m just saying that I’ve given you exactly what I remember and the truth. Rodr´ıguez: Okay. How have you been treated tonight. Peralta: I’ve been treated fair. Rodr´ıguez: Any problems at all. Peralta: No. Rodr´ıguez: Any threats. Peralta: Kind of ah that um somebody made of me. Rodr´ıguez: Any pressures or intimidation, and when you say “kind of ” what, what do you mean by that, is there a problem that you had. Peralta: No they come, you like well fuck you and all, you know I don’t think I deserve that but . . . Rodr´ıguez: Who, who said that. Peralta: That other detective, you know . . . Rodr´ıguez: By the two detectives . . .

118 82 83 84 85 86 87 88 89 90

Does every yeah mean ‘yes’ in a police interrogation?

Peralta:

I know I did that he asked me, he told me, I said twenty dollar checks, you know I, I couple of checks, but I mean, I don’t know. Rodr´ıguez: By the two detectives in the room now from the Prosecutor’s Ofﬁce that are taking the formal tape recorded statement, how have you been treated. Peralta: I been treated nice. Rodr´ıguez: Investigator Cartwright is there anything else. Cartwright: No. Rodr´ıguez: Mr. Peralta anything else. Peralta: No.

Extract 2 1 2 3 4 5 6

Rodr´ıguez: Peralta: Rodr´ıguez: Peralta: Rodr´ıguez: Peralta:

7 8 9 10 11 12 13 14 15 16

Rodr´ıguez: Peralta: Rodr´ıguez: Peralta: Rodr´ıguez: Peralta: Rodr´ıguez: Peralta: Rodr´ıguez:

17 18 19 20

Peralta:

Can you describe these two Mexicans for me. One of them has long hair. Long hair. Yeah, you know . . . Past his shoulder. Yeah, and a moustache and one had a pony tail, I don’t I don’t know what he had, I was, he had kinda long hair too and he had a moustache. Where did . . . (Unintelligible) So they both had long hair. Yeah. Are these the two that were actually cashing checks. Well when I went in there, there was only one cashing the check . . . Where . . . The other one was like in line in back and one was standing in line waiting . . . Okay the two that you recognize from before are they the two that were in line to cash checks. No. That’s, the one in front that was getting the money from her, he had (unintelligible) long hair, and the other one had long hair and a moustache and then the one in back of the machine (unintelligible) he’s, the both had long hair.

2.3. Monotonic intonation of questioning Shuy (1998: 180) notes that a sign of ineffectual interrogating is the use of an unvarying, ﬂat intonation. This is precisely what characterizes Detective Rodr´ıguez’s questioning style. His most frequently used question type is the declarative with a falling or level intonation contour. In effect, he is making a series of statements, rather than asking questions. The statements are not random ones: they construct a scenario and establish facts. They are intended to be agreed to by the suspect. And Peralta does what the declaratives suggest to him. To say “no” to a declarative that does not have a rising intonation contour

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is to disagree with the questioner. In effect, it is to enter into a conﬂict with him. It is no wonder, as will be shown below, that most of Peralta’s answers are one-word utterances: “yeah”. They are largely in response to the overwhelming number of declarative questions of Rodr´ıguez. Upon listening to this questioning style several times, one gets the impression that these declaratives function as commands: answer this, and afﬁrmatively. They are mechanically produced by Rodr´ıguez, in a monotonic fashion. It is as though he were trying to get through with the interrogation, and just waiting for the afﬁrmative responses he expects. Perhaps this is as a result of the interrogation being a “second-time around,” that is, it immediately follows a previous one, one that has not been audio-recorded. The second one is for the record, and the answers do not come as a surprise. Rodr´ıguez must know most of the answers beforehand, since he and Peralta have just gone through the entire exercise, although not on tape.

2.4. Ambiguously worded, ‘semantically overloaded’ questions One characteristic of the interrogations is the presence of a number of ambiguously worded questions. Speciﬁcally, the questions are double-barreled, triplebarreled or even more heavily semantically loaded. I call questions of this type ‘semantically overloaded questions’. Such questions include two or more propositions within an utterance or a turn at talk, each of which could be afﬁrmed or denied in its own right. The crucial point is that more than one referent and/or more than one proposition are being asked about. Such referents or propositions may be conjoined within a given sentence, or they may be spoken about in consecutive utterances, but still within the turn of the interrogator, thereby not giving the suspect a chance to answer until the questioner has completed his or her turn. An example of a semantically overloaded question is the following one from Detective Rodr´ıguez to Peralta: “Tonight when I approached you do you recall me asking you about a pair of sneakers that you had showed me on the ﬁrst Consent that I had noted in the ah, I believe it was a plastic bag at that time, they were wet.” This question is not only semantically overloaded, it is also syntactically ill-formed. Peralta’s answer to this question is an unelaborated, “Yeah.” By answering in the afﬁrmative, he can be considered to be agreeing to all the elements of the question: that the detective had asked him about a pair of sneakers that night, that Peralta had shown him that pair of sneakers on the ﬁrst consensual search, that the sneakers had been found in a plastic bag, and that the sneakers had been wet. His intention, however, may have been to agree to only one or two of those elements.

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Does every yeah mean ‘yes’ in a police interrogation?

The signiﬁcance of overloaded questions is that there is no simple way to answer them, and that if a suspect answers with a bare “yes” or “no” to such a question or sequence of questions, there is no way to know with certainty which part of the question s/he has responded to. Typically, the answer tends to correspond to the last question asked or to the last proposition uttered when a sequence of propositions is given, according to the ‘recency principle’ (Shuy 1998: 37). However, such a conclusion would still be conjecture, and so overloaded questions are improper questions in contexts where the veracity of an answer counts a great deal. For this reason, leading experts in forensic interrogation advise trainees to avoid asking such questions (Yeschke 1993: 71). In the case of Miguel Peralta, simple “yes” and “no” answers are his typical responses to semantically overloaded questions. Eight such questions can be found in the ﬁrst interrogation session, examples of which are presented in (a) through (d) below: a. “When did you write the ﬁrst check to Mrs. Patterson on a temporary checking account that bounced?” b. “So you wrote the check, second check on Thursday and you went back in there on Friday.” c. “So you bought that on Friday and paid her cash. Would she ring up the register, did she ring up the register when you bought that, how did she take your money.” d. “Now did you get the impression that Moncho was in there to buy something. Did you get the impression that he was with these other two gentlemen.” In the confessional interrogation there are 32 such questions. Clearly, every answer to such a question must be examined with caution, and should not be assumed to represent an afﬁrmation or denial of every component of the question sequence. While in general the recency principle can be considered to hold, one cannot be certain that this is necessarily the case in every instance, and therefore one should not automatically assume that it has been in operation. A clear example of the recency principle in operation, however, is Peralta’s answer to Detective Rodr´ıguez’s question (d) above, as seen in Extract 3. Extract 3 1 2 3 4

Rodr´ıguez: Now did you get the impression that Moncho was in there to buy something. Did you get the impression that he was with these other two gentlemen. Peralta: Um I don’t, he had, he had to be with them cause ah you know there was no bike or anything outside.

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That answering such multi-barreled questions makes for arduous negotiation for meaning is clear from the several turns it takes Detective Rodr´ıguez to elicit the information that he seeks. Question (c) above is embedded in the following sequence (Extract 4): Extract 4 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20

Rodr´ıguez: So you bought that on Friday and paid her cash. Would she ring up the register, did she ring up the register when you bought that, how did she take your money. Peralta: You’d have to see. I give her ﬁve and two ﬁves and she just give me change she gave me back. Rodr´ıguez: How does she ﬁgure out the totals what I’m asking you. Peralta: The total. Rodr´ıguez: Yeah. Did she use an adding machine, did she use . . . Peralta: Nah she uses a I think she used (unintelligible) and a white one. Rodr´ıguez: Like an adding machine you’re showing me . . . Peralta: Yeah an adding machine. Rodr´ıguez: Did it have a tape on it, paper. Peralta: Yeah there’s a piece of paper, white paper that she would pull out. Rodr´ıguez: She gave that to you. Peralta: Yeah. Rodr´ıguez: Okay. And what was the total do you remember. Peralta: Seven ﬁfty-ﬁve, one ﬁfty-ﬁve. Rodr´ıguez: So you gave her two ﬁves . . . Peralta: Yeah. Rodr´ıguez: She gave you the change. Peralta: Yeah she gave me two dollars and some change.

Detective Rodr´ıguez’s question in line 7 gives evidence of his awareness that Peralta had not understood his question. And Peralta’s answer in line 8 shows that he is still working at making sense of the detective’s question. The detective needs to do additional communicative work, in line 9, to make his meaning clear. In fact, the entire sequence in Extract 4 gives evidence of the difﬁculty that Peralta has in communicating with the detective. The difﬁculties are multi-layered: beyond having to answer the multi-pronged questions of Detective Rodr´ıguez, Peralta exhibits communication problems that are rooted in insufﬁcient English lexicon (i.e., his failure to produce the word ‘adding machine’ and in other phases of questioning the item ‘cash register’), and interlanguage morphosyntactic features (present tense ‘give’ in place of past tense ‘gave’). All of this is compounded by memory problems (evidenced by his uncertainty over how much he had paid the grocery owner), possibly affected by uncertainty stemming from anxiety. Ambiguously worded questions serve to compound the suspect’s communication difﬁculties, and represent yet an additional factor that contributes to his unreliable answers.

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2.5. Use of formal language Shuy (1998: chapter 10) points out that effective interrogators use informal or casual language in questioning suspects, if a valid confession is to emerge. The rationale for this is that given the inherently asymmetrical power relationship between the police ofﬁcer and the suspect, if the ofﬁcer is going to be successful in getting the suspect to open up and divulge true facts that s/he knows, then he should minimize the social distance between the two of them, to the degree possible given the situation. One way in which the power imbalance can be redressed is to have the interrogator talk to the suspect in an informal way, since formal language establishes distance between interlocutors, and informal language conveys the impression of solidarity and closeness (Lakoff 1973). In a situation where the suspect is not a native speaker of English and shows clear signs of limitations in his proﬁciency in that language, yet states his preference that the questioning be conducted in English, to ask questions of him in a highly formal style (i.e., using formal syntactic constructions and elevated vocabulary), as Detective Rodr´ıguez does on numerous occasions, is to impede the suspect’s comprehension of those questions, and, consequently, potentially to adversely affect the meaningfulness of his responses to them. Examples of highly formal language used in the interrogations can be found, most typically, at the beginning of each interrogation session, such as, “Tonight when I approached you do you recall me asking you about a pair of sneakers that you had showed me on the ﬁrst Consent that I had noted in the ah . . . ” (page 3, lines 17–22); and “Alright prior to taking a formal tape recorded statement I want to make reference to ah Rights of Suspected or Accused and whose name is that up top there”.All of these examples share the properties of (1) use of elevated – at times technical or legal – vocabulary, in short, vocabulary pertaining to a formal register (indicated here by italic letters), and (2) syntactic complexity (embedded clauses, or simply numerous clauses per sentence, which would be difﬁcult to process for even a native speaker of English having no more than a high school education). Similarly, in the confessional interrogation, formal language can be found on page 3, lines 2–3 (“. . . how were you so advised of your rights?”), page 7, lines 3–7 (“If you would, from the beginning, tell us what you know about the events that led up to the homicide of Louise Patterson. From the beginning I mean any arrangements that were made between any parties about any effects that were going to be taken from the store. Anything whatsoever that led up to that evening.”); page 48, lines 5–6 (“Prior to going on tape did anything happen that you want to make mention of now?”), and line 11 (“And you still maintain that you’re willing to take a ride . . . ”). On page 63, line 12, Peralta is asked, “Did anything transpire,” and in line 14, whether he

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had been watching investigative efforts . . . subsequent to the homicide. Other signs of formal language are syntactic constructions such as uncontracted forms (third interrogation, 8:05 p.m., page 1, lines 8–9, Are you not, rather than the more commonly used contracted form, “aren’t you”). And in lines 11–14 of that page, “in essence . . . that you have made known,” where the ﬁrst phrase is of a formal register (as opposed to ‘Basically’) and the second phrase has both an uncontracted subject-auxiliary verb and a bookish verb phrase that belongs to a written register of English. The sum total of such formal features serves to place a distance between the interrogator and the suspect, while at the same time elevating the interrogator’s social status relative to that of his interlocutor.

2.6. Admonitions to be truthful: expressions of doubt regarding the suspect’s honesty One feature of Rodr´ıguez’s interrogation strategy is to warn Peralta against perjuring himself. He does this by telling Peralta to think before he answers a particularly crucial question, to remember that he is still under oath, and to keep in mind the meaning of the word ‘perjury’. Such reminders recur throughout the several tape-recorded interrogation sessions. For example, in the second interrogation, upon asking Peralta who was in the store when he went into it at about 2:30 on the day of the homicide, Rodr´ıguez says to him (Transcript page 9, lines 7, 9–11,13), “And I’m gonna remind you . . . Before you answer I’m gonna remind you you’re under oath, I’ve explained perjury to you, correct? Have I explained what perjury is to you?” “And you are under oath, you’ve sworn to tell the truth.” Then, during the third interrogation, when Peralta is describing what he did with the knife after he stabbed Mrs. Patterson (Transcript page 29, lines 1–2), Rodr´ıguez asks him (lines 3 and 5) if he is sure about having thrown it down, and warns him not to answer yet: “Before you answer the question hear me out, OK? . . . Are you sure that you were in the store when you threw it?” On page 41, line 33, Rodr´ıguez reminds Peralta that, “Under oath you also told me that Moncho was in the car with him,” “him” being Juan – a reference made to two confederates. At the second interrogation, at which time Miguel Peralta is not yet close to confessing to the homicide, Rodr´ıguez uses some aggressive questioning tactics on him, frequently casting doubt on the veracity of his answers, and bringing up inconsistencies in his answers whenever he can. For example, Rodr´ıguez mentions to Peralta inconsistencies in his account of how many people were in the store and how many were waiting outside in the car earlier in the day on the day of the murder (Extract 5, lines 1–3). The fast-paced aggressive questioning

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leads to interruptions of Peralta’s narrative answers, which in turn occasionally leads to attempts by Peralta to hold onto the ﬂoor. Extract 5 1 2 3 4 5 6 7 8 9 10 11 12

Rodr´ıguez: My recollection is that before, unless there was a misunderstanding, ah you had El Bravo and two Mexicans in the store and one out in the car, for a total of four people, what you’re saying now is there were ﬁve people. Peralta: I’m saying, yeah there were four inside the store and one outside. Rodr´ıguez: That’s, that’s true and accurate. Peralta: Yeah. Rodr´ıguez: And before when you had told me you didn’t know who any of the Mexicans were, now you’re telling me that you . . . Peralta: No I just seen two of them, one, I don’t know, but I know, I know that these two used to work on the farm. Rodr´ıguez: And no identiﬁers at all . . . Peralta: I don’t know anything about them.

Frequent questions by Rodr´ıguez as to whether Peralta is sure about certain details that he has provided concerning the murder are indications that he is not accepting those answers. By questioning Peralta as to his degree of certainty, he is implying that he does not believe Peralta, because of some knowledge that he may have that contradicts Peralta’s version of the events (Heyden 2005; Newbury and Johnson 2006). Compounding the problem of inconsistencies in the story is Peralta’s inability to express himself clearly. His faulty English syntax combined with certain unusual features that are not simply signs of limited proﬁciency in English, but rather a reﬂection of difﬁculties of a different nature, together produce answers that are not responsive to the questions posed by Rodr´ıguez and the other investigators.35 For example, the sequence of answers in the May 18, 2002 morning interrogation (Extract 6) demonstrates why Rodr´ıguez would be confused and frustrated by Peralta’s account of what he did with the knife after stabbing Mrs. Patterson with it. The account is in fact highly confused and the speaker very inarticulate in explaining what he means. Extract 6 1 2 3 4 5 6 7 8 9

Rodr´ıguez: Alright, what happened then . . . ? Where did he, where did you go? Peralta: After that, ah, I guess (unintelligible) I think I threw the knife but I don’t remember where, but I threw that piece away. Rodr´ıguez: Deﬁnitely before you went outside, though? Peralta: Yeah, then, ah . . . Rodr´ıguez: Were you wearing gloves? Peralta: Then, ah, I was pulling the thing out . . . Rodr´ıguez: The blade? Peralta: Yeah.

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Rodr´ıguez: You tried to pull the blade out? Peralta: No, I pull it out. Rodr´ıguez: Alright, you’re showing me, on you, your left breast area. Is that where you recall the blade was? Peralta: I don’t remember. Rodr´ıguez: OK. You tried to pull it out, though? Peralta: Yeah. Rodr´ıguez: And you were unable to? Peralta: It came out, I took, I took, ah, but the nervous I had, I touched it, I pulled like from that, I left. Rodr´oguez: Are you telling me that you pulled it out and left it out? Peralta: Yeah, it was out, like, I pulled it out. Rodr´ıguez: Oh, it came out, some . . . partially . . . Peralta: Yeah, but . . . Rodr´ıguez: . . . It came out. Peralta: It was slip—it was slippery, like that.

Equally as confused is Peralta’s description of where the two Mexicans were standing in Mrs. Patterson’s store on the day of the murder, their physical description, and his answer as to whether he had ever seen the person known as “el Bravo” or the other two Mexicans before (Extract 7, April 10 interrogation). As a result of receiving such confused answers, Rodr´ıguez challenges Peralta (Extract 1, line 38), accusing him of lying: “Why did you tell me these untruths if you will on the ﬁrst statement?” Extract 7 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18

Rodr´ıguez: Did you know any of the people on, in the store besides Mrs. Patterson. Peralta: I have seen two of the Mexicans before you know, but like I knew Rafa, they call El Bravo, but I know him as Rafa. Rodr´ıguez: You know him as Rafa. Peralta: Yeah. Rodr´ıguez: You’ve heard him called El Bravo before. Peralta: Yeah. Rodr´ıguez: We’ve showed you a picture of the person that we know has been identiﬁed as El Bravo from around here, is that that the person . . . Peralta: Yeah well he don’t, don’t, he don’t, he didn’t have a beard. Rodr´ıguez: Okay. Peralta: No beard. Rodr´ıguez: Where have you seen these Mexicans before. Peralta: I seen them on, on the, on the farm. Rodr´ıguez: Which farm. Peralta: I won’t seen them, but I seen the car parked in the . . . Rodr´ıguez: Did you, did you not just say that you’ve seen the . . . Peralta: No I haven’t seen them on the farm, but I seen the car. I seen them on my farm

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cause they used to work and then, then they come from that farm they come down my . . . Rodr´ıguez: You’ve seen them at Green Acres. Peralta: Yeah. Rodr´ıguez: You’ve seen their car or you’ve seen the two of them at Green Acres. Peralta: No two. Rodr´ıguez: So you have seen two of these Mexicans before. Peralta: I seen them before, yeah, two that I see. Rodr´ıguez: How recently. Peralta: That was back in the store. Rodr´ıguez: When’s the last time you saw them. Peralta: Monday ah, March ah . . . Rodr´ıguez: In the store. Peralta: Yes. Rodr´ıguez: When’s the last time you saw their car. Peralta: I seen it after that, but I don’t remember the day. Rodr´ıguez: Can you describe these two Mexicans for me. Peralta: One of them has long hair. Rodr´ıguez: Long hair. Peralta: Yeah, you know . . . Rodr´oguez: Past his shoulder. Peralta: Yeah, and a moustache and one had a pony tail, I don’t, I don’t know what he had. I was, he had kinda long hair too and he had a moustache. Rodr´oguez: Where did . . . Peralta: (Unintelligible) Rodr´oguez: So they both had long hair. Peralta: Yeah. Rodr´oguez: Are these the two that were actually cashing checks. Peralta: Well when I went in there, there was only one cashing the check . . . Rodr´ıguez: Where . . . Peralta: The other one was like in line in back and one was standing in line waiting . . . Rodr´ıguez: Okay the two that you recognize from before are they the two that were in line to cash checks. Peralta: No. That’s, the one in front that was getting the money from her, he had (unintelligible) long hair, and the other one had long hair and a moustache and then the one in back of the machine (unintelligible) he’s, they both had long hair. Rodr´ıguez: How long ago, summer. Peralta: Yeah I think it was. Rodr´ıguez: And you don’t know their names at all. Peralta: No I don’t know names.

Extract 7 demonstrates the communicative difﬁculties that Peralta exhibits in answering Detective Rodr´ıguez’s questions. Ungrammatical strings such as “I won’t seen them” (line 16), to describe a past event, would leave an initial impression of confusion on any listener, and in fact, Rodr´ıguez often needs to

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reword his questions to obtain meaningful answers from Peralta. For example, in lines 14 and 16, Peralta seems to contradict himself, saying that he has not seen the two Mexicans “on the farm”, and then in the subsequent sentence he states that he has in fact seen them “on my farm”, thus distinguishing between two different farms, the second of which is the one on which Peralta works. His answer to Rodr´ıguez in line 24, “No two”, is highly unresponsive to the detective’s question in line 23, “You’ve seen their car or you’ve seen the two of them in Green Acres”, and for this reason its meaning is difﬁcult to interpret. In line 26, Peralta’s syntax in the second clause (“two that I see”) is very odd, and difﬁcult to fathom, since the ﬁrst clause answers the detective’s question. It is possible that he is referring to a photo that he is being shown, in order to identify the alleged accomplices. Peralta’s response in line 28 (“That was back in the store”) to Rodr´ıguez’s question in line 27 about how recently he had seen the two Mexicans could be made sense of if we use Grice’s (1975) theory of conversational implicature as a guidepost, namely, that “back in the store” is a reference to the last time Peralta had seen them. Nevertheless, on the face of it, the response does not appear to answer the detective’s question, and so Rodr´ıguez rephrases it (line 29), asking “When’s the last time you saw them?”

2.7. The use of metacommentary Metalanguage, or language that is about language, plays an important role in the interrogations. As Mey (2001: 173–174) points out, “A metalanguage indicates, comments on, examines, criticizes, etc. what happens on the level of the object language . . . A metalanguage . . . is often called ‘reﬂexive’, since it reﬂects on what is being or has been said.” Recent research on reﬂexive language and metapragmatics (Holt and Clift 2007; Lucy 1993) illuminates the numerous ways in which reported speech functions in interaction. In the case of Miguel Peralta, reported speech as used by the interrogating detective functions to question the veracity of the suspect’s responses. Rodr´ıguez and the other detectives frequently refer to statements that Peralta has made, thereby producing tokens of indirect reported speech. The metacomments generally take the form of, “You said before that . . . ” or “You’re telling us now that X, whereas before you told us Y. Which is true? Which is correct?” Such comments recur throughout the transcripts. They function to highlight inconsistencies in Peralta’s story and to break him down, in Aubry and Caputo’s (1980) terms. Metacomments of this type function in a threatening way, inasmuch as saying to a suspect that previously he said X and now he is saying Y, is

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to cast doubt on either his current account or on a previous one. It is to imply that one is questioning the veracity of the person’s prior or current statements. Extract 8 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18

Rodr´ıguez: Okay. And what you’re saying is on March 15 you were home in time, and I know this because before we went on tape we covered this . . . Peralta: Yeah. Rodr´oguez: For her to drive your Nova to work and get in by . . . Peralta: She always drive, drive my car. Rodr´ıguez: By four o’clock. Peralta: Yeah. Rodr´ıguez: Why did you tell me um untruths if you will on the ﬁrst statement. Peralta: On the ﬁrst time I talk to you, you know, I’m, I don’t feel comfortable, I don’t know I was scared . . . Rodr´ıguez: What did you tell me tonight about ah El Bravo. Peralta: I thought I could, I tell you I say this to him, I say that, ah you know everybody’s think, think I’m a rat [unintelligible] so . . . Rodr´ıguez: Is that why you didn’t tell us the truth on the ﬁrst statement as far as times and as far as having seen these two Mexicans. Peralta: Yeah, yeah, nervous, you know, sometimes like it’s, it’s tough out there like on T.V., like real cop stories, they think you’re a rat, next day you’re killed or, you know, kinda gets your nerves.

The metacomments made by Rodr´ıguez in lines 8 and 14–15 are outright accusations of Peralta having lied to him. In line 8, rather than to use the speech act verb ‘lie’, the detective uses indirect, mitigating discourse when he uses the phrase “tell me um untruths”, followed by the hedge “if you will”. And in lines 14–15 he formulates a similar, albeit negatively constructed accusation in “why you didn’t tell us the truth”. Rodr´ıguez clearly is choosing his lexicon carefully, trying to speak politely and avoiding bald-on-record (Brown and Levinson 1978) accusations. Nevertheless, the mechanism by which Rodr´ıguez accomplishes these accusations is to refer to Peralta’s previous statements and to juxtapose them with his current ones. In effect, the detective is pointing out to the suspect that he has given competing, contrasting accounts (Drew 1992) of the same event. 2.8. Recycling topics Because Peralta’s answers are often confused, inarticulate, and sometimes contradictory or inconsistent with one another, the detective is compelled to go over the same terrain over and over again. Thus, the topic of what Miguel Peralta did with the knife after the stabbing is gone over numerous times, as is his relation-

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ship with the men who came to Mrs. Patterson’s store that day, and the behavior of Moncho during the robbery/homicide. These topics are recycled over and over again because the detective is not getting an account from Peralta that is consistent with either his theory or his knowledge of the relevant facts of the case. Nevertheless, from the vantage point of the suspect, such recycling is tantamount to pressure and control. The answers he had given were not accepted by the police interrogator. Rodr´ıguez was going to keep asking him about particular topics until he was satisﬁed with the answers that he received. The recycling of topics, or repetition of the same questions or lines of questioning over and over again, during a police interrogation has been identiﬁed by forensic experts as one factor accounting for false confessions (Driver 1968; Wrightsman and Kassin 1993: 100). 2.9. Rephrasing the suspect’s answers One common feature of the interrogations of Miguel Peralta is that his answers are rephrased by Detective Rodr´ıguez. The lexical and grammatical changes that result sometimes are related to the recycling of a given topic. By bringing up a topic again, and hearing Peralta’s version of the facts yet another time, Rodr´ıguez, in an effort to get the scenario down on record, sometimes introduces notions into Peralta’s account that did not originate with him. These notions, however, go down on the record as being attributable to Peralta, since Peralta appears to agree to them. Nevertheless, the scenario has been constructed by Rodr´ıguez. For example, in the confessional interrogation, Rodr´ıguez (page 21) constructs a description of the way in which Peralta was dressed at the moment he entered the grocery story. See Extract 9 below. Extract 9 1 2 3 4 5 6 7 8 9 10 11 12 13

Rodr´ıguez: Tell us what happened. How, how were you dressed at that point and what did you do? Peralta: I had blue jeans . . . I was like dressed up and had a blue (unintelligible) then I put an old blue jacket I have . . . And I put on like a thing that covers my face on top of it, but I forget to put it on top of, top of it. Rodr´ıguez: You’re describing like a knit cap of some sort, but the kind, uh, I know this because you told me already what kind it was, but a knit cap like for skiing . . . Peralta: Yeah. Rodr´ıguez: You can pull it down, it’s got eyeholes, a mouth . . . Peralta: Yeah. Rodr´ıguez: You had it on your head but rolled up, it wasn’t over your face . . . Peralta: Yeah. Rodr´ıguez: Is that correct?

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Peralta: Rodr´ıguez: Peralta: Rodr´ıguez: Peralta: Rodr´ıguez: Peralta: Rodr´ıguez: Peralta:

Uhuh. Alright. Ahm . . . and what you’re saying is the hat was up, though? Uhuh. And you had a blue coat on? Yeah. Did you put that blue coat on speciﬁcally to enter the store? I was trying, like, cover up more, you know myself, but I, but I, I just didn’t. You were disguising yourself . . . Yeah.

In lines 6–7, 9, 11, and 17, Rodr´ıguez rephrases the details that Peralta has provided regarded the clothing he was wearing at the time of the burglary. The detective also rephrases Peralta’s characterization of “trying, like, cover up more of myself, but I , but I, I just didn’t” (line 20). Rodr´ıguez’s response (line 21), a rewording of the suspect’s version, on the surface seems to be an instance of cooperative conversational behavior. That is by reformulating Peralta’s description of his clothing, Rodr´ıguez appears to be helping him to be more precise in his speech, as the latter constructs the description of what he was wearing when he walked into the grocery store. This type of insertion in the question/answer sequence would appear to be of the type that has been observed among women in same-sex conversations, that is, a feature of cooperative conversational style (Coates 1996; Tannen 1994). It also appears to be similar to the support work that paralegal interviewers do in temporary restraining order application interviews (Trinch 2001). However, the lexical reformulation, “You were disguising yourself . . . ” (line 21), while perhaps more precise from the detective’s standpoint, accomplishes an interactional goal that serves his needs alone, as it simultaneously adversely affects the positive face needs of the suspect, to use Brown and Levinson’s (1987) notion – namely, it serves to inculpate him. To “disguise oneself” is very different from “covering oneself up”: the lexical formulation ‘disguise’ in the context of a homicide case implies a sinister motive behind the act. If left on the ofﬁcial record, potentially to be read by a jury, the lexical formulation could be damaging to the image of the defendant that jurors would form of him, particularly because Peralta’s response to Rodr´ıguez’s reformulation is “Yeah”. By responding with ‘yeah’, the suspect has accepted the police detective’s characterization of him. Another instance of Detective Rodr´ıguez’s reformulation of Peralta’s answers is evidenced in Extract 10, in which the detective is trying to ascertain whether in fact there were accomplices parked outside the grocery store at the time when the murder occurred. Among the myriad facts that the detective is gathering is a description of the car purportedly used by the co-conspirators.

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Extract 10 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24

Rodr´ıguez: Peralta: Rodr´ıguez: Peralta: Rodr´ıguez: Peralta: Rodr´ıguez: Peralta: Rodr´ıguez: Peralta: Rodr´ıguez: Peralta: Rodr´ıguez: Peralta: Rodr´ıguez: Peralta: Rodr´ıguez: Peralta: Rodr´ıguez: Peralta: Rodr´ıguez: Peralta: Rodr´ıguez: Peralta:

25 26 27 28 29 30 31 32 33

Rodr´ıguez: Peralta: Rodr´ıguez: Peralta: Rodr´ıguez: Peralta: Rodr´ıguez: Peralta:

Were there any other cars there at that time. Yeah. What was there. There was a little red car, four-door. A four-door red car. Yeah. Small, mid size, large. Say it’s not very large I’d say a medium car. You have a what. I have a Nova. You have a Chevy Nova, two door. Yeah. This car reminds you . . . Right. Of your car but in a four-door. Yeah. And . . . Well mine’s a four-door too. Your’s is a four-door. Yeah. It was very similar to your car. Yes sir. But you think it was older. Older yeah but it’s not it was like ah Chevy like Audi but it looks like an Audi, Audi. Looks like that what. Audi like the little cars. Like a Hyundai. Yeah something like that. You think it was a maroon small four-door Chevy that looks like a Hyundai. Yeah. Ah deﬁnitely had four doors. Four doors.

It is Detective Rodr´ıguez who introduces the elements of Hyundai being the make of the car (changing it from the suspect’s characterization of it as something like an Audi – a major downgrading in auto price), and converts the color ‘red’ to the more speciﬁc term and quite different shade of ‘maroon’. Line 30 represents the ofﬁcial, police version of the suspect’s description of his accomplices’ car. Interestingly, the suspect’s original characterization of the vehicle as a ‘little red car, four-door’ (line 4) is at ﬁrst not ratiﬁed by the detective, who proceeds to question its size. On questioning the original characterization and giving Peralta three possible choices, Peralta changes the description to a mid-sized

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car (‘a medium car’), yet Detective Rodr´ıguez rejects this as well, and converts it to a ‘small four-door’ vehicle. He apparently has a particular car in mind, as he is the one to introduce speciﬁc features of the vehicle that do not originate with the suspect. The ﬁnal characterization of the vehicle is produced collaboratively, with the interrogator actively injecting new information into the account. The conversational collaboration, however, will beneﬁt only the interrogator. Detective Rodr´ıguez not only changes elements in the account that the suspect provides, he goes so far as to complete the turns of the suspect, thereby introducing new information into the account. In trying to determine the extent to which the murder was accomplished collaboratively through the actions of several persons or by one person alone (Peralta), or possibly two, the detective needs to know who was in the immediate vicinity of the grocery store before the murder took place. Thus comes a series of questions concerning the position of Peralta in relation to his car and that of his alleged accomplices. In trying to establish that Peralta was talking to the ringleader and instigator of the murder, Detective Rodr´ıguez completes Peralta’s sentence for him, in line 10 of Extract 11, adding “side by side” to the description of how the two men were positioned. This clearly is meant to establish a communicative link between the two, and therefore the possibility of collusion in plotting the murder. Extract 11 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16

Rodr´ıguez: Were you in the car or outside the car? Peralta: No, yo ‘taba dentro el carro. ‘No, I was inside the car.’ Rodr´ıguez: Was he . . . Peralta: Inside the car, yeah. Rodr´ıguez: Was he in his car? Peralta: Yeah. Rodr´ıguez: But he got out? Or, were you . . . Peralta: No, we were . . . Rodr´ıguez: Side by side. Peralta: Yeah. Rodr´ıguez: So you just talked. Peralta: Yeah. Rodr´ıguez: Was that during earlier or is it . . . Peralta: Yeah. Rodr´ıguez: It was during earlier hours. You’re sure?

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2.10. Repeated use of the word ‘fair’ The word ‘fair’, in the sense of ‘just’, runs through the taped recordings. Every interrogation session ends with a question from Rodr´ıguez as to whether Peralta has been treated fairly by him and the other detective. This clearly is a pro forma question, intended to leave on record evidence that the police have not mistreated the suspect. Peralta always replies that he has been treated “fair”, the exception being the second interrogation, in which he refers to an instance of bad treatment by one of the police ofﬁcers (albeit not any of the ones involved in the taperecorded interviews). Extract 12, below, exempliﬁes this use of the term ‘fair’. While Peralta’s response (line 2) to Detective Rodr´ıguez’s general question (line 1) as to how he had been treated is the lexical item ‘fair’, the suspect’s responses to each of the subsequent more speciﬁc questions (e.g., whether he had come willingly to the police station, whether the police had talked much to him in the police car [the implication being that any talk that could be construed as questioning regarding the crime is considered to be inappropriate and therefore should not have occurred], whether he had been advised of his rights) is often “yeah” (lines 6, 10, 15, 17, 21, 24, 27, and 33). Extract 12 1 2 3 4 5 6 7 8 9 10

Rodr´ıguez: Peralta: Rodr´ıguez: Peralta: Rodr´ıguez: Peralta: Rodr´ıguez: Peralta: Rodr´ıguez: Peralta:

11 12 13

Rodr´ıguez:

14 15 16 17 18

Peralta: Rodr´ıguez: Peralta: Rodr´ıguez:

19 20 21 22 23

Peralta: Rodr´ıguez:

How were you treated? Fair. Did you come willingly? Yeah. Ah, we drove you straight from there back to the ofﬁce here? Yeah. In transport, did anything happen? No. Ah, we spoke very little, as a matter of fact, I just told you . . . Yeah, you just told me, “I ain’t gonna talk to you in the car, you know, I got my glasses on and it’s tough, and I can’t look to you straight in your eyes, so relax and wait ‘til we get to the ofﬁce and we talk.” Okay. Just for one clariﬁcation, I don’t wear glasses when I’m driving, but I think I did say, I can’t look at you face to face, it’s tough to talk. Yeah. Is that you-, is that fair? Yeah. Alright, ah . . . And basically most conversation were between myself and Detective [Surname] and they were general conversations about cars and . . . times we had as kids and things like that, is that correct? Yeah. Okay. Ah . . . upon arrival here we escorted you to this interview room . . . ah . . . had you have a seat, is that correct?

134 24 25 26 27 28 29 30 31 32 33

Does every yeah mean ‘yes’ in a police interrogation?

Peralta: Yeah. Rodr´ıguez: Alright. And from then on the rest’s on the record, you were advised of your rights and we, ah, discussed this case. Is that correct? Peralta: Yeah. Rodr´ıguez: Prior to going on tape did anything happen that you want to make a mention of now? Were you mistreated in any way? Peralta: No. Rodr´ıguez: You were provided with a drink because you, ah, you were thirsty, your mouth was dry, is that correct? Peralta: Yeah.

In addition to this speech event-ﬁnal scripted request for conﬁrmation from the suspect that he has been treated fairly, the word ‘fair’ is used throughout the interrogations, but playing other discourse functions. For example, Rodr´ıguez constantly asks Peralta if his reinterpretation and rephrasing of the latter’s unclear or unacceptable answers is “fair”. A case in point is the sequence of lines 1–33, which occurred during the confessional interrogation. In using the term ‘fair’ Rodr´ıguez is asking Peralta if he has made a fair (i.e., reasonable, accurate) assessment of his statement to him in the police car on that occasion. The detective has, however, factually altered the suspect’s account of the conversation, thereby casting doubt on his ability to recall events accurately. The sum total effect of repeatedly using the term ‘fair’ seems intended to convince the suspect that the interrogations in which he has participated are suffused with an aura of fairness. 2.11. Putting words in the suspect’s mouth: co-constructing the narrative In an effort to ﬁnd out who Peralta’s accomplices were, Detective Rodr´ıguez tries to elicit from him descriptions of their physical appearance. Extract 13 comes from the confessional interrogation. It shows that the interrogator takes on an active role in co-constructing the description. However, his role as cooperative conversationalist is so active, that he begins introducing characterizations that are not those of the suspect. He is putting words into the suspect’s mouth. This can be seen in line 5, where Rodr´ıguez characterizes the alleged accomplice’s facial hair as a ‘goatee’, a descriptor which Peralta does not agree with, even though at ﬁrst he responds to the detective with ‘yeah’. Extract 13 1 2

Rodr´ıguez: Can you describe him for me? Peralta: Yeah, e´ l tiene [he has] How–how can I say this? Round face . . .

The pattern of the suspect’s answers 3 4 5 6 7 8

Rodr´ıguez: Peralta: Rodr´ıguez: Peralta: Rodr´ıguez: Peralta:

135

Like a round face . . . A little beard . . . A little beard? You showed me like a goatee almost, right here? Yeah. No, but it’s not the goatee, it’s just . . . Like a little piece on his chin? Yeah.

Again, Peralta can be seen to be acquiescing to the detective, saying ‘yeah’ mechanically even when he does not mean it, as in line 6. By ﬁlling in halfcompleted utterances for Peralta, Rodr´ıguez is affecting the reliability of the suspect’s answers.

3. The pattern of the suspect’s answers The preceding discussion has tried to demonstrate that there are numerous features of the interrogation techniques used by the lead detective who interrogated Miguel Peralta that were suggestive, in many cases linguistically coercive, but all of them designed to elicit from the suspect speciﬁc sorts of answers. Since the overwhelming majority of the questions were of the leading type, it is not surprising that the answers were overwhelmingly in the afﬁrmative. If we focus on the confessional interrogation, we ﬁnd 278 afﬁrmation tokens. Nearly all of them contain the afﬁrmation marker ‘yeah’( a reduced form of ‘yes’), and nearly all of those ‘yeah’responses constitute the entirety of the answer. However, many of the ‘yeah’ answers are not truly afﬁrmations, but rather, ‘minimal responses’ (Zimmerman and West 1975), or ‘back channel signals’ (Yngve 1970) that is, utterances a listener gives to a speaker who is currently holding the ﬂoor, indicating that the listener is following what the speaker is saying. This has been found to be a sign of cooperative conversational behavior, and is a particularly prominent feature of women’s style in same-sex conversations. In mixed-sex groups, women have been found to do back-channeling for men who are holding the ﬂoor more often than the other way around (Bilous and Krauss 1988; Edelsky and Adams 1990; Roger and Nesshoever 1987). Some scholars have considered this to be emblematic of the asymmetrical power relations between men and women in those societies where it is found. In the case of Miguel Peralta, thirty-one of these back-channel ‘yeah’ tokens were uttered in the seventy-three minute long confessional interrogation. A vivid example of Peralta’s use of ‘yeah’ to indicate that he is following the detective’s speech is the string of ‘yeahs’ he utters as Rodr´ıguez is reading him the Miranda rights (Extract 14 below).

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Does every yeah mean ‘yes’ in a police interrogation?

Extract 14 1 2 3 4 5 6 7 8 9 10 11 12 13

Rodr´ıguez: Okay. Ah . . . On tape I’m going to advise you that you have the right to remain silent, do you understand that? Peralta: Yeah. Rodr´ıguez: Anything you say can and will be used in a court of law. Peralta: Yeah. Rodr´ıguez: You have the right to talk to a lawyer and have one present with you while you’re being questioned. Peralta: Yeah. Rodr´ıguez: If you cannot afford to hire a lawyer, one will be appointed to represent you before any questioning, if you wish one. Peralta: Yeah. Rodr´ıguez: Having these rights in mind, do you wish to talk to us now? Peralta: Yeah.

Only the ‘yeah’ tokens in lines 3 and 13 can be considered to be afﬁrmative answers to questions. The others appear to be minimal responses, indicating that he understands what the detective is saying to him. What is striking is that Peralta uses the reduced form ‘yeah’for both purposes. While it would be natural to use it in its function as a minimal response, it is surprising to ﬁnd it as a reply to an important question, the answer to which has signiﬁcant legal consequences for him. Most people who have grown up with television or who have had access to full length feature ﬁlms are familiar with the Miranda rights. It is unlikely that the suspect would not have heard them before, and would not know that the reading of the rights is of consequence to him: that this represents a decision point, and that by answering in one way versus another will either bring about the initiation of a particular speech event – an interrogation – or quash it. The decision to engage in an interrogation is expressed with an unexpectedly casual afﬁrmation marker. One suspects that this is not really an afﬁrmation at all, but merely one more minimal response in a chain of such responses. It is even more surprising that Peralta responds to the Miranda warnings in any way at all, since they are not phrased as questions, but rather, as statements. This makes the suspect’s interactional behavior odd, a quality which, in various ways, marks his speech throughout the four interrogations. Another string of mechanical ‘yeah’ tokens appears on page 34 (lines 3, 7, 9, 11, 13). Some of these afﬁrmatives express a willingness to lead the police to the place where he says he got rid of the clothing evidence that the police are interested in obtaining. Other ‘yeah’ tokens indicate agreement (the equivalent of “that’s right”). Nevertheless, each ‘yeah’ seems easily to lead to another ‘yeah’ response, especially when the question is worded in a suggestive way, that is, as a leading question. To answer “no” to such a question is in effect to enter into a dis-

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pute with the interrogating ofﬁcer, since the detective is engaged in constructing a scenario for the suspect, and relies on his cooperation in the endeavor. What is striking about the pattern of Peralta’s afﬁrmative answers is that most of the ‘yeah’ tokens appear without accompanying elaboration. That is, they are said in isolation, without further explanation for why he has answered in the afﬁrmative. In that sense, they have a highly mechanical quality. This mechanical quality can be seen also in the fact that the ‘yeah’ tokens are used very often, that there is hardly any variation in the form of the afﬁrmative answers, and that often when ‘yeah’ tokens appear they are either linguistically inappropriate or even meaningless (i.e., non-responsive to the question). Equally as odd is Peralta’s use of the token ‘yeah’ in response to the question that is normally asked when one is being sworn in. The expected answer to “Do you swear to tell the truth, the whole truth and nothing but the truth” is “I do” or perhaps a full “Yes, I do.” Oath-taking as a pre-sequence to the core of the interrogation is a highly momentous component of the speech event, and given the implications of not adhering to the oath of telling the truth, it is generally interpreted by all parties present as something to be taken seriously and therefore calling for a register somewhere on the high end of the formality scale. The answer to the oath’s question is generally not a mere “Yes”, and certainly not “Yeah”. However, each time Peralta is sworn in during an interrogation he answers with a ‘yeah’ token. Since oaths are constituents of an adjacency pair – the utterance of the oath followed by an afﬁrmative response, which in a judicial context may be expected to be stated with an air of certainty – the token ‘yeah’ as a reduced, weaker form of the full afﬁrmative response ‘yes’ represents an inappropriate answer to the question posed by the oath. Some of Peralta’s ‘yeah’ tokens are meaningless, and sometimes the mechanical, meaningless use of ‘yeah’ leads to what appears to be an inconsistency, because his use of it in the ﬁrst instance is not a true afﬁrmation. For example, when asked by Rodr´ıguez if he would give his consent to have his apartment and car searched thoroughly by the police (Extract 15), Peralta ﬁrst replies with a “Yeah” (line 9), but when Rodr´ıguez then informs him that he has the right to refuse to do so, Peralta asks him in his very next turn at talk (line 11), “Qu´e te van a hacer?” (“What are they going to do to you?”), thereby demonstrating that he has not understood what he had acquiesced to. Peralta’s subsequent question, “You just want to look through all my stuff?” further indicates that he had not understood what the detective had requested of him, and so the ‘yeah’ reply to the detective’s speech act of request is not an afﬁrmation at all, but rather, a back channel signal. Nevertheless, given the dual functions of ‘yeah,’ the police and other judicial authorities could justiﬁably claim that the suspect had given his consent. Even if the ‘yeah’ token could be interpreted as assent, it is clear that

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Does every yeah mean ‘yes’ in a police interrogation?

the token was given mechanically, without thought to what Peralta was assenting to. In fact, there is evidence in a prior turn of the suspect’s (line 7) that he does not fully understand what the detective has said, when he repeats the latter’s phrase, “Search it”, and that this lack of understanding is clear to the detective, who clariﬁes his own request (line 8), expanding on the verb phrase “Search it”, converting it to “For us to search it.” The initial “yeah” was given mechanically, one token in a string of “yeah” responses that he had provided up to that point. It was becoming a conditioned reﬂex. Extract 15 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23

Rodr´ıguez: You raise a good question right now, I’m gonna pose it to you, I’m gonna preface it by telling you, you have the right to refuse this. Peralta: OK. Rodr´ıguez: OK? You have the right to refuse. Would you be willing to sign a consent search to allow law enforcement personnel to search your apartment thoroughly, to search your Chevy Nova thoroughly for any evidence of the crime? Peralta: Search it. Rodr´ıguez: For us to search it. Peralta: Yeah. Rodr´ıguez: You understand you have the right to refuse to do so? Peralta: ¿Qu´e te van hacer? ‘What are they going to do to you?’ Rodr´ıguez: I’m sorry? Peralta: They just want to look through all my stuff? Rodr´ıguez: We’re gonna search, yeah, we’ll look through things, yes. Thoroughly, I’m not gonna look, I’m telling you, it’s gonna be a thorough search. You have given me consent before an’ actually we were looking for some particular items at that time, it wasn’t a thorough search. You understand what I’m saying? This would be a thorough search. Would you be willing to allow us to do that? Peralta: S´ı. ‘Yes.’ Rodr´ıguez: OK, that’s Spanish for “yes”. Peralta: Yeah.

Another clear instance in which Peralta’s ‘yeah’ response is shown to be meaningless is one where Rodr´ıguez asks him (Extract 16, lines 8–9) if Moncho was still in the car while he, Peralta, was stabbing Mrs. Patterson. Peralta’s answer is “yeah”. However, when Rodr´ıguez asks, “OK, what did you do after that, after the knife broke . . . ?” Peralta contradicts himself, responding (lines 12–13), “He wasn’t in the car, he was like on the door. Not yet, he wasn’t in the car yet when he did it.” This apparent contradiction appears to be a result of Peralta’s automatically answering Rodr´ıguez’ suggestive questions with ‘yeah’ tokens.

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Extract 16 1

Peralta:

2 3 4 5 6 7 8

Rodr´ıguez: Peralta: Rodr´ıguez:

9 10 11 12

Peralta: Rodr´ıguez: Peralta:

13 14 15 16

Rodr´ıguez: Peralta:

I did even went into the . . . I walked, I remember I went like to the ofﬁce ‘cause there’s a door . . . I went like to the middle and I walked back out and I ran and fell and I told him “I can’t ﬁnd them”, and I walked to the car and he came out, ah, threw me in, threw me in this daydream and he told me, that’s when I told him, “Man she knows me.” And he said, “Well, you better go in there and kill her.” Okay, but he didn’t come back in with you, that’s what you’re telling me? No. Then back in, ‘cause then he came back out. Okay. What did you do from that point? Eh, well, just so I’m perfectly clear too, though, while you were stabbing her he was in the car? Yeah. Okay. What did you do after that, after the knife broke . . . ? He wasn’t in the car, he was like on the door. Not yet, he wasn’t in the car yet when I did it. Where was he? O sea, el vino pa’ la puerta. ‘I mean, he came to the door.’

Another clear instance of this habitual ‘yeah’ response to Rodr´ıguez’s leading questions is Peralta’s answer (Extract 13, line 6) to Rodr´ıguez’s question as to whether one of Peralta’s purported accomplices had a little beard or goatee: “Yeah. No, but it’s not the goatee, it’s just . . . ,” to which Rodr´ıguez responds, “Like a little piece on his chin?” to which Peralta answers in the afﬁrmative, “Yeah.”Thus, the ﬁrst ‘yeah’token was not an afﬁrmation. More than likely it was either a back channel (i.e., “I know what you mean”) or a ﬁller. Perhaps he was formulating the answer, and uttered ‘yeah’ to indicate that he was cooperating with Rodr´ıguez’s questioning. Unfortunately, the remainder of his turn at talk appears to contradict his opening, which on the surface can be taken to be an afﬁrmation token. Some of Peralta’s ‘yeah’ tokens are in response to semantically overloaded questions. As with all overloaded questions, a single response has to be accepted with caution, and should not be assumed to afﬁrm all the propositions of the questioner’s utterance or turn. To one of these questions Peralta answers in the way that many speakers tend to reply, that is, following the recency principle (page 8, lines 1–3): Rodr´ıguez: OK. So what you’re telling me now under oath is that you were at the Green Acres, and Jos´e Hern´andez was in the gray Mustang. Peralta: Mustang, yeah. Rodr´ıguez’s question included the following elements: (1) Peralta being at the Green Acres farm, (2) Jos´e Hern´andez being there as well, (3) Jos´e Hern´andez

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Does every yeah mean ‘yes’ in a police interrogation?

being inside a car, (4) the car being a gray Mustang. Peralta responded only to the most recent element mentioned, and did so in the afﬁrmative. The fact that so many of Peralta’s answers are one-word, unelaborated ‘yeah’ tokens is a function of the type of questioning that he must participate in. It is Rodr´ıguez’s strategy of constructing scenarios, with the help of Peralta’s acquiescent afﬁrmative responses, which produces these one-word answers. A vivid example (Extract 17, line 5) shows Rodr´ıguez putting words in Peralta’s mouth, the words being “side by side”, and Peralta accepting the detective’s construction of the scenario: Extract 17 1 2 3 4 5 6

Rodr´ıguez: Peralta: Rodr´ıguez: Peralta: Rodr´ıguez: Peralta:

Was he in his car? Yeah. But he got out? Or, were you . . . ? No, we were . . . Side by side. Yeah.

The constant, steady stream of ‘yeah’ responses, invariant in form, sometimes unresponsive to the question, often clearly being back channel signals, sometimes ambiguous in meaning, in their totality can very well be interpreted as a manifestation of gratuitous concurrence/acquiescence response, or ‘yea-saying.’ Peralta’s responses to the detective’s questions are consistent with the ﬁndings on acquiescence response set and its relation to Hispanic identity, namely, that in general, Hispanics have a greater tendency than non-Hispanic whites to fall into acquiescent response sets, and that uneducated Hispanics have a higher likelihood than educated Hispanics to do so (Mar´ın and Van Oss Mar´ın 1991: 103). It is worth highlighting that these research ﬁndings derive from interview situations involving surveys, where there is no sense of threat or intimidation inherent in the speech situation and where interviewers do their utmost to establish a rapport with their interviewees. In contexts of intimidation, one would expect acquiescent response set to be even more extreme. Given (1) the power imbalance between Peralta and the detective and, concomitantly, the speech situation in which the interactions took place, namely, police interrogations; (2) the suggestive nature of the majority of the detectives’ questions together with the other elements reviewed above that make for unsuccessful interrogations; and (3) the high possibility that gratuitous concurrence or acquiescence response set was at work, it comes as no surprise that Peralta’s answers were generally one-word, weakly afﬁrmative responses.

Conclusion

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4. Conclusion The conclusion that one is led to, given the nature of the questioning that Miguel Peralta was given – namely, a proponderance of leading and other sorts of coercive questions, together with a number of other interrogation techniques labeled by interrogation trainers as ‘inadvisable’ – is that the responses that resulted from the four interrogations must be regarded as unreliable. Leading questions in and of themselves, as criminal interrogation experts Aubry and Caputo (1980: 225) note, are unfair to the subject, since they suggest their own answer. The pattern of Miguel Peralta’s answers at his confessional interrogation indicates that to a great extent what he said was inﬂuenced by the way in which the police detective conducted the interrogation, speciﬁcally: in the way that he worded his questions, in the fact that he kept interrupting Peralta’s attempted narratives, ﬁlling in words for him or reformulating his lexical choices, and repeating questions over and over, thereby indicating to him that he was not satisﬁed with the suspect’s answers. If gratuitous concurrence/acquiescence response can be considered to have resulted, then it emerged as a consequence of questioning strategies of the interrogator on the one hand, and a combination of cultural and socioeconomic characteristics of the defendant on the other. In sum, the answers of Miguel Peralta were to a great degree shaped by the speech event that was manipulated by and under the control of the interrogating police ofﬁcer. Peralta was convicted for murder and was given the death penalty. As in many capital punishment cases in the U.S.A., efforts have been made to reduce his sentence to life in prison without the possibility of parole. Such efforts typically drag out for many years.

Chapter 6 Pidginization and asymmetrical communicative accommodation in a child molestation case The Carlos Alvarez case analyzed in chapters 3 and 4 represents a disturbing trend in the U.S. justice system, namely the increased utilization of police ofﬁcers having minimal proﬁciency in a second language as interpreters for LimitedEnglish Proﬁcient detainees in the investigative stages of criminal casework. While the use of English-dominant bilingual police ofﬁcers as ad hoc interpreters often can be justiﬁed at crime scenes, their use during investigative interrogations – where what is said is preserved for use at future legal proceedings and becomes part of an ofﬁcial record – should be viewed not only with great suspicion, but also with alarm, particularly when the ofﬁcers have rudimentary proﬁciency in the language of the suspects. This chapter analyzes a case involving a twenty-ﬁve year old undocumented Mexican male who was considered by the police to have confessed to the crime of child molestation during his custodial interrogation. He has, however, steadfastly maintained his innocence. Nevertheless, the answers that he gave to the interrogating police detective at the time of the ﬁrst custodial questioning resulted in an indictment by a grand jury for the crime of sodomy. The detective considered his answers to constitute a confession to the crime of having oral sex with a child. Rather than to risk a jury trial and possibly a sentence of life in prison – which was the penalty for sodomizing a child under the age of twelve in the state where the alleged crime was committed – the defendant plea bargained for a sentence of seven years, with the understanding that upon completing his sentence he would be deported to Mexico, this despite the fact that he was married to a U.S. citizen and had a child with her. Two police ofﬁcers were present at the interrogation, one to conduct the questioning and the other to serve as interpreter. The one who acted as interpreter was not a native speaker of Spanish, and in fact, had virtually no proﬁciency in Spanish at all, as will be shown below. This is not surprising, given the fact that the sum total of instruction in Spanish that he had received amounted to one year of high school language study. This case is not unique. In fact, cases such as this one are being replicated across the U.S.A. Cities and small rural towns in the U.S. Midwest and Southeast that historically have been the home to miniscule percentages of Spanish speakers, since the 1990’s have been witnessing a geometric increase in the numbers of their Spanish-speaking residents, and with this demographic trend

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has come the growing need for Spanish-English interpreters. In one small town in Tennessee, for example, Shelbyville, over a ten-year period between 1989 and 1999 the Latino population grew from 92 to 2,343, by 1999 constituting ﬁfteen percent of the town’s population, a direct result of the installation of a chicken processing plant in the town that employs many Hispanics (Sack 2002). For want of professional interpreters, both the police and the courts have relied upon the services of a Mexican grocery store owner with third-grade elementary school education (Sack 2002: 1). In McMinnville, Tennessee, there were 300 Hispanic residents in 1990, and somewhere between 4,000 and 7,000 in the year 2000 (Sack 2001). The social and cultural impact of Latinos in rural areas of the U.S. is becoming more and more noticeable: in places such as Columbus Junction, Iowa (population less than 2,000) (Niebuhr 1999: 16), where Latinos work in meat-packing and other sorts of factories, in Caribou, Maine, a town to which Latinos migrate for seasonal agricultural work (Golden 2002: 1), and Dalton, Georgia, where Latinos comprise between twenty-two to thirty-ﬁve percent of the 45,000 or so residents. In 2002, only one of Dalton’s eighty-six police ofﬁcers was ﬂuent in Spanish, despite the city’s rapidly changing demographics (Golden 2002: 12). In Nashville, Tennessee, the Hispanic population grew from 33,000 in 1990 to 194,706 in 2006. The response of the city’s metropolitan police department was an attempt to recruit Hispanics into the police force, which thus far has been a failure, due largely to competition for Hispanics in better renumerated jobs (e.g., the U.S. military) (Bottorff 2007: B8). The dramatic demographic changes inAmerican small towns in the Southeast and the Midwest in the direction of increasing proportions of Spanish-speakers has led some communities to conclude that in the absence of native Spanishspeaking law-enforcement ofﬁcers, the police should be given training in the language, but generally that training is limited to “survival skills Spanish.”A case in point is the program underway in Omaha, Nebraska, a city located in the Great Plains area of the country. In reaction to a rapid increase in Latinos in the city’s population, the Omaha police department in the latter part of the 1990’s initiated a program in “Spanish survival skills for police ofﬁcers”, training monolingual English-speaking police ofﬁcers to a level of Spanish proﬁciency that it deemed sufﬁcient for dealing with routine, low-level infractions such as trafﬁc violations. It also considered a certiﬁcation program in Spanish interpreting for bilingual police ofﬁcers. A study of Omaha’s Spanish program reveals that a typical course consists of 16 to 24 hours of instruction given over a two-to-three day period. Moreover, it is relatively unusual for a police ofﬁcer to seek additional Spanish training after completing the crash course (Davis 1999: 28). The Omaha, Nebraska program is not unique. As Sack (2001) notes, “Though slow to start, police departments across the country are now requiring ofﬁcers

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to learn what is known as ‘survival Spanish.”’ Sack gives the example of the McMinnville, Tennessee police department, which has initiated such a program. Its police ofﬁcers take a 30-hour course “designed to teach the ofﬁcers how to make an arrest, conduct a basic interrogation (emphasis added), calm a victim, read a Miranda warning and even recognize swear words, all in Spanish” (Sack 2001). The Nashville, Tennessee metropolitan police department has been giving all police ofﬁcers a total of ten hours of Spanish-language instruction when they go through the city’s training academy. In addition, “Each ofﬁcer also receives two compact discs to use for ongoing practice, but ofﬁcers are not required to refresh their Spanish skills” (Bottorff 2007:B6). Clearly these efforts are insufﬁcient for effective communication between the police suspects and victims. Headlines in the most prominent Nashville newspaper, saying “Language: Police Hope to Bridge Culture Gaps,” refer to an incident in which two police ofﬁcers were called to a mobile home where a Hispanic man lay on the ﬂoor bleeding, a suspect in the stabbing of his estranged wife. The ofﬁcers warned him in English not to get up, and when he did and tried to charge at them with a knife, they shot him to death. Family members of the man say that he had inﬂicted the knife wounds on himself, and that he could not have understood the English orders of the ofﬁcers (Bottorff 2007:B6).

1. When the police interpreter lacks proﬁciency in the detainee’s language The case analyzed in this chapter provides concrete evidence that using police ofﬁcers to carry out interpreting functions, particularly for the interrogation of persons suspected of crimes, is a highly dangerous practice, and one to be avoided altogether. The dangers are (1) that the police interpreter will have neither the required level of proﬁciency in the second language nor the necessary interpreting skills for the job, and (2) just as importantly, that he will not adhere to the ethical code of interpreter conduct, speciﬁcally, the requirement that the interpreter maintain impartiality and neutrality with respect to the party for whom he is interpreting, and that he interpret everything that has been said between the interrogator and the interrogated. In short, the danger is that the police interpreter will not remain in the footing of interpreter, but instead will behave as a police ofﬁcer. This danger, in turn, can easily translate into one that is most serious for a person undergoing police interrogation: coercion, and a frequent consequence of it, false confession. An all too frequent result of false confession is wrongful conviction.

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The case of Juan L´opez36 is about a Mexican man accused of engaging a sixand-a-half year old child in sodomy. It represents a clearcut instance in which a police ofﬁcer assigned to interpret for the detainee and for the interrogating ofﬁcer was seriously incompetent in the role, both from the perspective of lacking the level of linguistic proﬁciency required for the job and from the point of view of knowing what was expected of him in terms of role to play. Clearly he did not have any inkling of ethical guidelines for legal intepreters, such as the norm that everything in the source language be interpreted, be it in simultaneous or consecutive mode. The interpreter in the case of Juan L´opez clearly had only minimal proﬁciency in speaking and understanding Spanish. This fact in and of itself could account for why he limited his interpreting role to rendering the English questions of the interrogating detective in Spanish only when Juan L´opez overtly turned to him for interpreting assistance, either kinesically or verbally. On rare occasions he would clarify a point made by the detainee for the beneﬁt of the detective, as a summary of the brief interrogation episodes that he himself had just conducted in the presence of the detective. What is starkly obvious about the nature of this interrogation is that (1) the detainee’s proﬁciency in English was rudimentary, as the detective himself admitted, in accounting for the presence of the police ofﬁcer interpreter; (2) the police interpreter was completely inept at rendering L1 substance in L2 and vice-versa; and (3) the detainee, seeing from the outset that the police interpreter was not there to enable him to comprehend the questions or to help make him comprehensible to the interrogating ofﬁcer, tried his utmost to communicate with the latter by using his very limited ability to speak English. The results of his efforts, however, are a form of language mixture that is often difﬁcult to decode, as will be shown in the textual extract appended to this chapter. Ironically, the police interpreter speaks in a comparable, mixed language variety. I will argue that the speech of both the detainee and the police interpreter shows evidence of pidginization, an asymmetrical pattern of communicative accommodation, and code-switching that often arises largely from the need of each speaker to ﬁll lexical gaps in his respective second language. In terms of a communicative situation we ﬁnd here (1) an interrogator who has no knowledge at all of the language of the interlocutor, from whom he must obtain information that will either clear him of suspicion or that will set in motion a process that could ultimately incarcerate him, (2) a non-neutral afﬁliate of the interrogator whose knowledge of the second language is extremely limited, and (3) a person under suspicion and in their custody, whose knowledge of their language is highly limited, but whose motivation to communicate to them his version of a series of events is extraordinarily high, and whose utter frustration at not being able to

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do so successfully is abundantly clear both from his words and from his body language (facial expressions and hand/arm movements as seen in a videotape). If I were to categorize the proﬁciency of the two bilingual speakers, I would rate them both in the lowest proﬁciency category used by the American Council of Teachers of Foreign Languages (ACTFL):37 Novice (as opposed to Intermediate, Advanced and Superior). Within Novice, they would probably ﬁt into the Novice-Mid category (second from the lowest tier of an overall ten-tiered scale), which is deﬁned by ACTFL in the following way: Speakers at the Novice-Mid level communicate minimally and with great difﬁculty by using a number of isolated words and memorized phrases limited by the particular context in which the language has been learned. When responding to direct questions, they may utter two or three words at a time or an occasional stock answer. They pause frequently as they search for simple vocabulary or attempt to recycle their own and their interlocutor’s words. Because of hesitations, lack of vocabulary, inaccuracy, or failure to respond appropriately, Novice-Mid speakers may be understood with great difﬁculty even by sympathetic interlocutors accustomed to dealing with non-natives. When called on to handle topics by performing functions associated with the intermediate level, they frequently resort to repetition, words from their native language, or silence.

2. Linguistic analysis of the interrogation Extract 1, found at the end of this chapter, is an excerpt of the videotaped interrogation. It demonstrates the communication breakdown that characterizes the interrogation of L´opez. From a discourse analytical perspective, speciﬁcally interactional sociolinguistics, several processes can be seen at work: (1) pidginization; (2) negotiation for meaning between a monolingual English speaker, a minimally bilingual English speaker who speaks Spanish as a second language, and a minimally bilingual Spanish speaker whose second language is English, predominantly in the form of non-reciprocal negotiation moves by the Mexican detainee; (3) asymmetrical communicative accommodation, principally on the part of the detainee with respect to both the interrogating ofﬁcer and the police interpreter, largely in the form of ‘allo-repetition’ or ‘echoing’; (4) code-switching and code-mixing, including lexical insertion in general and a particular variant of it known as ‘cohesive insertion’ or ‘anaphoric transfer’ (Angermeyer 2002).

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2.1. Pidginization, communicative accommodation, negotiation for meaning, and code-switching: all in the mix Pidginization resulting from the contact between two linguistic groups has been called a form of speech accommodation, one involving negotiation for meaning (Gardner-Chloros 1995: 108). If, according to Muysken (2000: 268–269), pidgins and creoles represent “a case of drastic language change due to contact, with far-reaching consequences,” and contact pidgins can be distinguished from L2 pidgins in that the former “involve a somewhat symmetrical relationship of often only two ethnolinguistic groups”, whereas the latter “result from the attempt by different groups to communicate on the basis of an imperfectly mastered dominant language”, then the Spanish of ofﬁcer Baxter and the English of Juan L´opez can be considered to show many of the characteristics of L2 pidgins, as will be demonstrated below. Winford (2003: 280–281), reviewing the features commonly identiﬁed with pidginization, includes such processes as simpliﬁcation (the reduction and regularization of structures), L1 inﬂuence (“retentions from the native languages of those creating, and later learning, the pidgin”), and internal developments (“innovations due to creative restructuring using internal resources). According to Winford (2003: 280), there are great similarities between pidginization and the early stages of interlanguage, in that both are “manifestations of communication strategies (avoidance, compensation) that all learners employ in their ﬁrst attempts to communicate in a foreign language.” Thus, both pidgins and L2 varieties that are early stages of Second Language Acquisition share the following features (Winford 2003: 281): In both cases, we ﬁnd a highly reduced vocabulary consisting mainly of content words and only a few function words. Both pidgins and basic L2 varieties lack inﬂectional morphology, grammatical categories like tense, aspect, case, number, etc., and syntactic phenomena such as movement, embedding, and similar devices.

Bickerton’s (1977: 54–55) earlier study notes the similarity between pidginization and the early stages of SLA, characterizing pidginization as second language acquisition with limited input. One of the mechanisms claimed to be instrumental in the formation of both pidgins and creoles – and in all contact-induced language change – is negotiation, according to Thomason (2001: 180). Furthermore, negotiation is considered by Thomason to be another name for the process of speech accommodation. It is to these two concepts that I now turn.

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Negotiation for meaning and communicative accommodation

In any situation of native-speaker/non-native speaker interaction, typically what arises is ‘negotiation for meaning’ (Hatch 1978; Long 1980; Pica 1992, 1994). That is, the native speaker makes efforts to understand the non-native when the latter fails to make him/herself sufﬁciently clear. The non-native, in turn, makes adjustments, self-correcting, so as to communicate his or her meaning more adequately. As Thomason (2001: 142) puts it: The ‘negotiation’ mechanism is at work when speakers change their language (A) to approximate what they believe to be the patterns of another language or dialect (B). Crucially, this deﬁnition includes situations in which speakers of A are not ﬂuent in B, as well as situations in which they are. . . . The most striking cases of ‘negotiation’ are those in which nobody in the contact situation knows anybody else’s language, because this is where A speakers’ beliefs about B’s structure are most likely to be mistaken. Prototypical pidgin genesis are the classic examples. . . . As people try to communicate with each other, they will make guesses about what their interlocutors will understand.

From the perspective of SLA scholars, negotiation is a process that emerges through interaction and is characterized by, . . . the modiﬁcation and restructuring of interaction that occurs when learners and their interlocutors anticipate, perceive, or experience difﬁculties in message comprehensibility. As they negotiate, they work linguistically to achieve the needed comprehensibility, whether repeating a message verbatim, adjusting its syntax, changing its words, or modifying its form and meaning in a host of other ways (Pica 1994: 494).

Negotiation for meaning between a native speaker and a non-native speaker of a language or dialect is considered by some (e.g., Thomason) to be equivalent to speech accommodation, or communicative accommodation. Originating in the sociopsychological model of Giles and his associates (Giles et al. 1991), the theory of communicative accommodation (CAT) has been expanded to include situations of interethnic interpersonal interaction. One of the basic premises of this theory is that, “Speakers will attempt to converge linguistically towards the speech patterns believed to be characteristic of their interlocutors when (a) they desire their social approval and the perceived costs of so acting are lower than the rewards anticipated; and/or (b) they desire a high level of communicational efﬁciency . . . ” (Street and Giles 1982: 213). Giles, Coupland and Coupland (1991: 19–20) elaborate on the relationship between communicative accommodation and “the power variable”, explaining that, “. . . the greater the speaker’s need to gain another’s social approval, the greater the degree of convergence

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there will be”, and that the power includes such forces as economic power and workplace power (e.g., occupational superiors versus subordinates). Hamers and Blanc (1989: 147) refer to another type of speech modiﬁcation strategy, ‘foreigner talk’, which has been related to the development of pidgins. According to Clyne (1981), “in foreigner talk the speaker simpliﬁes his L1 to make himself understood by an interlocutor who has little knowledge of the former’s language” (Hamers and Blanc 1989: 147). Yet another related adaptive strategy is ‘broken language’, “in which the speaker tries to speak the interlocutor’s L1 although he has little proﬁciency in it”, thus creating a type of interlanguage and using “such devices as simpliﬁcation, reduction, overgeneralization, transfer and formulaic language” (Hamers and Blanc 1989: 147). The notion of ‘broken language’ is highly similar to Winford’s characterization of pidginization. What stands out in the interrogation of Juan L´opez, is that very little of such negotiation or accommodation is seen in the behavior of the two native English speakers – the police ofﬁcers. Instead, we ﬁnd something that I will call ‘non-reciprocal, or asymmetrical, negotiation of meaning’, and ‘one-sided speech accommodation’, which is to say that it is primarily one party who makes adjustments for the sake of communication with the interlocutor. The interrogating detective hardly makes any effort to hear the suspect’s version of the facts. The police interpreter is strikingly uncommunicative in the interaction, and only in a minimal way can be considered to be doing interpreting. He largely remains silent, allowing the detainee to struggle by himself to make himself understood, and watching him fail at it. From the perspective of speech act theory and pragmatics as a whole, this is a case of blatant conversational uncooperativeness. Grice’s (1975) theory tells us that interlocutors basically try to be cooperative in conversation, that is, normally they try to communicate clearly and sincerely what they mean. And when they violate one of the conversational maxims, or rules of cooperative conversational behavior, it is because they mean something other than what they seem to be saying: they are conveying meaning via a conversational implicature. In the interrogation of Juan L´opez, there is barely a pretense on the part of the two police ofﬁcers of either trying to understand what the detainee is saying or of trying to make themselves comprehensible to him. The onus of communicating meaning falls squarely on his shoulders, both in terms of production and reception. This is not the way in which interpreted legal proceedings are supposed to be conducted. Ironically, using the ACTFL deﬁnition of Novice-Mid, we ﬁnd that its deﬁnition does not wholly apply to this particular speech event: there is no “sympathetic native” present to try to decode meaning in the statements of the detainee.

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Code-switching, code mixing, and lexical insertion

As Winford (2003) points out, among the various ways in which speakers in language contact situations accommodate to one another in interaction is through code-switching (Bourhis et al. 1979; Coupland 1984; Gardner-Chloros 1995; Heller 1985). Code-switching, deﬁned alternatively by Thomason (2001: 53) as “the use of different languages in the same discourse”, and “the use of material from two (or more) languages by a single speaker in the same conversation” (Thomason 2001: 132), is a phenomenon attested in numerous language contact situations throughout the world.38 Intersentential code-switching, that is, switching at a sentence boundary, is generally distinguished from intrasentential switching, also known as ‘code-mixing’(Thomason 2001). Among the many forms of code-mixing is lexical insertion, that is, the switching from one language to another for the purpose of inserting a single lexical item. While there are numerous functional explanations for code-switching and code-mixing, in the case of lexical insertion one common reason for its appearance is the lack of L2 vocabulary in the speaker’s bilingual repertoire. One code-switching analyst, Zentella (1997), seeing its use among New York Puerto Rican children, has called this type of lexical insertion ‘crutching’, indicating a lexical gap in one of the languages of the bilingual. While code-switching scholars have debated whether to call such one-word insertions code-switches or instances of borrowing, one expert in the ﬁeld, Myers-Scotton (2006), does not make such a distinction, and considers both to be code-switching. Whether they are given the status of single-item switches or loans, a function that has recently been identiﬁed for them is that of providing cohesion to a speaker’s own utterances or to those of others in bilingual interaction (Angermeyer 2003). Angermeyer’s study of immigrants testifying in a small claims court with the assistance of interpreters has direct relevance to the present study, as will be shown below. A ﬁnal aspect of communicative accommodation that is relevant to the analysis of the interrogation of Juan L´opez is that of repetition, speciﬁcally allorepetition (replicating the words of an interlocutor) (Tannen 1989), also referred to as ‘echoing’ or ‘mirroring moves’ (Angermeyer 2003; Ferrara 1991). It will be shown that L´opez frequently uses this discourse strategy in his attempts to communicate with both his monolingual English-speaking interrogator and his Limited-Spanish Proﬁcient police interpreter.

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3. The interrogation: a sociolinguistic interactional analysis For the sociolinguistic interactional analysis to be comprehensible, an explanation of how the alleged crime came about is needed. Juan L´opez was living with his partner and her two young children. In the house they kept four pet guinea pigs, which the neighborhood children would come to play with. The word for guinea pig in Spanish is ‘cuyo’ and L´opez, given his limited vocabulary in English, could not remember the English gloss for this term during the interrogation. The closest he came to saying it was the expression [j´ı-ne p´ı-nes] (transliterated into English as ‘jeenay peenays’). L´opez claims that he had just come out of the shower when Mary Jane Tyler, the victim, ran into his bedroom, rushed toward him as he was towel-drying his wet hair, and grabbed him around the hips saying to him “I want to suck your penis.” According to the police ofﬁcers investigating the case, L´opez did engage in oral sex with the child. What follows is an analysis of the video-taped interrogation of L´opez, an interrogation that was carried out subsequent to one that had not been electronically recorded. One of the ﬁrst features of the interrogation speech event that one notices when it is viewed from the vantage point of an interpreter/translator is that entire sequences of questions and answers are left uninterpreted for the detainee. From the very outset, Juan L´opez is left to fend for himself linguistically. Detective Ryan’s introductory identiﬁcation of the setting and the participants (lines 1–9) is left entirely without interpretation. For this reason, L´opez begins interacting with the detective in his limited English. It is only in line 19 that Ofﬁcer Baxter is activated. Not only are the English questions of Detective Ryan left uninterpreted, but so too are the answers of L´opez. Crucially, Ryan’s accusation (line 23) that L´opez had had the child suck his penis is not interpreted, nor is the narrative that L´opez develops (lines 24–29, 39–40, 45), explaining that Mary Jane had come rushing into his bedroom just as he had come out of the shower, with a towel wrapped around himself, trying to towel dry his hair, and that she had grabbed him around the hips, saying that she wanted to suck his “pipi” (wee-wee). What is strikingly clear from the interaction is that the police interpreter is largely to blame for the degree of miscommunication that pervades the interrogation. Aside from the second-language limitations that both he and L´opez reﬂect, the fact that Baxter does not bother interpreting long stretches of discourse produces great confusion between the interrogating detective and the detainee. The ﬁrst source of misunderstanding comes in line 45, where L´opez is describing his state of undress (he was wearing his underpants) when the girl rushed toward him. That line is not interpreted by Baxter. Instead, Detective Ryan addresses

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Baxter, asking him (line 47), “But he allowed her to suck his pee pee?” The question is not interpreted either. Instead, Baxter asks (in interrogator footing), Esa es la verdad? [That is the truth?], which L´opez interprets as referring to his narrative and answers in the afﬁrmative, not knowing that Baxter’s question had come as the second part of an adjacency pair, to Detective Ryan’s ﬁrst part, “But he allowed her to suck his pee pee?” Thus, from the transcript, it appears that L´opez’s answer, “That is the truth,” is in response to Detective Ryan’s question, whereas clearly this is not the case, since throughout the interrogation L´opez vehemently denies that he initiated any sexual activity with the child. L´opez in fact was referring to his narrative when he answered the police interpreter in the afﬁrmative. In fact, by leaving numerous statements of L´opez uninterpreted, Ofﬁcer Baxter is leaving his detective colleague completely in the dark with respect to L´opez’s account of the events. And oddly enough, Detective Ryan makes no great effort to ascertain what L´opez is saying. He rarely asks Baxter to tell him what the detainee has said. Again, as a result of Ofﬁcer Baxter’s systematic failure to interpret L´opez’s answers and the detective’s questions, confusion abounds. For example, line 89, where Ryan asks L´opez if he had put his pee-pee in the girl’s mouth, there is no interpretation of the question. Nevertheless, L´opez appears to understand the gist of it, denying the detective’s accusation forcefully (line 90, No, me no. Ella es coming, ella es coming.) To this the detective asks (line 92), “As it was coming, you took it out?”, to which L´opez replies vehemently in the negative. The pronoun ‘it’ in Ryan’s subordinate clause appears to refer to the semen ejaculated from L´opez’s penis, although this is not absolutely clear. The pronoun ‘it’ in the main clause, however, could only refer to the penis itself. It is at this point that L´opez asks the police interpreter, using the verb ‘tell’in the imperative mode, to communicate to the detective that he – L´opez – was not the one at fault, but rather that it was the girl who came towards him. The entire sequence in which L´opez describes (lines 54–63) how the girl grabbed him, insisting that she did not manage to touch his penis, is not interpreted for Detective Ryan. Later on (lines 104- 105), when Ryan expresses incredulity that a six-year old girl would “come onto you”, that she would want to suck his penis, and this is not interpreted in Spanish, L´opez virtually begs for an interpretation (“No, what you say?”). From the perspective of a legal speech event, this situation is an immigrant detainee’s worst nightmare. The interpreting services that are owed to him are not being provided.

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3.1. Pidginized English, pidginized Spanish Both the English of the detainee and the Spanish of the police interpreter show evidence of pidginization. In L´opez’s English utterances we see: (1) the generic use of the verb ser (‘be’), always in third-person singular, as the auxiliary for the gerund (in place of the verb estar (‘be’)) as in line 90, “Ella es coming”, or line 143, “Mira me era take a shower”, or as a copula (line 138, “la girl es aqu´ı) where Spanish would use the copula estar; (2) the omission of the auxiliary in the gerund (line 112, “Yeah, la bambino telling me”); (3) ser functioning also as a third-person verb marker, in place of morphological marking (line158, “la girl es open the door y es coming”); (4) uninﬂected verbs (line 171, “Es, I’m not lie” for “I’m not lying”; line 161, “the girl is open the door” for ‘opens’ or ‘opened’); (5) a reduced set of pronouns (use of ‘me’ for ﬁrst person subject pronoun ‘I’, seen throughout the interaction; use of the second-person possessive pronoun ‘your’ in place of the third-person ‘her’, as in line 178, “I mean me no nothing on your mouth me no coming in your mouth, no”, and line 205, “En la boca, me coming en your boca? No!”; (6) the null subject pronoun preceding verbs, following Spanish morphosyntactic norms, as in line 126, “Yeah, is telling me”, and line 201, “Is little, is girl little”; (7) and non-English word order, as in the preceding example, “is girl little”. The police interpreter’s Spanish is equally pidginized, although his utterances are more reﬂective of interlanguage phenomena. Notable features are (1) the absence of verbs in some utterances (line 19, “Mary en su casa?”; line 203, “La bambina dice su cum en la bambina en, en ellas, en ellas boca”); (2) lack of gender concord between article and noun (“la bambino”); (3) reduced pronominal vocabulary (in line 203 above, third-person plural object pronoun ellas is used in place of the possessive pronoun su preceding the noun boca, and in line 108, “La bambina se dice,” meaning ‘The little girl says to you’, where the reﬂexive pronoun se is used in place of the indirect object pronoun le; (4) problems with verb morphology (line 230, La bambina bese su pine, where the present tense verb bese [kiss] is given the ending of an -er class verb, even though besar belongs to the -ar class (if the interpreter intended to speak in the past, the verb form should have been bes´o); (5) problems with verb stems (line 260, mera for mira, ‘look’; line 133, diga for dijiste, preterite of ‘say’) and nouns (pine for pene or penes ‘penis’ and pinas for penes, ‘penises’); (6) the use of the copula ser where Spanish would use the copula estar (line 69, “So, su pine es around la boca de la bambino?”); (7) the use of inﬂected verb morphology when the inﬁnitival form is called for (line 108–109, “La bambino se dice “quiero chupe su pine”, where the verb ‘suck’, chupar, should be in the inﬁnitive following an inﬂected verb); (8) word order irregularities (line 192–193, “Es usted dice

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que la bambino diga la no la verdad”, meaning ‘You say that the little girl did not tell the truth’, which standardly would be, ‘usted dice que la bambina no dijo la verdad’ – thus not only is there lack of gender concord between article and noun, and the morphology of the verb decir reﬂects the imperative rather than the preterite, but the word order within the phrase meaning ‘did not tell the truth’ is not syntactically well formed. The discussion on pidginization does not reveal one signiﬁcant aspect of the interaction between Ofﬁcer Baxter and Juan L´opez, and that is that the detainee did everything he could to accommodate himself linguistically to the police interpreter and to Detective Ryan, the interrogating ofﬁcer, as well. Evidence of this communicative accommodation is that L´opez adopts the ungrammatical Spanish forms used by Baxter, and repeats the phrases of Ryan, even when the very act of uttering them does damage to him. By repeating some of the characterizations constructed by Ryan, L´opez ratiﬁes them and appears to agree to them. From the perspective of discourse analysis, L´opez engages in ‘mirroring’ or ‘echoing’. The repetition of Baxter’s ungrammatical Spanish phrases is also a form of echoing. The most frequently heard phrase of this type is la bambino, which Baxter initiates in line 69, and which L´opez begins repeating in line 93. The other most frequently used lexical item that L´opez mirrors is the word pine (phonetically [piy-ney] as pronounced by Baxter, but transliterated here for transcription purposes as ‘peenay’, which is Baxter’s rendition of Spanish pene. The echoing of Baxter’s pronunciation is consequential for the miscommunication between L´opez and the two ofﬁcers, because it will affect L´opez attempt to recall the English phrase ‘guinea pig’. L´opez produces a phonetically much altered rendition of ‘guinea’, pronouncing it [j´ı-ne], and adds on [p´ı-nes] as his recollection of the word ‘pigs’. Unfortunately, [p´ı-nes] is homonymic with Baxter’s rendition of ‘penis’, which causes the serious misunderstanding between the interpreter and the detainee (lines 242–352). It can be surmised that the repeated use of the word pines in the ﬁrst phase of the interrogation may have affected L´opez’s auditory memory of the word ‘pig’. He struggles to remember the name of the animal. Raising the topic of the guinea pigs becomes a pivotal issue for L´opez, because it accounts for the presence of the alleged victim in his house: it will be recalled that he and his girlfriend have four pet guinea pigs in their home, and every day neighborhood children come to their house to play with these pets as well as with his partner’s two children. L´opez’s echoing of Detective Ryan can be seen highlighted in bold, in the sequence (lines 98–105 in Extract 1) where Ryan expresses incredulity that a six-year old child would ask to engage in oral sex with a twenty-ﬁve year old adult.

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Ryan: L´opez: Ryan: L´opez: Ryan: L´opez: Ryan:

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Juan, she is six year old. Yeah, six years old. And you’re twenty-ﬁve years old or will be next month. Yeah. Twenty-ﬁve year old. Twenty-ﬁve year old. You are gonna try to tell me that a six years old girl came onto you? She came on to you and wanted to do that? She wanted to suck your pee pee?

In this sequence, Ryan uses self-repetition, which functions as a mechanism of emphasis, and L´opez echoes the detective’s non-standardly formed phrase, “Twenty-ﬁve year old”, in which the ‘s’ is omitted from the word ‘years’. The theme of the child’s age is brought up again by Ryan later on (line 183, “She’s six years old!”), following his effort to make L´opez feel guilty about having lured the child into having oral sex with him (line 196, “Six years old”). Similarly, once Ryan introduces the expression “suck your penis” (line 23), at the very beginning of the questioning, from then on L´opez refers to “sucky mi pipi,” a partially transformed verb phrase, one that employs code-switching. In fairness to Detective Ryan, it should be pointed out that he accommodates himself linguistically to L´opez, dropping the English word ‘penis’ and switching to L´opez’s Spanish term, pipi (pronouned [pee pee] by Ryan).

3.2. The functions of code-switching, code-mixing, and lexical insertion There is a great deal of code-switching and code-mixing evident in the interrogation, most of it done by Juan L´opez. Given that L´opez and Ofﬁcer Baxter had similar levels of L2 proﬁciency, this fact in and of itself is puzzling. It becomes more understandable, however, if one considers code-switching and code-mixing to be strategies of negotiation and communicative accommodation. The detainee does everything within his stock of linguistic resources – both his native Spanish and limited English – to make himself understood by the two police ofﬁcers. The general pattern of L´opez’s switches are in the direction of Spanish to English. That is because whenever he is asked an interpreted question by Ofﬁcer Baxter, L´opez generally begins answering him in the language in which he was addressed, namely Spanish. This is a typical code-switching pattern among U.S. Latinos (Genishi 1984; Zentella 1997). However another code-switching norm among Hispanic bilinguals in the U.S.A. is to speak the language that

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one’s interlocutor speaks best (i.e., their dominant language) (Zentella 1997). L´opez quickly switches into English for the sake of communicating more effectively with his two English-speaking interlocutors. However, since he has a large number of lexical gaps and interlanguage-related morphosyntactic difﬁculties, he needs to resort to Spanish intrasententially. A narrative episode reﬂecting a great deal of code-switching and code-mixing is the following (lines141–147): Ryan: She put it around her mouth? L´opez: No, me no put it around, la girl es coming, put it on your head. “Me chupe su pine, su pipi.” Mira me era take a shower cleaning my face with the towel, y la girl es open the door. Era la girl y mis dos bambinos. ‘No, me no put it around, the girl is coming, put it on your head. “Me suck your peenay, your wee-wee.” Look me was take a shower cleaning my face with the towel, and the girl is open the door. It was the girl and my two children.’ Since L´opez is interacting directly with the monolingual detective, without the assistance of the police interpreter, he tries to communicate entirely in English, and begins answering in that language. He develops a set way of referring to Mary Jane as ‘la girl’, an excellent example of code-mixing at the level of the noun phrase. It is not that he lacks the English deﬁnite article in his lexicon, because elsewhere he refers to “the door” (line 161). He switches to ‘es’as an auxiliary for the gerund, and does so throughout his discourse. He switches intersententially for the purpose of quoting, yet he is quoting Mary Jane in Spanish. This is peculiar since we know that the alleged victim is a monolingual English-speaker. The only explanation for this is that L´opez, as do other code-switchers, routinely switches for quoting purposes; however, people who code-switch normally quote in the language in which the utterance was originally emitted. He may have automatically switched for the quoting function, not realizing that the utterance that he has quoted had been said in English. The other possibility is that the child had acquired enough Spanish through her interactions with L´opez that she actually had said in Spanish, “Me chupe su pine, su pipi”, and the fact that the verb does not have ﬁrst-person morphological inﬂection could be explained by the possibility that Mary Jane was able to use an interlanguage variety of Spanish. Seeing and hearing her being interviewed by Detective Ryan, conﬁrms that she is a native speaker of English, and so the possibility of incipient bilingualism is only conjecture. It is most likely that L´opez confused his languages when he performed the quotation. Once he is in Spanish mode for quoting, he begins his next sentence in Spanish (“Mira me era take a shower cleaning my face with

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the towel”), but Spanish is used only for the attention-getting discourse marker ‘Mira’, because the rest of the sentence is entirely in English with the exception of the copula era which serves a grammatical function, namely, as the auxiliary of the gerund ‘take’, which in turn is pidginized, since it lacks the morphological sufﬁx ‘–ing’. The second clause of that sentence begins in Spanish with the coordinating conjunction ‘y’ (and), followed by the formulaic code-mixed noun phrase ‘la girl’, followed by the copula ‘es’ functioning either as a third-person singular present tense verb marker, or past tense marker. Since the verb ‘open’ has no inﬂectional marker to disambiguate its status, as a pidginized, reduced form we cannot tell if L´opez is trying to say “she opens” or “she opened” the door. He then switches intersententially to Spanish (“Era la girl y mis dos bambinos”). It is clear from this sentence that L´opez uses the copula era perfectly well when he describes a scene in the past using the imperfect tense, and so one has to wonder why he did not use the same form to describe the girl’s past action of opening the door. Perhaps he was using the vivid present to narrate a past event. More interesting is the fact that while this sentence is entirely in Spanish, he could have said ‘la bambina’to refer to the child, yet he continues with the ﬁxed phrase ‘la girl’. An instance of high-frequency code-mixing is the following response of L´opez to Ofﬁcer Baxter’s question (line 230), “La bambina bese su pine? [The little girl kisses your peenay?]: L´opez: No, no bese. S´ı es “get out and move it right now.” Pero es put it on mi pipi on your mouth here. ‘No, she doesn’t kiss. It’s really “get out and move it right now.” But it’s put it on my wee-wee on your mouth here.’ He begins his response in Spanish, since the question put to him is in Spanish. He switches to English for quoting purposes, and then returns to Spanish to begin a new sentence. He favors Spanish for discourse markers, which accounts for the sentence-initial connector ‘Pero’ being uttered in Spanish. The meaning of the rest of the sentence is unclear, but he seems to be saying “She put it on my wee-wee, on/in her mouth,” which still is difﬁcult to decipher. Since the Spanish preposition en can mean ‘on’ or ‘in’, we do not know for sure whether he meant so say ‘in’ rather than ‘on’. What he might have been trying to say is that she put her mouth on his penis. Occasionally, L´opez uses lexical insertion, and this is primarily to ﬁll lexical gaps. For example, in struggling to identify the animals that he keeps at home as pets, he describes them in various ways. In lines 251–254 he compares them to rabbits. Whereas he had begun his turn in Spanish in line 251, he then switches

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to English (“I don’t know is something, como rabbit, you no understand? Como rabbit. Rabbit? The orejas.”). The word orejas (‘ears’) is an instance of lexical insertion. He is so desperate to explain what he is referring to that he does a kinesic demonstration of rabbit ears. The desperation is caused by Ofﬁcer Baxter’s incorrect conclusion that the term ‘guinea pines’refers to L´opez’s penis. Interestingly, one of the ways in which code-mixing functions in L´opez’s discourse is as a clariﬁcation mechanism. By saying the same thing in two languages, L´opez attempts to communicate his messages more clearly to his interlocutors. For example, in trying to explain where he keeps the guinea pigs (line 310), he says, “En la door, puerta, and outside . . . ”), thus switching to the Spanish equivalent of ‘door’, for emphasis and clarity. This is a mechanism that I will call ‘code-mixed self-repetition’. The police interpreter does relatively little code-switching or code-mixing: instead, he sticks to his interlanguage variety of Spanish. An instance of codemixing evidenced in his speech is found in line 69 (“So, su pine es around la boca de la bambino?” [So, your peenay is around the girl’s mouth?]). Ofﬁcer Baxter begins in English, with a discourse marker, and switches to Spanish for the remainder of the question, with the exception of the word ‘around’, which apparently is a lexical gap for him in Spanish, and so he inserts the English lexical item in its place. To sum up, the speech of the detainee evidences a great deal of language mixing: switching intersententially, intrasententially, and sometimes inserting a switched word out of the need to ﬁll a lexical gap. The basic motive behind this switching behavior is the desire to communicate with his interlocutors, who in fact are having trouble understanding him because one of them understands no Spanish at all and the other speaks and understands it to only a limited extent, and both are experiencing difﬁculty comprehending the mixed variety that the detainee is creating as he speaks.

4. A coercive interrogation Before Juan L´opez decided to plead guilty rather than to go to trial, his public defender ﬁled a motion to suppress the confession and any and all statements, written or oral, that he had made to the authorities. It is worth reviewing the arguments of the attorney, because they reveal the elements that a trial court or appellate court might consider to be evidence of coercion. The motion points to a set of circumstances related to Lopez’s interrogation that the attorney considers to have made it coercive. First of all, upon being arrested in the early hours of the morning, L´opez was brought to jail and left

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there for twelve hours without being informed of the charges against him. He was not permitted to communicate with anyone, not even to call his home. The intimidating situation he was in was more acute for him than perhaps for others at this point in their involvement with the police, because he knew that he was in the U.S.A. illegally. He had little experience with being in custody or being interrogated. The motion makes a point of mentioning that his “homeland is an economically underdeveloped third world country with a criminal justice system quite different from our own.” In fact, Mexico is known for its corrupt police force. Referring to police corruption and public conﬁdence in the police, the newly appointed chief of police of Mexico City, Marcelo Ebrard, “who commands 82,000 ofﬁcers, a department twice the size of New York City’s, said in 2002 in an interview that his forces ‘need very deep reform”’ (Weiner 2002: 1). Mexican police ofﬁcers have a long history of corruption, which is well known by the public. As Weiner (2002: 1) points out, “For many people in the city, state or federal police, the job became an opportunity to make money by any means necessary. A prior criminal conviction has not been a barrier to holding a badge and a gun.” Because so many police ofﬁcers were arrested in the 1990’s for drug smuggling, kidnapping and extortion, Mexicans hold a common perception that “a badge constitutes a license to break the law” (Weiner 2002: 1). Adri´an L´opez Rivera, a Mexican graduate student of political science who spent a year in the Mexican police force on a research project, concluded that “by wearing a uniform anyone can enjoy as much impunity as his imagination and avarice will allow” (Weiner 2002: 1). The federal public security chief of Mexico sums up the attitudes of Mexicans toward their police ofﬁcers and the country’s system of justice: “. . . today, nobody in Mexico is satisﬁed with the police, or with the rule of law, or with the administration of justice. That is a fact. Nobody” (Weiner 2002: 1). A recent study of public security and police reform in Mexico (Moloeznik 2006: 172), citing Mexico’s 2004 Corruption Perception Index, ﬁnds that, “Corruption has become an entrenched subculture, which undermines public and private institutions and has even ‘inﬁltrated police forces”’ (Poder Ejecutivo de la Federaci´on 2001: 5; Programa Nacional de Seguridad P´ublica 2003: 19, as cited in Moloeznik 2006: 172). Moloeznik (2006: 194) refers speciﬁcally to police units in the Mexican state of Guerrero as well as others, which “are often accused of corruption and involvement in organized crime,” ﬁnding that in general (Moloeznik 2006: 183–184), the Mexican criminal-justice system is characterized by lack of respect for the law, corruption (“Justice has a price, and everything can be bought,” including prosecuting attorneys and judges), bias (most of the people who are in Mexican prisons are impoverished or are “members of the most vulnerable social sectors”), and impunity and injustice, one aspect of which are “the daily violations of human rights perpetrated by

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public institutions and authorities (especially those in justice enforcement).” A news report on a serial murder case in Mexico City involving the killing of older women in 2005 mentions, for example, that “Until recently, many prosecutions relied solely on a confession, often extracted under torture. Preserving a crime scene has only recently become standard practice” (Malkin 2005: 3). Another Mexican serial murder mystery, which by 2005 had claimed the lives of more than 350 young women in the Ciudad Ju´arez-U.S. border area, led to the torture of suspects by the police to obtain confessions (Thompson 2005: 1). The police themselves have been suspected in participating in some of these murders, and human rights workers and Mexican federal authorities were called in to investigate some of the cases of false confessions and resulting convictions. Scholarly ﬁndings and news coverage such as those referred to above have resulted in the widespread belief among Mexicans that these are accurate characterizations of their justice system. Because the Mexican criminal justice system as a whole is considered to be “rife with corruption”, there is so much distrust of the police that “many Mexicans simply avoid reporting crimes altogether” (McKinley Jr. 2008). Consequently, in March, 2008 Mexico’s Senate approved a “historic overhaul” of the country’s criminal justice system, beginning with a transition to open, oral trials and the presumption that defendants are innocent (McKinley Jr. 2008). Given the state of the Mexican justice system, it is no wonder that a Mexican man such as Juan L´opez, who had attained a low level of formal education before immigrating to the U.S.A. and who was living here illegally, would be frightened and intimidated by the police and would expect the worst outcome in their treatment of him. Further arguments made by Lopez’s attorneys in their motion to suppress the confession as evidence include the point that while the defendant did not speak or understand English, he was interrogated by the principal detective in the case for thirty to forty minutes in English. Immediately following this ﬁrst interrogation he was interrogated for an additional forty-ﬁve minutes, this time in front of a video camera, although it is not clear to the attorney if the defendant was aware that the questioning was being videorecorded. If he was not told about the videotaping of the interrogation before it began, then, his attorney argues, “he was tricked into making statements on videotape, either by not being told of the camera or by not being advised of the potential consequences – coercion by trickery” (Motion to suppress confession). The defense attorney repeatedly refers to the threatening tone of the detective at the interrogation. She argues that the fact that L´opez did not understand English made the detective’s utterances threatening, especially since there was no interpreting of them. The motion says that throughout the videotaped interrogation, the detective’s tone was “aggressive, stern, accusing, coercive, and

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sometimes perceivably threatening” (Motion to suppress: 22). The detective is accused of being coercive when he shifted to a “gentle, sympathetic, apologetic tone, telling Defendant that he will feel better and get better legal results if he admits to all the accusations” (Motion to suppress: 23). The motion includes the interpreter’s verbal actions as being threatening as well. He is accused of making no sense, reducing “many words into few words”, and leaving the defendant to realize that he is not privy to all that is said, and he is not making himself understood. This frustration and helplessness contributes to the coercive atmosphere. Either with or without the intent to do so, the interrogators used Defendant’s language handicap to coerce him into confessing (Motion to suppress: 23).

The defense attorney considered L´opez to have admitted to the police accusations of sodomy only after being threatened with serious bodily injury, and after being “badgered, lied to, bullied, and worn down”, in addition to being threatened with a lengthy jail term (Motion to suppress: 23). Finally, the motion states that L´opez was subjected to all the traditional, inherently coercive tactics of interrogation: repetition and drilling, asking the same question over and over; lying to the defendant; repeated promises of help and/or leniency in return for a confession; leading the defendant, feeding him portions of the accusations, pressuring him to admit to one thing, then another, then accusing him of changing his story; reversal of position (e.g., Detective Baxter ﬁrst saying, “I’m not saying you’re lying,” and then accusing him with, “You’re telling me a lie”); rationalizing with the defendant, essentially attempting to convince him that the accusation is the truth; good cop/bad cop routine, as the police interpreter used a more rational tone than Ofﬁcer Baxter and was even designated “mediator,” controlling the direction and frequent redirection of the subject; suggesting the possibility of other charges or additional legal trouble.

The motion to dismiss refers to the defendant’s body language – rocking back and forth, clutching his head, his use of sharply ﬂuctuating intonation, and his use of large-scale gestures in an effort to make himself clear. The document correctly emphasizes that throughout the video, the defendant conveys both nonverbally and verbally that he does not understand. Evidence of this lack of comprehension are his repeated requests that the interrogating ofﬁcer’s questions and statements be interpreted for him. He repeatedly turns in the direction from which the viewer hears the interpreter’s voice, his face expressing confusion. The defense attorney describes the defendant’s demeanor during the interrogation in the following way: “His facial expressions demonstrate his struggle to understand. His tone expresses confusion, frustration, and fear. At several points, he sits silent, head bowed, apparently struggling to understand or to be understood . . . That he feels

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coerced and pressured is apparent.” She ends by pointing out that while through most of the interrogation his posture, tone and expressions conveyed “persistent denial”, by the end of the questioning they communicated “resignation and submission”. This is in fact an accurate depiction of L´opez’s kinesic behavior as seen in the videotape. The attorney ends the motion by concluding that the interrogation clearly was coercive, and that “it functioned to overcome Defendant’s will and impose the interrogator’s words onto Defendant.” The judge is asked not to admit the statements made by the defendant because they were obtained through coercion, and therefore should be considered not reliable. L´opez chose to accept a plea bargain rather than to risk a jury trial.Apparently the merits of his case were strong enough to have him released on probation after a brief period of imprisonment. The case demonstrates that giving monolingual English-speaking police ofﬁcers crash courses in Spanish is frought with peril: it carries with it the potential for a miscarriage of justice. It displays a lack of appreciation for the degree of bilingual proﬁciency needed to conduct a custodial interrogation. It also reﬂects a disregard for the need of a detained immigrant to understand the sequence of questions and statements which in their totality can constitute an accusation of a serious crime. Responding to such questions and assertions without fully comprehending their meaning can lead to something that the justice system will construe as a confession. Extract 1 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20

Ryan: Today is August 5, 2000. It is, uh, now 5 minutes ‘til 7 pm at night, which is 18:55 hours. We are the Lawrenceville City Police Department. My name is detective Carl Ryan. In this room with me is patrolman Jeffrey Baxter, uh, patrolman Baxter is a interpreter for the Lawrenceville City Police Department. Ah, we have a situation here where mister Juan L´opez is Hispanic and knows very little English, so therefore I’ve asked ofﬁcer Baxter to be a mediator and interpreter with me and Juan and, uh, over investigating is a complaint of a six years old girl and uh Juan committing sodomy, uh. Do you know Mary Jane Tyler? L´opez: Know Jane? Yeah, yeah. Ryan: You know her? L´opez: Yeah. Ryan: She lives on the same street as you and your girlfriend? She lives behind you on L´opez: En la casa my girlfriend, s´ı. ‘In the house my girlfriend, yes.’ Ryan: Okay, and one day a few days ago you took her in your house. Is that correct? L´opez: La girl en my house. ‘The girl in my house.’ Baxter: S´ı, Mary en su casa? ‘Yes, Mary in your house?’

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L´opez: S´ı. ‘Yes.’ Ryan: Okay, while you were there with her you had her suck your penis. L´opez: No s´e, no sucky mi penis. Me take a shower. Me coming back my room. La girl is in my room. Es, little. Mi pipi dijo que “you suck you pipi. You suck in your mouth.” Y le dije “no get out. No, h´agase! Get out! V´amonos! Get out, get out by my room con bambinos.” Two bambinos m´as. Two more. Look at TV. Le dije “no, get out you look at TV,” pero s´ı es sucky mi pipi porque right now dijo, “sucky you pipi right now.” You understand me? ‘I don’t know, not sucky my penis. Me take a shower. Me coming back my room. the girl is in my room. She is, little. My wee-wee, she said, “you suck you wee-wee. You suck in your mouth.” And I said to her, “no get out. No, move it! Get out! Let’s go away! Get out, get out by my room with children.” Two more children. Two more. Look at TV. I said to her, “no, get out you look at TV,” but yes, it’s sucky my wee-wee because right now she said, “sucky you wee-wee right now.” You understand me?’ Baxter: S´ı. ‘Yes.’ L´opez: Vino de volador. Se vino as´ı, a que a sucky mi pipi. Le dije, “no, move it you (unintelligible) room (unintelligible).” ‘She came ﬂying in. She came in like this, in order to sucky my wee-wee. I said to her, “no, move it you (unintelligible) room (unintelligible).’ Baxter: C´omo? ‘What?’ L´opez: Mis calzones mis pants era cuando la girl es coming. ‘My underpants, my pants, it was when the girl is coming.’ Ryan: But he allowed her to suck his pee pee? Baxter: Esa es la verdad? ‘Is that the truth?’ L´opez: Esa es la verdad. ‘That is the truth.’ Baxter: As´ı logra tocar su, su pine o es posible (unintelligible) ‘So she manages to touch your, your wee-wee or is it possible (unintelligible)’ L´opez: No, no, no tocar mi pine. Es, me agarr´o de aqu´ı con las dos hands y se acerc´o as´ı con la cabeza. ‘No, no, not to touch my peenay. It’s, she grabbed me from here with her two hands and she came close like this with her head.’ Baxter: S´ı. ‘Yes.’ L´opez: Es aqu´ı, no es (sucking gesture). En esa, es aqu´ı. (pointing to area around mouth) ‘It’s here, it’s not (sucking gesture). In that, it’s here.’ (pointing to area around mouth) Baxter: Aqu´ı? ‘Here?’ L´opez: Yeah.

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Baxter: Around her mouth. L´opez: Yeah. Es coming aqu´ı. ‘Yeah. She’s coming here.’ Baxter: So, su pine es around la boca de la bambino? ‘So, your peenay is around the girl’s mouth?’ L´opez: S´ı. ‘Yes.’ Ryan: Now, hold on. (long pause) Remember I told you that if you cooperated, and if you told me that whole truth that I would tell the court that you cooperated with me. Now, this little girl tells me that (slowly and distinctively) you had her suck your pee pee. L´opez: No. ‘No.’ Ryan: She says that you comed in her mouth. L´opez: No. ‘No.’ Ryan: Juan, Juan do you want me, ah look you got to tell me that whole truth. This little girl did not make this up. L´opez: S´ı. ‘Yes.’ Ryan: This little girl didn’t make this up. L´opez: Es, me no lie es la, esa es la verdad . . . ‘It’s, me no lie, it’s the, that is the truth . . . ’ Ryan: But you did put your pee pee in her mouth? L´opez: No, me no. Ella es coming, ella es coming. ‘No, not me. She is coming, she is coming.’ Ryan: As it was coming, you took it out? L´opez: No, d´ıgale, la bambino es coming conmigo. ‘No, tell him, the little girl is coming with me.’ Baxter: He states that, that the young, the girl came toward him. L´opez: Is coming conmigo. ‘Is coming with me.’ Ryan: Juan, she is six year old. L´opez: Yeah, six years old. Ryan: And you’re twenty-ﬁve years old or will be next month. L´opez: Yeah. Ryan: Twenty-ﬁve year old. L´opez: Twenty-ﬁve year old. Ryan: You are gonna try to tell me that a six years old girl came onto you? She came on to you and wanted to do that? She wanted to suck your pee pee? L´opez: No, what you say? Ryan: That’s what he’s tellin’ us. Baxter: La bambino, es posible para ella, que t´u chupe su pine. La bambino se dice “quiero chupe su pine.” ‘The little girl, is it possible for her, that you would suck your peenay? The little

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girl says to herself “I want suck your peenay.”’ L´opez: Yeah, la bambino telling me. La bambino dice, “quiero chupar tu pine.” Porque 113 mira as´ı con la toalla (unintelligible) “me quiero chupar tu pine” cuando 114 (unintelligible) la bambino ya as´ı here conmigo. 115 ‘Yeah, the little girl telling me. The little girl says, “I want to suck your peenay.” 116 Because look, like this with the towel (unintelligible) “I want to suck up your 117 peenay” when (unintelligible) the little girl now like this here with me.’ 118 Baxter: La bambina e ´ l dice, “quiero chupe su pine” en ingl´es o en espa˜nol? 119 ‘The little girl he says, “I want suck your peenay” in English or in Spanish?’ 120 L´ opez: No, en, en espa˜nol, no en, en ingl´es. 121 ‘No, in, in Spanish, no in, in English.’ 122 Baxter: He stated, 123 L´ opez: Me dice, “You suck your pipi, you suck your pipi,” is telling me. 124 ‘She says to me, “You suck your pipi, you suck your pipi,” is telling me.’ 125 Baxter: He states that the little girl say, “I wanna suck your pee pee.” 126 L´ opez: Yeah, is telling me. 127 Ryan: That’s not . . . 128 L´ opez: O sea que me (unintelligible) con la toalla cuando es coming en la room and es 129 open the door. Estaba en el cuarto cuando me cleaning up my face, my face. 130 ‘In other words I (unintelligible) with the towel when she is coming into the room 131 and opens the door. She was in the room when me cleaning up my face, my face.’ 132 Ryan: Tell him (?) out there. 133 Baxter: You said you, t´ u diga. Diga mi y mi compa˜nero la bambina chupe su pine uh, 134 durante la boca. 135 ‘You said you, you tell (imperative). Tell me and my colleague the little girl 136 sucks your peenay a, during your mouth.’ 137 L´ opez: (standing up to demonstrate) No, mira, as´ı estaba you limpi´andome la cabeza, mi 138 pine es aqu´ı la girl es aqu´ı, es, es put it aqu´ı. 139 ‘No, look, I was cleaning my head like this, mi peenay is here, the girl is here, it’s, 140 it’s put it here.’ 141 Ryan: She put it around her mouth? 142 L´ opez: No, me no put it around, la girl es coming, put it on your head. “Me chupe su 143 pine, su pipi.” Mira me era take a shower cleaning my face with the towel, y la 144 girl es open the door. Era la girl y mis dos bambinos. 145 ‘No, me no put it around, the girl is coming, put it on your head. “Me suck your 146 peenay, your wee-wee.” Look me was take a shower cleaning my face with the 147 towel, and the girl is open the door. It was the girl and my two children.’ 148 Baxter: Sus bambinos? 149 ‘Your children?’ 150 L´ opez: No, de my girlfriend. 151 ‘No, my girlfriend’s.’ 152 Baxter: Dos? 153 ‘Two?’ 154 L´ opez: Dos bambinos. 155 ‘Two children.’ 111

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Baxter: O s´ı. ‘Oh, yes.’ L´opez: Es, es play a mi house y es como in la girl es open the door y es coming, (unintelligible) suck your pipi y cuando me look, le dije, “No, move it, you get out aqu´ı.” ‘It’s, it’s play at my house and it’s like in the girl is open the door and is coming, (unintelligible) suck your wee-wee and when me look, I said to her, “No, move it, you get out here.”’ Baxter: En la alcoba? [In the bedroom?] L´opez: Eh? No, no c´omo en la alcoba? En el cuarto donde me sleep. ‘Huh? No, no, how in the bedroom? In the room where me sleep.’ Ryan: Sit down. This was Mary Jane? L´opez: Yes, Jane. Ryan: The little girl? L´opez: Yeah, the little girl. (long pause) Es, I’m not lie. [It’s, I’m not lie.] Ryan: I’m not saying you’re not lying. L´opez: I’m not lie. Ryan: You’re just, you just told enough to make yourself look real bad. A six years old girl no, don’t come over here and know anything about cum. She don’t know anything about something coming out her mouth. She wouldn’t know that. L´opez: I mean me no nothing on your mouth me no coming in your mouth, no. Ryan: I mean she wouldn’t know anything about that, Juan. Now listen, you just told me that she was with you while you were naked and she saw your penis. Now you trying to say that she was the one that wanted to suck your penis instead of you wanting her to suck it. You’re trying to make her look like she was the one that did it. That’s not gonna work! She’s six years old! That’s a little girl. L´opez: (Indicates “stop” with a hand signal) What did you say that something? Baxter: Dice que nothing de la bambino. ‘He says that nothing about the little girl.’ Ryan: I’m saying L´opez: A ver . . . (unintelligible) take it easy man. ‘All right . . . (unintelligible) take it easy man.’ Ryan: Okay, all I’m saying is you’re trying to make her L´opez: Trying. What is that? Baxter: Se˜nor dice, usted, habla con, con la bambina. La bambina no diga la verdad. Es usted dice que la bambino diga la no la verdad. ‘Sir says, you, speak to, to the little girl. The little girl don’t tell (imperative) the truth. It’s you say that the little girl tell (imperative) the not the truth.’ Ryan: Six years old. L´opez: La bambina is six year old. Pero a mi no te me (?) la bambina is coming. ‘The little girl is six year old. But to me she does not to you to me (unintelligible) the little girl is coming.’ Ryan: She don’t know anything about sex.

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L´opez: No, no sex. Is little, is girl little. Ryan: I know it, she doesn’t know anything about your pee pee. 203 Baxter: La bambina dice su cum en la bambina en, en ellas, en ellas boca. 204 ‘The little girl says your cum in the little girl in, in them, in them mouth.’ 205 L´ opez: En la boca, me coming in your boca? No! 206 ‘In her mouth, me coming in your mouth? No!’ 207 Baxter: La bambina dice. 208 ‘The little girl says.’ 209 Ryan: Now, how would she know that? How would she know anything about that? 210 How would she be aware of that? How would she know that even happens? How 211 does she know a man comes? How would she know that? 212 Baxter: La bambina comprende cum? 213 ‘The little girl understands cum?’ 214 L´ opez: No, yo . . . 215 ‘No, I . . . ’ 216 Baxter: La bambina, la bambina, la bambina dice su cum en, en ellas en boca. 217 ‘The little girl, the little girl, the little girl says your cum in, in them in mouth.’ 218 Ryan: How does she know that? 219 L´ opez: Pero a m´ı no nothing, no nothing con la bambina, no nothing, you know what I 220 say? La bambina no nothing, no nothing play, no sex, no es play con nobody. I 221 don’t know what’s a matter, something in my house. (pause) Pero me no do 222 nothing a la bambina me no lie, la bambina is coming has something aqu´ı, no put 223 it on my pipi inside, no nothing. Yo no s´e. La bambina is coming mucho (a 224 mujer?) aqu´ı. 225 ‘But to me not nothing, not nothing with the little girl, not nothing, you know 226 what I say? I don’t know what’s a matter, something in my house. (pause) But 227 me not do nothing to the little girl me no lie, the little girl is coming has 228 something here, no put it on my pipi inside, no nothing. I don’t know. The little 229 girl is coming a lot (to woman?) here.’ 230 Baxter: La bambina bese su pine? 231 ‘The little girl kisses your peenay?’ 232 L´ opez: No, no bese. S´ı es “get out and move it right now.” Pero es put it on mi pipi on 233 your mouth here. 234 ‘No, she doesn’t kiss. It’s really “get out and move it right now.” But it’s put it 235 on my wee-wee on your mouth here.’ 236 Ryan: She put it on her mouth. 237 L´ opez: Here. Es coming, put it on ella. Aqu´ı. Yes, you say “Pick it up, get out of my 238 room. 239 ‘Here. She’s coming, put it on her. Here. Yes, you say “Pick it up, get out of my 240 room.’ 241 Ryan: Juan. 242 L´ opez: Porque, es looking for the ginea pines in my house y every day is looking for the 243 ginea pines in my house. You understand ginea pines? Something little as´ı, I 244 don’t know what you name, but is something in my house. Is very small. And is 245 looking every day in my house. 201

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246 247 248 249

Baxter:

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L´opez:

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Baxter: L´opez:

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Baxter:

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L´opez: Baxter:

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L´opez:

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Baxter: L´opez: Baxter:

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L´opez:

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Baxter:

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L´opez:

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Baxter: L´opez:

283 284 285 286 287 288 289 290

Baxter: L´opez: Baxter: L´opez:

‘Because, is looking for the ginea pines in my house. You understand ginea pines? Something little like this, I don’t know what you name, but is something in my house. Is very small. And is looking every day in my house.’ La bambina mira la, el pine en su alcoba cada d´ıa? ‘The little girl looks at the, the, pine in your bedroom each day?’ No, no es pine. “Guinea pines.” I don’t know is something, como rabbit, you no understand? Como rabbit. Rabbit? The orejas. (he demonstrates rabbit ears) ‘No, it’s not peenay. “Guinea pines.” I don’t know is something, like rabbit, you no understand? Like rabbit. Rabbit? The ears.’ Ribbons. Yeah. En my house there is four, there is four something, I don’t know, little as´ı in my house, little as´ı. ‘Yeah. In my house there is four, there is four something, I don’t know, little like this in my house, little like this.’ S´ı. Pero la bambina mera peenays en su casa cada d´ıa? ‘Yes, but the little girl looks at peenays in your house each day?’ Yeah, every day, every day. Mera sus pinas? ‘She looks at your pinas?’ No mi pine. Mi pipi no! I don’t know what you name, I don’t know what you name. Guinea pine, you understand guinea pines? Guinea pines, no mi pines, guinea pines guinea. ‘Not my peenay. Not my wee-wee! I don’t know what you name, I don’t know what you name. Guinea pine, you understand guinea pines? Guinea pines, not my peenays, guinea pines guinea.’ Guinea pines? Yeah. C´omo se dice en ingl´es, o espa˜nol? ‘How do say it in English or in Spanish?’ Pos en espa˜nol se llaman cuyos. ‘Well in Spanish they’re called guinea pigs.’ Cuyos? “‘Cuyos”?’ Cuyos! ‘Guinea pigs.’ Cuyos? Cuyos son something little as´ı como rabbit as´ı como ratas, ratas, you no understand ratas? ‘Guinea pigs are something little, like this, like rabbit, like rats, rats, you don’t understand rats?’ No. Ratas, ratas what you say in English? Rat? Raps? Rats? Andale, haz de cuanta little as´ı rats. Es in my house, four, y every day es looking in my house. Everybody, bambinos es looking in my house.

A coercive interrogation 291 292 293

Baxter:

294 295

L´opez:

296 297 298 299 300

Baxter: L´opez:

301 302 303 304 305 306

Baxter:

307 308

L´opez:

309 310 311 312 313 314 315 316

Baxter: L´opez: 319 Baxter: 320 L´ opez: 321 Baxter: 322 L´ opez: 317

318

323 324 325 326 327

Baxter:

328 329 330

L´opez: Baxter:

331 332 333 334 335

L´opez:

169

‘Right on, that’s the idea, little like this, rats. Is in my house, four, and every day is looking in my house. Everybody, children is looking in my house.’ So, bambinos miran a su casa cada d´ıa. ‘So, children look at your house each day?’ Yeah! Cada d´ıa es play, es play con something en my house is very (unintelligible) something. ‘Yeah! Each day is play, is play with something in my house is very (unintelligible) something.’ He says the kids look in his house every day. You look in la house. Yes, en la side, en la side, one more door, es como ratas, rat. I don’t know what you (unintelligible) se llaman cuyos, cuyos pues en espa˜nol, cuyos. ‘You look in the house. Yes, on the side, on the side, one more door, it’s like rats, rat. I don’t know what you (unintelligible) they’re called guinea pigs, well guinea pigs in Spanish, guinea pigs.’ Cuyos, cuyos, ah cuyos mirar peenays? “‘Cuyos”, “cuyos”, um, “cuyos” to look at peenays?’ No. (rubs his eyes, bows his head; looks completely exasperated and hopeless) C´omo chingados se llama? Los bambinos, every day is a la house, and outside, you understand? En la door, puerta, and outside somebody los guinea pines, los rats esos mantados rats, son little as´ı, as´ı de este as´ı, as´ı to my hair, is to my hair, I don’t know what you name. ‘No. What the hell are they called? The children, every day is at the house, and outside, you understand? At the door, door, and outside somebody the guinea pines, the rats those beaten rats, they’re little like this, like this of this, like this to my hair, is to my hair, I don’t know what you name.’ Ferrets? Hair. Hair? Yeah. Hair. Yeah. Es in my house es four in my house y bambinos is looking for esos every day. “Give me see, give me” (he demonstrates a cuddling, cradling motion). Every day, yes play con esos. ‘Yeah. Is in my house, is four in my house and children is looking for those every day. “Give me see, give me.” Every day, yes play with those.’ S´ı, he say that the kids come and play with something. ‘Yes, he say that the kids come and play with something.’ Yeah. Whatever it is, I’m not sure what he’s saying as far as I never heard of such, I don’t. Cuyos, es, es not un perro no, no un gato. ‘Whatever it is, I’m not sure what he’s saying as far as I never heard of such, I don’t. “Cuyos”, is, is not, not a dog no, not a cat?’ No un perro, no un gato. Son little, little, es as´ı, as´ı! De este tama˜no. ‘Not a dog, not a cat. They’re little, little, it’s like this, like this! This size.’

170 336 337 338 339 340 341 342 343 344 345 346 347 348 349 350 351 352 353 354 355

Pidginization and asymmetrical communicative accommodation

Baxter: Cuyos comar, cuyos comar? Comer? “‘Cuyos” to eat, “cuyos” to eat? To eat?’ L´opez: Cuyos ah s´ı, comer los cuyos comer. ‘Guinea pigs, ah yes, to eat the guinea pigs, to eat.’ Baxter: Comer? ‘To eat?’ L´opez: Yeah. Baxter: Some kind of pet. L´opez: Yeah. Baxter: Rats, guinea pigs? L´opez: Ah, guinea pig! Ryan: So, you’re saying the reason the kids were in there is because of these guinea pigs? L´opez: Yeah, we got four guinea pigs in my house. Y ellos dicen “give me one for my house, give me one for my house,” y luego dicen . . . ‘Yeah, we got four guinea pigs in my house. And they say, “give me one for my house, give me one for my house,” and then they say . . . ’ Ryan: Hold on. The day I am asking about, the day I’m talking about, is all of the kids were down, jumping on the trampoline, and he and Mary Jane went to the house by their self.

Chapter 7 Confessing in the absence of recording: linguistic and extralinguistic evidence of coercion in a police interrogation Chapters 3 through 6 have dealt with cases in which police interrogations are recorded, either through audio or video equipment. Two of the confessions were obtained through the assistance of police ofﬁcers who had a rudimentary proﬁciency in the mother tongue of the suspect, and one was elicited by a bilingual police ofﬁcer whose ethnolinguistic background was similar to that of the suspect, both being Caribbean origin Spanish-speakers. The analytical focus of this chapter is the interrogation of a Mexican young man by a Puerto Rican police ofﬁcer, a speech event that was neither audio nor video-recorded. While both were native speakers of Spanish, the geographic variety of Spanish that they spoke differs greatly, both in phonology and – at the more informal registers – lexicon, thus creating the opportunity for communication difﬁculties between interlocutors. Like Carlos Alvarez and Juan L´opez, this suspect was a highly limited English proﬁcient speaker. One aspect of his interrogation that sets it apart from the others analyzed in this book is that whereas none of the other suspects accused the police of brutality, the suspect in this case does do so. Perhaps it is not entirely coincidental that in the one case where the suspect has accused his interrogator of physical mistreatment, no recording apparatus was turned on to memorialize the speech event. This chapter will begin with a review of the events that led to the arrest of the suspect, and will be followed by a presentation of arguments – both linguistic and extralinguistic – supporting the thesis that the confession was forced from him and should therefore be considered to be unreliable and probably false. I will argue that a combination of physical and psychological abuse by the interrogating police ofﬁcer served to intimidate the suspect, leading him to agree to the police detective’s version of the events in question. I will argue, in addition, that the sociolinguistic conﬁguration of interactants, namely, a bilingual interrogator serving simultaneously as interpreter and sight translator in the presence of a suspect having virtually no proﬁciency in English and a district attorney who had no proﬁciency at all in Spanish, made for ideal conditions for the perpetration of linguistic police misconduct. Furthermore, I will show that additional linguistic factors, such as a faulty translation of the Miranda rights and the likelihood that there were comprehension difﬁculties on the part of the

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suspect, contributed to the coerced confession. In the absence of a recording of the interrogation, I have had to rely heavily on the confession statements of the suspect and two alleged confederates. These signed statements will be shown to reveal the sharp contrast between the suspect’s confession and those of his alleged accomplices. Particularly revealing from a linguistic standpoint, it will be shown, is the role of reported speech, both direct reported speech (i.e., quotation) and indirect reported speech. Finally, the role of stance-taking in interaction will be examined in the testimony of the police detective at pre-trial and trial proceedings, demonstrating the “Mr. Nice Guy” persona that the detective wanted to project to judge and jury, and the rejection of that persona by the trial judge. Extralinguistic evidence in the form of numerous citizen complaints of misconduct leveled against this police ofﬁcer and 600 others in the city where this case was tried, triangulate with the linguistic evidence and the suspect’s accusations, leading me to conclude that the suspect’s confession was forced from him.

1. The absent tapes: the need for recording interrogations Interrogating suspects under police custody in the absence of audio or video recording has been singled out as one of the key factors leading to false confessions. For this reason, sociolegal scholars overwhelmingly take the position that custodial questioning needs to be recorded to prevent the police from using coercive tactics and misstating what the suspect has said (Donovan and Rhodes 2000; Drizin and Colgan 2001; Johnson 1997; Kamisar 1977; Kane 1993; Ofshe and Leo 1997; Sullivan 2004; Weisberg 1961; Westling 2001; White 1997). The lack of recording makes police misconduct more likely. For ofﬁcers who habitually use coercive techniques of interrogation, unrecorded questioning is an ideal vehicle for obtaining their goal: a confession to the crime. As one former prosecutor and co-chair of the Illinois Commission on Capital Punishment puts it in his empirical study of “Police Experiences with Recording Custodial Interrogations” (Sullivan 2004: 1): The police are investigating a homicide. A person is arrested, taken to the station and questioned, without a lawyer. He is indicted for murder. He retains a lawyer. The prosecutor notiﬁes the lawyer that the police gave the defendant the Miranda warnings, that he agreed to talk to the police without counsel, and then confessed to the murder. After conferring with the defendant, his lawyer ﬁles a motion to suppress the confession on multiple grounds: (1) the police did not give Miranda warnings; (2) the defendant said he wanted a lawyer but the police ignored the request and continued to question him; (3) the police used coercive tactics; and

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(4) the defendant did not confess – the police are misstating what he said. This is not a fanciful hypothetical. With variations, this situation is presented time and again in courts throughout the United States. Judges repeatedly hear and evaluate diametrically opposed versions of what occurred behind closed doors in police stations from police ofﬁcers and defendants.

Awareness of the need for recording custodial police interrogations is beginning to be felt at the national level in the United States, albeit very gradually. Whereas the call to record interrogations electronically began in 1932 and continued throughout the 1930’s (Drizin and Reich 2004: 61), to date, only eight states plus Washington, D.C. have passed regulations requiring recording in such contexts (Drizin 2007). Five states and the District of Columbia have accomplished this through legislation (speciﬁcally, Illinois, Maine, New Mexico, North Carolina, and Wisconsin [for adults]). Four states have done so through their Supreme Courts (Minnesota, Alaska, New Jersey, and Wisconsin [for juveniles]). The U.S.A. is woefully behind other countries in this respect. In the United Kingdom (England, Wales, Scotland, and Northern Ireland), for example, as a result of the Police and Criminal Evidence (PACE) Act of 1984, custodial interviews of persons suspected of serious felonies are recorded. Northern Ireland has, in addition, its own 1999 Order. Ireland has a similar law, the Criminal Justice Act, as well as Electronic Recording of Interviews regulations put into effect in 1997. Similar regulations exist in Canada, Australia, and New Zealand. While efforts to establish regulations requiring recording at custodial police interrogations have had only a modicum of success at the state level in the U.S.A., hundreds of law enforcement agencies around the country do in fact use recording equipment for such purposes (Sklansky 2002). Sullivan’s (2004) empirical study has surveyed law enforcement personnel in 238 agencies – police departments and sheriffs ofﬁces alike – across 38 states that routinely record interrogations. While these agencies do not represent the universe of such departments, as Sullivan’s questionnaires were sent only to those agencies that he had reason to believe were recording interrogations, and the study did not include departments that conduct unrecorded interviews followed by recorded confessions, the ﬁndings of the Sullivan study are striking and warrant reporting here. Among Sullivan’s most important ﬁndings is that most of these agencies “have no written regulations or guidelines that govern when and how recordings are to be conducted” (Sullivan 2004: 4). Nevertheless, they do exhibit tendencies in this regard: most of them record what they consider to be “major” or “serious” felony cases, such as homicide, sexual assault, armed robbery, and other crimes against persons and involving weapons, as well as cases of driving under the inﬂuence of alcohol, child abuse and domestic violence (Sullivan 2004: 5). Another noteworthy ﬁnding is that of the 238 agencies that participated in the

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survey, only 53 tell suspects that the interrogation is being recorded, and only 55 keep their recording equipment in view of the suspect. Thus, in most of the police departments and sheriffs ofﬁces surveyed the recording is being carried out covertly. This practice does not generally violate state laws, since most such laws allow the police to record interrogations surreptitiously (Sullivan 2004: 6). Police reaction to recording custodial interrogations among departments that routinely engage in this practice is highly enthusiastic (Buckley and Jayne 2005; Geller 1992; Sullivan 2004). Many consider it to be a valuable new law enforcement tool. The most common reasons given for supporting a policy of recording is that it (1) minimizes the problem of suspects changing their stories once they are on the witness stand, (2) resolves disputes between the police and suspects over confessions, (3) allows the words of suspects/defendants to be quoted without being questioned by defense attorneys, (4) allows the judge and jury to evaluate the demeanor of defendants as they appear on arrest, before their presentation can be improved for the beneﬁt of the court, and (5) reduces the number of frivolous lawsuits (Sullivan 2004: 6–9). A more recent empirical study of police practices and beliefs regarding interviews and interrogations ﬁnds that of 631 investigators from 16 police departments in ﬁve American states and customs ofﬁcials from two Canadian provinces, 81% felt that interrogations should be recorded, from start to ﬁnish (Kassin et al. 2007: 393). In practice, however, only 16% of these police ofﬁcers reported that the agencies they worked for required that full interrogations be recorded, and that an approximate 37.9% of confessions obtained were electronically recorded. The study “participants estimated that 56.35% of the confessions they have taken were in written form . . . with 33.96% of statements written for the suspect to sign and 23.67% personally handwritten by the suspect” (Kassin et al. 2007: 393). Despite the professed enthusiasm for recording interrogations, many police ofﬁcers are dubious about the value of recording, fearing that its use may deter suspects from opening up and revealing information that could implicate them in the crimes about which they are being questioned, or worse, that they might refuse to be interviewed altogether. Some police ofﬁcers have admitted fearing that “. . . judges and juries may be offended if they heard or saw their interrogation techniques (i.e., shouting at suspects, using foul language and street talk, making offers of leniency or physical threats, expressing sympathy for suspects or blaming victims, or falsely asserting that incriminating evidence has been obtained)” (Sullivan 2004: 22). Their concern, furthermore, is that their use of manipulative or coercive tactics could give defense attorneys the evidence they need to argue that their client’s confession was not voluntary (Kassin et al. 2007). It is for this reason that Innocence Project and capital punishment

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defense attorneys spearhead the movement for the universal recording of custodial police interrogations: for them, electronically recorded interrogations give “factﬁnders, prosecutors and experts the ability to determine for themselves the reliability of a confession” (Drizin and Reich 2004: 61). As Drizin and Reich (2004: 633) put it, in their review of the history of the movement in the U.S.A. to record interrogations: The earliest advocates for recording interrogations saw secrecy as the context in which third-degree tactics were allowed to ﬂourish. Because third-degree tactics increased the chances of false confessions, requiring that interrogations be recorded was seen as a safeguard against false confessions.

The focus of this chapter is a young man whose interrogation was not recorded and who is presently incarcerated, convicted of murder, despite the lack of any physical evidence tying him to the crime beyond the testimony of two alleged accomplices. The section below presents the details of the case.

2. Background of the case The case involves the brutal murder of a Hispanic couple and the kidnapping of their two children, a two-month old infant and her three-year old brother, in the Latino neighborhood of a large U.S. city. The story begins with Teresa Torres, a twenty-two year old Mexican woman who for ﬁve years had been trying, unsuccessfully, to have a baby with her husband, Carmelo. In her desperation to have a baby, she feigned a pregnancy, and through signiﬁcant weight gain, succeeded in making her husband and other relatives believe that she was pregnant. She reported to him that she was making visits to an obstetrician, and made plans for her impending delivery at a nearby hospital. What she was doing apparently was plotting to kidnap the infant of another Latina woman, someone she had seen leaving a clinic with her baby. Teresa Torres went so far as to follow the mother and baby home, in order to ﬁnd out where they lived. Torres was living in a house divided into apartments. On her ﬂoor lived Ernesto Rivera, an undocumented immigrant who was from the same small town in Mexico as she and her husband. Living and working among other Mexicans, Rivera did not speak, read or write English. He had been living in the U.S.A. for only two years at the time of the double murder and kidnapping. Besides Rivera and the Torres, there were other relatives of the Torres’s living in the house, as well as a tenant by the name of Jaime Cordero. According to Teresa Torres, as she reports in her signed statement to the police, in what was supposedly her tenth month of pregnancy she told her husband that her labor

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had begun, and asked him to drop her off at the hospital, instructing him not to stay with her but to come back only after the baby was born. She reports in her police statement that what she did in reality was to go to the home of Dolores and Rafael Menendez, driven in a car by Ernesto Rivera and accompanied by Jaime Cordero, her two housemates. What actually happened in the Menendez home is unclear. The facts that are known include the kidnapping of the infant and her three-year old brother, and the stabbing murder of their parents. Dolores Menendez was found in the bedroom, curled up in a fetal position, covered with a blanket, with twenty-six knife wounds to the neck, back and buttocks. Her husband’s body was found near the front door of the apartment. He had been stabbed forty-two times, most of the wounds found in the head, neck, chest and abdomen, and three on the hands, indicating that he had tried to defend himself against attacks from a sharp weapon. There was a great deal of forensic evidence, including blood on the clothing of the victims and blood on the clothing of the older Menendez child. There was also blood on Teresa Torres’s shoes, blood that matched that of Dolores Menendez. There was no blood found on any of the clothing of either Ernesto Rivera or Jaime Cordero, the two other co-defendants in the case. There was DNA evidence in the blood found on the victims’ bodies that did not match the blood of any of the three co-defendants, indicating the presence of another person at the crime scene. In her ﬁrst interrogation by the police, Teresa Torres told the detectives that Jaime Cordero had gone into the apartment with her. She did not implicate Ernesto Rivera in any way. She said that they had heard Dolores Menendez and her baby in a bedroom, that Cordero walked into the room, that she heard some shouting, saw Cordero come out holding a man by the neck and stabbing him, that Cordero went back into the bedroom, “grabbed the woman by the hair, threw her to the ﬂoor and stabbed her numerous times” (Petition for Post-Conviction Relief: 10). Meanwhile, on being questioned by the police – by the same detective who had interrogated Teresa Torres – Jaime Cordero allegedly introduced statements referring to the involvement of Ernesto Rivera in the murders. Speciﬁcally, Cordero’s signed statement says that whereas he and Torres stabbed Dolores Menendez, Rivera had been present with them and had stabbed Dolores’ husband. When Teresa was told of Cordero’s implication of Rivera, she supported this revised version of the story. What is known from police questioning of persons connected to the codefendants is that Teresa returned to her home with what she claimed was her newborn baby girl and a little boy, who – she told her husband and other family members – was the son of a woman who had come to the hospital to give birth,

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and who had asked her to watch him for her for a few days until she recovered from the delivery. Some of the women in the family wondered about the size of the newborn, who looked well over a month in age. Teresa explained the anomaly by saying it was because she had been already in her tenth month of pregnancy when the baby was born. Within a day of the murders, pictures of the kidnapped boy appeared on local TV news programs, and when Carmelo Torres recognized the child, he immediately wanted to call the police. Teresa tried to dissuade him of this, arguing with him and asking him to leave the child in a street alley instead. He refused to accede to her, and asked Jaime Cordero and Ernesto Rivera to accompany him to the police station with the child, which Rivera willingly agreed to, but which Cordero only reluctantly went along with. If Cordero and Rivera had really murdered the child’s parents, it would have been a highly risky step for them to take, putting themselves under the scrutiny of the police. In fact, all three men immediately became suspects in the murder/abduction case. However, within a day of detention, Carmelo Torres was released and was no longer considered a suspect. From the very ﬁrst interrogation until his signed confession, and then subsequent to that confession, Ernesto Rivera insisted that he had no involvement in these crimes.The question, then, is why did Rivera confess to murder and kidnapping, both orally and in writing? Beyond that, were these confessions reliable? Legal experts who have taken on Rivera’s appeals case assert that Rivera’s confession was coerced from him, and that the confession, in the absence of forensic evidence linking him in any way to the crime, was the single most instrumental factor that led to his conviction. He was sentenced to death for the murders of Dolores and Rafael Menendez, and to concurrent terms of thirty years in prison for each count of aggravated kidnapping and for one count of home invasion. Subsequently his sentence was commuted to life in prison without the possibility of parole. While there are no audio or video tapes of the interrogations that produced the confession, indirect evidence exists indicating that coercion had been involved. Coercion came in the form of (1) physical and psychological abuse by the interrogating police detective (Rivera characterized it as “torture”), and (2) factors related to the sociolinguistic situation in which the suspect was placed.

3. Unreliability of the confession It is the thesis of this chapter that the confession elicited by Detective Jimenez and an Assistant State Attorney is at a minimum unreliable and most likely false.

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In the absence of audio or video recording of the interrogations, the following factors may have played a role in making the confession suspect. 3.1. Physical and psychological abuse: intimidation and excessive force Ernesto Rivera was interrogated by a bilingual Latino police detective over a period of forty hours. During most of those forty hours, according to Rivera’s testimony at his trial, he was handcuffed to a hook nailed to the wall of a small, windowless room. During the forty hours he was allowed only once to use the bathroom. For the remainder of the time he was forced to urinate into a cup whenever he needed to relieve himself. At the same time, he reports, he was subjected to being beaten on the face and on the left side of the head by Detective Jimenez. The beating was so severe that he lost most of his hearing in the left ear. According to Rivera’s testimony, Detective Jimenez began the interrogation by telling Rivera that he had to tell the truth or else things would go badly for him – thus, from the outset, Rivera was being threatened. Rivera answered that he had already told another police ofﬁcer, at his ﬁrst interview, everything he knew. At this, Jimenez reportedly called Rivera a liar and struck him several times on the left side of the face (Summary of [defendant’s] Interrogation and Confession: 3). Jimenez could reach only the left side of Rivera’s face because, because according to Rivera, he was handcuffed to the wall. Since Detective Jimenez was alone with Rivera for most of the interrogation, there is no third party who can deny or corroborate the use of excessive force. There is, however, another form of evidence to conﬁrm Rivera’s claim, and that is Detective Jimenez’s twenty-year history of complaints ﬁled against him for similar brutal behavior towards other detainees and witnesses. Rivera’s attorneys have the allegations of twenty-three ‘complainants’ who, unbeknownst to one another, have independently reported being subjected to physical abuse by Detective Jimenez during their interrogations by him, most of the abuse described being identical to the pattern alleged by Ernest Rivera (blows to the head, chaining to the wall, prohibition on the use of bathroom facilities, forced sleeplessness). Interestingly, twenty-one of the twenty-three persons who have made the allegations are Latinos. Unfortunately for Ernesto Rivera, Jimenez’s history of physical abuse was not permitted as evidence in Rivera’s trial. If it had been, his appeals lawyers say, he might have been acquitted.

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3.2. The sociolinguistic situation As a relatively balanced Spanish/English bilingual, Detective Jimenez conducted his interrogation of Rivera in Spanish, without the presence of a designated interpreter. In fact, for most of the time, Jimenez was alone with the detainee. Rivera reports to his attorneys that after so many hours of “torture”, no longer being able to withstand any more of the abuse, he confessed orally to the crimes of murder and kidnapping. When it was time to sign a written confession, Detective Jimenez brought in an Assistant State’s District Attorney, Ann Thompson, to interview Rivera and to draw up the written confession. Thompson understood no Spanish at all. It was at this point that Detective Jimenez took on the role of interpreter, for both the attorney and the detainee. According to Rivera, he did not narrate his statement to Ann Thompson. Rather, it was Detective Jimenez who did the narrating, addressing himself to Rivera, who then would agree that he had done the things that the detective was attributing to him. When the district attorney ﬁnished drafting the English language confession statement, Rivera signed it, because Jimenez told him to do so. Rivera says that he was unable to read the document, because he could not read English. The procedure for obtaining the confession, as described above, was considered by the appeals lawyers to be one of the highly problematic aspects of Rivera’s treatment by the police. In short, Rivera was told to sign a document, the contents of which he could not understand. Since Thompson understood no Spanish, she had no way of knowing to what degree the English language written confession was consistent with Detective Jimenez’s rendition of Rivera’s account. We have no way of determining if what Jimenez rendered orally in Spanish was a sight translation, or sentence-by-sentence paraphrases of the statements, or merely a summary providing a gist of the document as a whole, or even if it substantially altered the meaning of the written text. In short, we do not know for certain what Rivera confessed to, if he confessed to anything at all. Because Rivera could not speak or understand English when he signed the English-language statement, his appeals lawyers consider his statement to be inauthentic. In their words, “It was grossly unfair to have [the defendant] sign a statement that he could not understand. While the statement purported to be that of Ernesto Rivera, it was at best Detective Jimenez’s summary of the conversation between he and Ernesto Rivera” (Petition for Postconviction Relief: 35).

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3.3. Defective translation of the Miranda rights If the Miranda warnings were really given to Ernesto Rivera – and there is reason to doubt that they were given to him at any of his interrogations – they were certainly communicated to him in defective form. At a pre-trial hearing, the detective was asked by Rivera’s defense attorney how he had administered the Miranda warnings to the defendant. The ofﬁcer explained that he kept a card in his pocket with the warnings printed on it, in English, and that for Spanishspeaking suspects, he would interpret the warnings in Spanish on the spot. In fact, Ofﬁcer Jimenez stated that he needed no recourse to the card for his interpretation, as he knew the warnings from memory. It will be recalled from chapter 3, that Cotterill’s (2000) study of the British caution demonstrates that there is great variability in the way that police ofﬁcers paraphrase these Miranda-like warnings, and that in the process, the police can make them less comprehensible than they are on the printed cards. Furthermore, as has been noted in the case of Carlos Alvarez, Shuy (2001: 53) has shown that even when the police read directly from the card, the ability of some police ofﬁcers to read can be quite poor, which can have an adverse effect on the comprehension of the warnings. In the case of the Rivera interrogation and the resulting confession statement, the Spanish translation of the Miranda rights that appears on the statement that Ernesto Rivera signed is defective in several serious ways. (See translation below.) First of all, the translation of “Anything that you have to say” is rendered inaccurately as “Cualquier cosa que usted tenga que decir.” While ‘have to say’ is ambiguous in English, in that it can mean either ‘being obligated to say’ or ‘being in possession of something to say’, the Spanish phrase ‘tenga que decir’ means only obligation to say. The correct rendition of the English phrase would be “diga” or possibly “tenga para decir.” Tiene usted el derecho de permanecer callado. Cualquier cosa que usted tenga que decir se podra usar en contra la sala de justicia. Tiene usted el derecho de hablar con un abogado hoy actualmente, y tener presente con usted en la interrogacion. Si no tiene usted fondos para obtener el servicio de un abogado, se le obtendra uno para que lo represente antes que les hagan preguntas. 1. Entiende usted todos los derechos que le he explicado? Si ER 2. Ahora, teniendo en consideracion estas derechos, desea usted hablar con nosotros? Si ER

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There are two other errors in the Spanish translation of that sentence. The sentence now reads, “Anything you have to [i.e., are obligated to] say can be used against the court”, which is a gross distortion of the English. Missing from the Spanish is the pronoun su (se podr´a usar en su contra), so that it fails to convey, “can be used against you.” Missing, too, is the pronoun en (‘in’), preceding sala de justicia. The absence of the pronoun contributes to the distorted Spanish phrase meaning, “used against the court.” On analyzing the English version of the Miranda warnings that Detective Jimenez uses – which he keeps on a printed card on his person and which he read aloud to the court during the Motion-to-Suppress hearing (transcript, page 690) – we ﬁnd additional discrepancies between the ofﬁcial English version and the Spanish translation that is printed on the statement signed by Rivera. First of all, the rights printed on the card are listed in question format, each one prefaced by the phrase, “You understand . . . ” Since these are questions, the police ofﬁcer presumably should pause after reading each right, to wait for a response from the detainee. The Spanish translation on the Statement, however, consists of a series of statements. These statements are listed together in a block, followed by two questions, alongside of which there is a blank space for the response of the detainee. The ﬁrst question asks in Spanish, “Do you understand the rights that I have explained to you?” [There is a grammatical error in the form of the auxiliary verb, ha, which is handwritten over, correctly reading he, the difference being third-person versus ﬁrst-person auxiliary verb in the present perfect tense.]39 Reading the rights as a block could work well when one is asked to sign a written document, such as the Statement. However, in oral mode, it is far easier to grasp the meaning of the rights if they are read one by one, and if the detainee is asked to respond to each one separately, which is the intent of the English version printed card carried by Detective Jimenez. There is no way of knowing how the detective read the Spanish language Miranda rights to Rivera when he began the interrogation, whether in a block, as they appear on the top of the statement, or one by one in question format. And if the detective improvised (i.e., paraphrased) the Miranda warnings – something that is quite possible, given the ﬁndings of one scholar who has noted this trend (Russell 2000) – then we have no direct knowledge of the ways in which Jimenez’s Spanish rendition diverged from the ofﬁcial English version. The printed Miranda rights state that the individual has “the right to consult with an attorney.” The translation on the Statement signed by Rivera uses the verb hablar (‘talk’) rather than consultar, the nearest equivalent in Spanish. The semantic information carried by consultar includes asking the opinion of and/or soliciting help from. The semantically more general word hablar conveys neither.

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The printed English card used by Jimenez reads: “You understand you have the right to consult with an attorney and have him present before questioning and during questioning?” The Spanish translation adds the words hoy actualmente (‘today, right now’) after the phrase “the right to talk to an attorney.”The presence of this Spanish phrase conceivably could be construed by the detainee as meaning that he has that right only at that moment, on that day, and not on subsequent occasions, at other interrogations. It is puzzling as to why those words have been introduced into the translation. Unfortunately for the defendant, they serve to convey the impression that this will be his only chance to obtain the services of a lawyer. The printed English version mentions the right to have an attorney “before questioning and during questioning.” The Spanish translation refers only to the present (tener presente con usted en la interrogaci´on), and crucially omits mention of the detainee’s right to have a lawyer present before the questioning begins. There is a grammatical error in this portion of the sentence: the verb tener should be followed immediately by the direct object pronoun lo, meaning ‘him,’ but the pronoun is missing, making the phrase difﬁcult to understand at ﬁrst. There is a grammatical error in the second question of the Spanish translation: it reads “estas derechos”, revealing a lack of gender concord between demonstrative pronoun and noun. It should read “estos derechos.” Signiﬁcantly, the second question, which ends in, “desea usted hablar con nosotros?” (Do you want to talk to us?) refers to more than one interrogator. However, we know that Rivera was interrogated by Detective Jimenez twice without another ofﬁcial of either the police department or the district attorney’s ofﬁce being present. It was only at the third interrogation that A.S.A. Ann Thompson was called in, for the purpose of taking down Rivera’s statement. In short, the expectation is that there should be two ofﬁcials present during interrogations, yet there was only one. So, the Spanish translation of the Miranda rights is inconsistent with the speech situation as it actually occurred on the ﬁrst two occasions of Rivera’s questioning. More importantly, the fact that Jimenez was alone with Rivera on two occasions created the conditions for the possibility of physical abuse. According to Rivera’s testimony, Jimenez not only struck him across the side of his face numerous times, but he also punched him in the stomach. Throughout the forty hours in which he was held in police custody, Rivera testiﬁed, he was handcuffed to a ring attached to the wall of a small, windowless detention room. This treatment, combined with the prohibition on using bathroom facilities and severe limitations on food and drink (Rivera reports that he had been give one sandwich and a Coca Cola during the forty-hour detention), represent a violation of his Miranda rights, in that they symbolize the type of coercion that the Miranda rights were intended to prevent.

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3.4. The likelihood of comprehension difﬁculties A further factor that diminishes the reliability of the confession is the likelihood that Rivera had problems comprehending the interrogating detective. It is highly likely that Rivera had some difﬁculty in understanding Detective Jimenez’s variety of Spanish. This is because Jimenez speaks Puerto Rican Spanish, a Caribbean type of Spanish dialect marked by various phonetic features that produce comprehension difﬁculties in speakers whose variety of Spanish lacks these features. The characteristics of Puerto Rican Spanish that stand out as being distinct from those that typify the variety of Spanish that Rivera speaks are as follows, and I draw on Lipski (2002b: 354–357, 299–300) for the characterization of Puerto Rican and ‘colonial’ Mexican Spanish (i.e., the region of Mexico known as the ‘colonial region’, which includes Michoac´an, the state in which Rivera had lived for most of his life before coming to the U.S.A.). Colonial Spanish shares the features of Mexico City Spanish, where Rivera spent several years in his early 20’s. Linguistic characterizations of Puerto Rican Spanish and Mexico City/colonial Mexican Spanish demonstrate that the features that distinguish Puerto Rican Spanish from General American Spanish (standard ‘network’ Latin American Spanish – that is, the type spoken by newscasters on television and radio) distinguish it as well from Mexico City and colonial Mexican Spanish.40 Puerto Rican pronunciation, according to Lipski (2002), is characterized by the following features: an affricate type of /y/ sound (Saciuk 1977, 1980); a weak /d/ sound when it occurs in-between vowels, sometimes disappearing altogether (L´opez Morales 1983); velarization of /n/ word-ﬁnally and phrase-ﬁnally (Lipski 1986; L´opez Morales 1980, 1981, 1983); the affricate /ˇc/ maintains its initial occlusive quality over the course of the fricative portion of the sound; the neutralization of the liquids /l/ and /r/ in syllable-ﬁnal position; velarized /rr/, either voiced or voiceless, varying between a velar and a uvular trill (Vaquero y Quilis 1989); and weakening of syllable-ﬁnal /s/, so that it is either aspirated or deleted (Terrell 1977; Poplack 1980, 1981). The reason why it would be difﬁcult for persons native to central Mexico (including Mexico City and Michoac´an) to understand Puerto Rican Spanish, is that none of the dialectal features of Puerto Rican Spanish pronunciation listed above are found in central Mexico (Lipski 1996). In their totality, these features make a speaker of a Caribbean Spanish variety difﬁcult for someone from Central Mexico to understand. Ernesto Rivera had been living in the U.S.A. for only about two years when he was arrested for the Menendez murders. He was living with other Mexican nationals who were from his home town (including at least one of the

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co-defendants in the Menendez case, Teresa Torres). In short, he was interacting primarily with Spanish speakers who spoke his own geographic speech variety. When questioned by his defense lawyers about his relationships with speakers of other dialects, he answered that he had no interaction with Puerto Ricans. This is consistent with the ﬁndings of Johnson (2005), who has studied the interaction between Puerto Rican and Mexican high school students living in a Latino neighborhood of a large U.S. city: the two Latino ethnic groups keep themselves socially quite separate from each other, for a variety of reasons, among them being the status of U.S. citizenry that Puerto Ricans enjoy, which brings with it a number of economic advantages. In cities having sizable Puerto Rican and Mexican-origin residents, it is the Puerto Ricans who have the higher socioeconomic status, due in large measure to their century-old history of residential legality in the mainland of the U.S.A.

3.5. Linguistic analysis of the confession statements In the absence of audio or video recording of the interrogation, the confession statement signed by Rivera becomes a crucial piece of evidence against him, and consequently an important object of analysis. At ﬁrst glance, the statement is a highly puzzling document. If this is a variant of an afﬁdavit, it is an odd one in that even though it is signed by the person to whom the contents are attributed – the defendant, Ernesto Rivera – it is also signed by the interrogating Assistant State’s Attorney and the police detective/interpreter. Not only do they sign the document at the end of it, but they initial every single page, presumably to give the document greater authenticity and authority, for future utilization. According to a clinical law professor and former prosecutor (Redero 2005), the signed statement looks like a police arrest form, a narrative written by a police ofﬁcer summarizing all of the evidence that the police have gathered. Such forms are generally not allowed as evidence in court and are considered to be hearsay, according to Redero. Most afﬁdavits are written in the ﬁrst person. One would expect the confession to a crime to be written in the ﬁrst person, especially whenever reference is made to the author’s own actions. However, this statement, and the statement of the two co-defendants, Teresa Torres and Jaime Cordero, are written entirely in the third person. (See Statements of Ernesto Rivera, Teresa Torres, and Jaime Cordero, appended to this chapter.) All three statements share a unique, peculiar feature: every single sentence begins with a two-word phrase consisting of the defendant’s name (either ﬁrst name plus surname or simply ﬁrst name alone) followed by the verb ‘state’

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in the present tense. The repeated use of this mechanism throughout the documents creates a barrier to comprehension, since it acts to block the quality that competent narratives strive for, namely, cohesion. The repetition of phrases such as “Ernesto Rivera states that . . . ”, combined with the absence of logical connectors (e.g., ‘so’ ‘therefore’ ‘but’) to link one sentence to another, creates a staccato effect. The effect is highly distracting to the reader, giving the text an unnatural quality that makes the narrative difﬁcult to follow. A consequence of the routinized sentence initiator, “Ernesto states (that)” is the general suppression of anaphoric reference in subject position. This in and of itself gives the text an unnatural quality. The ‘authors’ (Goffman 1979) of the statements – all police detectives – go so far on occasion as to repeat a defendant’s name two or three times within a clause, in order to avoid anaphoric reference. For example, Teresa’s statement includes the following sentences: 1. Teresa states that she knew the woman was going to have to be killed to get the baby that Teresa wanted. (lines 74–75) 2. Teresa states she spoke to Carmelo at about 7:00pm and told him to pick Teresa up the following morning at 8:00am. (lines 82–83) 3. Teresa states the woman put the woman’s hand to the woman’s chest. (lines 101–102) 4. Teresa states the little boy was trembling when the little boy got in the car. (line 118) Knowing the background information behind the events depicted by the defendant, the reader of the signed statement has no doubt as to the referent of each proper noun or noun phrase in sentences 1–4, and the use of anaphoric pronouns would not have left any room for ambiguity in these particular sentences. What accounts for this unnatural repetition of nouns? The police detective/author is doing his utmost to create a legal document, and one feature of written English ‘legalese’, or legal language, is the avoidance of anaphoric reference, particularly in the realm of contract law (Danet 1980a). It is one of the characteristics that contribute to the difﬁculty that lay people have in comprehending legal documents. Ironically, while it is intended to preclude the possibility of ambiguity, this feature results in a greater incomprehensibility of the text. Apparently, by imbuing the document with elements of legalese, the author is striving to give it a greater measure of authority.

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3.5.1. The role of reported speech In each of the confession statements there is an explicit disclaimer, namely, that the contents of the document do not constitute a verbatim representation of the defendant’s words, but rather, are a summary of them. The disclaimer of “word for word” ﬁdelity to the source on one level is a gross distortion of reality if in fact the persons to whom the statements are attributed actually said what the documents claim they did, because the documents essentially constitute a series of tokens of indirect reported speech (introduced by the framing phrase “Ernesto states (that),” “Teresa states (that),” or “Jaime states (that)”) within which direct reported speech (i.e., quotations) and third party indirect speech are embedded. Rivera’s statement stands in marked contrast to that of Torres in that his includes only three tokens of direct reported speech (lines 18, 23–25, 25) and few tokens of embedded indirect reported speech, whereas Torres’ statement is ﬁlled with quotations and indirect reported speech tokens. In contrast to Torres’declaration, which explains how the plot to kidnap the baby was hatched and which recounts conversations that the two of them had had during the planning stages of the crime, Rivera’s sworn statement makes no reference to knowledge of the plan until the very night of the crimes, asserting that he found out about the plan only in the car, on the way to the home of the targeted family (“Rivera states that Teresa and Jaime started to talk about getting a baby. Rivera states that Teresa said we’re going to get the baby no matter what, that’s what we decided to do, we’re going to get the baby. Rivera states that Jaime was saying “yes, let’s go get it”) (lines 23–25). The contrast between Rivera’s statement and those of his alleged confederates is striking in its paucity of embedded quotations and third party speech, and in its relative brevity (3.5 pages versus Torres’ 7.5 pages and Cordero’s 5.5 pages). If, however, the statements attributed to Rivera were not really made by him, then the document represents a lie. Teresa’s statement, on the other hand, appears convincing. If we disregard the left-hand bracket initiating every sentence, “Teresa states (that),” we have a coherent narration of how she and Jaime together formed the plan of stealing another woman’s baby. The two narratives convey the impression that Jaime’s desire was to help his friend in her desperation to bring her false pregnancy to fruition, but that at the same time he was willing to be paid by her for his efforts. The level of detail into which Teresa goes in regard to their conversations is convincing, and what she says meshes with the account signed by Jaime, until we get to the night of the murders. Neither one accuses Rivera of having participated in the planning of the crimes. In fact, Teresa says (line 85), she was surprised to see him in the car that night. Teresa’s and Jaime’s narratives

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diverge with respect to who said what at the door when the victim opened it. For example, Jaime claims (line 61) that Teresa said to the woman, “Please let me in, I have no place to go,” whereas Teresa’s statement says that before she had a chance to say anything, Jaime rushed to the woman to stab her, although they coincide in the assertion that Jaime was the one to stab the woman in the chest. Where they contradict each other is in Jaime’s assertion (lines 79–80) that on leaving the house, he found Teresa “stabbing the [already wounded] woman in the back, like an animal, while the lady was laying face down on the ground.” He reports (lines 66–67) that earlier, when he ﬁrst stabbed her, “. . . Teresa said in a frantic voice, “kill her, kill her.” The signiﬁcance of direct reported speech in these texts comes from its several functions. First of all, as Hickmann (1993: 119) notes, directly quoted speech in narratives signals “structural and thematic salience.” There is no question that the direct quotes of Rivera, Jaime and Teresa point to particularly important moments in the chain of events on the night of the murders. Jaime’s account of Teresa’s ruse in getting through the doorway of the victims’ house implicates her in the crime: she used a deceptive pretext to gain entry into the house. Depicting Teresa as sounding “frantic” as she ordered Jaime to “kill her, kill her” also lays the blame squarely on Teresa for the murder of Mrs. Menendez. Signiﬁcantly, Jaime does not describe any action of Ernesto’s that is explicitly violent: he reduces his characterization of Ernesto’s actions to the assertion that “he saw Ernesto go towards the man in the bed and Ernesto was over the man,” and nothing more. More important, perhaps, in the context of a confession statement, is the role of reported speech in contributing to “the authoritativeness of stance, perspective, or “footing” (Goffman 1979)” (Silverstein 1993: 35). Lucy (1993: 177) also ﬁnds an “association between direct report (or literal re-enactment) and perceived authoritativeness. Direct quotation is apparently perceived as more authoritative because listeners recognize that such reports are relatively less subject to alteration in the speaker’s interests . . . ” Direct reported speech has an evidential function – it provides evidence (Galatolo 2007: 212). As Galatolo (2007: 13) puts it, referring speciﬁcally to witnesses testifying in court, quotation is “an opportunity to directly verify what the witnesses have previously said”, so that when the directed reported speech comes after an evaluation, “the witness has the possibility of objectifying that evaluation, making it seem factual.” Speakers use direct reported speech to make their claims more robust (Clift and Holt 2007: 12). In light of the evidential function of quotation, if in fact Ernesto Rivera was not involved in the murder of the Menendezes and the kidnapping of their children, and if he did not admit to participating in these events, which is his claim,

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then the virtual absence of direct reported speech in his statement makes good sense: it would have been a particularly high-risk strategy for Detective Jimenez to fabricate quotations when no such reported speech had been provided by the suspect. It would have been almost as difﬁcult to construct indirect reported speech, and there is little of that as well in the Rivera confession.

3.5.2.

Rivera’s statement: a vehicle for the deniability of police misconduct

Rivera’s confession is aimed at guaranteeing complete deniability of police misconduct, if there was in fact any. To insist that the statement is a summary rather than a verbatim representation is to allow room for divergence between what the defendants actually said and what has been attributed to them in the documents. Nevertheless, as will be demonstrated below, many speciﬁc statements are attributed to Ernesto Rivera, statements that report both his own actions and those of Teresa Torres and Jaime Cordero. The disclaimer prefacing the series of statements that they are merely a summary rather than a verbatim account, gives the interrogator wiggle room for deniability. If what follows the disclaimer are not the actual words of the defendant, then to the degree to which there is a divergence between what he actually said and what is reported in the document as having been said (or “stated”) by him, is not the responsibility of the co-signers of the document. In short, they are not responsible for any disparities between what he really said and what the document reports that he said. In the case of Ernesto Rivera, there appears to be more than wiggle room. There seems to be a chasm between what Rivera testiﬁed to in court, and what the signed confession claims was said by him at the interrogation speech event. In a calculated fashion, the document assures the future triers of fact that the defendant was treated appropriately (“fairly”) during the interrogation. It starts out by giving evidence of the defendant having been Mirandized, the evidence being his initialed response of “s´ı” (‘yes’) to the Spanish questions, “Do you understand all of the rights that I have explained to you?” and “Now, taking these rights into account, do you wish to speak to us?” Nonetheless, according to Rivera’s testimony, he was never read the Miranda rights at all, at any point during the forty-hours of his initial detention. Rivera’s confession statement covers the ﬂanks of both the police detective and the district attorney, by stating (lines 1–2), in passive voice, that the defendant had been advised that the lawyer present, Ann Thompson, was a “prosecutor and not his lawyer”.Yet despite his waiving of the Miranda right to have a lawyer present to represent him, he “agreed to give the statement”.41 Deniability of misconduct is ensured in the concluding paragraph of the confession statement: it attributes to Rivera the statement that “he was treated

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good by the police and Assistant State’s Attorney Thompson.” At the time of the trial, however, detective Jimenez used more standard English, saying that Rivera had been “treated well”.42 The confession statement also includes references to his having “been able to use the bathroom when he wanted”. Apparently there was disagreement over this point, because Rivera testiﬁed at his trial that during the forty or so hours of his detention, he was allowed to go to the bathroom only once, and was given a container to urinate into in the interrogation room where he was kept. The ﬁnal paragraph includes a statement by Rivera about having been given “three sandwiches to eat and pop and water to drink”.43 Rivera testiﬁed at his trial that he had been given only one sandwich during the forty-hour period, and a bottle of pop only after he had signed the confession. The document also includes a routine statement to the effect that nothing had been promised the defendant in exchange for giving the confession, nor had he been threatened into providing one, and that he was making the confession “freely and voluntarily”. According to Rivera’s trial testimony, Rivera wanted to include reference to Detective Jimenez repeatedly slapping him, punching him in the stomach, and keeping him chained to the wall, shoeless, for forty hours, but that Detective Jimenez had told him that it was not appropriate to include such references in a signed statement. Rivera testiﬁed that he himself had not produced the statements that appear in the signed declaration, but that Detective Jimenez had uttered the statements aloud to him, in Spanish, asking him if he agreed to them. Since there was no taping of the interrogation, we have no way of knowing what the detective actually said to Rivera. We have only the detective’s English version of what Rivera purportedly had said in Spanish.The district attorney should have grasped which of the ‘competing versions’ (Drew 1992) of the event actually took place, although she could not have understood the meaning of Rivera’s utterances. It is an open question as to whether the district attorney was truly the one to have taken down the confession. Jimenez testiﬁed at the trial – on being questioned on this point – that it was the district attorney who wrote the notes that constituted the confession statement. This seems highly doubtful, given the use of lower case letters for the words ‘english’ and ‘spanish’ (lines 11, 12 and 13), which is standard in Spanish orthography, but non-standard in English writing, and the absence of punctuation marks such as apostraphes (“let’s”, lines 18 and 25). The statement makes pointed reference to Rivera’s having worn gym shoes when he stabbed the husband of the woman whose baby was kidnapped, and that Rivera “noticed some blood on them” (Rivera Statement, lines 68–69). It is highly unlikely that the defendant “noticed some blood” on his shoes while

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under detention, because it fact, no blood was found on his shoes or on any other clothing of his, according to forensic laboratory reports. What we do know, however, from Detective Jimenez’s trial testimony, is that the detective said that he thought he saw blood stains on Rivera’s shoes after his arrest, and for this reason took his shoes away from him, leaving him shoeless during the forty-hour detention period. The pointed statement in the confession regarding the shoes is aimed at conveying what would later be a sign of police misconduct, that is, letting the suspect believe that blood stains could be seen on his shoes when in fact there were no such stains, something that subsequent forensic examination proved to be the case. Finally, there is a noticeable discrepancy between Rivera’s and Torres’ confessions with respect to accounting for their involvement in the plot to kidnap a baby. Torres’s confession statement clearly explains her motivation for the crimes: her failed attempts to conceive, her desperate desire to have a baby (Torres Statement, lines 20–23), her belief that she was pregnant (line 25), her discovery that she was not (lines 26–27), and then formulating a plan to kidnap someone else’s newborn baby (lines 29–94). Rivera’s confession, in contrast, makes no mention whatsoever of how he became involved in the plan. He simply states that he went to sleep after coming home from work on the night shift, at 3:00 a.m., and that Cordero woke him up and told him to go with him to take Torres to the hospital, purportedly so that she could give birth (Rivera Statement, lines 16–18). The lack of reference to Rivera’s inclusion in the kidnapping plot is consistent with Torres’ initial statement to Detective Jimenez, which made no mention at all of Rivera’s participation in the murder/kidnapping, but was restricted to Cordero alone. Rivera was implicated only after Cordero was accused by Jimenez of participating in the crimes: at that point, Cordero named Rivera as an accomplice. Given that Rivera immediately acquiesced to Carmelo Torres’ request that he accompany him to the police station to turn the three-year old child over to the police, it stretches credulity that Rivera would have gone to the police without any hesitation, if he had in fact participated in a brutal murder just days before. A police station would have been the last place he would have wanted to go to on his own accord.

4. Stance-taking in the examination and cross-examination of Detective Jimenez Speakers and writers make use of a wide variety of linguistic resources (e.g., lexical, grammatical, intonational) to express their attitude, or stance, toward what they are saying. Whether it is thought of as evaluation, as Thompson

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and Hunston (2000) and Georgakopoulou and Goutsos (1997) do, or appraisal (Martin 2000), the resources that people use in expressing themselves reveal how certain they are about where the information comes from (epistemic stance), their feelings or judgements about what has been said or written (attitudinal stance), or how something is said or written (style stance) (Conrad and Biber 2000: 56). Johnstone (2005: 26) has suggested adding ethos to account for “how ideas about personhood and details of stance-taking can come to be linked in discourse.” Johnstone (2005: 26) utilizes the notion of ethos to demonstrate “that models of personhood are functionally and indexically linked with microrhetorical stance-taking choices by particular speakers, for particular strategic reasons.” The thesis of this analysis is that Detective Jimenez, when he took the witness stand at a pre-trial hearing in the Ernesto Rivera case, very deliberately adopted a stance of cooperativeness. My thesis is that the detective was purposefully creating a persona of virtue and good-will for all those in the courtroom, and for the record. In short, he was creating an identity that was diametrically in opposition to the image of him described by Rivera and by the other twentythree persons who had lodged complaints of intimidation and brutality against him. One of the linguistic mechanisms that Detective Jimenez uses to create a cooperative stance is the lexical copying of his interlocutors’ speech. For example, in Extract 1, when the prosecutor introduces the verb ‘confront’ (line 1) – a semantically loaded verb, to which he reasonably might have responded with “What do you mean?” – Detective Jimenez uses the same verb in his narrativestyle answer to her question (line 4). Extract 1 1 2 3 4 5 6 7 8 9 10 11 12 13

Prosecutor: Det. Jimenez: Prosecutor: Det. Jimenez:

And when you spoke with him, did you confront him with anything? Yes, I did. And what was that, sir? I confronted him with the fact that Teresa has implicated him and him alone as the one that did this murder. Prosecutor: And did you give him speciﬁc details as to what Teresa Torres says he did? Det. Jimenez: Yes. Prosecutor: At the time you confronted him with this evidence, did Jaime Cordero say anything to you? Det. Jimenez: Yes. Prosecutor: What was that? Det. Jimenez: He says, “Well, now, I’m going to tell you who really was there and what everybody did.”

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Another aspect of his cooperative stance is his prominent use of politeness markers, particularly when interacting with the defense attorney. Extract 2, lines 4 and 6, and Extract 3, lines 8 and 19 demonstrate his use of the marker ‘Ma’am’. The tokens tend to occur in statements of negation, particularly during the beginning phase of a questioning sequence. Extract 2, line 4, shows how polite and elaborated Jimenez’s initial denial is of having brought Teresa Torres into the interrogation room where Rivera was kept. The denial becomes successively briefer and less polite with each accusation of the attorney (lines 6, 8 and 11). Extract 2 1 2 3 4 5 6 7 8 9 10 11

Defense attorney: Now, while you were at—while you were talking to Ernesto at this 9:00 o’clock p.m. on February 18th you brought Teresa Torres into the interview room where Ernesto was, didn’t you? Det. Jimenez: No, Ma’am. I don’t remember I did. Defense attorney: And you asked Teresa to sit on a chair, didn’t you? Det. Jimenez: No, I didn’t, Ma’am. Defense attorney: And you slapped Ernesto in front of Teresa, didn’t you? Det. Jimenez: No, I didn’t. Defense attorney: And you took Teresa Torres out of the room, out of the interview room? Detective Jimenez: No.

Extract 3 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20

Defense attorney: Now, you stated on direct examination that the Defendant did not make any complaints to you about how he was treated, is that correct? Det. Jimenez: That’s correct. Defense attorney: But isn’t it a fact that when he got—when you got to that portion he told you that he had been hit by you and that you told him this did not belong in this statement, is that correct? Det. Jimenez: No, Ma’am it’s not. Prosecutor: Judge, again for the record we are going to object. This isn’t alleged. Judge: It maybe isn’t alleged but he’s saying it didn’t happen anyway so overruled. Go ahead. Defense attorney: In fact, one of the times when you were speaking to—well, when you were speaking to Ernesto at the 9:00 p.m. conversation on February 18th , he even complained to you that he was now hearing ringing in his ears because you had slapped him, is that correct? Prosecutor: Again, Judge, this is not alleged— Judge: I will let him answer. Overruled. Det. Jimenez: No, Ma’am. Judge: His answer is no. Next question.

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Politeness of a different sort – attention to positive face wants (Brown and Levinson 1978) – emerges during Detective Jimenez’s descriptions of what two of the co-defendants are wearing (i.e., he is being asked to identify them for the court record). In Extract 4, line 4, he refers to Rivera as “The gentleman sitting over there with the white and khaki outﬁt”. The term ‘gentleman’ elevates Rivera in social status, through the use of lexicon belonging to a formal register, something especially notable given the lack of frequency with which this word is used in contemporary spoken American English conversation. For those who were not present during the hearing, the descriptor ‘white and khaki outﬁt’would sound like a positive evaluation of the defendant’s clothing – probably a stylish, sporty look typical of clothing sold through popular mail order catalogues that target solidly middle-class clients. In the U.S.A., khaki slacks form part of a standard outﬁt of white-collar male employees, often worn with a sports jacket. Extract 4 1 2 3 4 5 6

Prosecutor: Det. Jimenez: Prosecutor: Det. Jimenez: Judge: Prosecutor:

Do you see Ernesto Rivera in court today? Yes. Could you point to him and tell us something he’s wearing. The gentleman sitting over there with the white and the khaki outﬁt. Indicating Ernesto Rivera in the jail jumpsuit. Thank you, Judge.

The judge, however, rejects the detective’s characterization of Rivera’s clothing. Rather than to ratify the description, he reformulates it (line 5), calling it a “jail jumpsuit” for the record. The reformulation constitutes a contrasting version that competes with the detective’s, and receives an appreciation token from the interrogating prosecutor (line 6). In reformulating Jimenez’s description, the judge is “exercising . . . interpretational privilege” (Adelsward et al. 1987). At the same time, the judge is taking on an oppositional stance with respect to the detective, providing a negative evaluation of him through his use of irony. Irony has been found elsewhere to serve as indirect stance-taking in discourse (Shoaps 2007). The oppositional stance of the judge comes across clearly when he overrules the prosecutor’s objections to the defense attorney’s insinuations of police misconduct on the part of Jimenez. The ruling by the judge on two objections of the prosecutor in this regard (Extract 3) is carried out sharply and swiftly. His second ruling (Extract 3, line 18) interrupts the prosecutor’s utterance. In the same oppositional vein, the judge restates Jimenez’s polite “No, Ma’am” (line 19) for the record, but removes from it any hint of politeness (“His answer is no. Next question”, line 20). The judge is quite adamant that the highly accusatory

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question of the defensive attorney and the detective’s answer to it be included on the record. When Detective Jimenez is asked to identify Teresa Torres for the record, he describes her (Extract 5, line 4) as “The young lady in the blue outﬁt.” This description is functionally identical in terms of lexicon to the expression he had used to identify Ernesto Rivera. The term ‘young lady’ is as formal and polite as the word ‘gentleman’, and once again there is reference to an “outﬁt.” Just as he was with Ernesto Rivera, he shows himself sensitive to the positive face wants (Brown and Levinson 1978) of the co-defendant, Teresa Torres. Extract 5 1 2 3 4 5

Prosecutor: Det. Jimenez: Prosecutor: Det. Jimenez: Judge:

Do you see Miss Torres here today? Yes. Can you point to her and tell us what she’s wearing? The young lady in the blue outﬁt (Indicating). For the record Teresa Torres.

Where Detective Jimenez becomes less conversationally cooperative is precisely in the areas where Ernesto Rivera has accused him of ill treatment during the prolonged interrogation period. If in fact he had been physically and psychologically abusive with Rivera, then his evasiveness on questions related to his treatment of the detainee are understandable. He is trying to avoid perjuring himself under oath. It is important to keep in mind that Jimenez has to do mental gymnastics to be able to skirt around (1) Rivera’s purported statements in the signed police document, (2) what Rivera really said during the various interrogations, and (3) yet unknowable to everyone, what Rivera would testify to at his trial if he were to be put on the witness stand, which in fact ultimately he was. To do this, and to avoid perjury, Detective Jimenez must answer very cautiously, and the better part of caution is saying less than you need to – in other words, violating Grice’s (1975) maxim of quantity. Extract 6 is very revealing in this regard. Extract 6 1 2 3 4 5 6 7 8 9

Prosecutor:

Now, during the interview with the State’s Attorney and yourself, was the Defendant asked how he was treated by the police? Det. Jimenez: Yes, he was. Prosecutor: And what did the Defendant indicate? Det. Jimenez: He was treated well by the police. Prosecutor: And did the Defendant ever indicate whether he was allowed to use the bathroom? Det. Jimenez: Yes. Prosecutor: And what did he state?

Stance-taking in the examination and cross-examination of Detective Jimenez 10 11 12 13

Det. Jimenez: Prosecutor: Det. Jimenez: Prosecutor:

14 15 16 17 18 19 20

Det. Jimenez: Prosecutor: Det. Jimenez: Prosecutor: Det. Jimenez: Prosecutor:

21 22 23 24

Det. Jimenez: Prosecutor: Det. Jimenez:

195

That he used the bathroom and had something to eat too. And—I am sorry? Something to eat. Did speciﬁcally the Defendant state that he had three sandwiches to eat, pop and water to drink? That’s correct. Did he state anything whether having cigarettes to smoke? I believe he did, yes. He did indicate or he did have cigarettes to smoke? That he did have cigarettes. And did he make any statements as to whether any promises had been made to him or any threats had been made to him? No. He said no promises and no threats, correct? No promises, correct.

When asked by the prosecutor (Extract 6, lines 1–2) whether defendant Rivera had been asked during the ofﬁcial interview how he had been treated by the police, Detective Jimenez answers clearly, “Yes, he was.” However, when then asked what the defendant had indicated, the expectation being reported speech or a direct quote, the detective gives neither. Instead, his reply, “He was treated well by the police” is ambiguous between reported speech and an evaluative comment representing the detective’s own opinion of how the defendant had been treated. When his response is interpreted as reported speech, both the person to whom the speech is attributed and some verb of saying are omitted, but are intended to be “understood” as having been meant (i.e., that this was a case of ellipsis). In effect, Detective Jimenez is avoiding openly attributing the evaluation to the defendant, and he achieves this objective by avoiding reported speech or direct quotation. This strategic tactic is useful to Jimenez if in fact the defendant had never said to him or to the state’s attorney that he had been treated well. The prosecutor, pursuing this line of questioning, wants to establish for the record the speciﬁc ways in which the defendant had been treated well, this for the purpose of validating the confession statement. Her ﬁrst question in this regard (Extract 6, lines 6–7) is if the defendant ever indicated whether he was allowed to use the bathroom. The detective’s answer is minimally responsive, a simple “Yes”. No further elaboration is offered. The prosecutor therefore presses him on this point (line 9), asking him to specify what the defendant had stated. The detective’s answer, “That he used the bathroom and had something to eat too”, is on the one hand under-informative and at the same time appears to be forthcoming: forthcoming in that it gives information that was not even asked about (whether the defendant had been given food), and under-informative in

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that the phrase “he used the bathroom” is vague as to whether he used it only one time or whether he used it as often as he needed to. This point was contested: whereas the confession statement says, “Ernesto states he was been able to use the bathroom when he wanted”, at the trial, Rivera testiﬁed that he had been allowed to use the bathroom only once, and had been forced to urinate into a cup in the interrogation room for the remainder of the time. On characterizing Rivera’s statement about what he had been given to eat as “something to eat”, and he uses the same wording in two of his answers to the prosecutor’s questions (lines 10 and 12), he is giving less information than the confessional statement provides. And so, when the attorney tries to pin him down to something more speciﬁc (lines 13–14), asking, “Did speciﬁcally the Defendant state that he had three sandwiches to eat, pop and water to drink?” Jimenez answers in the afﬁrmative, with great certainty (line 15 “That’s correct”). It should be noted that the signed statement had said exactly this – the prosecutor had retrieved the information directly from the document. When the detective answers in the afﬁrmative, it is because he can honestly say that the signed confession includes this statement and that the statement was attributed to the defendant. However, the substance of the statement is contestable: Rivera, in his trial testimony said that all he had been given to eat in the forty hours of police detention was one sandwich, and that a bottle of pop had been given to him only after he had signed the confession. Clearly, the prosecutor is considering the statements of the written confession to have complete validity. When she asks this series of questions, it is merely to establish these “facts” for the record. She already knows the answers to the questions before she asks them. The prosecutor shows an awareness of the potential ambiguity of her questions. That is why in lines 18 and 23 she reformulates her question, to make sure that the answer that she has elicited corresponds to the intended meaning of her question. Detective Jimenez’s response in line 17 (“I believe he did, yes.”) to the question, “Did he state anything whether having cigarettes to smoke?” could be taken to mean “Yes, he stated that” or “Yes, he had cigarettes to smoke”. The ordinary or ‘plain meaning’ (Solan 1993; Tiersma 1999: 126–128) of the detective’s answer is far from clear; it could have been interpreted in either way, and that is why the attorney clariﬁes his answer for the record. For the same reason, the prosecutor rephrases her question to him (in line 23), not knowing if his one-word negative answer (line 22, “No.”) means that the defendant had not made any statement about having been promised something or having been threatened with something or whether the defendant had in fact not been promised anything or threatened. While these are very different states of affairs, for the prosecutor, a statement in this regard automatically implies a true state of affairs corresponding to the substance of the statement. For the prosecutor, the

Stance-taking in the examination and cross-examination of Detective Jimenez

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fact that a statement appeared in the confession denying promises and threats having been made to the defendant is sufﬁcient evidence to justify her belief that this was so, and lends weight to her claim that the signed confession is valid. Once again, however, the response of the detective is elliptical: it is devoid of any verb or verb subject. Thus, ordinary language meaning would take his words in line 24 to mean, “He said (stated) no promises, that is correct.” By failing to use a verb indicating reported speech, Jimenez is not committing himself to having taken such a statement from the defendant. His elliptical response could possibly be interpreted as, “There were no promises.” Even more revealing is Jimenez’s failure to comply with the Gricean maxim of quantity when he responds with, “No promises, correct,” because he avoids entirely the issue of threats, referring only to promises. Unquestionably, he is being evasive as a witness. There is good reason to suspect why he answers in this way. The defendant testiﬁed at his trial that he had been threatened with more corporal punishment, and the physical abuse that he had suffered at the hands of Detective Jimenez was sufﬁciently threatening to lead him to believe that more of the same was in store for him if he did not do as the detective wished. Especially revealing about Detective Jimenez’s strategic use of language during his testimony is that he can be quite clear and unambiguous when he wants to be. He is vague when vagueness serves his purposes and clear when being clear is to his advantage. Extract 7 demonstrates the clarity of his responses when he talks about the timing of Teresa Torres’ self-implication. Torres’ involvement in this case was not an issue. There has been ample evidence indicating her guilt in plotting the crime and in participating in its execution. Jimenez can answer questions about the timetable of her confession with ease and certainty. When he answers the defense attorney’s question in line 4, he corrects the attorney’s error concerning the time of day when Torres implicated herself in the murder/kidnapping, and in the same utterance, responds unambiguously to a tag question that might have elicited an ambiguous answer from someone less experienced at testifying in court. By answering “yes, she did not”, he leaves no room for doubt about what Torres had done. “Yes” responds to the tag, “is that correct?” and “she did not” responds to the declaratively worded question about whether she had implicated herself in any way. One would have to concede that Jimenez’s clarity of expression is impressive in this regard, which makes his elliptical and otherwise vague answers to the more contestible aspects of the interrogation of Rivera stand out in even greater relief. And when he has nothing to hide, such as when he provides further details of Torres’ self-incrimination, he is very forthcoming, giving details that were not asked for. In short, Detective Jimenez takes on a conversationally highly cooperative stance, in the Gricean sense, when the answers he gives are not likely to be refuted (i.e., when he stands

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on sure ground), but he becomes a far less cooperative interlocutor when what he utters might be proven at a future date to be perjury. Extract 7 1 2 3 4 5 6 7 8

Defense attorney: When you spoke to Miss Torres on February 18, 2001 about 10:30 in the morning, she did not in any way implicate herself in this matter, is that correct? Det. Jimenez: I believe it was around 11:30 in the morning, yes, she did not. Defense attorney: So when you ﬁrst spoke to her, she implicated her participation in this matter? Det. Jimenez: No, she didn’t implicate anybody, but she made up a story of a Virginia Maldonado.

The analysis of Detective Jimenez’s testimony at a pre-trial hearing in the Ernesto Rivera murder/kidnapping trial demonstrates the ability of a speaker to manipulate linguistic resources to his advantage, the advantage being the ability to take on a particular stance so as to display his ethos in such a way that others will perceive it as he wishes them to. In a nutshell, Detective Jimenez wants to come across in the courtroom as Mr. Nice Guy, a police ofﬁcer who could not conceivably use physical or psychological pressure tactics on a suspect in his custody, but who treats all suspects with the respect due to them. The slight shifts from vagueness to precision in the articulation of his answers allows this police ofﬁcer to construct the identity that he wishes to display before those who interact with him. By taking on the overall stance of cooperative conversational partner, he believes that those present will ﬁnd credible the persona he is trying to create, and that the ethos he would like others to believe is his convinces them of his essential honesty and integrity as a police ofﬁcer.

5. Conclusion This chapter has tried to demonstrate that various types of evidence – both linguistic and extralinguistic – point to the unreliability of Ernesto Rivera’s confession: the deﬁcient Miranda warnings, inconsistencies between his confession and those of the two co-defendants, the fact that no physical evidence has ever been found linking Rivera to the murders and that DNA evidence coming from the blood of yet a fourth, unknown person was found on the bodies of the victims, the expert testimony of a doctor accounting for the sudden loss of hearing of Rivera in his left ear, the side on which he allegedly was hit repeatedly by Detective Jimenez, the likelihood that Rivera had had difﬁculty understanding Detective Jimenez’s Puerto Rican variety of Spanish, and a post-conviction

Conclusion

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discovery of a record of twenty-three accusations of brutality lodged against detective Jimenez by other detained persons, over a twenty-year period. Detective Jimenez’s record of accusations is all the more credible in the light of recent evidence (2007) that in one large U.S. city, “more than 600 police ofﬁcers . . . had more than ten complaints ﬁled against them during a ﬁve-year period,” “four ofﬁcers had 50 or more citizen complaints ﬁled against them in the ﬁve-year period,” and 29 other ofﬁcers each had 30 to 40 complaints against them – in short, particular cities develop speciﬁc sorts of police cultures. These facts, together with the evidence presented in this chapter, would lead one to conclude that Rivera’s account of his treatment by Detective Jimenez was most likely true, and that his confession, therefore, was unreliable at best, and probably false. What Rivera has described has all the earmarks of a ‘stress compliant false confession’.

5.1. Steps that could have been taken to increase the likelihood of a reliable confession There are at least four factors in the speech situation that could have been remedied, so as to increase the likelihood of a reliable confession. The fact that none of these steps was taken indicates that those in charge of the interrogation process were not sincerely interested in a reliable confession. First, the defendant could have been given the opportunity to write the confession himself, in Spanish. If this was not feasible, the confession could have been written in Spanish by a States Attorney who understood Spanish (which in turn could have been subsequently translated into English by a professional translator). Third, the confession could have been witnessed and/or written in Spanish, by an independent interpreter, as is the law in some states (e.g., Minnesota). Finally, the entire interrogation and confession could have been video or audio-recorded. The use of video or audio-recording in conjunction with any of the other measures would have increased the reliability of the confession. The case of Ernesto Rivera demonstrates the danger of allowing a bilingual police ofﬁcer to serve as interrogator without the presence of a non-partisan, qualiﬁed interpreter, and that danger is the potential for police misconduct. Persons who have a limited proﬁciency in English, like young people and people with cognitive handicaps, are particularly vulnerable to mechanisms of coercion. Police interrogations of limited-English proﬁcient persons that are conducted without the presence of a second bilingual party, one who is not afﬁliated with the police department, should therefore be considered suspect. The failure to employ non-partisan interpreters in police interrogation contexts (whether a

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police ofﬁcer is assigned the role of interpreter or not) places limited-English proﬁcient detainees in a compromised position from the very outset of the interaction, above and beyond where they would be if they were monolingual speakers of the language of the law.

Appendix 2 STATEMENT OF Ernesto Rivera TAKEN February 18 AT 03:35 AT Area 5 PRESENT Assistant States Attorney A. Thompson Detective Jimenez Tiene usted el derecho de permanecer callado. Cualquier cosa que usted tenga que decir se podra usar en contra la sala de justicia. Tiene usted el derecho de hablar con un abogado hoy actualmente, y tener presente con usted en la interrogacion. Si no tiene usted fondos para obtener el servicio de un abogado, se le obtendra uno para que lo represente antes que les hagan preguntas. 3. Entiende usted todos los derechos que le he explicado? Si ER 4. Ahora, teniendo en consideracion estas derechos, desea usted hablar con nosotros? Si ER

Ernesto Rivera

1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17

After being advised that Assistant States Attorney Ann Thompson is a lawyer a prosecutor and not his lawyer, Ernesto Rivera agreed to give the following statement which is a summary and not word for work. Ernesto Rivera states that he was born in Mexico and has lived in the United States for two years. Ernesto Rivera states that he lives at 3872 Juniper on the ﬁrst ﬂoor. Ernesto Rivera states that Teresa Torres and her husband, Carmelo, Francisco Perez, (Teresa’s brother) and Jaime Cordero. Ernesto states that Teresa and Francisco are from the same ranch as he Ernesto is from in Mexico. Ernesto states that People’s Exhibit A is a photo of Teresa and People’s exhibit B is a photo of Jaime. Ernesto states that he has known Teresa since they were little kids and they lived by each other. Ernesto states he graduated from high school in Mexico. Ernesto states he speaks very little english and speaks spanish. Ernesto states he agreed to have Det. Jimenez translate from english to spanish and spanish to english for purposes of the this statement. Ernesto states that Teresa and Carmelo have been married for over 5 years. Ernesto states that about 5 months ago he was told that Teresa was pregnant. Ernesto states on February 13, 2001, Saturday he ﬁnished work at 3:00 in the early morning hours. Ernesto states he went home and layed down for a few minutes and then Jaime

202 18 19 20 21 22 23 24 25 26 27 28 29 30 31 32 33 34 35 36 37 38 39 40 41 42 43 44 45 46 47 48 49 50 51 52 53 54 55 56 57 58 59 60 61 62

Appendix 2

came in and said lets go to the hospital, St. Mary’s hospital, to pick up Teresa. Ernesto states he, Ernesto drove to the hospital. Ernesto states Jaime sat in the front passenger seat. Ernesto states he drove to the front of the hospital and Teresa got in the back seat. Ernesto states that when Teresa got in the car she started telling him where to drive. Ernesto states they were driving north. Ernesto states that Teresa and Jaime started to talk about getting a baby. Ernesto states that Teresa said we’re going to get the baby no matter what, that’s what we decided to do, we’re going to get the baby. Ernesto states that Jaime was saying yes, lets go get it. Ernesto states that after a while Teresa told him to stop. Ernesto states he doesn’t know where he was but he knows it was North and on the block there was a school and other buildings. Ernesto states he knew that Teresa and Jaime were talking about taking a baby from someone. Ernesto states that Jaime and Teresa got out of the car and started walking towards the back of a house. Ernesto states he got out of the car and followed them. Ernesto states all three of them walked up to the back door of the house. Ernesto states Jaime and Teresa knocked on the door. Ernesto states that a woman answered the door. Ernesto states that Jaime pushed his way into the apt and Teresa was behind him and then he, Ernesto, went in. Ernesto states that Jaime had a knife in his hand and he stabbed the woman in the upper chest. Ernesto states the woman put both her hands up to where she had been stabbed. Ernesto states the woman screamed. Ernesto states that the woman was away from the door at this time. Ernesto states that then Teresa put one hand over the woman’s shoulder, and the woman was started to fall front and sideways. Ernesto states while Teresa had her hand over the woman’s shoulder and started to stab the woman in the back. Ernesto states that he, Ernesto, grabbed a knife from the kitchen table. Ernesto states the knife, including the blade, was about eleven inches. Ernesto states that he ran towards the back of the apartment and into the bedroom to see if anyone was back there. Ernesto states when he ran in the bedroom there was a man laying face up in the bed. Ernesto states the man was asleep and a little boy was laying next to him on the bed. Ernesto states that he started stabbing the man in the stomach. Ernesto states People’s exhibit D is a photo of the man he stabbed. Ernesto states the man screamed. Ernesto states that then he, Ernesto kept stabbing the man to ﬁnish what he started. Ernesto states he doesnt know where the little boy was during the stabbing. Ernesto states he, Ernesto then ran out of the bedroom and threw the knife just outside the bedroom door. Ernesto states when he came out of the bedroom he saw Teresa and Jaime still in the living room area. Ernesto states he ran to the car and got in the drivers seat. Ernesto states that Teresa then came out and she had the baby in her hands. Ernesto states Teresa got in the front seat with the baby. Ernesto states that then Jaime came out with the little boy and they both got in the back seat. Ernesto states that he then drove Teresa to the same hospital he picked her up at. Teresa got out of the car with the baby and the little boy. Ernesto states he drove he and Jaime home. Ernesto states he then went to sleep. Ernesto states that he slept until about 11:30am. Ernesto states he went and picked up his check. Ernesto states when he had woken up Teresa was there with the baby and the little boy. Ernesto states he came back after 12 noon and that relatives and friends were coming over and were visiting the baby. Ernesto states he went back to sleep.

Appendix 2 63 64 65 66 67 68 69 70 71 72 73 74 75 76 77 78

Ernesto states that the little boy and the baby stayed at their place until February 16, 2001. Ernesto states that on February 16, 2001 he came home from work in the early morning hours and Carmelo told him that he was going to take the little boy to the police station because he had seen on the news that he was missing. Ernesto states that Jaime, Carmelo and himself went to the police station with the boy. Ernesto states that when he went to the police station he was wearing the gym shoes that he wore when he stabbed the man. Ernesto states that he noticed some blood on them. Ernesto states that People’s exhibit E is a photo of the little boy. Ernesto states that he was treated good by the police and assistant states attorney Thompson. Ernesto states he was been able to use the bathroom when he wanted. Ernesto states that he was had three sandwiches to eat and pop and water to drink and cigarettes to smoke. Ernesto states that no promises have been made to him or threat and he is making this statement freely and voluntarily. Ernesto states he is not under the inﬂuence of drugs or alcohol. Ernesto states that Det Jimenez read the entire statement to him aloud in Spanish as he followed along and he was able to make any changes or corrections that he wanted.

79 80 81 82

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Ernesto Rivera Det. A. Jimenez ASA A. Thompson

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Appendix 2

STATEMENT OF Teresa Torres TAKEN February 18, 2001 AT 2:10 A.M. AT Area 5 Detective Division PRESENT Det. David Cartwright (Miranda warnings in Spanish) 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 29 30 31 32 33 34 35

After being advised that Assistant States Attorney Jose Alarcon is a prosecutor and an attorney but not her attorney, Teresa Torres then read the paragraph above aloud. After stating that she understood each of her rights as explained and after signing her name, Teresa Torres agreed to give the following statement which is a summary and not word for word. Teresa states that she is 22 years old and that her birthday is the 9th of November in 1979. Teresa states that she attended high school in Mexico up to her third year. Teresa states that she speaks spanish and understands only a little bit of English. Teresa states that she agreed to have Assistant States Attorney Jose Alarcon interpret from Spanish to English and English to Spanish for the purpose of this statement. Teresa states that she lives at 3872 Juniper Street on the ﬁrst ﬂoor apartment with her husband Carmelo Torres, her brother, Francisco Perez and Ernesto Rivera and Jaime Cordero. Teresa states that Ernesto Rivera is a distant cousin from her hometown in Mexico. Teresa states that Jaime Cordero is a friend of her and her husband. Teresa states that Jaime began living with her and her husband sometime in December. Teresa states that she has been married to Carmelo for almost 6 years. Teresa states that she came to [City] almost 4 years ago about 8 months after her husband came up from Mexico. Teresa states that Mariela Chacon and Miguel Chacon live in the basement apartment below her. Teresa states that she has known Mariela since they were children in Mexico. Teresa states that Teresa and her husband Carmelo have been trying to have children for almost 4 years. Teresa states that she was told by doctors about 3 years ago that she could not have children because her uterus was underdeveloped. Teresa states that she did not tell anyone about this condition and she continued to try to get pregnant. Teresa states that in April of 2000 she told everyone she was pregnant. Teresa states that she believed she was really pregnant. Teresa states that she began to gain weight. Teresa states that sometime in July she discovered she was not pregnant. Teresa states that she thought of killing herself at that time because she really wanted a baby. Teresa states she did not tell anyone that she was not pregnant. Teresa states that she hoped she could ﬁnd a baby that someone would give her. Teresa states that by November she was desperate because she had not found a child. Teresa states that on one of the last days of December, Jaime Cordero came home from work and found Teresa crying. Teresa states that Jaime asked her what was wrong. Teresa states she told Jaime she was not pregnant, and that she was desperate. Teresa states Jaime told her not to worry because he would be able to help her but it would cost $600 dollars. Teresa states that she told Jaime she would pay him the $600

Appendix 2 36 37 38 39 40 41 42 43 44 45 46 47 48 49 50 51 52 53 54 55 56 57 58 59 60 61 62 63 64 65 66 67 68 69 70 71 72 73 74 75 76 77 78 79 80

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dollars. Teresa states she had the money because her husband had been saving $600 dollars to sent to Mexico. Teresa states the day after she talked to Jaime she gave Jaime the $600 dollars. Teresa states that after that Jaime would tell her every day or so not to worry about it. Teresa states that on February 8th she told everyone that she had to induce labor because the baby was late. Teresa states she told everyone this because she was in her 10th month and she believed Jaime would work something out. Teresa states that Carmelo took her to the hospital on February 11th . Teresa states she told Carmelo it was to see about inducing labor. Teresa states that she had a gynecological exam while she was at the doctor. Teresa states she told her husband, Carmelo that they could not perform the operation because they did not have the paperwork. Teresa states she spoke to Jaime on the evening of February 11th . Teresa states that Jaime asked her what hospital she was going to. Teresa states she gave Jaime the address of the hospital and how to get there by bus. Teresa states Jaime told her he would go there the next day to ﬁnd a baby to steal or get from someone there. Teresa states that she and Jaime agreed to meet at the entrance to the hospital at 10:00 am on February 12, 2001. Teresa states that Jaime left the house around 8:00 am and February 12th . Teresa states that after she got to the hospital with Carmelo, she told Carmelo she had to make a phone call. Teresa states that she met with Jaime at about 10:00 am. Teresa states Jaime told her he could not ﬁnd anyone and that they would have to try again Friday. Teresa states that she knew that Jaime was going to have to kill someone to get a baby for her. Teresa states she knew that someone would be killed for her get a baby when she talked to Jaime on Wednesday night. Teresa states that she talked to Jaime late AM on Thursday right night where they would meet. Teresa states Jaime told her he would get to the hospital earlier and to meet at the same place and time as Thursday. Teresa states she went to the hospital with Carmelo on Friday morning. Teresa states she arrived there about 9:00 am. Teresa states she had told her husband that her appointment was to induce the baby. Teresa states that when she was seen by the nurses they just took a blood sample and gave her another appointment for February 5th . Teresa states she told her husband she had to walk around the lobby to help induce the baby. Teresa states that she she was walking on the ﬁrst ﬂoor lobby she told her husband she had to make a phone call. Teresa states that when she told Carmelo, her husband this, she met with Jaime. Teresa states she and Jaime both saw a woman talking on the telephone. Teresa states she saw the woman had a baby in a carrier and another child holding the woman’s hand. Teresa states the photo of the woman that is labeled “A” is a photo of the woman she saw talking on the telephone. Teresa states her husband left and went home. Teresa states Jaime told her to follow the woman home to see where she lived. Teresa states she and Jaime agreed to meet at the hospital at 3:00 am. Teresa states that she knew the woman was going to have to be killed to get the baby Teresa wanted. Teresa states she told her husband before he let her would call him when she had the baby. Teresa states she followed the woman with the children on the Richland Ave. bus. Teresa states she followed the woman off the bus when to got to Hawthorne. Teresa states she followed the woman to her home which was in the rear basement apartment at 1352 Hawthorne Street. Teresa states she took the bus back to the hospital. Teresa states she called her home at about 5:15 pm and told

206 81 82 83 84 85 86 87 88 89 90 91 92 93 94 95 96 97 98 99 100 101 102 103 104 105 106 107 108 109 110 111 112 113 114 115 116 117 118 119 120 121 122 123 124 125

Appendix 2

Fernando Soto that she had a baby girl and she would call later to speak to her husband Carmelo. Teresa states she spoke to Carmelo at about 7:00 pm and told him to pick Teresa up the following morning at 8:00 am. Teresa states that she walked around St. Mary’s Hospital until 3:00 am when she met Jaime he was driving a grey 4 door car. Teresa states that Ernesto Rivera was also in the car which surprised her. Teresa states she got in the front passenger seat of the car and told Jaime how to get to the woman’s home. Teresa states she believed that there would be four people at the woman’s home, the woman, her husband and the two children. Teresa states she had not seen the woman’s husband before but she believed her to be married. Teresa states she knew the woman and her husband would have to die to get the baby. Teresa states she was ready to kill anyone in the house if she had to. Teresa states she had already told everyone she had a baby girl, so she had to do whatever was needed to make it so. Teresa states she didn’t know how Jaime was going to kill the woman and man. Teresa states that they pulled up a few houses down from 1352 Hawthorne Street in the early morning hours of March 28th . Teresa states that she, Jaime Cordero and Ernesto Rivera got out of the car and walked up to the apartment door. Teresa states she knocked on the door. Teresa states that before she knocked on the door she saw Jaime take a knife out of his jacket pocket. Teresa states the woman asked what could she offer them. Teresa states that before Teresa could say anything to the woman, Jaime forced the door open and stabbed the woman in the chest with his knife. Teresa states the woman put the woman’s hand to the woman’s chest. Teresa states the woman staggered to the bedroom where the woman put her bloody hand up to the wall to hold herself up. Teresa states the woman then fell forward to the ﬂoor. Teresa states Ernesto picked up a knife from the kitchen table and ran into the bedroom where the man was in the bed with the little boy. Teresa states Ernesto grabbed the man and stabbed the man in the man’s chest many times. Teresa states the man who Ernesto stabbed in the chest is the man in the photo labeled “B.” Teresa states she signed her name to the photo to indicate that it was a photo of the man. Teresa states the little boy ran out of the bed after Ernesto stabbed the man. Teresa states the little boy ran into the kitchen and kept repeating “Mono, Mono, Cuchillo, Cuchillo, Pow, Pow.” Teresa states Ernesto left the apartment and Teresa walked out behind him to wait in the car. Teresa states she knew Jaime would bring her the baby girl. Teresa states she was not concerned about the little boy. Teresa was not concerned if Jaime killed the little boy, she was only thinking about the baby girl. Teresa states Jaime came out of the apartment 5 to 10 minutes later with the little baby girl. Teresa states that she felt happy when the baby girl was in her arms. Teresa states that Jaime went back into the apartment and came back with the little boy. Teresa states the little boy was trembling when the little boy got in the car. Teresa states she put the little boy’s shoes on in the car. Teresa states she noticed that the shoes were soaked in blood. Teresa states she did not go back into the apartment. Teresa states that they drove back to the hospital. Teresa states they waited for some time under the “L” tracks by the hospital. Teresa states that Jaime and Ernesto then dropped her off at St. Mary’s hospital for Teresa to wait for her husband to pick her up. Teresa states she was ready to tell her husband Carmelo that the baby was her newborn baby that she had named Flor Maria. Teresa states she was ready to tell her

Appendix 2 126 127 128 129 130 131 132 133 134 135 136 137 138 139 140 141 142 143 144 145 146 147 148 149 150 151 152 153 154 155 156 157 158 159 160 161 162 163 164 165 166 167 168

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husband the little boy was the son of a woman named Julia Lopez who had asked Teresa to watch over while Julia Lopez was delivering her baby. Teresa states the name Julia Lopez was made up by Jaime. Teresa states Jaime told her to tell Carmelo that story to cover up the little boy’s appearance at the hospital. Teresa states that Carmelo and Mariela Chacon’s, along with Mariela Chacon’s two children, picked Teresa up from the hospital at about 9–10 am on March 28th . Teresa states that as soon as Mariela saw the baby she said the baby was so big she couldn’t believe it was a newborn. Teresa states she told Mariela it was her daughter. Teresa states that they all got in Carmelo’s car and went home. Teresa states that when they got home, Carmelo asked her again about the little boy. Teresa states she told Carmelo the story Jaime had told her to say. Teresa states that when she got home she noticed she had blood on her pants. Teresa states she pointed out to Mariela how she had blood on her pants from the operation. Teresa states that while her family asked about the little boy, Teresa kept on telling them that a woman has asked her to watch him. Teresa states she was not concerned about the little boy who she named “Xavier.” Teresa stated she just wanted to think about Flor Maria. Teresa states she put some gauze and a bandaid over the baby Flor Maria’s belly button to make it look like the umbilical cord was still fresh. Teresa states the photo labeled “e” is a photo of Teresa bathing the baby Flor Maria. Teresa states the photo shows the gauze and the bandaid over the baby Flor Maria’s belly button. Teresa states she signed her name to indicate that the picture is correct. Teresa states that every day her husband and her sister in law Mariela would ask about the little boy’s mother. Teresa states she was not worried about the little boy Xavier. Teresa states she was very happy with her baby Flor Maria. Teresa states that Mariela would always ask about the little boy’s mother. Teresa states that ﬁnally early morning of April 3rd when Carmelo got home from work, Carmelo, Ernesto and Jaime took the little boy with them. Teresa states she didn’t know where they were taking the little boy. Teresa states she hoped they would just leave the little boy out somewhere where someone would ﬁnd him. Teresa states that at about 11:00 am the police came to her home Teresa states she didn’t say anything when the police told her the baby didn’t look like a newborn. Teresa states that she realized then that the plan had fallen apart. Mariela was shown a photo marked “0” and identiﬁes that as a photo of Jaime Cordero. Mariela was shown a photograph marked “E” and identiﬁed that photo as Ernesto Rivera. Teresa states that she was not made any promises nor was she threatened in any way in return for this statement. Teresa states that she is not under the inﬂuence of any drugs or alcohol. Teresa states she is not taking any drugs for depression. Teresa states she is not seeing a psychologist or any counselor for depression. Teresa states she has had Cokes to drink during the writing of this statement. Teresa states she was allowed to use the bathroom whenever she need to. Teresa states that she was been treated well by the police and by Assistant States Attorney Alarcon. Teresa states that Assistant States Attorney Alarcon read the entire statement to her in Spanish as she followed along. Teresa states that she made any changes or corrections that she wanted.

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STATEMENT Jaime Cordero TAKEN 2-18-2001 AT 2:00 A.M. AT Area 5 3128 E. Carson PRESENT ASA Jim McPherson Inv. Carlos Ortu˜no

1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 29 30 31 32

(Miranda warnings) After being advised of his constitutional rights and stating that he understood each of those rights and after being advised and stating that he understood that Jim McPherson was an Assistant State’s Attorney, a lawyer, a prosecutor and not his lawyer, Jaime Cordero agreed to give the following statement in summary and not word for word. Jaime states that he speaks spanish and only understands very little english. Jaime states that he agreed to have Inv. Ortu˜no interpret from English to Spanish and Spanish to English for the purpose of this statement. Jaime states that he is 23 years old and that his birthday is 8–23–78. Jaime states that he lives at 3872 Juniper Street in [City]. Jaime states that he lives there with Teresa Torres, Carmelo Torres, Ernesto Rivera, and Francisco Perez. Jaime states that Teresa Torres is the person shown in the photograph labeled People’s Exhibit #1. Jaime states that Ernesto Rivera is the person shown in the photograph labeled People’s Exhibit #2. Jaime states that he ﬁnished secondary school in Mexico, and ﬁnished the 9th grade. Jaime states that he has lived at 3872 Juniper Street since April of 2000. Jaime states that in November of 2000 he found out that Teresa was not pregnant. Jaime states Teresa had said she was pregnant in November but she did not look as pregnant as she said she was. Jaime states before February he heard others in the house state Teresa was pregnant. Jaime states that on November 19 Teresa said I need you to help me get a baby. Jaime states Teresa offered him $600 and gave him $200 on that day. Jaime states Teresa said she wanted him to help her take the baby from a lady’s house. Jaime states he remembers the date because Teresa gave him $200 that day. Jaime states this happened in the living room of the house at 3872 Juniper Street. Jaime states he understood this to mean he was supposed to help Teresa steal a baby from a lady. Jaime states he knew then that Teresa wasn’t really pregnant. Jaime states that three days later Teresa gave him the rest of the $600. Jaime states before Teresa gave him the $400 she said “are you really going to help me with this” and Jaime said yes, so Teresa gave him the $400. Jaime states he said to Teresa ‘why are you giving me so much money for such a simple task” and Teresa said it was so that Jaime wouldn’t say anything to her husband. Jaime states that he didn’t talk to Teresa about this again until Thursday, January 16. Jaime states that on that day Teresa asked him if he was still going to help her. And

Appendix 2 33 34 35 36 37 38 39 40 41 42 43 44 45 46 47 48 49 50 51 52 53 54 55 56 57 58 59 60 61 62 63 64 65 66 67 68 69 70 71 72 73 74 75 76 77

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he told her yes. Jaime states Teresa said well be ready tomorrow. Jaime states Teresa told him they would meet Friday after midnight. Jaime states that before Thursday January 16 he had seen Teresa talking to Ernesto on the side and he knew Ernesto would be involved too. Jaime states that on Thursday February 11 Teresa told him she had found a friend that had a very pretty baby. Jaime states that after Teresa told him that she had a friend with a very pretty baby, she then asked Jaime if he was still going to help her and Jaime told her yes. Jaime states he understood that to mean he was going to help Teresa steal a baby. Jaime states that very early in the morning on Saturday February 13, around 1:30 am, Ernesto picked him up behind the house on Juniper. Jaime states that Teresa had told him to be ready around that time. Jaime states he knew Ernesto was involved. Jaime states Ernesto pulled up, whistled, and so Jaime got in the car with him. Jaime states they drove and picked up Teresa in an alley to start driving a distance away. Jaime states that as Ernesto was driving, Teresa started to tell them the plan of how to steal the baby. Jaime states that Teresa was giving Ernesto directions where to go. Jaime states that they had picked up Teresa around 2:00am, but he is not sure of the times because he did not have a watch. Jaime states that they drove around for a while, talking about the plan. Jaime states that Teresa told them the layout of the house. Jaime states that it was Ernesto’s responsibility to take care of the man in the apartment, Teresa was going to take care of the woman, and Jaime was supposed to steal the baby. Jaime states that when they got to the house the sun was coming up. Jaime states they had driven around for a while, and they had headed north. Jaime states that they parked about half a block away from the apartment. Jaime states they were all ready to do what they had to do to get the baby. Jaime states that Teresa walked up to the door of the basement apartment in the back, and started knocking. Jaime states he and Ernesto were a few meters away, waiting for the signal. Jaime states that Teresa said to the lady that answered the door something like please let me in, I have no place to go. Jaime states that Teresa was the ﬁrst one to get into the apartment. Jaime states he saw Teresa give the sign by holding her hand behind her back at waist level and waiving them in. Jaime states that he and Ernesto rushed into the apartment. Jaime states that when they rushed in the lady that had answered the door started yelling out. Jaime states that the lady was surprised. Jaime states he stabbed the lady to quiet her down. Jaime states Teresa said in a frantic voice kill her, kill her, and he took a knife from his side and ﬂipped it out. Jaime states that the knife was a lock blade type that was real easy to ﬂip out. Jaime states he stabbed the lady in the upper chest. Jaime states the lady did not have any weapons, and was in a nighshirt. Jaime states that after he stabbed the lady she went down. Jaime states the lady gasped when he stabbed her. Jaime states that he walked into the bedroom and saw a man sleeping in the bed. Jaime states he saw the baby in a little basinette. Jaime states he also saw a little boy. Jaime states he thought the boy was about 2½ or 3 years old. Jaime states he grabbed the baby and wrapped her up. Jaime states he grabbed the boy and yanked him from the bed by one hand. Jaime states the kid was startled. Jaime states he put the baby on his shoulder and pulled the kid by the hand. Jaime states the kid was saying something like boo-boo, and he thought maybe the boy wanted the mickey mouse

210 78 79 80 81 82 83 84 85 86 87 88 89 90 91 92 93 94 95 96 97 98 99 100 101 102 103 104 105 106 107 108 109 110 111 112 113 114 115 116 117 118 119

Appendix 2

doll that was in the bed. Jaime states he didn’t stop but just yanked the kid right out. Jaime states he saw Teresa stabbing the woman in the back, like an animal, while the lady was laying face down on the ground. Jaime also states that he saw Ernesto go towards the man in the bed, and Ernesto was over the man. Jaime states that took the baby and the boy out to the car and put them in the back seat. Jaime states he took off his sweatshirt and threw the sweatshirt and knife in a nearby garbage container. Jaime states Ernesto and Teresa came out and they drove away. Jaime states that Ernesto and Teresa dropped him off about 4 blocks from his house. Jaime states Ernesto took Teresa to the hospital because Teresa was going to call her husband and tell him she just gave birth and to come and pick her up. Jaime states that after being dropped off he walked to his house like nothing happened, and went home, washed up, shaved, and had breakfast. Jaime states that a little later Teresa came home with her husband, Mariela Chacon, Mariela’s daughters, and the baby and three year old boy they had taken. Jaime states Teresa acted like she just had a new baby. Jaime states Teresa mostly kept the boy locked in a room. Jaime states a lot of people brought presents for the baby. Jaime states Teresa had told her husband that she was watching the little boy for a lady that was having a cesarean section, and that the lady had begged her to watch the boy. Jaime states that the boy he took from the apartment is the same boy shown in the picture labeled People’s Exhibit #3, and the baby is the baby shown in the picture labeled People’s Exhibit #4. Jaime states the lady he stabbed in the chest is the lady in the picture labeled People’s Exhibit #5, but she looks a little fatter. Jaime states the man in the bedroom looked like the man in People’s Exhibit #6, but he’s not sure. Jaime states that on Friday morning when he got home, just after midnight, he went to bed, but heard a commotion and woke up. Jaime states Teresa and Carmelo were arguing because Mariela Chacon had told them she saw the boy’s picture on the t.v. Jaime states Teresa wanted to throw the boy on the street, but Mariela and Carmelo wanted to bring the boy to the police. Jaime states that he, Carmelo, and Ernesto went to the police station with the boy. Jaime states Carmelo decided to do that. Jaime states he didn’t tell any thing to the police. Jaime states he didn’t want the police to know what happened. Jaime states that of the $600 Teresa gave him, he spent about $300 going to bars and picking up women. Jaime states that he was not made any promises in return for his statement nor was he threatened in any way. Jaime states that he was not under the inﬂuence of drugs or alcohol at the time he gave this statement. Jaime states that he was given sandwiches to eat, pop to drink, and was allowed to use the washroom whenever he wanted. Jaime states that he was treated very well by the police and by ASA McPherson, much more than he expected. Jaime states that ASA McPherson read each line of this statement out loud, in english, and Inv. Ortuno translated each line into spanish. Jaime states that ASA McPherson pointed out mistakes, and explained them, and they initialed the mistakes. Jaime states that he has had a chance to make any additions or corrections that he wanted. Jaime states that this statement is true and accurate.

Chapter 8 Conclusions In the investigative phase of police work, the potential for miscarriage of justice is high. This book has shown that this potential rises substantially when the suspects being investigated are not fully proﬁcient in English, and rises even higher when the police ofﬁcials who themselves are not ﬂuent in the language of the detainee conduct interrogations in that language. The implicit assumption by police departments that a limited level of proﬁciency in a second language is sufﬁcient for carrying out a custodial interrogation is unsustainable in light of the evidence presented in this book. In fact, speakers with limited proﬁciency in a second language who conduct interrogations in that language de facto deny suspects due process of law: the constitutional right of suspects to understand precisely what they are being accused of is restricted, sometimes severely so. Absent an understanding of charges, the quintessential right to avoid self-incrimination is all too often lost. As a result, the basic protections of the Miranda rights, ones that are increasingly becoming universal in legal systems in many parts of the world, are jeopardized when a police ofﬁcer with insufﬁcient command of the language of the detainee questions him or her in that language. The case of Juan L´opez is a striking example of communicative breakdown, the consequence of repeated, sometimes desperate, yet ultimately unsuccessful attempts by a suspect having woefully limited speaking and comprehension skills in English, to explain to the police what actually occurred during his brief encounter with a six-and-a-half year old girl. During the interrogation speech event, however, the police detective ofﬁcially designated as interpreter and mediator had even poorer speaking and comprehension skills in Spanish than did the suspect in English. Moreover, the police interpreter repeatedly failed to interpret entire turns at talk of both the suspect and the English-speaking detective conducting the interrogation. The consequence was a communicative event-destined-for-failure: the suspect was forced to make Herculean efforts to accommodate himself linguistically to both the pidginized Spanish variety spoken by the police “interpreter” – a variety that ﬁts the characterization of what Lipski (2002) has called ‘partial Spanish’, ‘almost-Spanish’, or ‘foreigner Spanish’ – and to the English of the interrogator. In sharp contrast, the efforts of the two police ofﬁcers to make themselves understood by the suspect were minimal. In his frequently vain attempts to make himself understood by the two police ofﬁcers, L´opez engages in a variety of techniques, almost all unsuccessfully, including negotiation for meaning, asymmetrical communicative

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accommodation, code-switching, code mixing, and lexical insertion.Yet, the police considered the tragic-comedy of errors to be ‘tantamount to a confession’, and in fact, the videotape of the interrogating ofﬁcer’s account at the grand jury hearing includes the unequivocal statement that the detainee had “confessed” to the crime of sodomy with a child. In reality, Juan L´opez, as the video tape clearly shows, made no such confession. In the end, justice was served, albeit justice delayed; the defendant was released from prison on probation, not long after he began serving his sentence, evidence of the non-viability of the prosecution’s case against him. The case of Carlos Alvarez represents a textbook example of the violation of a limited- English proﬁcient person’s Miranda rights. An appellate court reversed the murder conviction of Alvarez, because of the egregious conduct of the two police detectives in charge of the interrogation. While one of them was assigned the role of ‘interpreter/mediator’, this ofﬁcer – also a limited-Spanish speaker, as in the case of Juan L´opez – was not able to remain in interpreter footing, and consequently shifted into interrogator mode, both when he was left alone with the suspect, and when he was co-present as interpreter for the interrogating ofﬁcer and the suspect. In effect, the interpreter was simultaneously an interrogator, frequently using the ﬁrst-person plural to include himself in the actions of the interrogating ofﬁcer, thereby making it clear to the suspect that he saw himself primarily as a police detective rather than as an interpreter. His not infrequent appeals to the religious commonality that they shared proved to be a tactic that the appeal court found particularly unethical, as did the refusal of both ofﬁcers to respect the suspect’s repeatedly stated wishes to terminate the questioning, which constituted a denial of a fundamental Miranda right. In this context of seemingly overwhelming power in the hands of the police to extract confessions from limited-English speaking suspects, the Alvarez case, ironically, reveals that suspects do retain some resources for resisting blame implications. By limiting himself to fragmented answers and avoiding narrative style, using self-repetition and allo-repetition, euphemistic terms to refer to the crime, and, in general, using the verbal tactics of his interrogators, Alvarez succeeded in not confessing to attempted rape. Nonetheless, the resources of the accused are limited; Alvarez did confess to murder. The cases of Miguel Peralta and Ernesto Rivera show that even ﬂuently bilingual police ofﬁcers can subvert the intent of the law when they question a limited-English proﬁcient suspect. The interrogator in the Miguel Peralta case engaged in a series of practices that led to gratuitous concurrence. Speciﬁcally, he deployed a preponderance of controlling, coercive questions; he sometimes cut off Peralta’s answers, preventing him from narrating his version of events; he overwhelmingly used monotonic, declarative intonation, thereby creating a

Conclusions

213

series of statements rather than legitimate questions, statements that invited afﬁrmative answers; he used ambiguously worded questions; his speech style often shifted into a formal register, introducing elevated lexicon and more complex syntax; he used a veiled threatening tone; he employed metacommentary strategically, to indicate disbelief in Peralta’s answers; he often rephrased Peralta’s answers, in the process changing their meaning; he sometimes put words in Peralta’s mouth, in this way co-constructing the suspect’s narrative. The analysis has shown that many of Peralta’s ‘yeah’ responses to the detective’s questions were given mechanically, and sometimes clearly meaninglessly, the product of gratuitous concurrence, with shades of acquiescence response set. In combination, these tactics produced a confession and subsequently a death sentence. The interrogation of the Mexican detainee Ernesto Rivera by a bilingual Puerto Rican police ofﬁcer was not recorded, nor were there any other ofﬁcers present during the forty-hour long period during which Rivera was detained and questioned. A linguistic analysis of the Spanish translation of the Miranda rights shows that the translation was erroneous in several important ways. Since the English version of the Miranda rights is not standardized in the U.S.A., as Rogers et al. (2007) have recently shown, it is no wonder that there is no standardized Spanish translation of Miranda in use throughout the country. This lack of standardization opens the door wide for erroneous, misleading translations. Linguists in the U.K. appear to be ahead of those working in the ﬁeld of language and the law in the U.S.A., as at least one has called for a standard translation of the police caution (Russell 2000). Beyond the faulty translation of the Miranda warnings, there are several other linguistic aspects of the Rivera interrogation that seriously undermine the validity of the confession that he signed. For one thing, the signed statement is indistinguishable from a police arrest form – a narrative written by a police ofﬁcer summarizing all of the evidence that the police have gathered – rather than having the characteristics of a confession. Police arrest forms are generally not allowed as evidence in court and are considered to be hearsay. There are other odd qualities of the confession statement: it is written in the third person rather than in the ﬁrst, it is presented as a summary of the suspect’s account rather than a word-for-word verbatim statement, yet it comprises a series of indirect reported speech tokens. Finally, the written confession that Rivera signed is a carefully crafted guarantee of deniability of the police misconduct that almost certainly took place. The fact that he signed a document written in English when he had barely any comprehension of the language either in written or oral form makes the confession statement all the more suspect. Extralinguistic evidence points to the brutal behavior of the police interrogator toward Ernesto Rivera, speciﬁcally, the fact that 23 complaints of brutality

214

Conclusions

have been lodged against the ofﬁcer over the course of 20 years in which he has worked in this particular police department. In light of this record, it is not surprising that the ofﬁcer constructs a stance of “Mr. Nice Guy” for himself when he testiﬁes about his treatment of Rivera at a pre-trial hearing. The judge trying the case, however, rejects this interactionally constructed identity. As of this writing, Ernesto Rivera is being defended by a team of innocence project lawyers at the appeals court level. His case highlights the dangers of allowing the police to interrogate suspects without audio or videotaping the speech event.

1. The tip of the iceberg This book has presented a series of case studies using microlinguistic analyses. In each case the Latino defendant in question was shown not to have been treated fairly by the police. I have sought to demonstrate that in a wide variety of ways, there was ample evidence of coercion on the part of the police, coercion which resulted in either an oral or written account by the defendant that was interpreted by the police as a confession to a crime. In effect, these are police-induced confessions, at a minimum unreliable and at worst, entirely fabricated. The book began by taking note of the growing wave of studies of exonerations of persons convicted of serious crimes. A recent examination by Gross et al. (2005) of 340 exonerations occurring between 1989 and 2003 concludes that such exonerations are just the tip of the iceberg, that is, they represent persons who have been proven innocent of crimes of which they were convicted, largely crimes of murder (60%) and rape (36%), but that these statistics are suggestive of a much larger numbers of wrongfully convicted persons. Gross et al. believe that, “Beneath the surface there are other undetected miscarriages of justice in rape cases without testable DNA, and a much larger group of undetected false convictions in robberies and other serious crimes of violence for which DNA identiﬁcation is useless” (Gross et al. 2005: 531). While their study limits itself to individual defendants who were exonerated (“those whose convictions were nulliﬁed by ofﬁcial acts by governors, courts or prosecutors because of compelling evidence that they were not guilty of crimes for which they had been convicted”), there are several categories of falsely convicted persons who were entirely missing from their analysis, as they explain: innocent defendants who formed part of mass exonerations, defendants who had been given comparatively light sentences (e.g., for misdemeanors), and defendants who had pled guilty as a result of a plea bargain (Gross et al. 2005: 533–537). Research on exonerations such as that of Gross et al. draws scholarly attention to the disturbing fact that in the United States, and almost certainly in many

Policy implications of this research

215

other countries around the world, many innocent persons spend sizable portions of their lives in prison. For those who are fortunate enough to be exonerated, life after release from prison is not smooth sailing, as recent reports reveal (Roberts and Stanton 2007; Santos 2007). Since many were very young at the time of arrest and conviction, often they had not yet completed their formal education. When they return to the street, they all-too-often do not complete their education and end up being eligible for little more than minimum wage jobs. Many struggle with post-traumatic stress syndrome from their years of wrongful incarceration and their battle to clear their names; they emerge from prison scarred and poorly equipped to cope with a substantially changed society, and with relatives and friends who shun them because of their ex-convict status. Nearly all have consequently tried to sue the states or police departments that they hold responsible for wrongfully convicting them, seeking compensation. As a result, 22 states plus the District of Columbia currently have procedures in place for compensating the exonerated (Roberts and Stanton 2007:A30). Yet, no amount of monetary compensation can ever really compensate them for the fear, humiliation, and time that they spent behind bars for a crime that they did not commit. This book has presented case studies of coerced confessions, all of them leading to convictions, and all of them the result of coercive interrogation tactics used by the police. I have attempted to document the ways in which coercion is carried out in police stations, looking speciﬁcally at instances in which suspects do not command the language of the law and police ofﬁcers become half-hearted ad hoc interpreters. This study is the ﬁrst detailed, book-length examination of the interaction between police interrogator and interrogated in the context of the immigrant experience and incipient bilingualism. Given the movement of people across national boundaries globally, the need for further studies of social interaction in this type of sociolinguistic setting is compelling.

2. Policy implications of this research The research reviewed in the preceding chapters leads to three policy implications: (1) the requirement that police interrogations be video-recorded; (2) the need for standardizing the wording of the Miranda warnings, both in English as well as in other languages; and (3) avoiding the use of police ofﬁcers as interpreters at interrogations, replacing them with professional interpreters. The use of video-recording in police interrogations has been mandated by law in a small number of states, yet these laws themselves are not strong enough to prevent miscarriages of justice. For example, most of the laws do not require

216

Conclusions

that recording begin at the very outset of questioning. The laws allow recording equipment to be turned on at the point when the interrogating ofﬁcer is assured that a statement from the suspect is forthcoming. Furthermore, when video or audio recording is required, it is generally restricted to cases involving serious crimes, such as homicide. This means that interrogations involving suspects accused of more commonly occurring crimes (e.g., assault, burglary) are not being electronically recorded. This book has shown that even in cases involving serious crimes such as murder and kidnapping, in many jurisdictions police ofﬁcers are not required to video or even audio tape interrogations. It is time for there to be one standardized English version of the Miranda warnings throughout the U.S.A., just as there already is one standardized version of the police caution in the United Kingdom. The standard version could be agreed to by a joint effort involving the U.S. Justice Department and forensic linguists, so that the problems of incomprehensibility and ambiguity uncovered by the present study and by previous research (Rogers et al. 2007; Shepherd et al. 1995; Shuy 1998) can be eliminated, or at least, mitigated. A standardized set of Miranda warnings should be worded in such a way that persons of low educational attainment and those who are of normal or near normal intelligence would be able to easily understand what is stated in them. A collaborative effort on the part of the U.S. Department of Justice and the administrative ofﬁce that overseas the Federal Court Interpreters examination would be an ideal way to approach standardizing translations once there is a standard English version of the Miranda warnings. The input of accredited interpreting/translating associations such as NAJIT would be important as well. Realistically, effectuating the standardization of an English language set of Miranda warnings along with uniform translations of them would be an effort fraught with obstacles. The major barrier to realizing these goals is the decentralized nature of judicial authority in the U.S. system of justice. Justice is carried out separately at the federal, state, and county level, not to mention such local jurisdictions as the municipality. It is for this reason that the sheriffs in a given county of a given state will use one particular wording, while the state police who have jurisdiction over the very same county, albeit for more serious crimes, may use different wording. Furthermore, if a person living in that county is arrested under suspicion of having committed a crime involving more than one state (e.g., transporting ‘controlled substances’, that is, narcotic drugs, over state boundaries), then that person will be questioned by federal authorities, who will have their own Miranda rights printed on cards. The existence of multiple layers of jurisdictions in the U.S.A. makes the challenge of standardizing the Miranda warnings a particularly daunting one.

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The police should not serve as interpreters. Awareness of the inadvisability of using law enforcement ofﬁcials as interpreters at custodial interrogations is currently minimal. If anything, the trend is moving in the opposite direction, namely, giving police ofﬁcers brief courses in ‘Survival Spanish’, so as to enable them to question suspects both at the moment of arrest and subsequently at the police station. The notion that professionally trained interpreters and translators should be employed for this purpose is not one that is high on the radar scope of law enforcement administrators. The administration of justice in common law countries has been improving steadily since the signing of the Magna Carta. For the most part, we have gone beyond torture chamber techniques in the American police station. Nevertheless, despite the existence of the Miranda rights, suspects in policy custody are frequently denied those rights, as this book has shown. Persons lacking proﬁciency in the language of the law are at a greater disadvantage still. When police ofﬁcers take on the role of interpreter at custodial interrogations, the potential for denial of due process and for misconduct expands exponentially, and with it the possibility of coerced confessions. Perhaps it is merely naivet´e on the part of law enforcement ofﬁcers, or simply their lack of appreciation for the demanding nature of interpreting and translating, but the willingness of the police to entrust to non-professional interpreters the task of questioning suspects during investigative policework is playing with ﬁre. Not only are the Miranda rights often put in jeopardy under such circumstances, but when suspects do voluntarily relinquish their right to remain silent and in the process unknowingly accept the services of either biased or unqualiﬁed interpreters, what they say may be rendered defectively in the course of its conversion to the language of the courts. When this happens, statements attributed to them through faulty interpreting may come back to haunt them at subsequent stages of the judicial process.

Notes 1. The abbreviation ‘9/11’ refers to September 11, 2001, the day on which three incidents of international terrorism occurred in the U.S.A. 2. Forensic experts in the U.S.A. generally distinguish between police interviews and interrogations, as Shuy (1998) explains. In Britain, however, the term ‘police interview’ seems to be a cover term that incorporates both sorts of speech events. In reviewing the writings of several experts in the ﬁeld (Aubry and Caputo (1980), O’Hara and O’Hara (1988), Royal and Schutt (1976), and Yeschke (1987)), Shuy comes to the conclusion that, whereas “the goal of interviews is to gather facts”, interrogations, in contrast, “have as their purpose securing a confession”, and “are conducted once it is reasonably certain that the person being questioned is guilty” (Shuy 1998: 8). 3. The rendition of source language oral substance into target language oral substance is referred to as ‘interpreting’, while the conversion of source language written material into target language written material is known as ‘translating’. Laypersons who are not connected to the profession of interpreting/translating often use the latter term to refer to both, persons working in the law enforcement ﬁeld being among those who frequently do not make this distinction. 4. The limitation to forty-eight cases for the state of New York was decided on the basis of time constraints on the researcher. However, the procedure for selection was a random one: the forty-eight that were examined were the ones that the computer printer generated in its ﬁrst two “passes” over the total New York data set. The cases span the entire period encompassed by the overall search, and they are not in any discernible order, either alphabetically, chronologically or otherwise. Thus, they seem to be representative of all the other cases generated by the search. 5. The argument that it is not necessary to “mouth a ritualistic formula” so long as “the words convey the substance of the Miranda rights with all the requisite information” applies ﬁrst and foremost to police ofﬁcers (People v. Congilaro), but carries over to interpreters who work with the police. 6. It is not clear if the Miranda rights were given before or after the interview. 7. My own ethnographic ﬁeldwork in one particular state court (Berk-Seligson 2002) revealed that staff interpreters of the courthouse were regularly sent to the county jail to interpret for the police at the time when suspects were ﬁrst booked for arrest. This is the stage that immediately precedes arrestees’ ‘initial appearance’ before a magistrate, at which time they are for the ﬁrst time informed of the charges against them. Given the generally more serious attention that has been paid to interpreter qualiﬁcations in the U.S. federal court system, compared to that found in the state and municipal courts, it would be safe to assume that arrestees in federal criminal

Notes

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cases are often provided the services of professional interpreters/translators at the detention phase of judicial processing. 8. Goffman (1979: 173) explains his notion of footing as “the multiple senses in which the self of the speaker can appear, that is, the multiple self-implicated projections discoverable in what is said and done.” And so, “A change in footing implies a change in the alignment we take up to ourselves and others present as expressed in the way we manage the production or reception of an utterance” (Goffman 1979: 5). 9. Rodney King, an African-American who was stopped by the police on a California freeway in 1991, was savagely beaten by them at the time of his detention.The beating was videotaped by a motorist passing by, and was used as evidence during the trial of the accused police ofﬁcers. Abner Louima, a Haitian immigrant, was arrested when police found him present at a ﬁght that broke out outside a Brooklyn social club one Saturday night in 1997. At the police station, Louima was sodomized by one of his arresting police ofﬁcers with the handle of a broom. His intestinal injuries were so severe that he underwent surgery several times, and was hospitalized for many months until considered to be well enough to go home. 10. Two years after its enactment into law, Miranda was challenged by the U.S. Congress, which passed a crime bill that included among its provisions one that in effect would have overruled the Miranda decision, saying that a confession that had been given voluntarily could be used in court, even if the suspect had not been warned of his rights. Nevertheless, that congressional law was considered to be unconstitutional by most prosecutors, because it contradicted Miranda. Most recently, however, a conservative Circuit Court of Appeals in the state of Virginia invited a former law clerk of the Supreme Court to argue the case that Miranda was no longer the law, and that voluntary confessions could be used against suspects, whether the Miranda warnings had been given by the police or not. On June 26, 2000, however, the U.S. Supreme Court announced its decision on this case (Dickerson v. United States), reafﬁrming the validity of Miranda v. Arizona. In a decision of seven in favor and two against preserving the Miranda rights, the Court held that the core principles of the Miranda ruling could not be overruled by Congress, and that the Miranda rights were constitutional rights, with “constitutional underpinnings” and a “constitutional basis.” Most interestingly, as Chief Justice William H. Rehnquist put it, “Miranda has become embedded in routine police practice to the point where the warnings have become part of our national culture” (New York Times 2000: 18). Evidence of this, it would seem, is the fact that there is a verb used by police in the U.S.: ‘to Mirandize’. 11. It should be noted that when Carlos Rivera Alvarez was ﬁrst interrogated, he gave an alias: Luis Gonz´ales Garcia. By the second interrogation he confessed to fabricating that name. The courts ﬁled the case under the surname ‘Alvarez’ because unless two consecutive surnames are conjoined with a hyphen, in the U.S.A. the last surname becomes the ofﬁcial surname, and the ﬁrst surname is considered a middle-name.

220

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12. It should be noted that the extracts of the interrogation that are presented here are taken from the ofﬁcial court transcript, which are based on the audio-recording of the interrogation. The analysis, however, is based upon the tape-recording. The transcript, which includes the English translation of all Spanish language textual material as provided by a court interpreter/translator, is a highly accurate representation of the speech event, even though it is lacking in the type of detail that conversational analysts normally include (e.g., latching symbols to indicate overlapping speech). 13. The symbol ‘(u)’ is reproduced from the ofﬁcial court transcript. It indicates that what was said on the audio-recording at that point could not be understood. 14. The reference to ‘him’ is to Carlos Alvarez. The choice of pronoun indicates that Calhoun is addressing himself directly to Larson now, rather than to the suspect. This happens often when speakers are not used to working with professional interpreters. Professional interpreters would point out to the person in need of interpreting services that s/he should address the suspect directly. 15. The notion of ‘common ground’ is part of the theory of politeness of Brown and Levinson (1979). It is a strategy of positive politeness, whereby a speaker indicates that s/he and the hearer “both belong to the some set of persons who share speciﬁc wants, including goals and values” (Brown and Levinson 1979: 108). One way of claiming common ground is to stress common membership in a group or category. 16. The notion of ‘turn at talk’comes from the ﬁeld of conversation analysis, which conceives of conversation as a turn-taking mechanism (Sacks, Schegloff and Jefferson 1974). 17. On being convicted by the trial court, Alvarez had been sentenced to life in prison without possibility of parole. In appealing the conviction on the basis of improper police conduct during his interrogation, his defense attorneys requested that the conviction be reduced to second-degree murder and that his sentence be adjusted accordingly. 18. The extract comes from the transcription of the interrogation of the defendant at the police station, a short time after his arrest. The document forms part of the record of the trial court that convicted him; it was one of the pieces of evidence submitted to the court. 19. Portions of the text highlighted in bold letters are those ﬂagged by the appellate court as evidence of the police interrogators’ violations of the suspect’s Miranda rights. Textual material that appears in bold appeared in italics in the judges’ ruling. 20. What follows at this point in the interrogation is the sequence presented in Extract 6, pages 53–54. 21. At this point, there is a question regarding whether Alvarez has had any experience with jails, either in the U.S.A. or Mexico. Ofﬁcer Calhoun then leaves the room, and Larson and Alvarez are left alone. Their interaction is entirely in Spanish. Larson refers to his prior role as interpreter for Calhoun, and appeals to Alvarez’s identity as a Spanish speaker as a way to get him to open up to him (see Extract 10, page 58).

Notes

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Alvarez says it is not because of Calhoun’s speaking English to him that he had not wanted to answer his questions, and Larson begins to press him to talk. 22. The court interpreter/translator has indicated the most blatant Spanish errors of Larson’s with the word sic in brackets. These indications of error have been reproduced here. However, there are numerous other errors made by Larson that are not noted by the court interpreter/translator, nor are they pointed out by me. 23. The term ‘undocumented’ is used by judicial authorities to refer to persons who are residing in the U.S.A. without legal papers (such as a visa or residency card) permitting them to do so. An older term, but one that is still in use, is ‘illegal alien’. I prefer not to use this expression since its connotations seem to me to be far more pejorative than those of the newer designation, ‘undocumented person’. 24. The quality of Larson’s interpreting will not be analyzed here. Sufﬁce it to say that it is highly deﬁcient, in numerous ways, particularly in the conversion of English to Spanish. The most frequent interpreting errors are (1) the use of ungrammatical Spanish forms, (2) the use of Spanish lexical items that are either non-standard or simply creations, (3) English-accented pronunciation, and (4) additions to, subtractions from, or entire changes in the substance of what was said in the original utterance (from either language to the other). 25. English translations found in brackets represent the ofﬁcial translation provided by the courts. They generally diverge sharply from those given by Larson, and while I might question some of the ofﬁcial renditions of Spanish to English (e.g., the choice of a lexical item that represents a register which to me sounds more formal in English than does the Spanish source), some of my questions regarding the translation deal with truly difﬁcult decisions to be made, for example, how to best represent hesitation forms which in Spanish are partial repetitions of a phrase, and where the repeated element is an indirect object pronoun whose syntactic placement in English does not lend itself to repetition by itself without the accompanying verb). These are minor points, however, because on the whole the rendition of the ofﬁcial translator is excellent and questionable translations are few and far-between. 26. Police interrogation training manuals, such as Van Meter (1973), teach the police to use the technique of referring to the crime in vague terms such as ‘the problem’ until such time as they are ready to make an explicit accusation. 27. Larson’s Spanish rendition of Calhoun’s statement is particularly erroneous. While Larson justiﬁably changed ‘dress’ to ‘pants’ (pantalones), since Calhoun misspoke himself, his terms for ‘underwear’ (pantalones anteriores) and ‘ankles’ (tornillos) are incorrect in different ways. The former term does not exist, and if it did it would mean ‘forward pants’or ‘previous pants’, which makes no sense. Larson was groping for the term ropa interior. The word tornillo means ‘screw’. Larson was trying to remember the word for ankle, tobillo. 28. El Paso and Ju´arez are two adjacent cities separated by the U.S./Mexico border.

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29. Problems of interpreting in legal settings stemming from cross-cultural differences in verbal and non-verbal communicative behavior have been noted in more theoretical studies as well (e.g., Berk-Seligson 2002; Hatim and Mason 1997). 30. The concept of the ‘adjacency pair’ comes from Sacks’ work in the ﬁeld of conversation analysis. Hutchby and Woofﬁtt (1998: 39) sum up his notion of this phenomenon: “One of the most noticeable things about conversation is that certain classes of utterances conventionally come in pairs . . . Basically, these are pairs of utterances which are ordered, that is, there is a recognizable difference between ﬁrst parts and second parts of the pair; and in which given ﬁrst pair parts require particular second parts (or a particular range of seconds).” Examples of typical adjacency pairs are question/answers, greetings/return greetings, offers/acceptances or declinations. 31. An in-depth review of the issues surrounding the recording of police interrogations is found in chapter 8 of this book. 32. Equally as lacking in coerciveness is a category of questions called ‘requestions’ (Danet and Bogoch 1980) or ‘modal interrogatives’(Hale 2000). These are questions that are requests for narrative-like answers, and begin with ‘modal verbs’ such as ‘can,’ ‘could,’ ‘would,’ as in “Can you tell me what you saw when you walked into the store?” 33. Tags at the end of questions represent one of type of ‘assessment marker’, deﬁned by Fraser and Freedgood (1999: 9) as a marker that “signal(s) the speaker’s assessment of the proposition encoded in the utterance.” Such markers ﬁt under the broader rubric of ‘pragmatic markers’, that is, “words or phrases which modify the basic message or signal a separate one” (Fraser 1996; Fraser and Freedgood 1999: 1). Whereas the interpreting of pragmatic markers is not at issue in this chapter, in situations where judicial interpreting is being carried out—be it by detectives in a police station or lawyers in a courtroom—the omission, addition or substitution of pragmatic markers has serious consequences for the coerciveness of questions, as Fraser and Freedgood (1999) empirically demonstrate. 34. Some of the utterances directed at Miguel Peralta are not questions seeking information. Rather, they are requests: requests that he slow down his pace of answering (“Take it easy, slow down look there’s a soda right there, it’s yours, you can take a drink if your mouth is dry.” Interrogation #3), a request to sign a form (“OK, just, I’m going to take a moment, do me a favor, will you date and sign this piece of paper for me?” Interrogation #3), and to repeat something he had said (“Por fa— dime esa parte una vez m´as” [Please, why don’t you tell me that, tell me that part one more time]. Interrogation #3). Some of the speech acts directed at him have the illocutionary force of orders, and use the imperative mode, as in the order that he narrate (“Where did you. . . tell me exactly what happened. . . .” Interrogation #3). Others are offers, such as the offer of a drink of Pepsi Cola (“Have a drink. Pepsi, by the way.” Interrogation #3).

Notes

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35. It was pointed out that the suspect had a cocaine habit. Withdrawal symptoms that emerged during his incarceration in jail may have affected his ability to express himself clearly. 36. The names of persons and places have been ﬁctionalized to preserve the anonymity of all those involved in this case and in the other case studies presented in this book. Dates have been changed as well, for the same purpose. 37. The Oral Proﬁciency Interview (OPI) developed by the American Council of Teachers of Foreign Languages (ACTFL) produces a reputable classiﬁcation of language proﬁciency that is widely used throughout the U.S.A. 38. Code-switching has been attested around the world, since it is a common outgrowth of bilingualism at the community level. Thus, in North America, in addition to the widespread use of code-switching among U.S. Hispanic speech communities, we ﬁnd code-switching among African American speakers of Black English and Standard English (DeBose 1992), French-English speaking Canadians (Grosjean 1982; Heller 1988), Tamil-English-speaking Canadians (Sankoff, Poplack andVanniarajan 1990), and Finnish-English speaking Canadians (Poplack, Wheeler and Westwood 1990). In Europe, we ﬁnd Turkish-German code-switching in Germany (Treffers-Daller 1998), Sardinian-Italian in Italy (Schjerve 1998), German-Hungarian codeswitching in Austria (Gal 1979), Chinese-English code-switching in England (Wei 1998), Spanish-French code-switching and French-Arabic switching in France (Dabene 1990), In the Middle East we ﬁnd among Israelis Hebrew-English code-switching (Doron 1983; Maschler 1998) and Hebrew-Spanish code-switching (Berk-Seligson 1986), and among Moroccans Arabic-French code-switching (Bentahila and Davies 1983). In Africa there is widespread code-switching among Swahili-English bilinguals in Kenya (Myers-Scotton 1992, 1993), Shona-English bilinguals of Zimbabwe (Scotton 1992), French-Swahili speakers in Zairei (Gysels 1992; Goyvaerts and Zembele 1992)), Campus Kiswahili [a dialect of Swahili]-English speaking Tanzanians (Blommaert), and Wolof-French speakers in Dakar (Swigart 1992). 39. There is no standard Spanish translation of the Miranda warnings in use throughout the United States. 40. Anecdotal evidence of comprehension difﬁculties on the part of speakers of central Mexican Spanish when interacting with speakers of Caribbean Spanish varieties comes from my observation of a speaker of Cuban Spanish who was assigned a Mexican-American interpreter in a state court. Observations of the interpreter at the Cuban defendant’s murder trial revealed that the interpreter had tremendous difﬁculty understanding him, primarily because of the sharp differences in their respective pronunciation patterns (Berk-Seligson 2002). My own experience living in Puerto Rico for a three-month period corroborates this type of comprehension difﬁculty: after studying Spanish in middle school and high school for ﬁve years,

224

Notes and majoring in Spanish in college, I spent a summer in Mexico City as a college undergraduate, and had no difﬁculty understanding the Spanish of anyone I spoke to in either Mexico City or in the colonial region of Mexico, yet during my ﬁrst six weeks in Puerto Rico I had severe comprehension problems, related mainly to the phonetic features of Puerto Rican Spanish. While I did adjust to what was for me a new dialect, it took six weeks of hearing Puerto Rican Spanish spoken around me for the adjustment to come to completion.

41. Interestingly, there is no indirect object of the verb ‘give’: it does not say to whom he gave the statement, although it is implied that the indirect object was the district attorney. 42. Perhaps someone alerted him to the non-standard form as he prepared for testimony. 43. The word ‘pop’ is one of the many regional variants used in the U.S.A. to refer to a carbonated non-alcoholic beverage. Other variants are ‘soft drink’, ‘soda’, and ‘Coke’ (used generically, not just for the brand name).

References Achugar, Mariana 2002 Piropos: cambios en la valorizaci´on del grado de cortes´ıa de una pr´actica discursiva. In Placencia, Mar´ıa E. and Diana Bravo (eds.), Actos de Habla y Cortes´ıa en Espa˜nol. Muenchen: Lincom, 175–192. Adelsward, Viveka, Karin Aronsson, and Per Linell 1988 Discourse of blame: courtroom construction of social identity from the perspective of the defendant. Semiotica 71(3/4), 261–284. Ainsworth, Janet 1993 In a different register: the pragmatics of powerlessness in police interrogation. The Yale Law Journal 259, 301–316. 2008 “You have the right to remain silent . . . ” but only if you ask for it just so: the role of linguistic ideology in American police interrogatiion law. The International Journal of Speech, Language and the Law 15(1), 1–22. Ainsworth, Peter B. 1995 Psychology and Policing in a Changing World. New York: Wiley. Altano, W. B. 1990 The intricate witness-interpreter relationship. In Bowen, D. and M. Bowen (eds.), Interpreting: Yesterday, Today, and Tomorrow (American Translators Association Monograph Series IV), Binghamton, NY: SUNY, 96–100. Angermeyer, Philipp 2002 Lexical cohesion in multilingual conversation. International Journal of Bilingualism 6, 361–393. 2003 Lexical cohesion as a motivation for code-switching: Evidence from Spanish-English bilingual speech in court testimonies. In Sayahi, Lotﬁ (ed.), Selected Proceedings from the First Workshop on Spanish Sociolinguistics. Somerville, MA: Cascadilla Proceedings Project, 112–122. Arellano, Silvia 2000 A hierarchy of requests in California Spanish: are indirectness and mitigation polite? In Roca, Ana (ed.), Research on Spanish in the United States: Linguistic Issues and Challenges. Somerville, MA: Cascadilla Press, 319–332. Aron, R., K. T. Duffy, and J. L. Rosner 1989 Cross-Examination of Witneses: The Litigator’s Puzzle. Colorado Springs, CO: McGraw Hill Information Services Company. Aubry, A. S. Jr. and R. R. Caputo 1980 Criminal Interrogation. Springﬁeld, IL: Charles C. Thomas.

226

References

Atkinson, Maxwell and Paul Drew 1979 Order in Court:The Organization ofVerbal Behavior in Legal Settings. London: MacMillan. Bauman, Richard and Charles L. Briggs 1990 Poetics and performance as critical perspectives on language and social life. Annual Review of Anthropology 19, 59–88. Benmaman, Virginia 1997 ‘Legal interpreting by any other name is still legal interpreting’. In Carr, S. E., Rhoda Roberts, A. Dufour and D. Steyn (eds.), The Critical Link: Interpreters in the Community. Amsterdam/Philadelphia: John Benjamins, 179–190. Berk-Seligson, Susan 1983 Sources of variation in Spanish verb construction usage: the active, the dative, and the reﬂexive passive. The Journal of Pragmatics 7(2), 145–168. 1990/2002 The Bilingual Courtroom: Court Interpreters in the Judicial Process. Chicago: The University of Chicago Press. 1999a The impact of court interpreting on the coerciveness of leading questions. Forensic Linguistics: The International Journal of Speech, Language and the Law 6, 30–56. 1999b Off-the-record legal interpreting: court interpreters in an advocacy setting. Plenary talk given at the 4th biennial conference of the International Association of Forensic Linguists. Birmingham, United Kingdom. 2000 Interpreting for the police: Issues in pre-trial phases of the Judicial Process. Forensic Linguistics: The International Journal of Speech, Language and the Law 7, 213–238. Berk-Seligson, Susan and Shonna L. Trinch 1999 The transformation of domestic violence narratives in pre-trial interviews: the unanticipated shifting of roles of the the court interpreter. Paper presented at the annual meeting of the American Association of Applied Linguistics (March), Stamford, Connecticut, and the XVII National Conference on Spanish in the United States (March), Coral Gables, Florida. Bickerton, David 1977 Pidginization and creolization: language acquisition and language universals. In Valdman, Albert (ed.), Pidgin and Creole Linguistics. Bloomington: Indiana University Press, 49–69. Bilous, Frances R. and Robert M. Krauss 1988 Dominance and accommodation in the conversational behaviours of same- and mixed-gender dyads. Language and Communication 8, 183–194.

References

227

Blommaert, Jan and Chris Culcaen 1997 Political Linguistics. Special issue of the Belgian Journal of Linguistics 11. Bottorf, Christian 2007 Language police hope to bridge culture gaps. Tennessean 1B & 6B. Bourhis, R. Y., Howard Giles, J. P. Leyens and H. Tajfel 1979 Psycholinguistic distinctiveness: language divergence in Belgium. In Giles, Howard and R. St. Clair (eds.), Language and Social Psychology. Oxford: Blackwell, 158–185. Bresnahan, M. I. 1979 Linguistic limbo: the case of the non-native English-speaking defendant in the American courtroom. Paper presented at the Ninth Annual Colloquium on New Ways of Analyzing English, Montreal. Bromwich, M. R. 1999 Miranda endangered. The New York Times (December 7). Brooks, Peter 2000 Troubling Confessions: Speaking Guilt in Law and Literature. Chicago and London: The University of Chicago Press. Brown, Penelope and Stephen Levinson 1979 Universals in language usage: Politeness Phenomena, in Esther N. Goody (ed.) Questions and Politeness: Strategies in Social Interaction. Cambridge: Cambridge University Press, 56–310. Buckley, D. and B. Jayne 2005 Electronic Recording of Interrogations. Chicago: John E. Reid and Associates. Bullock, C. and B. Harris 1997 Schoolchildren as community interpreters. In S. E. Carr, R. Roberts, A. Dufour, and D. Steyn (eds.), The Critical Link: Interpreters in the Community, Amsterdam/Philadelphia: John Benjamins, 227–237. Clift, Rebecca and Elizabeth Holt 2007 Introduction. In Holt, Elizabeth and Rebecca Clift (eds.), Reporting Talk: Reported Speech in Interaction. Cambridge: Cambridge University Press, 1–15. Clyne, Michael 1981 ‘Second generation’ foreigner talk in Australia. In Clyne, Michael (ed.), Foreigner Talk (= International Journal of the Sociology of Language 28). The Hague: Mouton, 69–80. Coates, Jennifer 1996 Women Talk: Conversation between Women Friends. Oxford: Blackwell. Colin, J. and Ruth Morris 1996 Interpreters and the Legal Process. Winchester: Waterside Press.

228

References

Collard-Abas, L. 1989 Training the trainers of community interpreters. In C. Picken (ed.), ITICO Conference Proceedings. London: ASLIB, 81–5. Conley, John M. and William M. O’Barr 1990 Rules versus Relationships: The Ethnography of Legal Discourse. Chicago and London: The University of Chicago Press. 1998 Just Words: Law, Language, and Power. Chicago/London: The University of Chicago Press. Conley, John M., William M. O’Barr, and E. A. Lind 1978 The power of language: presentational style in the courtroom. Duke Law Journal 78, 1375–1399. Conrad, Susan and Douglas Biber 2000 Adverbial marking of stance in speech and writing. In Hunston, Susan and Geoff Thompson (eds.), Evaluation in Text: Authorial Stance and the Construction of Discourse. Oxford: Oxford University Press, 56–73. Cooke, Michael 1996 A different story: narrative versus ‘question and answer’ in Aboriginal evidence. Forensic Linguistics: The International Journal of Speech, Language and the Law 3(2), 273–289. 1998 Anglo/Yolngu communication in the criminal justice system. Unpublished PhD thesis, University of New England, Australia. Corsellis, Ann 1995 Non-English Speakers and the English Legal System: A Handbook in Good Practice for Those Working in the Legal System Across Language and Culture, Cambridge: University of Cambridge, Institute of Criminology. Cotterill, Janet 2000 Reading the rights: a cautionary tale of comprehension and comprehensibility. Forensic Linguistics 7(1), 4–25. 2002 Language in the Legal Process. Basingstoke, UK/New York: Palgrave MacMillan. 2003a Language and Power in Court: A Linguistic Analysis of the O.J. Simpson Trial. Basingstoke, UK/New York: Palgrave MacMillan. 2003b Rebellion, resistance and ways of behaving badly. Paper presented at the biennial meeting of the International Association of Forensic Linguists (Sydney, Australia), July. Coupland, Nikolas 1984 Accommodation at work: some phonological data and their implications. International Journal of the Sociology of Language 46, 49–70. Court of Appeal of California 1991 California Reporter 277, 327.

References

229

Danet, Brenda and Nicole C. Kermish 1978 Courtroom questioning: A sociolinguistic perspective. In L. N. Massery II (ed.), Psychology and Persuasion in Advocacy. Washington, DC: Association of Trial Lawyers of America, National College of Advocacy. Danet, Brenda 1980a Language in the courtroom. In Giles, Howard, P. Smith, and P. Robinson (eds.), Social Psychology and Language: Proceedings of an International Conference. Oxford: Pergamon. Danet, Brenda and Bryna Bogoch 1980b Fixed ﬁght or free-for-all? An empirical study of combativeness in the adversary system of justice. British Journal of Law and Society 7(1), 36–60. Danet, Brenda, K. B. Hoffman, N. C. Kermish, H. J. Rafn, and D. G. Stayman 1980 An ethnography of questioning. In R. Shuy andA. Shnukal (eds.), Language Use and the Uses of Languages: Papers from the Fifth Annual Colloquium on New Ways of Analyzing Variation in English. Washington, DC: Georgetown University Press. Davidson, Brad 2000 The interpreter as institutional gatekeeper: The social-linguistic role of interpreters in Spanish-English medical discourse. Journal of Sociolinguistics 4(3), 379–405. Davis, Suzannah 1999 Language planning in the Omaha Police Department, 1991 to the present. Unpublished Master’s long paper, University of Pittsburgh (Pennsylvania, USA). De Jongh, Elena M. 1992 An Introduction to Court Interpreting: Theory and Practice. Lanham/NewYork/London: University Press of America. Diploma in Public Service Interpreting: Syllabus 1996 London: Institute of Linguists Educational Trust. Donovan, Daniel and John Rhodes 2000 Comes a time: the case for recording interrogations. Montana Law Review 61, 245–246. Drew, Paul 1992 Contested evidence in courtroom cross-examination: the case of a trial for rape. In Drew, Paul and John Heritage (eds.), Talk at Work: Interaction in Institutional Settings. Cambridge: Cambridge University Press, 470–520. Drew, Paul and John Heritage (eds.) 1992 Talk at Work: Interaction in Institutional Settings. Cambridge: Cambridge University Press.

230

References

Driver, E. D. 1968 Drizin, Steven 2007

Confessions and the social psychology of coercion. Harvard Law Review 82, 42–61.

States that require recording of interrogations. E-mail communication, September 23. Drizin, Steven and Beth Colgan 2001 Let the cameras roll: Mandatory videotaping of interrogations is the solution to Illinois’ problem of false confessions. Loyola University of Chicago Law Journal 32, 345–378. Drizin, Steven A. and Richard A. Leo 2004 The problem of police-induced false confessions in the post DNA age. North Carolina Law Review 82, 891–1007. Drizin, Steven A. and Marissa J. Reich 2004 Heeding the lessons of history: the need for mandatory recording of police interrogations to accurately assess the reliability and voluntariness of confessions. Drake Law Review 52, 619–646. Dunstan, Robert 1980 Context for coercion: analyzing properties of courtroom ‘questions’. British Journal of Law and Society 7(1), 60–77. Dwyer, Jim and Susan Saulney 2002 Youths’ denials in rape case cost them chances at parole. The New York Times October 16, A24. Eades, Diana 1994 A case of communicative clash: Aboriginal English. In Gibbons, John (ed.), Language and the Law. London/New York: Longman, 234–264. 2008 Courtroom Talk and Neocolonial Control. Berlin/New York: Mouton de Gruyter. Edelsky, Carole and Karen Adams 1990 Creating inequality: breaking the rules in debates. Journal of Language and Social Psychology 9, 171–190. Ehrlich, Susan 2001 Reproducing Rape: Language and Sexual Consent. London: Routledge. 2007 Normative discourses and representations of coerced sex. In Cotterill, Janet (ed.), The Language of Sexual Crime. Basingstoke, UK/New York: Palgrave MacMillan. Estrich, Susan 1987 Real Rape. Cambridge, Mass.: Harvard University Press. Fairclough, Norman 1995 Critical Discourse Analysis: The Critical Study of Language. Harlow, England: Longman Group.

References

231

Felix-Brasdefer, J. C´esar 2008 Politeness in Mexico and the United States: A Contrastive Study of the Realization and Perception of Refusals. Amsterdam/Philadelphia: John Benjamins. Ferrara, Kathleen 1991 Accommodation in therapy. In Giles, Howard, Nicholas Coupland, and Justine Coupland (eds.), Contexts of Accommodation: Directions in Applied Sociolinguistics. Cambridge: Cambridge University Press. Figueiredo, Debora de Carvalho 2000 Victims and Villains: Gender Representations, Surveillance and Punishment in the Judicial Discourse on Rape. Ph.D. Thesis, Universidade Federal de Santa Catarina, Florianopolis, Brazil. Finlay, W. M. L. and E. Lyons 2001 Methodological issues in interviewing using self-report questionnaires with people with mental retardation. Psychological Assessment 13, 319–335. Frankenthaler, Marilyn 1982 Skills for Bilingual Legal Personnel. Cincinnati, OH: South-Western Publishing Co. Fraser, Bruce and Laura Freedgood 1999 Interpreter alterations to pragmatic features in trial testimony. Paper presented at the Annual Meeting of the American Association for Applied Linguistics (21st ). Stamford, Connecticut, March 6–9. Fuentes, Roc´ıo 2001 Complimenting in two languages: a cross-cultural study of stranger compliments and piropos in the Mexican and American cultures. Unpublished ms. Gal, Susan 1989 Language and political economy. Annual Review of Anthropology 18, 345–367. Galatolo, Renata 2007 Active voicing in court. In Holt, Elizabeth and Rebecca Clift (eds.), Reporting Talk: Reported Speech in Interaction. Cambridge: Cambridge University Press, 195–220. Garc´ıa, Carmen 1993 Making a request and responding to it: a case study of Peruvian Spanish speakers. Journal of Pragmatics 19, 127–152. Gardner-Chloros, Penelope 1995 Code-switching in community, regional and national repertoires: the myth of the discreteness of linguistic systems. In Milroy, Leslie and Pieter Muysken (eds.), One Speaker, Two Languages: CrossDisciplinary Perspectives on Code Switching. Cambridge: Cambridge University Press, 68–89.

232

References

Garrett, Brandon 2008 Judging innocence. Columbia Law Review 108. Geller, William A. 1992 Videotaping interrogations and confessions: a preliminary examination of issues and practices—a report to the National Institute of Justice. Genishi, Celia 1984 Codeswitching in Chicano six-year-olds. In Duran, Richard (ed.), Latino Language and Communicative Behavior. Norwood, NJ: Ablex, 133–152. Georgakopoulou, A. and D. Goutsos 1997 Discourse Analysis: An Introduction. Edinburgh: Edinburgh University Press. Gibbons, John Forensic Linguistics: An Introduction to Language in the Justice System. Malden, MA/Oxford, UK: Blackwell. Giles, Howard, Nikolas Coupland, and Justine Coupland 1991 Accommodation theory: communication, context and consequence. In Giles, Howard, Justine Coupland, and Nikolas Coupland (eds.), Contexts of Accommodation: Developments in Applied Sociolinguistics. Cambridge: Cambridge University Press, 1–68. Goffman, Erving 1979 Forms of Talk. Philadelphia: University of Pennsylvania Press. Golden, Tim 2002 Mexican drug dealers turning U.S. towns into major depots. The New York Times November 16, A1 & A12. Goldwert, Marvin 1985 Mexican machismo: The ﬂight from femininity. Psychoanalytic Review 72(1), 161–169. Gonz´alez, Roseann Due˜nas 2003 Declaration to the International Court of Justice on Avena and Other Mexican Nationals (Mexico v. United States of America). Gonz´alez, Roseann Due˜nas, Victoria E. V´asquez, and Holly Mikkelson 1991 Fundamentals of Court Interpretation. Durham, NC: Carolina Academic Press. Graef, R. 1990 Talking Blues: The Police in their Own Words. London: Fontana. Greenhouse, L. 2000 Justices reafﬁrm Miranda rule, 7–2; A part of ‘culture’. The New York Times June 29, A1 & A18.

References Grice, H. Paul 1975

233

Logic and conversation. In Cole, Peter and Jerrold Morgan (eds.), Syntax and Semantics 9. Pragmatics. New York: Academic Press, 41–58.

Gross, Samuel R. 1996 The risks of death: why erroneous convictions are common in capital cases. Buffalo Law Review 44, 469–500. Gross, Samuel R., Kristen Jacoby, Daniel J. Matheson, Nicholas Montgomery, and Sujata Patil 2005 Exonerations in the United States: 1989 through 2003. The Journal of Criminal Law and Criminology 95, 523–560. Gudjonsson, Gisli H. 1986 The relationship between interrogative suggestibility and acquiescence: empirical ﬁndings and theoretical implications. Personality and Individual Differences 7, 195–199. 1989a The effects of suspiciousness and anger on suggestibility. Medicine, Science and the Law 29, 229–232. 1989b Theoretical and empirical aspects of interrogative suggestibility. In Gheorghiu, V. A., P. Netter, H. J. Eysenck, and R. Rosenthal (eds.), Suggestion and Suggestibility. London: Springer, 135–143. 1990 The relationship of intellectual skills to suggestibility, compliance and acquiescence. Personality and Individual Differences 11, 227–231. 1991 Suggestibility and compliance among alleged false confessors and resisters in criminal trials. Medicine, Science and the Law 31, 147–151. 1992 The Psychology of Interrogations, Confessions and Testimony. Chichester: Wiley. 1993 The Psychology of Interrogations, Confessions and Testimony. Chichester: Wiley. 2003 The Psychology of Interrogations and Confessions. London: Wiley. Gudjonsson, Gisli H. and N. K. Clark 1986 Suggestibility in police interrogation: a social psychological model. Social Behavior 1, 83–104. Gutmann, M. C. 1996 The Meaning of Macho: Being a Man in Mexico City. Berkeley: University of California Press. Haegeman, L. and J. Gueron 1999 English Grammar: A Generative Perspective. Oxford: Blackwell. Hamers, Josiane F. and Michel H. A. Blanc 1989 Bilinguality and Bilingualism. Cambridge: Cambridge University Press. Harris, Brian 1978 The difference between natural and professional translation.The Canadian Modern Language Review 34(3), 417–27.

234

References

Harris, Sandra 1989

Hatch, Evelyn 1978

Defendant resistance to power and control in court. In Coleman, Hywel (ed.), Working with Language: A Multidisciplinary Consideration of Language Use inWork Contexts. Berlin/NewYork: Mouton de Gruyter.

Discourse analysis and second language acquisition. In Hatch, Evelyn (ed.), Second Language Acquisition:A Book of Readings. Rowley MA: Newbury House, 401–435. Hatim, Basil and Ian Mason 1997 The Translator as Communicator. London/New York: Routledge. Hertog, Erik 1996 Personal communication with the author. Antwerp, Belgium (19 November). Heydon, Georgina 2005 The Language of Police Interviewing. Basingstoke/NewYork: Palgrave MacMillan. Heller, Monica 1985 Ethnic relations and language use in Montreal. In Wolfson, Nessa and Joan Manes (eds.), Language of Inequality. Berlin/New York: Mouton de Gruyter, 75–90. 1994 Crosswords, Language, Education and Ethnicity in French Ontario. Berlin/New York: Mouton de Gruyter. Hern´andez Flores, Nieves 2004 Politeness as face enhancement: an analysis of Spanish conversations between friends and family. In M´arquez Reiter, Rosina and Mar´ıa Elena Placencia (eds.), Current Trends in the Pragmatics of Spanish. Amsterdam: John Benjamins, 265–284. Hewitt, William E. 1995 Court Interpretation: Model Guides for Policy and Practice in the State Courts. Williamsburg, Virginia: National Center for State Courts. Heydon, Georgina 2005 The Language of Police Interviewing: A Critical Analysis. Basingstoke, UK/New York, USA: Palgrave MacMillan. Hickmann, Maya 1993 The boundaries of reported speech in narrative discourse: some developmental aspects. In Lucy, John A. (ed.), Reﬂexive Language: Reported Speech and Metapragmatics. Cambridge: Cambridge University Press, 63–90. Hill, Martin 2003 Identifying the source of critical details in confessions. The International Journal of Speech, Language and the Law: Forensic Linguistics 10.1, 23–61.

References

235

Holmes, Janet and Maria Stubbe 2003 Power and Politeness in the Workplace: A Sociolinguistic Analysis of Talk at Work. London: Longman (Pearson Education Limited). Holmes, William M. 2002 Who are the wrongly convicted on death row? In Westervelt, Saundra D. and John A. Humphrey (eds.), Wrongly Convicted: Perspectives on Failed Justice. New Brunswick, NJ/London, UK: Rutgers University Press, 99–113. Holt, Elizabeth and Rebecca Clift 2007 Reporting Talk: Reported Speech in Interaction. Cambridge: Cambridge University Press. Huff, C. Ronald 2002 What can we learn from other nations about the problems of wrongful conviction? Judicature 86(2), 91–97. Hutchby, Ian and Robin Woofﬁtt 1998 Conversation Analysis: Principles, Practices and Applications. Cambridge, UK: Polity Press. Hymes, Dell 1972 Models of the interaction of language and social life. In Gumperz, John and Dell Hymes (eds.), Directions in Sociolinguistics: The Ethnography of Communication. NewYork: Holt, Rinehart and Winston, 35–71. Inbau, F. E., J. E. Reid, and J. P. Buckley 1986 Criminal Interrogation and Confessions. Baltimore: Williams & Wilkins. Jeans, James W. 1993 Trial Advocacy (2nd ed). St. Paul, MN: West Publishing Company. Johnson, Gail 1997 False confessions and fundamental fairness: The need for electronic recording of custodial interrogations. Boston University Public Interest Law Journal 6, 719–751. Johnson, Subhadra Elka Ghosh 2005 Mexique˜no?: Issues of Identity and Ideology in a Case Study of Dialect Contact. Unpublished Ph.D. Dissertation, University of Pittsburgh Pittsburgh, PA, USA. Johnstone, Barbara 2009 Stance, style, and the linguistic individual. In Jaffe, Alexandra (ed.), Sociolinguistic Perspectives on Stance. Oxford/New York: Oxford University Press. Kalven, H. Jr. and H. Zeisel 1966 The American Jury. Boston: Little, Brown and Company. Kamisar, Yale 1977 Foreword: Brewer v. Williams – A hard look at a discomforting record. Georgetown Law Journal 66, 233–243.

236

References

Kane, Ingrid 1993

No more secrets: proposed Minnesota state due process requirement that law enforcement ofﬁcers electronically record custodial interrogations and confessions. Minnesota Law Review 77, 983–987.

Kassin, Saul M. 1997 The psychology of confession evidence. American Psychologist 52, 221–233. Kassin, Saul M. and K. McNall 1991 Police interrogations and confessions. Law and Human Behavior 15, 233–251. Kassin, Saul M. and Katherine Neumann 1997 On the power of confession evidence: an experimental test of the fundamental difference hypothesis. Law and Human Behavior 21, 469–483. Kassin, Saul M. and Lawrence Wrightsman 1985 Confession evidence. In Kassin, Saul and Lawrence Wrightsman (eds.), The Psychology of Evidence andTrial Procedure. Beverly Hills, CA: Sage, 67–94. Kassin, Saul M., Richard A. Leo, Christian A. Meissner, Kimberly D. Richman, Lori H. Colwell, Amy-May Leach, and Dana La Fon 2007 Police interviewing and interrogation: a self-report survey of police practices and beliefs. Law and Human Behavior 31, 381–400. Keeton, Robert E. 1973 Trial Tactics and Methods. Boston: Little, Brown and Company. Koch, Barbara Johnstone 1983 Presentation as proof: The language of Arabic rhetoric. Anthropological Linguistics 25(1), 47–60. Koike, Dale 1998 La sugerencia en espa˜nol: una perspectiva comparativa. In Haverkate, Henk, G. Mulder, and C. Fraile Maldonado (eds.), La pragm´atica ling¨u´ıstica del espa˜nol: recientes desarrollos: Di´alogos Hisp´anicos 22. Amsterdam: Rodopi, 211–235. Kroskrity, Paul, Bambi Schieffelin, and Kathryn Woolard 1992 Language Ideologies. Special issue of Pragmatics 2(3). Lakoff, Robin 1973 The logic of politeness, or minding your p’s and q’s. Papers from the Ninth Regional Meeting of the Chicago Linguistic Society, 292–305. Landsberger, Henry A. and A. Saavedra 1967 Response set in developing countries. Public Opinion Quarterly 31, 214–229. Leo, Richard A. 1992 From Coercion to Deception: The Changing Nature of Police Interrogation in America. Crime, Law and Social Change 18, 35–59.

References 2002

237

False confessions: causes, consequences, and solutions. In Westervelt, Saundra D. and John A. Humphrey (eds.), Wrongly Convicted: Perspectives on Failed Justice. New Brunswick, NJ/London, UK: Rutgers University Press, 36–54. 2008 Police Interrogation and American Justice. Cambridge, MA and London: Harvard University Press. Leo, Richard A. and Richard J. Ofshe 1997 Missing the forest for the trees: a response to Paul Cassell’s ‘balanced approach’ to the false confession problem. Denver University Law Review 74, 1135–1144. 1998 The consequences of false confessions: deprivations of liberty nad miscarriages of justice in the age of psychological interrogation. Journal of Criminology and Criminal Law 88, 429–496. Leo, Richard A. and Welsh S. White 1999 Adapting to Miranda: Modern interrogators’ strategies for dealing with the obstacles posed by Miranda. Minnesota Law Review 84, 397–472. Liberman, Kenneth 1981 Understanding Aborigines in Australian courts of law. Human Organization 40, 247–255. Liebman, James S. 2002 A Broken System: Error Rates in Capital Cases (Part II): Why There is So Much Error in Capital Cases, and What Can Be Done About It. Linfoot-Ham, Kerry 2006 Conversational maxims in encounters with law enforcement ofﬁcers. The International Journal of Speech, Language and the Law 13(1), 23–54. Lipski, John M. 1986 Reduction of word-ﬁnal /s/ and /n/. Canadian Journal of Linguistics 31, 139–156. 2002a ‘Partial’ Spanish: Strategies of pidginization and simpliﬁcation (from lingua franca to ‘gringo lingo’). In Wiltshire, Caroline and Joaquim Camps (eds.), Romance Phonology and Variation: Selected Papers from the 30th Linguistic Symposium on Romance Languages, Gainesville, Florida, February 2000. Amsterdam/Philadelphia: John Benjamins. 2002b El espa˜nol de Am´erica (second edition). Madrid: Ediciones C´atedra. Loftus, Elizabeth 1979 Eyewitness Testimony. Cambridge, MA: Harvard University Press. Long, Michael H. 1980 Input, Interaction, and Second Language Acquisition. Unpublished Doctoral Dissertation. University of California, Los Angeles.

238

References

L´opez Morales, Humberto 1980 Velarizaci´on de /n/ en el espa˜nol de Puerto Rico. Ling¨u´ıstica Espa˜nola Actual 2, 203–217. 1981 Velarization of /n/ in Puerto Rican Spanish. In Sankoff, David and Henrietta Cedergren (eds.), Variation Omnibus. Edmonton: Linguistics Research, 105–113. 1983 Lateralizaci´on de /-r/ en el espa˜nol de Puerto Rico: sociolectos y estilos. Philologica hispaniensia in honorem Manuel Alvar. Madrid: Gredos, 397–398. Lucy, John A. 1993 Reﬂexive language and the human disciplines. In Lucy, John A. (ed.), Reﬂexive Language: Reported Speech and Metapragmatics. Cambridge: Cambridge University Press, 9–32. Maley, Yon and R. Fahey 1991 Presenting the evidence: constructions of reality in court. Journal for the Semiotics of Law 10, 3–17. Malkin, Elizabeth 2005 A serial killer shakes up a city and a cultural myth.The NewYorkTimes, December 12. Mar´ın, Gerardo and Barbara VanOss Mar´ın 1991 Research with Hispanic Populations. Applied Social Research Methods Series, volume 23, Newbury Park: Sage. M´arquez Reiter, Rosina 2002 A contrastive study of indirectness in Spanish: evidence from Uruguayan and Peninsular Spanish. Pragmatics 12(2), 135–151. Marshall, Larry 2002 Professor Larry Marshall, Northwestern University, discusses Illinois Governor George Ryan’s decision to halt all death sentence executions due to wrongful convictions. NBC: Today, October 17. Martin, J. R. 2000 Beyond exchange: APPRAISAL systems in English. In Hunston, Susan and Geoff Thompson (eds.), Evaluation in Text: Authorial Stance and the Construction of Discourse. Oxford: Oxford University Press, 142–175. Matoesian, Gregory M. 1993 Reproducing Rape: Domination through Talk in the Courtroom. Chicago: The University of Chicago Press. 1995 Language, law and society: policy implications of the Kennedy Smith rape trial. Law and Society Review 29, 669–701. 1999 The grammaticalization of participant roles in the constitution of expert identity. Language in Society 28, 491–521. 2001 Law and the Language of Identity: Discourse in the William Kennedy Smith Rape Trial. Oxford: Oxford University Press.

References

239

Mauet, Thomas A. 1996 Trial Techniques (4th ed.). Boston: Little, Brown and Company. McKinley Jr., James C. 2008 Mexico’s congress passes overhaul of justice laws.The NewYork Times March 7. Memon, Amina, Aldert Vrij and Ray Bull 1998 Psychology and Law: Truthfulness, Accuracy and Credibility. London/New York: McGraw-Hill. Mey, Jacob L. 1985 Whose Language? A Study in Linguistic Pragmatics. (Pragmatics and Beyond, Companion Series, 3). Amsterdam/Philadelphia: John Benjamins. 2001 Pragmatics: An Introduction. Malden, MA/Oxford, UK: Blackwell. Mildren, Dean 1999 Redressing the imbalance: aboriginal people in the criminal justice system. Forensic Linguistics 6(1), 137–160. Moloeznik, Marcos Pablo 2006 Public security and police reform in Mexico. In Bailey, John and Luc´ıa Dammert (eds.), Public Security and Police Reform in the Americas. Pittsburgh: University of Pittsburgh Press, 169–187. Moran, Richard 2007 The presence of malice. The New York Times August 2, A21. Morris, Ruth 1999 The gum syndrome: predicaments in court interpreting. Forensic Linguistics 6(1), 6–29. Mortimer, A. 1994 Cognitive Processes Underlying Police Investigative Interviewing. Unpublished Ph.D. Thesis, University of Portsmouth. M¨uller, F 1989 Translation in bilingual conversation. Journal of Pragmatics, 13, 713–739. Muysken, Pieter 2000 Bilingual Speech:ATypology of Code-Mixing. Cambridge: Cambridge University Press. Myers-Scotton, Carol 2006 Multiple Voices: An Introduction to Bilingualism. Malden, MA/Oxford, UK: Blackwell. NAJIT (National Association of Judiciary Interpreters and Translators) 2006 Language Assistance for Law Enforcement. Position paper of the Association, NAJIT website. Napier, M. R. and S. Adams 1998 Magic words to obtain confessions. FBI Law Enforcement Bulletin 67(10), 11–15.

240

References

Newbury, Phillip and Alison Johnson 2006 Suspects’ resistance to constraining and coercive questioning strategies in the police interview. Journal of Speech, Language and the Law 13(2), 213–240. Niebuhr, Gustav 1999 Across America, immigration is changing the face of religion. The New York Times September 23, A16. Noble, Judith and Jaime Lacasa 1995 The Hispanic Way: Aspects of Behavior, Attitudes, and Customs in the Spanish-Speaking World. Lincolnwood, IL: Passport Books. O’Barr, William M. 1982 Linguistic Evidence: Language, Power, and Strategy in the Courtroom. New York: Academic Press. Ofshe, Richard J. and Richard A. Leo 1997a The decision to confess falsely: Rational choice and irrational action. Denver University Law Review 74, 989–999. 1997b The social psychology of police interrogation: the theory and classiﬁcation of true and false confessions. Studies in Law, Politics and Society 16, 189–251. Ogle, R., A. Parkman, and J. Porter 1980 Questions: leading and otherwise: a framework for judicial discretion. Judges’ Journal 19(3), 42–45. O’Hara, C. E. and G. L. O’Hara 1988 Fundamentals of Criminal Investigation, 5th ed. Springﬁeld, IL: Charles C. Thomas. Packel, L. and D. B. Spina 1984 Trial Advocacy: A Systematic Approach. Philadelphia: American Law Institute – American Bar Association Committee on Continuing Professional Education. Paulhus, Delroy L. 1991 Measurement and control of response bias. In Robinson, John P, Phillip R. Shaver, and Lawrence S. Wrightsman (eds.), Measures of Personality and Social Psychological Attitudes. San Diego: Academic Press, 17–60. Perl, E. S. 2000 It feels so good to confess. The NewYork Times (July 6), op ed. Petition for Post-conviction Relief Defense motion. Philips, Susan U. 1998 Ideology in the Language of Judges: How Judges Practice Law, Politics, and Courtroom Control. Oxford and NewYork: Oxford University Press.

References Pica, Teresa 1992

1994

Pietrafesa, G. 1994

241

The textual outcomes of native speaker-non-native speaker negotiation. In Kramsch, Claire and Sally McConnel-Ginet (eds.), Text and Context: Cross-Disciplinary Perspectives on Language Study. Lexington, MA: D. C. Heath & Co., 198–237. Research on negotiation: what does it reveal about second-language learning conditions, processes, and outcomes? Language Learning 44(3), 493–527.

Where you can use your leading questions. New Jersey Law Journal, 137(11), 10 and 29. Placencia, Mar´ıa Elena 1994 Pragmatics across varieties of Spanish. Donaire 2, 65–78. P¨ochhacker, Franz 1997 ’Is there anybody out there?’ Community interpreters in Austria. In S. E. Carr, R. Roberts, A. Dufour, and D. Steyn (eds.), The Critical Link: Interpreters in the Community. Amsterdam/Philadelphia: John Benjamins, 215–226. Poniatowska, Elena 2000 Las mil y una . . . (la herida de Paulina). Barcelona: Plaza & Jan´es Editores, S.A. Poplack, Shana 1980 Deletion and disambiguation in Puerto Rican Spanish. Language 56, 371–385. 1981 Mortal phonemes as plural morphemes. In Sankoff, David and Henrietta Cedergren (eds.), Variation Omnibus. Edmonton: Linguistic Research, 59–71. Preston, Julia 2008 Immigrant, pregnant, is jailed under pact. The New York Times July 20, A1 and A15. Puga Larrain, Juana 1997 La atenuaci´on en el castellano de Chile: un enfoque pragmaling¨u´ıstico. Universitat de Valencia: Tirant lo Blanch Libros. Redero, Yolanda 2005 Personal communication. Rigney, Azucena C. 1999 Questioning in interpreted testimony. Forensic Linguistics 6(1), 83–108. Roberts, Janet and Elizabeth Stanton 2007 A long road back after exoneration, and justice is slow to make amends. The New York Times November 25, A30.

242

References

Roberts, Rhoda 1997

Rodriguez, C. 1999

Community interpreting today and tomorrow. In Carr, S. E., Rhoda Roberts,A. Dufour, and D. Steyn (eds.), The Critical Link: Interpreters in the Community. Amsterdam/Philadelphia: John Benjamins, 7–28.

INS law means lengthy sentences for convicted immigrants. Available at http://www.latino.com/news/news99/0414nlaw.htm. Roger, Derek B. and Willfried Nesshoever 1987 Individual differences in dyadic conversational strategies: a further study. Journal of Personality and Social Psychology 26, 247–255. Rogers, Richard, Kimberly S. Harrison, Daniel W. Shuman, Kenneth W. Sewell, and Lisa L. Hazelwood 2007 An analysis of Miranda warnings and waivers: comprehension and coverage. Law and Human Behavior 31, 177–192. Ross, C. E and J. Mirowsky 1984 Socially desirable response and acquiescence in a cross-cultural survey of mental health. Journal of Health and Social Behavior 25, 189–197. Roy, Cynthia B 2000 Interpreting as a Discourse Phenomenon. Oxford: Oxford University Press. Royal, R. F. and S. R. Schutt 1976 The Gentle Art of Interviewing and Interrogation:A Professional Manual and Guide. Upper Saddle River, NJ: Prentice Hall. Russell, Sonia 2000 ‘Let me put it simply . . . ’: the case for a standard translation of the police caution and its explanation. Forensic Linguistics 7(1), 26–48. Ruzickova, Elena 2007 Customer requests in Cuban Spanish: realization patterns and politeness strategies in service encounters. In Placencia, Mar´ıa Elena and Carmen Garc´ıa (eds.), Research on Politeness in the Spanish-Speaking World. Mahwah, NJ/London: Lawrence ErlbaumAssociates, 213–242. Saciuk, Bohdan 1977 Las realizaciones m´ultiples o polimorﬁsmo del fonema /y/ en el espa˜nol puertorrique˜no. Bolet´ın de la Academia Puertorrique˜na de la Lengua Espa˜nola 5, 133–153. 1980 Estudio comparativo de las realizaciones fon´eticas de /y/ en dos dialectos del Caribe hisp´anico. In Scavnicky, Gary (ed.), Dialectolog´ıa hispanoamericano, estudios actuales. Washington, DC: Georgetown University Press, 16–31. Sack, Kevin 2001 Police learning Spanish as Latino population grows. The New York Times March 4.

References 2002

243

Under the counter, grocer provided workers. The New York Times January 14, A1 & A13.

Sacks, Harvey 1992 Lectures on Conversation. Jefferson, Gail (ed.). Oxford: Blackwell. Santos, Fernanda 2007 Free and uneasy: A year in the world. The New York Times November 25, A1 and A30. Sarangi, Srikant and Celia Roberts 1999 Talk, Work, and Institutional Order: Discourse in Medical, Mediation, and Management Settings. Berlin/New York: Mouton de Gruyter. Saulny, Susan 2002 Why confess to what you didn’t do? The New York Times December 8, Ideas and Trends. 2007 Chicago police ties to abuse exceed average. The New York Times November 15, A23. Scheck, Barry, Peter Neufeld, and Jim Dwyer 2000 Actual Innocence: Five Days to Execution and Other Dispatches from the Wrongly Convicted. New York: Doubleday. Schegloff, Emanuel A., Gail Jefferson, and Harvey Sacks 1977 The preference for self-correction in the organization of repair in conversation. Language 53, 361–382. Schegloff, Emanuel and Harvey Sacks 1973 Opening up closings. Semiotica 7, 289–327. Schieffelin, Bambi B., Kathryn A. Woolard, and Paul V. Kroskrity (eds.) 1998 Language Ideologies: Practice andTheory. NewYork/Oxford: Oxford University Press. Schrader-Kniffki, Martina 2004 Speaking Spanish with Zapotec meaning: requests and promises in intercultural communication in Oaxaca, Mexico. In M´arquez Reiter, Rosina and Mar´ıa Elena Placencia (eds.), Current Trends in the Pragmatics of Spanish. Amsterdam: John Benjamins, 157–174. Scully, Diana 1990 Understanding Sexual Violence. London: Unwin Hyman. Schweda-Nicholson, Nancy 1999 Paper presented at the annual meeting of the American Association of Applied Linguistics, Stamford, Connecticut (March). Shepherd, E. 1991 Ethical interviewing. Policing 7, 42–60. Shoaps, Robin Ann 2007 Moral irony: modal particles, moral persons and indirect stance-taking in Sakapultek discourse. Pragmatics 17(2), 297–335.

244

References

Shuy, Roger 1990

Evidence of cooperation in conversation: topic-type in a solicitation to murder case. In R. W. Rieber and W. A. Stewart (eds.), The Language Scientist as Expert in the Legal Setting: Issues in Forensic Linguistics. Special issue of Annals of the New York Academy of Sciences 606, 85–106. 1997 Ten unanswered language questions about Miranda. Forensic Linguistics: The International Journal of Speech, Language and the Law 4(2), 175–196. 1998 The Language of Confession, Interrogation, and Deception. Thousand Oaks, London, and New Delhi: Sage. Silverstein, Michael 1993 Metapragmatic discourse and metapragmatic function. In Lucy, John A. (ed.), Reﬂexive Language: Reported Speech and Metapragmatics. Cambridge: Cambridge University Press, 33–62. Silverstein, Michael and Gregory Urban 1996 Natural Histories of Discourse. Chicago: The University of Chicago Press. Sklansky, David A. 2002 Quasi-afﬁrmative rights in constitutional criminal procedure. Virginia Law Review 88, 1229–1262. Solan, Lawrence M. and Peter M. Tiersma 2005 Speaking of Crime: The Language of Criminal Justice. Chicago, IL: The University of Chicago Press. Street, Richard L. and Howard Giles 1982 Speech accommodation theory: a social cognitive approach to language and speech behavior. In Roloff, Michael E. and Charles R. Berger (eds.), Social Cognition and Communication. Beverley Hills, CA: Sage, 193–226. Sullivan, Thomas P. 2004 Police experiences with recording custodial interrogations. Report published by the Center on Wrongful Convictions of the Bluhm Legal Clinic, Northwestern University School of Law, Chicago, Illinois. Summit/Lorain Project 2004 Summit County Sheriff’s Ofﬁce & City of Lorain Police Department, Resource Document for Law Enforcement: Interpretation andTranslation Services, To Serve and ProtectAll: Model Policies and Procedures for Law Enforcement Ofﬁcers to Serve and Protect Limited English Proﬁcient Persons. Tannen, Deborah 1987 Repetition in conversation: Towards a poetics of talk. Language 63, 574–605.

References 1989 1994

Terrell, Tracy 1977

245

Talking Voices: Repetition, Dialogue, and Imagery in Conversational Discourse. Cambridge/New York: Cambridge University Press. The relativity of linguistic strategies: rethinking power and solidarity in gender and dominance. In Tannen, Deborah (ed.), Gender and Discourse. Oxford: Oxford University Press, 19–52. Constraints on the aspiration of ﬁnal /s/ in Cuba and Puerto Rico. Bilingual Review / Revista Biling¨ue 4, 35–51.

Thomas, Jenny 1983 Cross-Cultural Pragmatic Failure. Applied Linguistics 4, 91–112. Thomason, Sarah G. 2001 Language Contact: An Introduction. Washington, DC: Georgetown University Press. Thompson, Geoff and Susan Hunstan 2000 Evaluation: an introduction. In Hunston, Susan and Geoff Thompson (eds.), Evaluation in Text: Authorial Stance and the Construction of Discourse. Oxford: Oxford University Press, 1–27. Thompson, Ginger 2005 In Mexico’s murders, fury is aimed at the police. The New York Times, September 26, A1 and A19. Tiersma, Peter 1999 Legal Language. Chicago/London: The University of Chicago Press. 2007 The language of consent in rape law. In Cotterill, Janet (ed.), The Language of Sexual Crime. Basingstoke, UK/New York: Palgrave MacMillan, 83–103. Torres, Marta F. 1997 La violaci´on: un enfoque socio jur´ıdico. Cotidiano 84(julio-agosto), 78–86. Trinch, Shonna L. 2001 The advocate as gatekeeper: the limits of politeness in protective order interviews with Latina survivors of domestic violence. Journal of Sociolinguistics 5(4), 475–506. Trinch, Shonna L. and Susan Berk-Seligson 2002 Narrating in protective order interviews: A source of interactional trouble. Language in Society 31(3), 383–418. United States Department of Justice 2001 Department Plan Implementing Executive Order 13166 (Enforcement of Title VI of the Civil Rights Act of 1964 – National Origin Discrimination Against Persons With Limited English Proﬁciency). Vald´es, Guadalupe, Claudia Angelelli, and C. Chavez 1999 Bilingualism from another perspective: evaluating the abilities of young interpreters in immigrant communities. Paper presented at the

246

References annual conference of the American Association for Applied Linguistics, Stamford, Connecticut (March 6–9).

Van Dijk, Teun A. 1987 Communicating Racism: Ethnic Prejudice in Discourse. Amsterdam: John Benjamins. 1993 Principles of discourse analysis. Discourse and Society 4(2), 249–283. Van Meter, C. H. and W. J. Bopp 1973 Principles of Police Interrogation. Springﬁeld, IL: Charles C. Thomas. Vaquero, Mar´ıa and Antonio Quilis 1989 Datos ac´usticos de /rr/ en el espa˜nol de Puerto Rico. Actas del VII Congreso de la ALFAL. Santo Domingo, Asociaci´on de Ling¨u´ıstica y Filolog´ıa de Am´erica Latina, 115–142. Wadensj¨o, Cecilia 1998 Interpreting as Interaction. New York: Longman. Walsh, Michael 1994 Interactional styles in the courtroom: an example from northern Australia. In Gibbons, John (ed.), Language and the Law. London/New York: Longman, 217–233. 1999 Interpreting for the transcript: problems in recording Aboriginal land claim proceedings in northern Australia. Forensic Linguistics: The International Journal of Speech, Language and the Law 6(1), 161–196. Watson, D. R. 1990 Some features of the elicitation of confessions in murder interrogations. In Psathas, George (ed.), Interaction Competence. Washington, DC: University Press of America, 263–295. Weiner, Tim 2002 Mexico begins to wade through morass of police corruption. The New York Times June 17. Weisberg, Bernard 1961 Police interrogation of arrested persons: a skeptical view. Journal of Criminal Law and Policy 52, 21. Westling, Wayne T. 2001 Something is rotten in the interrogation room: let’s try video oversight. J. Marshall Law Review 537, 547–552. White, Welsh S. 1997 False confessions and the constitution: safeguards to prevent the admission of untrustworthy confessions. Harvard Civil Rights and Civil Liberties Law Review 32, 105–157. Wigmore, John Henry 1942 A Treatise on the Anglo-American System of Evidence in Trials at Common Law: Including the Statutes and Judicial Decisions of all Jurisdictions of the United States and Canada, 3rd ed. Boston: Little, Brown and Company.

References

247

Winford, Donald 2003 Introduction to Contact Linguistics. Malden, MA/Oxford, UK: Blackwell. Wodak, Ruth 1989 Language, Power and Ideology. Amsterdam: John Benjamins. 1995 Critical linguistics and critical discourse analysis. In Verschueren, Jef, J-O Ostman, and J. Blommaert (eds.), Handbook of Pragmatics: Manual. Amsterdam/Philadelphia: John Benjamins, 204–210. Woodbury, Hanni 1984 The strategic use of questions in court. Semiotica 48(3), 197–228. Woolard, Kathryn and Bambi B. Schieffelin 1994 Languag ideology. Annual Review of Anthropology 23, 55–82. Wrightsman, Lawrence S. and Saul M. Kassin 1993 Confessions in the Courtroom. Newbury Park/London/New Delhi: Sage. Yeschke, Charles L. 1987 Interviewing: An Introduction to Interrogation. Springﬁeld, IL: Charles C. Thomas. 1993 Interviewing: A Forensic Guide to Interrogation. Springﬁeld, IL: Charles C. Thomas. 1997 The Art of Investigative Interviewing: A Human Approach to Testimonial Evidence. Boston: Butterworth-Heinemann. Yngve, Victor H. 1970 On getting a word in edgewise. Papers from the Sixth Regional Meeting of the Chicago Linguistic Society. Chicago: University of Chicago, 567–578. Youmans, M. 2001 Cross-cultural differences in polite epistemic modal use in American English. Journal of Multilingual and Multicultural Development 22(1), 57–73. Zentella, Ana Celia 1997 Growing Up Bilingual. Malden, MA/Oxford, UK: Blackwell. Zimmerman, Don H. and Candace West 1975 Sex roles, interruptions and silences in conversation. In Thorne, Barrie and Nancy Henley (eds.), Language and Sex. Rowley, MA: Newbury House, 105–129.

Cases cited Alzate v. State [1985] No. 84–404, Court of Appeals of Florida, Third District, 466 So. 2d 331. Bauta v. State [1997] No. 95–387, Court of Appeal of Florida, Third District, 698 So. 2d 860. Chao v. State [1985] No. 65,886, Supreme Court of Florida, 478 So. 2d 30. Davis v. U.S., 512 U.S. 452. Dickerson v. United States [2000] No. 99–5525. Herrera v. State [1988] No. 87–893, Court of Appeal of Florida, Third District, 532 So. 2d 54. Hutchins v State [1985] No. 469 So. 2d 924, Florida 3d DCA. In re Carlos P. [1998] No. 98–512, Family Court of New York, Bronx County, 178 misc. 2d 143. In re Kenneth C. [1984] No number given in original, Family Court of New York, Kings County, 125 Misc. 2d 227. In re Rafael M. [1977] No number given in original, Supreme Court of New York, Appellate Division, First Department, 57 A.D.ed 816. LaSalle v. State [1966] No. 65–686, Court of Appeals of Florida, Third District, 187 So. 2d 407. Maqueira v. State [1991] No. 74,913, Supreme Court of Florida, 588 So. 2d 221. Ortega v. State [1998] No. 96-02775, Court of Appeal of Florida, Second District, 721 so. 2d 350. Miranda v. Arizona [1966] 384 U.S. 436. Pe˜na v. State [1983] No. 82–1073, District Court of Appeal of Florida, Third District, 432 So. 2d 715. People v. Ali (Chaudry) [1993] 49316, Supreme Court of New York, Appellate Division, First Department, 195 A.D.2d 368. People v. Barajas [1978] No. 9046, Court of Appeal of California, Third Appellate District, 81 Cal. App. 3d 999. People v. Brown [1998] 72925, Supreme Court of New York, Appellate Division, Third Department, 249 A.D.2d 835. People v. Lee Fat [1880] 54 California 527. People v. Feliciano [1989] No. 38269, Supreme Court of New York, Appellate Division, First Department, 156 A.D.2d. 258. People v. Gonzalez [1991] Indictment no. 2645/90, Supreme Court of New York, Bronx County, 150 misc. 2d 187. People v. John [1902] 137 California 220 [69P. 1063]. People v. Jordan [1985] No number in original, Supreme Court of New York, Appellate Division, Second Department, 110 A.D.2d 855. People v. Kourani [1998] No. 97-09800, Supreme Court of NewYork,Appellate Division, Second Department, 683 N.Y.S. 2d 570.

Cases cited

249

People v. Lanfronco [1991] No. 43820, Supreme Court of New York, Appellate Division, First Department, 176 A.D.2d 201. People v. Marquez [1992] No. S004645, Crim. No. 24045, Supreme Court of California, 1 Cal. 4th 553. People v. Marrero [1976] No number given, Supreme Court of New York, Bronx County, First Department, 52 A.D.2d 513. People v. Marshall [1990] 50 California 3d 907, 925. People v. Romero [1991] No. 192, Court of Appeals of New York, 78 N.Y.2d 355. People v. Prahl [1986] No number in original, Supreme Court of New York, Appellate Division, Second Department, 124 A.D.2d 607. People v. Santos-Sosa [1996] 1072, Supreme Court of New York, Appellate Division, Fourth Department, 233 A.D.2d 833. People v. Siripongs [1988] No.23082, Supreme Court of California, 45 Cal. 3d 548. People v. Torres [1989] No. C003972, Court of Appeal of California, Third Appellate District, 213 Cal. App. 3d 1248. People v. Torres [1995] No. 95–565, Supreme Court of New York, Kings County, 166 Misc. 2d 798. People v. Turkenich [1988] No number in original, Supreme Court of NewYork, Appellate Division, Second Department, 137 A.D.2d 363. People v. Ventura [1998] 490, Supreme Court of New York, Appellate Division, Second Department, 250 A.D.2d 403. People v. Villa [1989] Nos. 2663E, 2663 AE, Ind. Nos. 6420/85 and 946/86, Supreme Court of New York, Appellate Division, Second Department, 156 A.D.2d 402. People v. Duck Wong [1976] No. 19218, Supreme Court of California, 18 Cal. 3d 178. People v. Ah Yute [1880] 56 California 119. Yanis v. McGuire, as Police Commissioner of the City of New York, et al. [1983] No number given in original, Supreme Court of New York, Appellate Division, First Department 98 A.D.2d 669.

Name index

Achugar, Mariana, 85 Adelsward, Viveka, 193 Ainsworth, Janet, 42, 106–107 Ainsworth, Peter B., 5 Altano, W. B., 21 Angermeyer, Philipp, 146, 150 Arellano, Silvia, 105 Aron, R., 113 Atkinson, Maxwell, 38, 72, 73 Aubry, A. S., Jr., 45, 59–60, 79, 127–128, 141 Benmaman, Virginia, 17–18 Berk-Seligson, Susan, 20–21, 38, 63–64, 90–91, 110–112, 218 n. 7, 223 n. 38, 223–224 n. 40 Biber, Douglas, 191 Bickerton, David, 147 Bilous, Frances R., 135 Blanc, Michel H. A., 149 Bogoch, Bryna, 112 Bopp, W. J., 39, 41–42, 45, 49, 60 Bottorf, Christian, 143, 144 Bourhis, R. Y., 150 Bresnahan, M. I., 111 Bromwich, M. R., 42 Brooks, Peter, 44–45 Brown, Penelope, 105, 106, 220 n. 15 Buckley, D., 174 Buckley, J. P., 39, 40 Bullock, C., 33 Caputo, R. R., 45, 79, 127–128, 141 Caribou, Maine, 143 Clark, N. K., 109 Clift, Rebecca, 127, 187 Clinton, William, 11 Clyne, Michael, 149 Colgan, Beth, 110, 172

Colin, J., 17, 19, 36 Conley, John M., 38, 72, 73, 80 Conrad, Susan, 191 Cotterill, Janet, 40–41, 73, 180 Coupland, Justine, 148 Coupland, Nikolas, 148, 150 Danet, Brenda, 38, 111–113, 185, 222 n. 32 Donovan, Daniel, 110, 172 Drew, Paul, 38, 72, 73, 189 Drizin, Steven, 3, 5–8, 110, 172–173, 175 Dunstan, Robert, 38 Dwyer, Jim, 4, 6 Eades, Diana, 101, 103, 104 Ebrard, Marcello, 159 Ehrlich, Susan, 73, 75, 90 Estrich, Susan, 75 Fahey, R., 111–113 Felix-Brasdefer, J. C´esar, 105 Fernanda, Santos, 215 Figueiredo, Debora de Carvalho, 75 Galatolo, Renata, 187 Garc´ıa, Carmen, 106 Gardner-Chloros, Penelope, 150 Geller, William A., 174 Georgakopoulou, A., 191 Giles, Howard, 148 Goffman, Erving, 187, 219 n. 8 Golden, Tim, 143 Goldwert, Marvin, 99 Gonz´alez, Roseann Due˜nas, 107 Goutsos, D., 191 Grice, H. Paul, 80, 127, 149, 194, 197–198 Gross, Samuel, 3, 7, 214–215

Name index Gudjonsson, Gisli H., 5, 9–10, 108, 109 Gueron, J., 73 Haegeman, L., 73 Hamers, Josiane F., 149 Harris, Brian, 33 Harris, Sandra, 73 Hatch, Evelyn, 148 Heller, Monica, 150 Hern´andez-Flores, Nieves, 106 Heydon, Georgina, 108 Hickmann, Maya, 187 Hoffman, K. B., 38 Holmes, William M., 3–4 Holt, Elizabeth, 127, 187 Huff, C. Ronald, 4 Hunston, Susan, 191 Hymes, Dell, 108 Inbau, F. E., 39, 40, 45, 49 Jayne, B., 174 Jeans, James W., 113 Jefferson, Gail, 60 Johnson, Alison, 111, 124 Johnson, Gail, 5, 110, 172 Johnson, Subhadra Elka Ghosh, 184 Johnstone, Barbara, 191 Kalven, H., Jr., 75 Kamisar, Yale, 110, 172 Kane, Ingrid, 110, 172 Kassin, Saul M., 5, 7–9, 108–109, 129, 174 Kermish, Nicole C., 38 Koike, Dale, 105 Lacasa, Jaime, 104–105 Landsberger, Henry A., 104 Leo, Richard A., 5, 7–9, 45, 110, 172 Levinson, Stephen, 45, 105–106, 128, 130, 193–194, 220 n. 15 Liberman, Kenneth, 101, 103 Liebman, James S., 3

Lind, E. A., 80 Lipski, John M., 183, 211 Long, Michael H., 148 L´opez Morales, Humberto, 183 L´opez Rivera, Adri´an, 159 Lucy, John A., 127, 187 Maley, Yon, 111–113 Mar´ın, Gerardo, 104, 140 M´arquez Reiter, Rosina, 106 Marshall, Larry, 3, 4 Martin, J. R., 191 Matoesian, Gregory M., 38, 72, 73 McKinley, James C., Jr., 160 McNall, K., 108 Mey, Jacob L., 127 Mildren, Dean, 19, 101, 103 Mirowsky, J., 104 Moloeznik, Marcos Pablo, 159 Morris, Ruth, 17, 19, 36 Mortimer, A., 115 Myers-Scotton, Carol, 150 Neufeld, Peter J., 3 Neumann, Katherine, 5, 8 Niebuhr, Gustav, 143 Noble, Judith, 104–105 O’Barr, William M., 38, 72, 73, 80 O’Connor, Sandra Day, 43 Ofshe, Richard J., 5, 8–9, 110, 172 Paulhus, Delroy L., 108 Philips, Susan U., 2, 38, 73–74 Pica, Teresa, 148 Placencia, Mar´ıa Elena, 106 Poniatowska, Elena, 99 Poplack, Shana, 183 Puga Larrain, Juana, 106 Quilis, Antonio, 183 Rafn, H. J., 38 Redero, Yolanda, 184–185

251

252

Name index

Reich, Marissa J., 173, 175 Reid, John E., 39, 40 Rhodes, John, 110, 172 Rigney, Azucena C., 38 Roberts, Janet, 215 Roberts, Rhoda, 17 Rodriguez, C., 10 Rogers, Richard, 41, 213, 216 Ross, C. E., 104 Russell, Sonia, 37, 181, 213 Ruzickova, Elena, 106 Ryan, George, 4 Saavedra, A., 104 Saciuk, Bodhan, 183 Sack, Kevin, 143 Sacks, Harvey, 60, 108 Saulny, Susan, 5, 6 Scheck, Barry C., 3, 4, 5 Schegloff, Emanuel A., 60, 108 Schrader-Kniffki, Martina, 105 Scully, Diana, 98 Shepherd, E., 113–115 Shoaps, Robin Ann, 193 Shuy, Roger, 40–42, 44, 50, 55, 108, 110–111, 113, 115, 118, 120, 122–123, 180, 216, 218 n. 2 Silverstein, Michael, 187 Sklansky, David A., 173 Smith, William Kennedy, 73 Solan, Lawrence M., 107, 108 Souter, David H., 43–44

Stanton, Elizabeth, 215 Stayman, D. G., 38 Sullivan, Thomas P., 110, 172–174 Tannen, Deborah, 91 Terrell, Tracy, 183 Thomason, Sarah G., 148, 150 Thompson, Geoff, 190–191 Thompson, Ginger, 160 Tiersma, Peter, 75, 107, 108 Torres, Marta F., 99 Van Meter, C. H., 39, 41–42, 45, 49, 60, 79, 92 Van Oss Mar´ın, Barbara, 104, 140 Vaquero, Mar´ıa, 183 Walsh, Michael, 101, 103 Weiner, Tim, 159 Weisberg, Bernard, 110, 172 Westling, Wayne T., 110, 172 White, Welsh S., 5, 45, 110, 172 Winford, Donald, 147, 149 Woodbury, Hanni, 38, 111, 112 Wrightsman, Lawrence S., 7, 8, 108, 109, 129 Yeschke, Charles L., 45 Youmans, M., 105 Zeisel, H., 75 Zentella, Ana Celia, 150

Subject index

accommodation and asymmetrical power relations, 146, 153–154, 211–212 and code-switching, 145, 150, 155–158 and gratuitous concurrence, 103 and negotiation of meaning, 148–149, 155 and pidginization, 147 and repetition, 150, 154 accusations, 72, 76–84, 89–90, 91, 125, 151–152 acquiescence, 101, 102–110, 135, 140, 141, 190, 213 ad hoc interpreters, 13, 17, 31–34, 34–36, 52, 142, 215 adjacency pairs, 38, 108, 137, 152, 222 n. 30 afﬁrmation tokens, 101, 135–140, 213 agency, 28–30, 73 age of suspects, 7 allo-repetition, 91–92, 97, 146, 150, 212 ambiguous language. See also euphemistic language afﬁrmation tokens, 101 anaphoric reference, 185 interlanguage morphosyntactic features, 121 Miranda rights, 181–182, 216 question forms, 111, 119–121, 213 requests for counsel, 43 resistance to questioning, 88–90 stance-taking, 195–196, 197 anaphoric reference, 185 anaphoric transfer, 146–147 appeals ad hoc interpreters, 31–34, 34–36 coercive interrogations, 48–50, 74, 177

convictions upheld, 98 false confessions, 177, 179 ﬂawed interpreting, 15, 16 Miranda rights, 42–43, 46 police interpreters, 21–22, 23, 24–31, 54 police misconduct, 178, 212, 220 n. 17 arrest forms, 184, 213 asymmetrical power relations acquiescence response sets, 108, 140 analysis of interrogation, 146 back channel signals, 135 communicative accommodation, 146, 153–154, 211–212 conﬂict avoidance, 103–104 formal language, 122–123 police interviews, 39 repetition strategies, 92 resistance strategies, 71 social context, 2 attorneys, 40, 42–43, 72–74, 112, 113, 181–182, 188 Australian Aboriginal people, 19, 101, 103, 105

back channel signals, 90, 92, 101, 135, 137, 139–140 bias in interpreting, 18, 20–22, 26, 30, 36, 217 bilingualism. See also language proﬁciency; police interpreters ad hoc interpreters, 31–32, 34, 142 code-switching, 150, 155–156, 223 n. 38 incipient bilingualism, 1, 10, 156, 215 policy recommendations, 12–13

254

Subject index

types of interpreters/translators, 22 volunteer interpreters, 18 blame-avoidance, 90–91 body language, 146, 161–162 capital punishment cases, 1–4, 72, 102, 141, 174–175, 177 Caribbean Spanish, 183–184, 223–224 n. 40 the caution (British), 36–37, 40–41 Center on Wrongful Convictions, 3 certiﬁcation programs, 18, 21, 31, 36, 143. See also qualiﬁcations of interpreters Chicago, Illinois, 5, 31 children as interpreters, 32–33 Civil Rights Commission, 11–12 co-constructed narratives, 132, 134–135, 213 code-mixing, 146, 150, 155–158, 212 “Code of Professional Responsibility of the Ofﬁcial Interpreters of the United States Courts,” 20 codes of conduct/ethics, 18, 20, 144 code-switching, 56–57, 145, 146, 147, 150, 155–158, 212, 223 n. 38 coerced-compliant false confessions, 8–9 coerced-persuaded false confessions, 9 cognitive handicaps, 199–200 cohesive insertion, 146–147 collaborative testimony, 132, 134–135, 213 common ground claiming, 57, 220 n. 15 communicative accommodation, 103, 148, 150, 153–155, 211–212 communicative failures, 211–212 community interpreters, 16–17, 26, 36, 63 complaints against police, 5, 172, 178, 191, 198–199, 213–214 compliance, 108–110 conﬁrmation seeking questions, 112 conﬂicting and contradictory testimony, 124, 172, 186–187

conﬂict of interest, 18–22, 26, 29, 47–48, 54–60 consent issues, 122, 137–138 contact-induced language change, 147 control, 2, 9, 38–39, 41, 73, 97, 116, 129, 141, 161, 212. See also acquiescence; asymmetrical power relations; controlling questions; intimidation controlling questions, 97, 101, 103, 108, 110–111, 112–113, 141, 212 conversational implicature, 127, 149 conversational interrogation style, 130, 213 conversation analysis, 72, 106, 108, 220 n. 12, 220 n. 16 convictions, 3–4, 4–8, 24, 62, 98, 144, 212, 214–215, 216 cooperation, 10–11, 11–13, 27, 39, 84, 88–91, 92, 107, 130, 134, 135, 137, 139, 149, 164, 191–198 court interpreters, 16–17, 17–18, 36, 51, 218–219 n. 7, 221 n. 22 covert recordings, 34–35, 102, 174 Criminal Justice Act, 173 critical discourse analysis, 2 critical interactional sociolinguistics, 2 critical sociolinguistics, 103, 123 Cuban-Americans, 23 cultural issues, 17, 90–91, 99, 108–110, 199 Davis v. U.S., 42–44 death penalty, 1–4, 72, 102, 141, 174–175, 177 deception in interrogations, 52 declarative intonation, 90, 111–112, 114, 118–119, 197, 212–213 denial, 73–74, 86–91, 91–94, 98, 188–190, 192, 213 dialogue interpreting, 17 Dickerson v. United States, 219 n. 10 direct quotation, 187–188, 195 discourse analysis, 46, 59–60, 62, 146–150

Subject index discourse markers, 158 DNA evidence, 1, 3, 4–5, 7–8, 214 due process, 1, 4, 16, 25–26, 48, 211, 217 duress, 41–42 echoing, 146, 150, 154 Electronic Recordings of Interviews regulations, 173 elliptical responses, 197 emotional offenders, 49 empathy, 77, 88 “Enforcement of Title VI of the Civil Rights Act of 1964 – National Origin Discrimination Against Persons with Limited English Proﬁciency” (DOJLEP Guidance), 11–12 enhanced language assistance, 12 entrapment, 16, 102 epistemic stance, 191 ethical issues, 26, 144–146, 212 ethnicity, 14, 57–58, 104–105, 108, 147 euphemistic language, 71, 88, 97, 212 evasiveness, 197 evidence, 77–78, 102, 187–188, 214 excessive force, 5, 178 executions, 1, 4. See also death penalty exonerations, 1, 4, 7–8, 214 expert testimony, 73, 198 extralinguistic evidence, 172 face (positive face), 45, 63, 104–106, 130, 193–194 “fair” term, 133–134, 188 false confessions acquiescence, 101 categorization of, 8–10 comprehension difﬁculties, 183–184 defective translation, 180–182 factors encouraging, 108–110 linguistic analysis of, 184–190 physical/psychological abuse, 178 police-induced, 5–6, 8–10, 171, 172, 175

255

the sociolinguistic situation, 179 wrongful convictions, 144 Federal Court Interpreters examination, 22, 216 federal courts (U.S.), 3, 10, 17–18, 20, 22–23, 43, 216, 218–219 n. 7, 219 n. 10 Fifth Amendment, 39, 48, 62 ﬂuency issues, 12, 26–27, 37, 143, 148, 211, 212 footing case description, 38–39, 46–48, 62–64 defensive strategies, 73 deﬁned, 219 n. 8 false confessions, 14 linguistic coercion, 48–50 Miranda rights, 39–45, 46 police interpreters, 50–51, 51–54, 54–60, 144, 212 reported speech, 187 uninterpreted utterances, 60–62, 152 foreigner talk, 149 forensic evidence, 61–62, 176, 177, 189–190 forensic linguistics, 15, 18, 111–112, 218 n. 2 forensic psychology, 108–109 formal language, 111, 122–123 fragmented answering style, 80–84, 97

gender issues, 99, 135, 153, 182 geographic variation in language, 171, 183–184, 211, 223–224 n. 40 good cop/bad cop routine, 88, 161 grammar, 73, 91, 112, 126–127, 129, 153–155, 156–157, 181–182, 197, 221 n. 24 grand juries, 17, 142, 212 gratuitous concurrence, 101, 102–103, 105, 110, 212–213 Grice’s maxims, 80, 194, 197–198 guilty pleas, 8, 14, 73–74, 158, 162

256

Subject index

halting interrogations, 116–118 harmony in social relations, 45, 103–106 hearsay testimony, 16, 27–30, 184 hedged speech, 107, 128 hesitation markers, 105, 221 n. 25 Hispanic culture, 104–105, 140, 155–156 homonyms, 154

illegal immigrants, 10–11, 159, 221 n. 23 immigrant populations. See also Limited-English Proﬁcient (LEP) immigrants demographic patterns, 215 illegal immigrants, 10–12, 159, 221 n. 23 Immigration Naturalization laws, 10–12 language proﬁciency, 2–3 resistance strategies, 71 undocumented workers, 79, 142, 175, 221 n. 23 impartiality, 18–22, 24–25, 26, 29, 47–48, 54–60, 144 imperative mode, 113, 222 n. 34 incipient bilingualism, 1, 10–11, 156, 215 inconsistencies in statements, 124, 127–128, 137, 190, 198 indigenous cultures, 19, 101, 103, 105 indirect speech patterns construction of accusation, 95 cultural issues, 105–107 grammatical issues, 153, 221 n. 25, 224 n. 41 indirect reported speech, 127–128, 172, 186, 187–188, 213 interrogation tactics, 54, 87 stance-taking, 193 written confessions, 213 information seeking questions, 112 innocence projects, 3, 14, 174–175, 214 insinuation, 73, 91 interactional sociolinguistics, 1–2, 10, 97, 99–100, 101, 146, 151–152, 171

interlanguage, 121, 147, 149, 153, 156, 158 interpreters. See also police interpreters ad hoc interpreters, 17, 31–34, 34–36, 52 appellate cases, 23, 24–31, 31–34, 34–36 conﬂict of interest, 18–22 current standards, 36–37 deﬁned, 218 n. 3 interpretational privilege, 193 the interpreting continuum, 16–18, 27 overview, 15–16 police as interpreters, 24–31 the Summit/Lorraine Project, 12–13 interrogation techniques. See also leading questions aggression, 96 ambiguously worded questions, 119–121 appeals to religion and conscience, 58–59, 63, 212 co-construction of narratives, 134–135, 213 controlling question forms, 97, 101, 103, 108, 110–111, 112–113, 141, 212 conversational interrogation style, 130, 213 doubting suspect truthfulness, 123–127 empathy, 57–58, 77–79, 88, 97 exposing theory of crime, 95–97 formal language, 122–123 good cop/bad cop routine, 88, 161 halting interrogations, 47, 54, 97, 116 implicit accusation, 53–54 interrupting the narrative, 113–118 interviews vs. interrogations, 39, 50–51, 218 n. 2 linguistic construction of violence, 84–94 metacommentary, 127–128

Subject index monotonic intonation, 118–119 question types, 111–113, 114 reenactment of crimes, 87–88 repetition, 54–57, 59–60, 62, 91–94, 96, 111, 128–129, 129–132, 146, 213 rephrasing answers, 111, 127, 129–132, 134, 196, 213 revictimization tactic, 72–73 use of term “fair,” 133–134 interrogative yes/no questions, 112, 114, 120, 197 interrupting the narrative, 113–118 interviews, 39, 50–51, 218 n. 2 intimidation, 41, 43, 44, 108, 109, 111, 140, 159, 160–161, 171, 178, 189, 196–197, 213 intonation patterns, 47, 54, 90, 105, 111–112, 114, 118–119, 190, 197, 212–213 involuntary confessions, 48 judiciary interpreting, 13, 17–18, 20. See also court interpreters juries and jury trials, 1, 8, 25, 102–103, 130, 142, 162, 174 jurisdictional issues, 10, 12, 29, 41, 43, 216 justiﬁcation for crimes, 53, 76, 77, 98 juvenile suspects, 80

geographic variation in language, 171 interpretation deﬁciencies, 221 n. 24 language deﬁciencies, 47, 121, 141, 145 lexical gap, 158 lexical insertion, 146, 150, 155–158, 212, 213 linguistic construction of sexual violence, 72, 79, 90, 92 metacommentary, 128 the nature of interrogations, 111 pidginization, 153 reformulation, 141 rephrasing suspect’s answers, 129–130 stance-taking, 190–191, 193, 194 use of term “fair,” 133 Limited-English Proﬁcient (LEP) immigrants cross-cultural communication, 106 incipient bilingualism, 10–11 interpretation deﬁciencies, 142 Miranda rights, 38, 212 need for interpreters, 11–12 policy recommendations, 199–200 recordings of confessions, 171 vulnerability of, 2–3 limits of coercion, 71–72, 72–74, 74–76, 76–84, 84–94, 95–97, 97–100 linguistic coercion, 38, 48–50 L1 inﬂuence, 145, 147, 149

kinesic behavior, 145, 158, 162 language proﬁciency, 2, 11, 14, 142, 144–146, 155–158, 211–212. See also bilingualism; ﬂuency issues; Limited-English Proﬁcient (LEP) immigrants leading questions, 83–84, 92, 101, 110–112, 116–118, 135–137, 139, 141, 213 legal interpreters, 16–18, 36 lexical issues acquiescence, 102–103

257

machismo, 99 manuals on interviewing, 39, 45 maxim of quantity, 80, 194, 197–198 metacommentary, 111, 127–128, 213 Mexican-Americans, 23, 104–105 Mexican Spanish, 183, 223–224 n. 40 Mexico, 99, 104, 159–160 microlinguistic analysis, 2, 72 minimization tactics, 86, 105 Miranda rights ad hoc interpreters, 32–33 afﬁrmation tokens, 135–136

258

Subject index

appellate cases, 220 n. 19 background, 39–45 comprehensibility of, 40–42, 171–172, 180, 216 constitutionality, 219 n. 10 cultural boundaries, 107 defective translation, 180–182 faulty translations, 171 formal language, 122 Illinois Commission on Capital Punishment, 172–173 inconsistencies in, 198 language proﬁciency, 211–212 Limited-English Proﬁcient immigrants, 38, 212 media exposure to, 136 neutrality, 36–37 as object of criticism, 16 police interrogators, 52–53 police misconduct, 188 policy recommendations, 215–217 religious beliefs, 58–59, 63, 212 “remain silent” phrase, 42 self-incrimination, 57 Spanish translations of, 201 standardization of, 213, 216, 218 n. 5 subversion of, 56–58 “survival Spanish” programs, 144, 217 violations of, 45, 46, 54 waiving, 12, 25, 28, 32, 40, 42, 45, 52–53, 107, 188 Miranda v. Arizona, 39 mirroring speech, 154 mitigation strategies, 105–106 mixed language, 145 monotonic intonation, 118–119, 212–213 moral appeals, 45, 49, 59, 212 morphosyntactic difﬁculties, 156 multi-barrel questions, 111, 119–121, 139–140 murder cases false confessions, 7, 101, 102, 108, 110

interrogation standards, 216 kidnapping, 175–177 linguistic coercion, 38–39 in Mexico City, 160 sexual violence, 72 wrongful convictions, 214 narrative style ambiguity, 212 co-constructed narratives, 134–135, 213 confession statements, 185 interrupting, 113–118 open-ended questions, 103 reported speech, 186, 187 resistance to, 80–84 stance-taking, 191 suspect power, 100 victim identiﬁcation, 83–84 National Association of Judiciary Interpreters and Translators (NAJIT), 13, 106, 216 natural translators, 33 negotiation of meaning, 147–149, 155, 211–212 nonverbal communication, 146, 161–162, 221–222 n. 28 open-ended questions, 103, 110–111, 111–112 overloaded questions, 119–121 paraphrasing, 91, 180 patterns of answers, 135–140 Peninsular Spanish, 106 People v. Alvarez, 46–48, 48–50, 50–51, 51–54, 54–60, 60–62, 62–64 perjury, 123 physical abuse, 5–6, 14, 39, 97, 171, 173, 177–179, 182, 189, 197, 199, 213–214, 219 n. 9 physical evidence, 61–62, 87, 189–190 pidginization, 145–146, 148, 153–155, 156–157, 211

Subject index plea bargains, 8, 14, 73–74, 162 police. See also police interpreters arrest forms, 184, 213 brutality charges, 5–6, 14, 39, 171, 178, 189, 191, 199, 213–214, 219 n. 9 coercion, 1, 2–3, 6–7 excessive force, 5, 178 false confessions, 5–8, 8–10 interpreter standards, 199 misconduct, 5, 62–63, 171–172, 172–175, 178, 188–190, 193, 199, 213, 217 the police caution, 36–37, 40–41 stance-taking, 195–196 Police and Criminal Evidence (PACE) Act, 173 police interpreters asymmetrical communication, 142–144 coercion by, 50–51 ﬁndings on, 62–64 footing, 212 guidelines for, 19–22 interrogator footing, 51–54, 54–60 Miranda rights, 36–37, 46 policy recommendations on, 215–216, 217 proﬁciency shortcomings, 144–146 review of appellate cases, 23–31 uninterpreted utterances, 60–62 politeness, 105–106, 128, 192–194, 220 n. 15 positive politeness, 105–106, 220 n. 15 post-traumatic stress syndrome, 215 pragmatic markers, 149, 222 n. 33 pre-accusation, 89–90, 91 professional standards, 20–22, 30, 36, 199. See also codes of conduct/ethics proﬁciency in languages. See language proﬁciency pro forma questions, 133 prosodic questions, 112 psychological abuse, 171, 178

259

public service interpreting, 17 Puerto Rican Spanish, 183–184, 198, 223–224 n. 40 qualiﬁcations of interpreters as basis for appeals, 16, 18, 24–25, 28, 30–31 certiﬁcation programs, 18, 21, 31, 36, 143 federal courts, 218–219 n. 7 Limited-English Proﬁcient immigrants, 2–3 Miranda rights, 217 NAJIT standards, 13 professional standards, 20–22, 30, 36, 199 question/answer sequences, 72, 92–94 question forms, 38, 103, 111–113, 114, 181 question intonation, 47, 54, 105, 111–112, 118–119, 190, 212–213 quoting function, 156 rape cases, 86–91, 95–97, 99, 214 rapport with suspects, 45, 140 recency principle, 120, 139 recordings of interrogations absence of, 171, 172–175, 184–185 appeals, 24–25, 26–27 confessions, 212 covert recordings, 34–35, 102, 174 false confessions, 7, 110, 119 incomplete recordings, 110 interrogation techniques, 123, 133, 160, 161–162 Miranda rights, 122 monotonic intonation, 119 the nature of interrogations, 110–111 police misconduct, 172–175, 189 police transcriptions, 15–16, 18, 23, 30, 50, 60, 102–103, 113, 118 policy recommendations, 199, 215–216 as source material, 220 nn. 12, 13

260

Subject index

transcripts, 15–16 recycling topics, 55, 59–60, 62, 111, 128–129, 146. See also repetition reﬂexive language, 127 reinterpretation, 134 religious appeals, 58–59, 63, 212 “remain silent” phrase, 42 repetition acquiescence response sets, 141 allo-repetition, 91–92, 97 code-mixing, 158 communicative accommodation, 150 confession statements, 185 gratuitous concurrence, 103 interrogator footing, 54–57 linguistic construction of sexual violence, 72–73, 84 rephrasing answers, 111, 127, 129–132, 134, 196, 213 requestions, 222 n. 32 as resistance strategy, 91–94, 100 self-repetition, 91–92, 97 topic recycling, 55, 59–60, 62, 111, 128–129, 146 use of word “fair,” 133–134 rephrasing answers, 111, 127, 129–132, 134, 196, 213 reported speech, 186–188, 195, 213 resistance strategies ambiguity, 88–90 conversational turn-taking, 115, 137–139 in courtroom settings, 73–74 forms of, 97 management of accusations, 76–84 Miranda rights, 58 repetition, 91–94, 100 sexual crimes, 71–72 stalling devices, 92 reversed convictions, 3–4, 24, 62, 212 Robert L. Davis, Petitioner v. United States, 42–44

Second Language Acquisition (SLA), 147 self-incrimination, 42, 48, 56–58, 62, 71. See also Miranda rights self-repetition, 91–92, 97, 212 semantically overloaded questions, 113, 119–121, 139–140 sentencing, 8, 98–99, 177, 220 n. 17 Sixth Amendment, 39–40 social distance, 122. See also asymmetrical power relations sociolinguistics, 177, 179, 216. See also critical interactional sociolinguistics; critical sociolinguistics sociopragmatic breakdown in communication, 14 Spanish American culture, 104–105 Spanish language Caribbean Spanish, 183–184, 223–224 n. 40 colonial Mexican Spanish, 183 Cuban Spanish, 223–224 n. 40 foreigner Spanish, 211 Mexican Spanish, 183, 223–224 n. 40 Mexico City Spanish, 183, 223–224 n. 40 partial Spanish, 211 Peninsular Spanish, 106 Puerto Rican Spanish, 183–184, 198, 223–224 n. 40 “survival Spanish” programs, 143–144, 217 varieties, 183–184, 211, 223–224 n. 40 speech act theory, 149 speech modiﬁcation strategy, 149 stance-taking, 71, 80, 172, 187, 190–198, 214 standardization, 12, 18, 20, 26, 41, 43, 51, 144, 154–155, 183, 189, 213–214, 216–217, 222 n. 22, 224 n. 39 Standards of Professional Conduct and Responsibilities, 20

Subject index strategic use of language, 197. See also stance-taking stress-compliant false confessions, 9, 199 Summit/Lorraine Project, 12 suppression of confessions, 158, 161 “survival Spanish” programs, 143–144, 217 suspects as interpreters, 33, 34 syntax, 72, 90–91, 122–123, 127 tag questions, 112, 114, 197–198, 222 n. 33 third party speech, 186 threatening language, 111, 160–161, 178, 189, 196–197, 213 torture, 160, 179, 217 training of interpreters, 18, 36, 144, 217, 221 n. 26 transcription, 15, 23, 30–31, 36, 50 translation, 11–13, 34–36, 180–182, 218 n. 3. See also interpreters turn-taking, 46, 59, 76, 91, 100, 115, 119–121, 132, 137–139, 211, 220 n. 16 undercover police ofﬁcers, 30, 34–35 undocumented workers, 79, 142, 175, 221 n. 23 uninterpreted utterances, 60–62, 151–152, 211, 221 n. 24 U.S. Department of Justice (DOJ), 11–12, 216 U.S. Supreme Court, 28, 39, 42–44, 219 n. 10

261

vague language, 71, 88, 97, 197 verb morphology, 153–154, 197, 224 n. 41 victims of crime, 12–13, 19, 32–33, 50, 52–53, 72–73, 83–84 violence, 12–13, 53, 72–74, 77, 84–94, 97, 98 voluntary false confessions, 8–9 volunteer interpreters, 18 vulnerable populations, 2, 6, 8, 109–110, 199–200 waiving Miranda rights, 12, 25, 28, 32, 40, 42, 45, 52–53, 107, 188 Wh- questions, 112, 114 witnesses as interpreters, 33 wrongful convictions, 3–4, 4–8, 144, 214–215, 216. See also exonerations “yeah” as minimal response. See also afﬁrmation tokens acquiescence, 102–110, 135 case overview, 101 false confessions, 141 gratuitous concurrence, 213 leading questions, 101, 110–111, 112, 116–118, 134–135, 135–137, 139 the nature of interrogations, 110–135 suspect answer patterns, 135–140 yes/no questions, 112, 114, 120, 197 Zapotecs, 105

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