Trial lawyers tend to make friends with the court reporter. They sit there with us during the down time, with nothing in particular to do. So we chat. And we need them to get the transcript right, so it never hurts to be friendly with the people whose efforts serve your goals. We come to appreciate the difficulties of the job, from lawyers and judges talking over each other, as they can only get one person at a time, to mumbling, to using words with which they’re unfamiliar.
There are times in court when Qawi Abdul-Rahman, a Center City-based defense attorney, gets the sense that folks listening didn’t understand a piece of testimony.
“You get it all the time, truthfully,” Abdul-Rahman said. He’s been concerned that the true meaning of statements like “I don’t fool with them” glide past the ears of listeners who aren’t black. The unaware might think the speaker has a problem with someone. But saying this doesn’t necessarily imply hard feelings — it means the speaker isn’t really in someone’s circle.
This is a legitimate problem, but not just a black dialect problem. It happens with Chinese, with Spanish as well, and no doubt with many other languages and dialects. There’s a difference when an interpreter is used, though the problem persists, as the judge calls for a “Chinese” interpreter, which usually means Mandarin, when the witness speaks Cantonese, or when the Spanish interpreter is from Spain and lacks familiarity with Domincan slang.
But when the witness testifies in what’s now called African American Vernacular English, as it’s now called to give it the appearance of standardization, there’s no interpreter.
But that was then, and this is now, when what wasn’t a language has become a language because to suggest otherwise would be to accept standard English as more legitimate than AAVE.
Along with lapses in comprehension, Abdul-Rahman has observed persisting biases around how African Americans speak: “The system keeps perpetuating the same faulty norms about us.”
Unsurprisingly, a study showed that court reporters have serious difficulty with this, or “the system,” meaning court reporters, perpetuates “faulty norms,” meaning unfamiliarity with the dialect. To be clear, any argument about the use of standard English has no place in the courtroom. We take our witnesses as they come, regardless of how they express themselves. The issue is both the ability of lawyers, judges, juries and court reporters to understand them and memorialize their words.
But where the problem comes in is that advocates for the recognition of AAVE as a stand-alone language seek to have it accepted as such while complaining about those who don’t speak or understand the language.
The paper points to a 2007 dissenting opinion from a judge in the U.S. Court of Appeals for the Sixth Circuit. The judge had listened to a recording from a 911 call and argued that it was not possible to know whether “he finna shoot me” was present or past tense. (“Finna” is a contraction of “fixing to.”) But the judge made a grammatical mistake: In African American English it is impossible for “he finna” to be in the past tense. The judge had consulted the site Urban Dictionary.
There is a common misconception that when you hear African American English, the speaker is using poor grammar. This stigma persists despite linguistic research and ample evidence that the dialect — and its regional varieties — follows grammatical rules of their own. Linguists note that many phrasings in African American English are camouflaged: The words may seem familiar in mainstream English, but in dialect, they act differently.
If AAVE is a legitimate language, meaning that there is standardization within the community that speaks it, then it should be addressed like any other language spoken by a witness: an interpreter should be required so that everyone who doesn’t speak it understands it, and, of course, the court reporter can transcribe it accurately.
Not to add another wrinkle, but when a juror’s first language isn’t English, there is a double-interpretation problem, from AAVE to standard English, then processed into whatever language the juror “speaks” in his head.
Can the court reporter side of the problem be fixed by the most obvious “solution,” having more black court reporters than white?
When looking at test performance, black court reporters, who were roughly 26 percent of the sample, scored higher at paraphrasings and made fewer mistakes around syntax, but their transcriptions weren’t more accurate than their counterparts’. Across races, court reporters shared negative views of dialect.
What this suggests is unclear, except that the race of the court reporter isn’t the fix. And notably, if court reporters were selected by race, what would we do when the witness speaks Spanish or Chinese. Do we switch out reporters so that they align with the witness?
And as every lawyer and judge realizes, what the witness means to say, what the witness said, what we hear, can be critically important.
Chief defender Keir Bradford-Grey said the Defender Association had been unaware of how deep issues of miscomprehension run. She’d been familiar with the “lawyer dog” case: In October 2017, the Louisiana Supreme Court declined the appeal of a man who had been quoted telling police, “Why don’t you just give me a lawyer dog.” A justice on that court wrote that the man had not made a clear request for counsel, arguing that “lawyer dog” was “ambiguous,” as if, reports noted, the man could’ve been asking for a pet.
“Translating to paper, you don’t know or understand inflections and all that,” Bradford-Grey said. “We knew that. We didn’t realize that the wording wouldn’t be understood.”
Well, many of us did, and have made an effort to clarify what we realized would be confusing by follow-up questions.
Abdul-Rahman has noticed layers of miscomprehension that may be linked to race, but also to what he detects as class, neighborhood, profession, or religion. It falls to the attorney, he explained, to translate and get moments of misinterpretation into the court record. He might repeat his question to produce answers that sound more mainstream. He might start to explain different slices of vernacular himself. But if a prosecutor objects and a judge agrees that his efforts aren’t relevant, that’s where that ends.
Is it wrong to try to clarify the vernacular into standard English, so the jurors can better understand and the court reporter can better transcribe? If not, then we’re left with a courtroom of babel and a record that fails to clearly state the testimony.