The Courtroom of Babel

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.

17 thoughts on “The Courtroom of Babel

  1. N. Freed

    “A language is a dialect with an army and navy” – Max Weinreich

    The one that gets me is when a recording involving a translator is played to the jury, and the jurors that speak the original language are told to only pay attention to the translation.

    I’ve always wondered how anyone could possibly be expected to do that.

  2. B. McLeod

    If the judge and attorneys don’t speak the language in which the witness testifies, they are stuck relying on the translator. I can’t help thinking of the police press conference a few years ago where the “translator” signing for the hearing-impaired proved to be an imposter, making random gestures. With respect to AAVE in particular, I once saw a functionally similar performance when the close-captioning on a Smart TV playing in a sports bar started putting out gibberish as the captioned comments of an athlete who was speaking on screen. It was really quite comical, as you could catch the basics from the audio, but nothing meaningful from the captioning.

  3. Jake

    You should just require everyone in the courtroom to speak the Queen’s English and go back to wearing wigs. I bet you’d look good in a wig.

    1. SHG Post author

      If only. Then people could understand each other, which remains kind of important when it comes to testimony. And I’m told the wigs itch.

      1. Jake

        …Or, and stay with me here because I know through hard won experience here at SJ this is a foreign concept, you could just exercise some patience and ask for clarification until the witness is understood.

          1. Jake

            If I wanted to be funny this is where I would say: “I rest my case.” And call it a day.

            But, unfortunately I have learned enough about you to know how seriously you take the defense of your clients and the extent you (at least used to) claim to be willing to go in their defense. Only now I learn your line is the hassle of listening to their testimony close enough to know when they say something non-sensical and then later refer back to the gaff and drill them until the truth is clear to the judge, court reporter, jury, and anybody else that matters.

            In fact, I would go so far as to assume you have a duty to ensure everyone understands the truth. And that you consider the comprehension of each stakeholder according to what you know about them and vary the delivery of key messages accordingly.

            Would it be ideal if you didn’t have to do this? Of course. I doubt they promised you litigation would always unfold under ideal circumstances in law school.

            1. SHG Post author

              You should have rested your case so I wouldn’t have to point this out to you. Why do you supposed the lawyers and prawfs in the linked article, and readers here, are raising a problem that’s way up in the air when you see a simple, obvious solution on the ground? Either everybody but you is missing the answer or you are oblivious to the problem. As my old pal Skink occasionally tells you, this ain’t Law 101.

            2. Jake

              Condescend all you want. I keep hoping one day you’ll learn every voice has value around here but I don’t expect it. As for ‘why’ all those other people care about this issue enough to study it, I am sure it depends on the individual. But if a criminal defense lawyer is publicly whining about the challenge of making your defendant and every person testifying for or against your goals in the courtroom understood? all I can say is pull up your big boy pants and get to work. The only person in that room whose job it is to make them understood is you. And I learned this from reading you.

    1. SHG Post author

      Years ago, I read a book (name long since forgotten) about testimony given by a young black girl who was sexually molested. When prepped, she would say he touched her pussy, which the prosecutor found troubling. He told her instead to say “vagina,” a word with which she was unfamiliar.

      On the stand, she was questioned, and when asked where he touched her, she replied, “my bird china.”

  4. Casual Lurker

    So CRs will now have to take Continuing Ed. courses in both Ebonics and AAVE?

    I’ve had CRs ask me how to spell certain terms after a depo’ has ended. They tell me they just put unfamiliar words down phonetically, until they can add a properly spelled word to their stenotype machine-to-plaintext conversion dictionary. Punctuation is another matter, entirely.

    As to the video, you posted the wrong one. LMFTFY:

    Sly And The Family Stone — Thank You Falettinme Be Mice Elf Agin

    It’s worth noting that this is the song in which bass player, Larry Graham, introduced the slap and snap bass technique to the world.

    1. SHG Post author

      In order to correct an unknown or misunderstood word, you have to realize it’s unknown or misunderstood. And even if they can correct the record, it doesn’t change what the jury heard, or thought it heard.

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