February 16, 2001

Linguistics and the Law:
You have the right to remain silent, don't you?
by Pearl Tesler

Janet Ainsworth

Imagine you get stopped by police. They begin to ask you questions. Soon, it dawns on you that they suspect you of being involved in a crime. What do you do?

If you're like most people, you're familiar with what are called the Miranda rights, which include the right to refuse to speak to law officers unless an attorney is present. But according to Janet Ainsworth of the Seattle University School of Law, many people are denied these constitutionally guaranteed rights, not because they fail to ask for them, but because they fail to ask for them in the right way.

What are Miranda Rights? A 1966 Supreme Court case, Miranda v. Arizona, held that certain constitutionally guaranteed rights must be read to a person in custody prior to an interrogation. These are the Miranda rights, and they apply to everyone, before and after an arrest: • You have the right to remain silent. • Anything you say can and will be used against you in a court of law. • You have the right to an attorney. • If you cannot afford an attorney, one will be appointed for you.

The root of the problem, says Ainsworth, is linguistic. Where Miranda rights are concerned, the law only recognizes direct, unequivocal statements: "I will not talk to you without a lawyer present." If you are being interrogated by police, you need only speak these magic words and—by law—the interrogation has to end.

However, few people actually speak this way. More often, people being interrogated say things like "I should have a lawyer, shouldn't I?" or "Maybe I need a lawyer." The Supreme Court ruled that these statements don't count as formal invocations of the Miranda rights. Testimony you make afterwards can still be used against you—even though, in your mind, you requested a lawyer and didn't get one.

Ainsworth believes the problem is tied to something called "powerless language," a way of speaking that sociolinguists first identified as "women's language" and then later expanded to include factors like social status and culture. Ainsworth cites five features that typify this so-called "gender-correlated register." All of them weaken the assertiveness of speech:

Hedges: Hedges are qualifying statements like "kind of," "maybe" or "I think."

Tag questions: These are questions tagged onto the end of a statement, for example, turning "That's mine" into "That's mine, isn't it?"

Modal verbs: These verbs-may, ought, might, should-soften the impact of what would otherwise be a declarative statement. "This is the right answer" becomes "This might be the right answer."

Avoidance of imperatives: An example is saying "Could you sit down?" instead of "Sit down."

Rising intonation: Also known as the "up-speak" popular among teenage girls, this habit of ending sentences with a rising note makes them sound like questions, not statements.

Ainsworth notes that these speech habits, common but not limited to women, are "part of an overall communication strategy used by the relatively powerless." In fact, Ainsworth cites research that the greater the power imbalance between two speaking parties, the more likely the subordinate person is to use the above speech patterns.

"Police interrogation is a perfect example of a situation where you feel powerless," says Ainsworth—and thus more likely to ask for your Miranda rights in a way that doesn't guarantee you'll get them. In one case she described, a man said "My lawyer's card is in my wallet. Will you get it for me?" According to the law, this was not a formal request for a lawyer.

Ainsworth would like to see this policy changed. "The law should not make the assumption that when people want something, they ask for it using direct, unequivocal language."

 

<< Back to Dispatches