Small words can have a major importance in court cases
We have watched them on film and in TV series. The forensic pathologist tasked with determining the cause of death or the time of death of the murder victim, or the language expert who is asked to testify on the probability that a suicide letter is actually written by the deceased.
But how does the way the participants speak inside the courtroom affect the outcome of a case?
This is the question that motivates the researcher Sune Sønderberg Mortensen, assistant professor of Danish at the Department of Communication and Arts at RUC. He researches the manner in which prosecutors, defence counsel, judges and witnesses speak in Danish court cases - and what significance this may have for the process and outcome of the court cases. Specifically, one of his projects has examined what is called epistemic stancetaking, i.e. linguistic certainty and uncertainty markings. He explains:
"For example, you can say: ‘She was cycling on the right side of the road.’ Then you have just uttered something without giving it an explicit certainty or uncertainty marking. Then you could say: ‘She was definitely cycling on the right side of the road.’ Or you can say: ‘She might have been cycling on the right side of the road.’”
Sune Sønderberg Mortensen says that there has been a tradition to assume that if you say "definitely", then it is an expression of greater certainty than if you say "I believe" or "as far as I know". But it’s not always that simple, he says:
"When you, as the addressing party, need to say something like ‘definitely’, it may be because you realise that someone might not expect you to be completely sure."
He refers to a quote from the famous English linguist, Michael Halliday: "You only say you’re certain when you’re not".
"There is usually a reason why you feel a need to express that this is not just something I am saying, that it is something I am are sure of. You can do that if you have the idea that someone could disagree with you. Or it may be because you're actually not really sure, so it's a kind of projection of your own uncertainty", he explains.
"Jo" - the small certainty marking
Sune Sønderberg Mortensen turns on an audio recording he has on his computer. The recording is from a trial in the Court of Frederiksberg, where a man is charged with assaulting a parking attendant in connection with the parking attendant issuing a parking fine to him. The parking attendant and the defendant have two completely different versions of what happened. The defendant believes that the parking attendant started to be violent and that he himself - the defendant - accidentally hit the parking attendant when he wanted to pull away his arm. The parking attendant, on the other hand, says that he spoke quietly and calmly to the accused, who suddenly hit him in the face.
In his linguistic analysis, Sune Sønderberg Mortensen compared the explanation of the parking attendant, i.e. the alleged victim, with the explanation of the witness, who speaks for the accused. The parking attendant seems very certain, says Sune Sønderberg Mortensen, and points out that there is one word in particular that he uses all the time, the word 'jo', which basically means “you will not disagree with me'', explains Sune Sønderberg Mortensen:
"We often say 'jo' when we assume that the recipient is already aware of what we are saying. Or simply if you assume that this is something the recipient will not contradict."
In collaboration with his colleague, Janus Mortensen, he has counted how many times the parking attendant uses the word 'jo' in his testimony, a total of 73 times, corresponding to over 1/3 of all his certainty and uncertainty markers, and that is striking, explains the researcher. The parking attendant generally uses many certainty markers, and in almost all cases where he talks about important situations, he uses certainty markers rather than uncertainty markers or unmodified statements.
Sune Sønderberg Mortensen turns on the audio recording again, where the parking attendant says:
"As you can hear, the word 'jo' occurs quite a few times. This includes contexts where his statements are not so self-evident or uncontroversial as the use of 'jo' presupposes.”
On the other hand, the eyewitness, who corroborates the accused's case, has a more balanced use of certainty and uncertainty markers, says Sune Sønderberg Mortensen:
"It appears like where the eyewitness is certain, he does not modify his statements, and that is the case when he talks about the very central aspects of the case" points out Sune Mortensen, adding that the use of language can be socially stigmatizing.
"For example, excessive repetition of some words or types of words may signal low status to some people, which may in turn affect credibility, not least if you are a parking attendant and are perhaps already subject to some prejudices", says the researcher.
The defendant ends up being acquitted without agreement having been reached among the judges, i.e. on the basis of a vote, and the parking attendant’s use of language may have played an important role in this regard, Sune Mortensen points out. He may simply have seemed less credible or less likeable than the other party's witness.
The study is published under the title 'Epistemic stance in courtroom interaction' as a contribution to the anthology Pragmatics and Law: Practical and Theoretical Perspectives, Springer, 2017.
Special Danish legal culture
Currently, Sune Sønderberg Mortensen is investigating Danish courtroom interaction in contrast to courtroom interaction in other countries. No linguistic studies of this kind have been conducted in Denmark before, and the research available in the USA and UK often deals with the most serious and spectacular court cases. But what image emerges when you look at ordinary, everyday court cases?
"My preliminary observations suggest that ordinary court cases in Cardiff and New York look completely different than in Denmark. They have a very confrontational, intimidating and power-enforcing manner of addressing the witnesses and defendants particularly. They don’t mince their words” says Sune Sønderberg.
In Danish court cases, however, the tone is characterized by relaxed courtesy. For example, the questioner typically indicates that they acknowledge the answer of the witness by saying ‘mm’, ‘okay’, ‘yes’ or similar.
And it can have consequences if you do not know the implicit rules of the courtroom, stresses the researcher.
There are studies of how aboriginals in Australia have experienced problems in court cases because they have a completely different way of speaking and understanding many concepts.
"The research shows that there has been judicial abuse against aboriginals. Their statements are simply not taken seriously", says Sune Sønderberg Mortensen.
In Denmark, as in the USA and UK, we have a prosecutor and a defence counsel, who each present their side of the case. However, the interaction in Danish court cases is characterized more by a common ideal of finding out what has actually occurred in the case, explains Sune Sønderberg Mortensen. There is a clear 'we', which encompasses the court and the legal community as a whole, whereas this 'we' is more in the background in the Anglo-Saxon courtroom. There, the focus is to a greater extent on the conflict between the different versions of a sequence of events, and the efforts to damage the opponent's credibility can be uncompromising and highly personal.
"Because we in Denmark focus more on the ideal that the court must jointly arrive at a truth, it is also problematic if a prosecutor argues a point too forcefully, which conversely was completely legitimate in, e.g. the Oscar Pistorius trial in South Africa, where the Handicap Olympics athlete was charged with the murder of his girlfriend“, Sune Sønderberg Mortensen points out:
"The prosecutor would seem biased and that could weaken his case, because the prosecutor's office in Denmark is supposed to be objective. Although the Public Prosecutor is a party to the case, even if this may seem paradoxical, it is bound in principle to present all relevant aspects of the case, including elements that may weaken the case.”
Sune Sønderberg Mortensen takes an example from his teaching. It's about the media exposed Danish court case from 2010 in which a man, Ronny, was charged with deliberately killing his friend with a samurai sword. The defendant acknowledged in advance that he killed his friend, so the judges’ task was only to decide whether it was an accident - involuntary manslaughter - or intentional violence resulting in death, which would result in a harsher sentence.
Sune Sønderberg Mortensen reads from the prosecutor's closing arguments, where the prosecutor expresses sympathy for Ronny, thus presenting himself as empathetic and balanced in his approach to the case:
"I've met Ronny during these three days in court, and I've formed the impression of a likeable guy. A man who is his friend's friend, even when this friend repeatedly behaves foolishly."
"But then something happens, where the prosecutor undermines the balanced image of himself", points out the language researcher and reads:
"We have Ronny's explanation that it was an accident. The question is whether we can reject this explanation as untrustworthy or unlikely. I do think that we can."
"His way of formulating his and the court’s point of departure is interesting. If you accept his presupposition that there is only one question, the question would then arguably be whether we can accept the explanation of the accused, which the prosecutor could then argue against. Naturally, he is interested in having his assertion upheld, but he must still remain objective, and when he only expresses interest in the possibility of rejecting the explanation, he appears to be biased. In addition, he assumes by using 'we' that the court shares his perspective - but the court does not: Its task is to objectively examine whether Ronny's explanation stands up to scrutiny - not whether it can be rejected. The point is that you are innocent until the opposite is proven", the researcher points out.
Ronny ends up being acquitted of violence resulting in death. As the prosecutor remarks to the press after the decision:
"Only the two men were present, and the court could not refute the accused's statement that it was an accident."
Sune Sønderberg Mortensen points out that the prosecution's use of language may well have affected the outcome of the verdict:
"Now, we do not know exactly what determined the outcome of the case, but the prosecutor’s rhetoric evidently failed to convince the judges. And here, the linguistic analysis can identify a reliability problem: His presentation of himself as balanced and objective does not seem credible and may have contributed to sowing doubt in relation to other parts of his case."
Sune Sønderberg Mortensen, assistant professor of Danish at the Department of Communication and Arts. Teacher at the Danish programme and the International Bachelor in Humanities, including the courses Text & Sign and Discourse Analysis & Danish Language.
'Jo' is an example of a dialogue particle, a characteristic feature of the Danish language not found in English. Dialogue particles partially resemble forms like ‘you know’, 'now', 'obviously', 'well' and 'kind of', i.e. words and phrases we use to indicate the pragmatic assumptions of the conversation.
“I can’t, obviously”. This indicates that there is a contradictory point of view, e.g.: You have said that I can - and have the same prerequisites to know that I can not.
Important democracy project
Unlike in the USA, Danish court cases are rarely filmed and made available outside the courtroom. Therefore, the recordings from the Court of Frederiksberg are worth their weight in gold for Sune Sønderberg Mortensen as a researcher, and for the public in general, he points out:
"In this regard, this is also a democracy project. Because the court must be for everyone. But very few people actually go in and see what's going on in the courts”, says Sune Sønderberg Mortensen.
Also, the court system is one of the pillars of our society and is vital in defining who we are:
"The way in which we decide on what is fair is culturally rooted. So, this is also an ethnographic study that deals with how we achieve and speak about justice."
"There has been a great deal of research into interaction in other contexts, such as at the workplace and around the dinner table. But in Denmark there is hardly any research into the use of language in court cases, which is strange because court cases are such a central institution in our society.