12/31/2023 0 Comments Seen vs saw aaveFirst, if someone misinterprets speech and then carves that misinterpretation into the stone of the judicial record, it might be nigh impossible to uncover that a mistake happened at all. They are dangerous because cases big and small are won and lost on the minutiae of language, and they are insidious for two reasons. These errors are both dangerous and insidious. Misinterpretation can happen during live trial testimony or even before the police have begun an interrogation. Instead, these mistakes happen when a native English speaker, indeed someone who might not speak any other language whatsoever, has difficulty being understood, which affects a litigant’s case. The linguistic mistakes here are not the relatively predictable ones that arise from bad or no interpreters for a non-native English speaker. And Part IV tours English legal history and documents the expansion of dialectal diversity to show how principles of linguistic fairness run deep. Part III argues that the Constitution has an open door for dialectal due process claims. Part II demonstrates that the legal system should think of these mistakes as procedural in nature with judicially administrable remedies. 7 Here, the focus is on language qua language, which, while correlated with race, needn’t be inextricably tied to it. Furthermore, while it is probably true that racial minorities disproportionately bear the brunt of interpretive mistakes, any equal protection implications are for a different Note. The point is general, but the readily available evidence is not. Black English is a widespread dialect and one whose population of speakers is disproportionately represented in criminal adjudication, where colloquial testimony often features prominently. This is because of the insidiousness of the errors. One may wonder at the choice to use examples from only Black English when the point applies to any dialect. Part I showcases a few prominent English-to-English errors the legal system has made before, using Black English as the lens. Past scholarship on dialect has brought invaluable attention to the subject, and this Note seeks to continue that burgeoning tradition by showing how the status quo raises constitutional concerns and by serving as a resource and model for dialectal analysis going forward. Intuitively, something’s amiss when the legal system, seemingly arbitrarily, messes up when interpreting some forms of English and not others. A mouthful to be sure, but the argument is that it is a violation of procedural due process to maintain procedures that will reliably cause misinterpretation of plain English and make it harder for litigants, especially criminal defendants, to win their cases. More precisely, the Due Process Clauses of the Constitution demand that the executive and judicial branches maintain procedures to avoid inaccurate transmission of linguistic data that adversely affects litigants. Here, the goal is not to prove errors happen but to see whether the Constitution cares errors happen. soil, but state and federal law have no coherent dialectal jurisprudence. Much work has reckoned with the contours of due process when people come to court with little to no English proficiency, 3 but what about dialectal misinterpretation? 4 English has numerous dialects, many birthed on what is now U.S. legal systems, 2 but some forms of “English” are more equal than others. It happens to be the de facto and sometimes de jure language of the U.S. If you’re reading this, you probably understand English. It is after many detours that you discover them, and with them the primordial importance of the principle. It is true that they do not appear all at once with equal clarity. This principle dominates all of linguistics - its consequences are innumerable. The principle of the arbitrariness of the sign is not doubted by anyone, but it is often easier to discover a truth than to assign it its rightful place.
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