Legal Ethics and Reform
Steven Pinker Says Language Works Poorly in the Adversary Legal System
Pinker is an experimental Psychologist at Harvard and in the fall of 2008 he appeared on C-SPAN to discuss his life’s work. Early in the exchange with the interviewer, he used the famous Bill Clinton deposition over his Monica Lewinsky affair as an example of truthful responses that were not responsive to the questioner. Everyone remembers Clinton’s creative use of the word “is”. Afterward Clinton was asked about his strategy during the deposition. He said I wanted to “be truthful but not helpful”.
Pinker points out that language only works if the speakers are both “truthful and helpful”. A successful linguistic exchange depends upon the successful use of assumption, euphemisms, colloquialism, and innuendo. Both parties have to be relatively comfortable and sensitive to whether or not the other party is understanding what is being said, assumed to have been said, or otherwise implied and inferred.
Of course, the adversary legal system intentionally puts barriers in the way of a comfortable interchange. The magisterial setting, the oaths, the cross examinations, the demands by lawyers that answers be “yes” or “no” or at minimum brief, the presences of many strangers, the witness trying to follow the guidelines given by the lawyer who prepared them to testify, etc. It might be said that the courts begin the process of seeking after truth by first “digging a hole” and then asking everyone ( lawyers, witnesses, judges, and jurors) to work extra hard to dig out of the hole as they move toward truth.
How might the legal system’s use of “oral interaction” be improved? The most obvious way is to have a “neutral” party gather the witness’ evidence in a comfortable “one on one “ setting early in the process. Such a early conversation might be recorded in the witness’ dining room with a tape recorder running. At trial that witness’ live testimony might be preceded by playing the record of the witness’ “first impression” conversation about the case. Obviously it is important that the “neutral” party that comes to prepare the tape be unaffiliated with either side in the case. This “neutral” might be an employee of the court or he could be an employee of a new kind of organization that is devoted to collecting such tapes. What questions should the “neutral” ask of the witness? The lawyers for the parties might submit some questions along with their “preliminary statement of the facts”. The “neutral” should be able to develop a complete list of questions from these submissions.
It is quite possible that both lawyers, in a case, after hearing the tapes from the many witnesses, might just go with the playing of the tapes at trial. This would avoid the need for bringing all the witnesses in for testimony in person.
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