A legal conundrum occurs every day: suspects regularly incriminate themselves by voluntarily granting their verbal consent to requested searches by law enforcement officers, yet later move to suppress on the basis that they never agreed to such a thing. When these disputes arise, fact finders are left to adjudicate a fundamentally linguistic issue—whether the presence of voluntary consent existed. Herein lies the problem. The current totality test that is used to make this determination gives judges enormous discretionary power to evaluate the merits of the case, but is completely devoid of methodology grounded in linguistic theory that could guide the court to a rational conclusion regarding the effect of language upon the interaction. Accordingly, voluntary consent to search jurisprudence appears disorderly, and suspects are routinely disadvantaged.
The solution to this problem is both simple and more attuned to the realities of human interaction: linguistics. In recent years, scholars have called attention to the utility of certain linguistic considerations, such as pragmatics, the study of how context contributes to meaning, and its relevant sub-theories, in analyzing officer-suspect interactions in related contexts such as Miranda rights jurisprudence. However, even though linguistics promises greater equality and more precise findings, courts today fail to consider linguistic inputs with any consistency, if at all.
This Comment reinvigorates the conversation about pragmatics in the courtroom—specifically emphasizing its value as a tool to better understand how suspects interpret requests for consent by power figures, such as law enforcement officers. Ultimately, this Comment will break new ground by proposing a series of solutions that can be implemented both in and out of court to reduce the effect of linguistically problematic language. First and foremost, courts should eliminate elements of the current totality test that find no support, or, even worse, contradictory evidence, in linguistic research, such as that which accounts for the cordiality of the exchange. Furthermore, by adopting the lens used in Fourth Amendment seizure analysis and Miranda custody jurisprudence—that of the reasonable suspect—courts can take steps toward correcting the systemic inequities that suspects face in the courtroom without overburdening themselves. Finally, the institution of a series of best practices for officers who seek to procure consent would not only provide suspects with a true opportunity to understand the nature of the questions being asked of them and protect themselves from unwanted privacy intrusions, but also decrease frivolous litigation over the merits of consent.
Linguistics in the Courtroom: Incorporating Considerations of Language and Context to Improve Criminal Court Consent Analysis,
Emory L. J.
Available at: https://scholarlycommons.law.emory.edu/elj/vol72/iss1/4