In the judicial system there may be some lessons for linguists to learn
from psychologists and psychiatrists, whose contributions to trial law are
better established, although the effectiveness and value of those
contributions are often challenged, see Vartivarian v. Golden Rule
Insurance (Faust and Ziskin 1988).
While the overall quality of contribution of psychologists in legal cases
is still being debated, some issues have been clarified as a result of that
body of testimony. The law now defines and takes seriously such human
conditions as battered woman syndrome, clinical depression and post-
traumatic stress syndrome. Conversely, while the courts have called on
linguists to address technical matters of authorship and identification to be
used as evidence, they are less interested in a linguist’s definition of
communicative competence or assessment of intelligibility, as was seen in
Kahakua and Fragante; these are areas where the courts are satisfied with
their own powers of reasoning and expertise.
Xieng provides an interesting illustration of the status of linguistics in
the courts: there was no expert testimony at all on the pivotal matter,
which was the employer’s claim that Mr. Xieng’s accent was too strong
and impeded communication. However, a psychiatrist was called, who
then argued and convinced the court that there did exist a “causal
relationship between the [employer’s] national origin discrimination and
Xieng’s severe emotional distress and depression” (Xieng v. Peoples
National Bank of Washington 1991: A13).
Psychologists ask themselves a two-part question to determine the
quality of their forensic contribution:
1. Can we answer questions with reasonable accuracy?
2. Can we help the judge and jury reach a more accurate
conclusion than would otherwise be possible (Faust and Ziskin
1988: 31)? That is, does the subject lie beyond the knowledge
and experience of the average layman, and can the expert
inform without invading the province of the jury by
expressing a conclusion as to the ultimate issue?For most of the cases presented here, a list of questions could have been
presented to linguists which would have met both of these basic criteria.
Questions about the process of standardization, differences between