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Sunday, April 11, 2021

How experts use writing to solve crimes? Forensic Linguistics gaining ground in the Philippines

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Emil Samaniego
Emil Samaniego is Chief Content Officer and one of the founders of Politixxx Today.

Last August 20, I had the chance to attend the first monthly webinar of the UST Department of English on Forensic Linguistic (FL). The speaker was Dr. Marilu R. Madrunio, Dean of the UST College of Arts and Letters, and one of the pioneers of Forensic Linguistics (FL) in the Philippines.

Although Forensic Linguistics was not foreign to me—I encountered it when I wrote a critical policy analysis paper on the Indigenous People’s Rights Act (IPRA) of 1997- it remains a relatively new field especially in the Philippine academe.

I was thrilled, however, that FL is gaining ground in the Philippines, thanks largely to the efforts of Dr. Madrunio and the entire UST Department of English!

I believe that FL has lots of promise in the areas of linguistic and legal research, practice of law and criminology in the Philippines that is why it is necessary, as Dr. Madrunio said, “to spread the word about FL.”

What is Forensic Linguistics?

Dr. Madrunio, in her presentation, cited the work of Coulthard, Grant & Kadena (2011), which defined FL as the “use of linguistics to spoken and written legal texts as well as the provision of evidence for criminal and civil investigations and courtroom disputes.”

FL, therefore, is an interface between “language, crime and law” (Olson, 2008) or “law, language and discourse” (Cheng & Sin, 2011). It is also commonly known as Language and Law (Gibbon, 1994), Legal Language (Tiersma, 1999),Legal Lingustics (Mattila, 2006), Jurilinguistics (Cornu, 2000) and Legal Discourse (Bhatia, 2003).   

Although FL is a relatively new field in the Philippines, its history as a discipline can be traced back as early as 1968 when the term was coined by the famous Swiss linguist Jan Svartvik in his seminal book The Evans Statements: A Case for Forensic Linguistics.

In his study, Svartvik found that the extrajudicial statements made by Timothy Evans concerning the murder of his wife and baby were actually not his because of different grammatical styles. However, Svartvik’s analysis was made several years after Evans was convicted and hanged for the said murder, and only after the true murderer, John Christie, their landlord, confessed for the crime.

The questions that FL tries to resolve include the following: Who said what? Who wrote what? What happened? Why did it happen? And how did it happen? From these alone, we can already imagine the utility of FL in crime investigations, evidence gathering and analysis.

But FL has more to offer! In fact, FL consists of three categories: Language of the Law, Language as evidence, and Language of the judicial process.

Language of the Law

Under this category, FL interrogates how language is employed in statute and other legal texts such as the Miranda Rights. Here, FL examines whether the Miranda Rights as presently written is understandable to the accused, among others. By doing so, FL addresses the issue of ambiguity in language and misunderstanding of the law.  

FL is also used in the analysis of legal fiction, linguistic metaphors and contract formation.  

By employing Critical Discourse Analysis (CDA), FL also critiques the power relations and ideologies embedded in a legal text. An example of this is a paper I wrote—Critical Policy Analysis of IPRA of 1997, which examined how the policy narrative of IPRA was anchored on a central theme that frames the State as the primary cause of the sufferings of indigenous people (IPs)—a framing that is consistent with the neoliberal tenets of minimal government and laissez faire capitalism which were the dominant discourse in public policy making in the Philippines in the 1990s. This neoliberal framing of the policy narrative, in turn, shapes the unique way the typology of State’s obligations towards indigenous people is written in the IPRA that deviates from the tripartite framework of State’s obligation under international human rights law.

In my analysis, I found out that under the IPRA, the State’s duty to protect is written as a negative duty that mandates the State to protect the IPs not necessarily from third parties like powerful mining companies or recalcitrant groups but against the State itself. And there goes the present gaps in the law—the State, in its overzealous desire to assuage its guilt by correcting the “historical injustice” suffered by the IPs in its own hand, has adopted a swift policy of non-interference that left the IPs vulnerable to the influence and intimidation of powerful non-state actors like mining companies which take advantage of the loopholes in IPRA to secure Free and Prior Informed Consent (FPIC) from the IPs.

Language as Evidence

Dr. Mandrunio also shared several case studies on the use of FL as actual evidence in court.

The first case involved the murder of Diana Lee by David Bryan which happened in Cheshire, United Kingdom in August of 2012. When David murdered Diana, he dumped her body in her garage and set it on fire. Afterwards, David Ryan sent text messages from her phone as part of an attempted clean-up.

However, through the use of FL, it was later found out that David Bryan was the one who sent text messages from his victim’s phone, and the key is the tiny difference in punctuation which forms part of the idiolect of the accused.

The SMS above is from Diana Lee while below
is from David Brian; Photo from the presentation of Dr. Madrunio

An idiolect is a speech habit peculiar to a particular person. It is a linguistic signature of a person.

According to Dr. Madrunio no person has the same idiolect, and it is the task of a forensic linguist to identify or make a profile of an idiolect of a person to determine questions of authorship of texts involved in a crime or other disputes.

The second case involved a trademark dispute where Dr. Madrunio shared her testimony as expert witness last 2016. The brands are Appetason and Appetens used by two pharmaceutical companies in the Philippines. An inquiry was made on the question of similarity and possible confusion arising from the name of the two products.

In her testimony, Dr. Madrunio presented the results of a survey coupled with linguistic analysis of the two brand names. By looking at the morphology, phonology, phonetics and other linguistic and visual features, Dr. Madrunio concluded that the two brands are distinctively different and may not cause confusion to the buying public. This kind of case falls under the domain of trademark linguistics.

In our Intellectual Property class in law school, I have not really encountered a case that extensively uses trademark linguistics in its ruling. But I am delighted to see that a case like this is existing in the Philippines although according to Dr. Madrunio, it seemed that the litigation of the above case did not reach the level of the Supreme Court.

Under the Revised Rules of Evidence, FL as evidence can be made admissible as part of an opinion of an expert witness. However, as to its probative value, Dr. Madrunio herself said, that FL is mostly used as a corroborative evidence and/or circumstantial evidence but never as direct evidence.  

Language of Judicial Process

This category examines language as it is used by court interpreters, judges and lawyers. It also interrogates the power relations as embodied in discourse employed by various agents of the courts. This forms part what is known as courtroom discourses.

According to Coulthard (2010), forensic linguists under this category also assess “the nature of police interviews with suspects, the specialized rules which govern interaction in courts of law, the problems created for vulnerable witnesses and the difficulties experienced by those who do not speak the language of the court.”

The Way Forward

FL is truly an exciting interdisciplinary field that is slowly but surely gaining traction in the Philippines.

In fact, last 2016, the 2nd Asian Regional Conference of the International Association of Forensic Linguistics was held in the country with no less than Retired Associate Justice Antonio Carpio [PxxxT] as the keynote speaker.

There is also an on-going plan to form a professional association on Forensic Linguistics whose members include not only linguists and language enthusiasts but also judges, lawyers, court interpreters, criminologists as well as legal researchers.

I cannot wait for the time when FL becomes a mainstream field in the Philippine academe– not only confined to English or Linguistic Departments of colleges and universities but also taught as electives in law school and criminology classes.

As a former teacher, I believe that the future of legal education in the country is inter-and-trans disciplinal. And FL is an emerging practice and research area that lawyers, jurists and legal researchers can focus on.   

Postscript

The UST Department of English will be holding its next monthly webinar on September 17, 2020. This time with Dr. Shaomin Zhang of Guandong University of Foreign Studies as speaker. She will talk about “Authorship Analysis: Categories, Methods and Pilot Studies.” See you there!

Emil L. Samaniego is the Chief Content Officer of PolitiXXX Today and currently a senior law student in San Beda College of Law in Mendiola. He was also a former philosophy teacher.

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