The Eastman transcripts: A case study calling Australian linguists to action against legal misconceptions about language in forensic evidence

Abstract

ABSTRACT This paper presents a new case study examining the use of police transcripts to assist the court in understanding poor-quality forensic audio admitted as evidence in criminal trials. The 1995 trial it studies was the first major Australian case to include extensive expert opinions about police transcripts provided by the prosecution. Despite the fact that experts on both sides noted serious problems with the police transcripts, the judge allowed them to assist the jury, with the expert opinions offered as (ineffectual) subsequent commentary. The legal procedures the judge used in doing this were upheld on appeal, and have been followed ever since as a model for judges admitting opinions of both police and experts. The paper demonstrates how these procedures (unintentionally) privileged the opinions of police “ad hoc” experts over those of genuine experts, enabling the erroneous transcripts to influence not only the 1995 verdict, but a 1997 appeal and a 2014 inquiry. Analysis reveals the reason for these anomalies as the fact that the procedures incorporate misconceptions about spoken language and its representation in a transcript, which, though they have been thoroughly refuted by linguistic science over many decades, remain deeply embedded in the “common knowledge” accepted by wider society – including powerful institutions such as the law. The paper ends by calling on Australian linguists to find effective ways to address the misconceptions that affect the legal handling of forensic audio, by building further on the success of other branches of forensic linguistics in seeking direct engagement with the judiciary outside the trial process. The first step in achieving this is for linguists to gain a thorough understanding of how the legal procedures for handling poor-quality forensic audio operate, both in principle and in practice. The aim of the present paper is to contribute to that understanding.