"It’s your rights, ok?": explaining the right to silence to Aboriginal suspects in the Northern Territory
Date
2017
Authors
Bowen, Alexander Ainsley
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Abstract
When a suspect is interviewed by the police, s/he has the right
to decline to answer police questions and avoid
self-incrimination. This is a fundamental procedural protection,
and police are required to inform suspects of the ‘right to
silence’, also called the ‘caution’, before beginning the
interview. However, the way the caution is stated, both in legal
texts and by police officers, is often linguistically and
conceptually complex. This makes it less likely that suspects
will understand their right to remain silent, especially if they
are Aboriginal and speak English as a second language or dialect.
Aboriginal people are over-represented in the criminal justice
system, and, if they do not understand the right to silence, this
may aggravate that disadvantage.
In Anunga (1976), the NT Supreme Court attempted to reduce this
disadvantage, by requiring police explaining the caution to
Aboriginal suspects to obtain evidence of “apparent
understanding”. However, this has led to conversations about
the caution which are sometimes long and unsuccessful.
Difficulties with the caution have long been acknowledged by
courts, linguists and others, but regulatory guidance and police
language have changed little in 20 years, and there has been no
systematic study of the speech event (‘caution conversation’)
resulting from the Anunga requirements.
The caution originates in a legislated text but police vary its
form and content. This thesis examines transcripts in which
police explain the caution to Aboriginal suspects and test
understanding. It examines what is said and how it is expressed,
and what is left unsaid in the caution. It compares the
transcripts with translations into Aboriginal languages, and
shows that these further vary the caution text, revealing
additional meaning.
The caution’s meaning is partly about interaction (establishing
norms for the interview speech activity) and partly informative
(describing the consequences of speaking or not speaking to
police).
The linguistic analysis takes place at different levels. At the
conceptual level, most paraphrases arguably assume knowledge,
particularly about rights and evidence. At the conversation
level, the caution conversation is a complex speech activity, and
the extent to which suspects can understand its purposes and
mechanisms is likely to affect understanding of the right to
silence. At the discourse level the way police repeat and explain
the caution affects its interpretation. Multiple versions of the
caution may provide different ways to understand the caution, but
unclear discourse relationships between restatements of the
caution can also create confusion. At the sentence level, the
ambiguous roles of conditional clauses may make versions of the
caution harder to understand and relate to each other. At the
word-level, police lexical and grammatical choices have different
kinds of equivalence in Aboriginal languages, and suspect
responses suggest that modality used by police to say that
silence is permissible is particularly unclear.
Analysis of existing problems in communication and alternative
ways of expressing the caution can suggest ways to improve
communication to attempt to demystify this aspect of the legal
process.
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Keywords
right to silence, police caution, language and the law, communication of rights, modality, anunga, legal language, police interview, inferential communication, miscommunication, miranda rights, plain English, clear English, understanding, conditional clause, don't have to
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Thesis (Masters)
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