Written by Aneta Pavlenko, Temple University
We are often asked about the relevance of linguistics for the ‘real world’. On June 2, 2014, I got an opportunity to explain this relevance to the judge, the media, and the general public when I testified as an expert witness in the pre-trial hearing of a Kazakh national, Dias Kadyrbayev, friend of the accused Boston Marathon bomber Dzhokhar Tsarnayev. The hearing was not about guilt or innocence. Its purpose was to determine whether Dias understood his Miranda rights – to remain silent, to request a lawyer, and to have a lawyer provided to him for free – and the consequences of waiving them. There were two complications: the FBI interrogation was not recorded, nor could I test Dias’ proficiency directly because by the time his lawyers contacted me, he had spent more than eight months in jail, interacting and reading in English.
Based on my previous experience with a similar case, I requested Dias’ test scores, academic records, and written texts produced by him prior to the interrogation. I also asked him to write a language learning history based on my prompts. Then I used his test scores from 2011 to establish his baseline proficiency (“no lower than”), linguistic patterns in his learning history to establish a ceiling proficiency (“no higher than”), and linguistic patterns in his writings from 2012-2013 to infer his proficiency at the time in terms of the ACTFL proficiency guidelines. My analysis suggested that at the time of the interrogation he had an Intermediate level of English proficiency and was highly unlikely to understand his Miranda rights without linguistic accommodations, such as clarification, translation, or interpretation.
In court, I tried to explain why a Russian speaker who relied on simple sentences, such as “I am feel bad” or “I did them very bad”, may be unable to automatically process sentences, such as “If you cannot afford a lawyer, one will be appointed for you before any questioning if you wish”. The reasons are many: syntactic complexity, low-frequency words, polysemy, differences between Russian and English in sentence structure and temporal marking, unfamiliarity with the privilege against self-incrimination, and the fact that the rights were presented under stress, in a short time span, without linguistic assistance. My task should have been fairly easy, right?
Sorry to say, fellow linguists, it was not a triumphant experience – eyes glazed when I uttered the terms ‘language proficiency’ and ‘predictive validity’ and mouths opened in extended yawns when I listed ‘deep embedding’, ‘double conditionals’, ‘ellipsis’ and ‘polysemy’ as features that make understanding the Miranda rights challenging for non-native speakers of English. Next-day media reports showed that I failed to communicate my points effectively. The failure lies squarely on my shoulders – I should have found better terms and examples – yet it also stems from different assumptions in academia and the ‘real world’ about language and evidence.
Here is the ‘real world’ version. Kadyrbayev studied English for 6 years in Kazakhstan and spent 4 weeks in the UK and 8 weeks in the US, prior to his arrival in the US in 2011. The prosecution argued that this was a record of ‘extensive’ study, sufficient to establish his English-language competence. They also stated that being a student at the University of Massachusetts at Dartmouth was in and of itself sufficient evidence of Kadyrbayev’s English proficiency.
In academia, years of language study are not a valid predictor of proficiency, due to highly variable instruction quality, and the only evidence that counts are test scores. Kadyrbayev’s 2011 score of 5.5 on IELTS, an international test of English proficiency, indicates, according to the IELTS guide, a low level of proficiency that requires further English study prior to taking any academic courses or even linguistically demanding ESL courses. So how did he get to be a student at UMass?
In fact, Kadyrbayev was not a UMass student – he was enrolled in the program run at UMass by a for-profit corporation Navitas that recruits foreign students who can pay for their courses and promises them that after two years they could transfer into the regular program. In Kadyrbayev’s case, this was not to be because Navitas did not heed his low IELTS scores and instead of offering ESL instruction he badly needed, enrolled him in academic courses, such as math and chemistry, where he struggled to understand what was going on. The mismatch between his level of proficiency and the linguistic demands of his courses led to plagiarism, absenteeism, failed courses, academic probation, and, in February 2013, dismissal from the program. But this does not mean he could not speak English, right?
To make their case, the prosecution emphasized his ability to interact in everyday situations and use colloquial English. These arguments, however, present language as binary, where you either have it or you don’t, and evidence of ‘some’ English suffices as evidence of ‘all’. Researchers, on the other hand, see proficiency in terms of levels and emphasize that speaking skills, or Basic Interpersonal Communicative Skills (BICS) in Jim Cummins’ terms, are acquired earlier than Cognitive Academic Language Proficiency (CALP), necessary to process the Miranda rights.
In terms of consent forms, in academia, regulations for protection of human subjects require us to write research consent forms in plain English and to translate them for speakers with lower levels of English proficiency. In the criminal justice system, there is no requirement to present the Miranda warnings in any language other than English, and a signature on the Miranda form is sufficient evidence of understanding. For linguists, on the other hand, the signature is evidence of understanding that the form had to be signed, and the only valid evidence of understanding of Miranda rights is their restatement in one’s own words.
I left the courtroom that day asking myself: would an American detained in Kazakhstan consent to go through the proceedings in his non-fluent Russian or Kazakh? And if not, how can our own criminal justice system address its monolingual bias and could it “afford” to do so “if it wished”? In my own view, it can and it should – the policies and best practices suggested by research are neither expensive nor time-consuming. The adoption of ‘plain English’ forms and standardized translations of the Miranda warnings, in combination with the requirement to restate the rights in one’s own words, would go a long way towards addressing the disparity in the system. This also may be the only way to ensure that boring linguists like me do not reappear in court.
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