A linguist’s foray into the ‘real world’: Why Dias Kadyrbayev was highly unlikely to understand his Miranda rights

Dr. Aneta Pavlenko Professor of Applied Linguistics

Dr. Aneta Pavlenko
Professor of Applied Linguistics

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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3 comments to A linguist’s foray into the ‘real world’: Why Dias Kadyrbayev was highly unlikely to understand his Miranda rights

  • Jamie Soen Leonhard

    Perhaps for the prosecution…an examination of what the consider colloquial English should be done. For those in, their law vocabulary is colloquial, as in all specialized fields, including our own.

    Linguistically the accused understood what was happening, however his owm culture did not provide him with enough cues to understand what he could have done. The policemen working within their own context did not stop to consider that perhaps his context would not have been the same. The police vocabulary was most likely not one he studied in Kazakhstan. ..why would he have had to? When we teach a language, we are teaching culture by default if we do it well. But if this uoung man’s teachers were Kazaks, how do we expect them to teach like native or near native teachers? Lots of factors. Love your insights. Keep going.

  • Dr. Pavlenko does not explain the details of what went on in the courtroom, and I do not have access as of this moment to the transcript of the testimony. However, the rough details of the daily proceedings can be found, albeit from a skeptic’s perspective, at this link. Note that the writer is not a linguist. Nor is the writer a legal expert.

    You can see the summary here:
    http://justice4tsarnaev.tumblr.com/post/85812437594/tsarnaevs-friends-pre-trial-hearing-summary

    From the summary:

    Pavlenko chose not to meet with Kadyrbayev because she believed him to be polluted by eight months of salty jailhouse language and admitted under cross she didn’t even read the notes of the federal agents who questioned Kadyrbayev in April 2013.

    The question of the utility of reading notes by questioners or the agents who made the initial contact of detaining Kadyrbayev, at least to my mind, seems pointless. There was no recording of the interview available to Pavlenko, or the defense. The defense did not bring up the question of how competent the agents would be at assessing linguistic proficiency, from a lay perspective, but that makes sense given that lay people do not have linguistic training in this area. Law enforcement officials do have training in parsing language, from a legal register perspective, but that has nothing to do with assessing communicative intent and competence.

    I am not a lawyer, so I am not qualified to give legal advice, but from my understanding of the legal system and how expert witnesses are handled, there are two types of situations you as a linguist may find yourself in when a legal team contacts you to gather information. The first situation is when you are expected to testify, in which case the team that contacts will tell you, and anything that you tell that team is not subject to attorney/client privilege. If you are consulted for background information, but are not expected to testify, your contributions to the side that contacts you do fall under privileged information. But it is incumbent on anyone who testifies in a court room to be able to communicate the situation in a way that the audience should be able to understand. It’s a real challenge.

    The conflict in giving testimony is assessing how to demonstrate that you are using your professional competency in due consideration, upholding the best practices of the field, while at the same time giving an accurate description of your assessment in lay terms. Legal parsing of academic linguistic terms is very likely to happen, and it is a case where our profession’s standards engage in a cultural clash with a powerful, politically vested sector of American society that has a long precedent of linguistic interpretation. In all honesty, when we as linguists assert our prerogative to claim the closest, best thing to how language works, the legal field will see our statements as a denial of their historical prerogative. We are stepping on the toes of a demesne that has long been sacrosanct.

    When we look at Navitas, which is a degree mill that is scamming money off of foreign government and private organizations seeking authentic access to high status education, and how their practices differ from other, more academically scrupulous ESL programs, we have to communicate that to the public. That appears not to have filtered through to the public mind in the testimony details. The problem with this is, as I see it, the defense does not have the particulars of the ELT trade and its practices, and expert witnesses may not be able to explain everything that they think about a subject, because the person leading the questioning is an attorney. So if the attorney doesn’t understand the topic, and is worried about tainting the expert’s testimony, they may not fully investigate the topic under question or rely on the actual knowledge of the expert witness.

    Then again, I am not a lawyer, and as such this should not be construed as legal advice. But I think that if linguistics professionals are called upon to testify, we ought to actually pursue some legal advice ourselves so that we know how to present testimony that is accurate and serves the needs of the court as well as justice.

  • Michelle Butler

    This article is very interesting to me as it goes together with what I am studying for a linguistics paper on the need for civil servants (police, hospital, judicial)to learn at least some of the non-English language spoken in their area. I was mainly focusing on healthcare workers and police officers, but this points to a growing need to have better linguistic understanding in the judicial system. And the fact that just because someone speaks “some” English does not mean that they understand the language as a whole. The colloquial variations of American English alone are a bit daunting. I know that if I was in the court system like this young man, I would not really understand what they were telling me.

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