Legal Indeterminacy in the Spoken Word

34 Pages Posted: 14 Jul 2015

Date Written: July 14, 2015

Abstract

A great deal is written about difficulties in construing legal texts. Much less effort has gone into identifying interpretive problems that result from spoken language. This paper does that, by discussing how our abilities to perceive and understand speech lead to misunderstandings in legal contexts. Specifically, there are numerous battles over what was actually said in recorded speech. These disagreements are often reflected in disputes over how the interaction should be transcribed. We discuss many such examples, and explain them in terms of well-studied phonetic phenomena. These include our difficulty in segmenting speech into words (we speak without using a spacebar), and, in English, the fact that unstressed vowels, and some consonants, are reduced to the point of being indistinguishable, or even inaudible. For purposes of exposition, we compare cases involving the misperception of recorded speech in legal contexts with the misperception of song lyrics. Finally, we discuss our lack of memory for both the exact words spoken, and for human voices with which we are not sufficiently familiar. Our failure to recall exact words creates serious problems for the legal system with respect to prosecuting false statements made verbally, and enforcing oral contracts.

Keywords: recordings, evidence, memory, misperception, speech

Suggested Citation

Solan, Lawrence M. and Dahmen, Silvia, Legal Indeterminacy in the Spoken Word (July 14, 2015). Brooklyn Law School Legal Studies Paper No. 418. Available at SSRN: https://ssrn.com/abstract=2630728 or http://dx.doi.org/10.2139/ssrn.2630728

Lawrence M. Solan (Contact Author)

Brooklyn Law School ( email )

250 Joralemon Street
Brooklyn, NY 11201
United States
718-780-0357 (Phone)

HOME PAGE: http://www.brooklaw.edu/lawrence_solan

Silvia Dahmen

University of Cologne ( email )

Albertus-Magnus-Platz
Cologne, 50923
Germany

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