Notes on Law, Language and Memory

Law, though it be found written in stone, like the code of Hammurabi, or on the Internet, with its nanosecond updates, has about the same staying power as any other cultural expression. Law students are no fools. They do not spend hundreds of thousands of dollars to tie themselves to something they cannot manipulate. They know well that people rule the law, not the other way around.

Law may be manipulated by is interpretation, by the precedent chosen, or by enactment, complete with due process and cross-examination.

Elizabeth F. Loftus writes in Lingustics at work of law, and more specifically the way “witnesses” respond to questions put forward with minimal differences. Loftus explains that results in several studies showed a varying of what subjects recalled, depending on the wording of the questions asked of them. Supposedly minimal syntactic changes spurred subjects to “recall” things that did not occur in the study videotapes they had watched.
Does this, then, as Loftus asks, refer to the structure of language or to the behavior of people? I would suggest that it is both; that behavior and language are intrinsically linked. Within the field of linguistics this might be described as pragmatics, though, pragmatically, this is simply the way the world seems to function. Phrasal of questions affects the outcome of the response.

When I trained as a journalist, the importance of the way we phrased our questions was beaten into us. Explicitly, over and over, we were told: you must not bias your articles, either by your writing or by the way you lead your sources. Something as minor as the choice between the definite and the indefinite articles, put forth in Loftus’ study as “Did you see the broken headlight?” versus “did you see a broken headlight?” could change the entire outcome of an investigative report, we were told. Such minor differences may therefore not be minor at all, as the difference between “definite” and “indefinite” or “guilty” and “not guilty” is also the difference of a few letters.

I would suggest in general that even minor syntactic changes make for drastic linguistic difference. One of Loftus’ experiments dealt with tag questions, and “Did you see a bicycle?” is not the same thing as “You saw a bicycle, didn’t you?” Tag questions are not neutral. If someone supposedly gathering information in a neutral forum — a lawyer, a journalist, a doctor — were to ask me a tag question like this, I would not think: “Oh, he/she wants information.” I would think instead: “He/she wants a certain type of information.”

In such forums, one is not to feed people presuppositions by one’s questions. The question “why did Lucy bring the dessert?” obviously presupposes that Lucy brought the dessert. People evaluate reality based largely on input, and input from other people is not least in this. It would be entirely natural to think if someone asked why Lucy brought this disgusting dessert that Lucy had brought a dessert of some kind, though its taste and consistency might or might not be disguising, as disgusting is a matter of opinion.

Adding time to the mix only complicates things. We used to ask our youngest brother if he remembered going on a walk with Dad in the prairie when he was not yet two years old and finding a rattlesnake, and for years he would say yes, until he finally confessed that somewhere along the way he had lost the memory, and only remembered the story as it was told by our questions.

Memory is to some degree a by-product of comprehension. Two-year-olds rarely comprehend their surroundings. This may be the reason that early memories are rare, and often linked to great pain or basic emotion. In the same way, people seem to think that memories linked to pain or emotion will be more vivid, more accurate, but I’m not sure that this is true.

Leave a Reply

Fill in your details below or click an icon to log in: Logo

You are commenting using your account. Log Out /  Change )

Twitter picture

You are commenting using your Twitter account. Log Out /  Change )

Facebook photo

You are commenting using your Facebook account. Log Out /  Change )

Connecting to %s

%d bloggers like this: