Editors' Note to Chapter 9

Sometimes ‘voice’ is lost in courtroom communication. That is what Chris Heffer sets out to show in this chapter. Voice is a word subject to polysemy and considerable vagueness, of course, so one part of Heffer's task is to establish the scope he will give the term, or the range of meanings he will draw on simultaneously (from voice as ‘audible articulation’ through to voice as ‘assertion of point-of-view’). In the course of the chapter, Heffer sets out a model of (mis)communication he has devised called the Voice Projection Framework, and he applies that model to a case of fundamental misunderstanding between judge and jury.

‘Losing’ voice relates to features of the institutional context of courtroom communication, including an in-built power imbalance between speakers, procedural constraints governing the right to speak, and the problem of multiple legal audiences (which Heffer examined in detail in his book The Language of Jury Trial: Corpus Aid Analysis of Legal Lay Discourse (2005)). By contrast, ‘projecting’ a voice involves not only how a message is ‘voiced’ and ‘heard’ but also the extent to which both the speaker and hearer commit to authority and/or accommodation between their respective positions.

In a widely discussed English case involving the defendant Vasiliki Pryce – famous due to the identity of its protagonist rather than on account of its legal significance – the jurors sent ten questions to the judge during their deliberation. Both by the judge and in the national press, the questions, which were widely reported, were construed as reflecting the jurors’ inability to comprehend the basic purpose of their presence at the trial, or even as simply a sign of their collective stupidity. Heffer presents an alternative account. He sets out to explain why the judge's and jurors’ voices failed to project successfully to each other. By applying his Voice Projection Framework, Heffer describes how the jurors’ questions, in his view, actually demonstrated legal-linguistic competence and perceptiveness about indeterminacies in the judge's directions.

The factors that Heffer takes into account in explaining miscommunication between jurors and judges are typically concerned with the institutional design of courtroom interaction. For example, he highlights how the voices of individual jurors are suppressed in jury communication to the judge, with the result that the apparently collective voice represented by the forewoman camouflages potentially major internal tensions. Jurors, he also notes, are prevented from explaining themselves to the public because of their justifiable fear of being found in contempt of court. Judicial communication is further complicated, Heffer argues, by the fact that judges address multiple audiences at the same time: the jurors, the parties of the trial, judges in higher courts who may review the case on appeal, and possibly also the media and wider public. In doing so, they can easily align their speech more to one audience than another, with a potentially damaging effect on communication with any one group.

When Voices Fail to Carry: Voice Projection and the Case of the ‘Dumb’ Jury

In this chapter, I apply a model of (mis)communication I have been developing to a case of fundamental misunderstanding between judge and jury. In the Voice Projection Framework, a speaker's perspective (voice) will be conveyed, or ‘projected’, to an interlocutor in such a way that it may or may not lead to what Bakhtin described as ‘actively responsive understanding’ (Bakhtin Reference Bakhtin1981). Projection involves the way a message is ‘voiced’ and ‘heard’ but also the extent to which both speakers and hearers commit to authority and/or accommodation. In the high-profile English case of Vasiliki Pryce (2013), when the jury failed to reach a verdict, the judge dismissed them as showing ‘absolutely fundamental deficits in understanding’. The media almost unanimously construed this event as being emblematic of a failing jury system: of pig-ignorant jurors (the tabloids) or a woefully inadequate system of justice (the broadsheets). Rather than being indicative of a ‘dumb’ jury, though, the miscommunication in this case can be explained in terms of a failure of the judge's and jurors’ voices to project successfully to each other due to fundamental problems regarding voicing, hearing, authority and accommodation.

After an introduction to the case, I briefly outline the key elements of the Voice Projection Framework. Then I apply the framework to the Vasiliki (Vicky) Pryce jury questions first by analyzing the judge's voicing in his summing-up to which they respond and then by exploring aspects of projection in relation to both the jury's questions and the judge's answers.

Introduction: A Case of a ‘Dumb’ Jury?

In the jurisdiction of England and Wales, serious indictable offences (e.g. murder and manslaughter, rape and robbery) are tried in Crown Courts before a judge and a jury of twelve randomly selected and anonymous citizens (potentially including legal professionals). A large but ever-dwindling number of cases that could alternatively be tried ‘summarily’ in Magistrates’ Courts (so called either-way cases such as theft, burglary and dangerous driving) are also tried by jury in Crown Courts. In trial by judge and jury, the judge is responsible for legal matters, including conveying the law relevant to the case to the jury in his final ‘summing up’, whereas the jury is responsible for applying the law (as conveyed to them by the judge) to the evidence they have heard in court. The jury determine during their secluded post-evidential deliberation whether or not the defendant is guilty, whereas the judge will sentence the defendant if found guilty. Despite continual cutbacks by successive governments and attacks on its unprofessional nature by the media and some academics, the ‘costly’ and ‘amateur’ jury system still enjoys widespread support from both the public and legal professionals in the United Kingdom and has been empirically established as a ‘fair’ system of justice in both the United States and the United Kingdom (e.g. Thomas Reference Thomas2010).

Despite the central role of the jury in determining the outcome of a case, jurors are rendered institutionally dumb (speechless) by trial procedure. They do not speak in court,Footnote ² they deliberate behind closed doors and they deliver their verdict via the ‘foreman’ in one or two words: ‘guilty’ or ‘not guilty’. This public silence can in turn lead to a pervading fear in some sectors of society that some of those unheard jurors may also be too ‘dumb’ (stupid) to hear a case fairly and thus ensure that justice is done. The media, institutionally oriented to preferring the exceptional to the typical, will therefore tend to seize on any case in which any breaking of the jury's silence might be construed as evidence for a ‘dumb’ jury.

One notorious case of a putative ‘dumb’ jury occurred at the end of the first trial of the well-known UK economist Vasiliki (Vicky) Pryce. In February 2013, Pryce went on trial in London for subverting the course of justice after it emerged that (ten years earlier) she had taken driving penalty points for her ex-husband and Cabinet Minister Chris Huhne. Huhne had pleaded guilty to the offence and resigned from government but Pryce decided to claim the very rare and controversial defence of marital coercion (Coughlin Reference Coughlin1994): namely, that she was coerced to take the points by her husband and so was morally innocent.Footnote ³ The high profile case went before a jury and senior judge at Southwark Crown Court. The jury heard the evidence and the judge's summing-up, including directions on the law and a review of the evidence (Sweeney Reference Sweeney2013a). Then, during what must have been difficult deliberations, the jurors sent Judge Sweeney ten questions relating to his legal directions and the constraints on their deliberation (see Appendix). The questions appeared to shock the legal professionals in court. The prosecution submitted to the judge that the jury's questions ‘aimed at attempting to understand the fundamental purpose of their presence’ and Judge Sweeney remarked that they showed ‘absolutely fundamental deficits in understanding’. When the jury failed to reach a verdict, the judge's remarks in turn led to front-page headlines about the stupidity of some jurors, the need for qualifying IQ tests and the inadequacy of the jury system as a whole.Footnote ⁴ Very few commentators questioned whether the judge's harsh evaluation of the jury was justified in the context. The leading British researcher on the jury (Thomas Reference Thomas2014) subsequently and rightly noted that one should not arrive at conclusions about the jury based on one such ‘exceptional case’. But the overwhelming perception, including that of Thomas, was that the questions did demonstrate alarming deficits in understanding.

Furthermore, this is not one of those cases where the judge's instructions were, as a whole, legally and/or linguistically impenetrable, as was the case, for example, with the OJ Simpson criminal trial in the United States (see Tiersma Reference Tiersma2001). From both legal and linguistic perspectives, the judge's summing-up to the jury is in many ways exemplary. As a whole, it is well constructed, well written, logical and coherent, and it follows many of the recommendations made by linguistic and legal researchers intent on improving the comprehensibility of jury instructions: it provides a clear ‘road map’ through the instructions (Dumas Reference Dumas2000); it integrates the trial evidence with the legal directions (Auld Reference Auld2001); it offers narrative illustrations of some of the legal points (Heffer Reference Heffer2006); and it sets out a clear ‘Route to Verdict’ (JSB 2010: 3) indicating, in order, the set of questions the jury needs to answer and the evidence that needs to be considered in relation to each of those questions. The judge not only read out his instructions but also provided a written copy of them for the jury to refer to during deliberation. From his own perspective, then, one can understand the judge's exasperated comment in the trial that ‘it is actually all there and has been there the whole time’.

Nevertheless, the cognitive deficit argument (the ‘dumb’ jury) does not stand up well to cross-examination. Several of the jury's questions, as we shall see, show legal-linguistic competence, are legally perspicacious and identify actual gaps and ambiguities in the judge's directions. Others raise fundamental questions about the nature of legal evidence. The one clearly surprising question has, I shall suggest, been worded in such a way as to invite assistance from the judge in dealing with a ‘difficult’ juror. In this chapter, then, I shall argue that the communication breakdown derives not from deficits in understanding but from a failure of both the professional (judge) and lay participants (jurors) to project their voices effectively.

The Voice Projection Framework

In the Voice Projection Framework, voice consists in three key elements – perspective, projection and responsive understanding – as indicated in Figure 9.1. Perspective in this model broadly covers the ways of being (Identities), ways of thinking (Ideas) and ways of speaking (Styles) that the speaker or group of speakers projects to a listener or audience when they are ‘given voice’. Responsive understanding is the minimal level of response we seek from an audience when we convey our perspective: it is when they understand what we are ‘getting at’ to the point where they are able to actively respond – positively or negatively – to what we have said. It is not necessarily agreement or compliance but it will leave us feeling that we have ‘been heard’. Projection is the way voice carries to an audience, or, in terms of Figure 9.1, it is the way voice travels from perspective to responsive understanding. Projection can be both active and passive: one can expend a great deal of effort in trying to make oneself understood, but one's perspective may still not carry to the audience for a multitude of reasons. Though successful projection will lead to responsive understanding, crucially, voices can fail to project, resulting in such phenomena of miscommunication as ignoring, for example, when a witness's evidence is discounted because the court couldn't understand his accent; miscued affect, as when an audience laughs at something that was meant to be serious; and plain misunderstanding, as when the hearer understands something quite different from that intended.

Figure 9.1 The Voice Projection Framework

At the heart of the Voice Projection Framework is an articulation of projection. The key elements of projection outlined in the following paragraphs combine communicational aspects (voicing and hearing) with power aspects (authority and accommodation). The elements are mostly drawn from wide-ranging work in discourse analysis (e.g. Gumperz Reference Gumperz, Auer and Di Luzio1992, Blommaert Reference Blommaert2005), linguistic anthropology (e.g. Bauman and Briggs Reference Bauman and Briggs1990, Goodwin Reference Goodwin1994, Hymes Reference Hymes1996) and related fields. The interaction of these elements can be very complex and there is no easy way of assessing the chances of successful projection. However, the object of the framework is to encourage holistic consideration of a variety of factors rather than just, for example, the comprehensibility of texts or accommodation to the audience.

Voicing, or giving semiotic expression to one's perspective, involves projecting both physically (animating) and discursively (styling). Animating is physically conveying voice through sound, sign and other forms of semiosis. When the performative aspects of animation are mediated through indirect discourse or writing, as very frequently happens in institutional contexts, it can mean not only loss of physical voice but also loss of meaning: the loss of ‘all the emotive-affective features of speech’ in indirect discourse (Voloshinov Reference Voloshinov1973: 128) or the loss of structure, emphases and implications in transcription (Tedlock Reference Tedlock1983). Styling, or the selecting and arranging of words, sentences, paragraphs and so on, involves a number of key strategic choices such as that between conforming (following standards) and creating (showing individuality). It also involves opening up to different perspectives or ‘voices’ (dialogic discourse, Bakhtin Reference Bakhtin1981) or silencing other voices in favour of a single perspective (monologic discourse). The effect of styling strategies on voice projection is very much dependent on context. For example, conforming can help when the audience is well versed in the standards, but is detrimental when the audience does not know those standards (think legal writing for lawyers or non-lawyers).Footnote ⁵

Voicing also involves guiding audience interpretation by pointing to particular ways of reading what is said (indexing) and stressing the salience of certain elements (highlighting). Through indexing, the speaker can actively point to (index) a particular aspect of the language or context that provides a preferred frame of interpretation. Words and other signs can index something about their form or use (metapragmatic), about how they should be interpreted, how they relate to context or how they should be valued (Gumperz Reference Gumperz1982, Reference Gumperz, Auer and Di Luzio1992). For example, winking to a third party might index that what you are saying to the addressee is a lie and that you are complicit in keeping the truth from her. The speaker can also actively highlight, or try to show what is most salient, in a piece of discourse through selection, performance and styling. Professional practices in particular tend to highlight institutionally relevant details and let the personal stories that lay people bring recede into the background.

Although speakers can anticipate and guide hearing, hearers can also actively or unreflectively impose their own interpretations and interests on what they hear, and this might result in weakened projection. Hearing involves both physical listening (or reading) and mental comprehending: voice will fail to project if the audience is not paying attention or has impaired hearing or difficulty reading, or if the discourse is too complex or the hearer/reader not sufficiently intelligent to understand. Hearing also involves important interpretative practices, notably schematic framing and selective focusing, which, as indicated earlier, are guided though not at all determined by the speaker's indexing and highlighting. Frames help to interpret the unsaid within an activity in a given ‘community of practice’ (Lave and Wenger Reference Lave and Wenger1991). However, since frames are often community-specific, or even idiosyncratic, the same type of speech event can be framed in very different ways by different individuals and communities, and with different values. Closely connected with framing is focusing, which makes salient certain aspects of the voicing and backgrounds others. Goodwin (Reference Goodwin1994) notes how the archaeologist and the farmer will see quite different things in a patch of dirt: the archaeologist will frame it as a dig and focus on stains and artefacts; the farmer will frame it as arable land and focus on soil quality. If aspects of what we hear are not salient to us, they recede into the background and will either not be noticed or will be noticed and then forgotten.

Working in conjunction (or disjunction) with a communicative axis of voicing and hearing is an axis of commitment to authority and/or accommodation. Authority, the source of institutional power, constrains the possibilities for both voicing and hearing (and thus projection) by imposing discursive and other norms through the practices of centring (working centripetally towards increasing normativity) and authorizing (conferring authority and legitimacy on speakers and discourse). Centring is the process by which ‘centring institutions’ (Silverstein Reference Silverstein1998; Blommaert Reference Blommaert2005) such as family, peer group, profession and State competitively impose their own normative standards in a polycentric world. Given that the centres to which we orient are not equal but stratified (some are valued much more highly than others), orienting to local community discursive norms in styling (whether in using a non-standard dialect, a restricted code, a ‘foreign’ language or a specialized professional language) will inevitably lead to loss of voice in the wider community if the norms diverge (Silverstein Reference Silverstein1998). Authorizing, or the conferring of authority and legitimacy on speakers and discourse, both helps to project voices across space and time and can hinder projection in a given context. An authorized voice such as a Supreme Court judge is empowered to effect change in the law by issuing judgments that deviate from the prior authoritative discourse of earlier judgments (Heffer Reference Heffer, Heffer, Rock and Conley2013). They then project their voice through others by acting as the source of the words, as ‘principal’ in Goffman's terms (Reference Goffman1981: 144). The ensuing authoritative discourse (Bakhtin Reference Bakhtin1981: 342), originating in the agency of an authorized voice, is then perceived by speakers in germane discursive contexts (e.g. a trial judge delivering legal instructions) as a structural constraint on voicing: it leaves us little option in terms of how we style our message. Authoritative discourse will thus travel relatively intact in form across time but precisely because it is impervious to context, it can soon fail to project to audiences beyond a specialist community (words that made sense to ordinary people a hundred years ago might not make sense now). What is required in such cases is contextual accommodation to the audience.

Accommodation, or the extent to which speakers adapt their speech to the audience, involves practices of converging, or adapting to the communicative norms of the speaker, and persuading, or being rhetorically efficacious. Converging can facilitate both comprehension and solidarity, and thus help to project voice. In institutional contexts, converging can involve lay participants moving towards professional discourse norms or professionals moving towards everyday discourse norms. Speakers need both the capacity and motivation to converge. They need the communicative competence (Hymes Reference Hymes, Pride and Holmes1972) to ‘pass’ to a greater or lesser extent as members of a given discourse community. Converging with specialized discourse communities is more difficult than converging with general ones: a speaker might be able to narrate effectively in conversation but not in court. Converging also requires motivation: ritualistic institutional discourse is often not primarily aimed at communication at all (Heffer Reference Heffer, Heffer, Rock and Conley2013), while professionals often use the excuse of authority to avoid having to converge (Heffer Reference Heffer2006). Though converging with the local community's discursive norms is likely to facilitate comprehension, successful voice projection generally requires an orientation to persuading rather than simply informing the audience. Where speakers are motivated to respond to a rhetorical situation, as with trial lawyers determined to win their cases in adversarial courts, audience-oriented rhetoric will naturally ensue. Where extrinsic motivation is lacking, though, institutional speakers may hide behind authority and ‘impermeable’ authoritative discourse. Where voicing is not oriented towards being heard, towards actively responsive understanding, it is recitation, or voicing to be voiced. Re-citing what has been said before, particularly in ritual, can occur irrespective of audience understanding. Authoritative discourse, then, is always in danger of not projecting when it is recited rather than communicated rhetorically.

Many Voices, Many Hearers: The Pryce Jurors and the Judge's Audiences

The preceding outline of the Voice Projection Framework assumes, for explanatory simplicity, that we are dealing with a single speaker/writer or homogenous group communicating with a given type of audience. The reality of many institutional contexts is more complex than this and this needs to be borne in mind when applying the framework. Indeed, one of the key reasons for the communication breakdown between judge and jury in the Pryce case is arguably because certain voices and certain audiences were suppressed.

Jurors are thrust together ‘from all walks of life’ (as judges are wont to say) to form a forced and fleeting virtual community. There is a hidden heterogeneity, then, in the singular ‘jury’ that defies attempts to conceive it as a ‘common’ community with shared conditions or interests. Jurors are certainly drawn from ‘the community’, where community is understood purely as ‘locality’, but otherwise they may have little in common in a globalized world. Southwark, the London locality in which the Vicky Pryce trial took place, is particularly heterogeneous, with, for example, 34 per cent of its population born outside the United Kingdom, and 32 per cent belonging to ethnic minorities.Footnote ⁶ However, the twelve individual voices of the jury, which may be heard in all their diversity in the jury room, are hidden from public (and even researcher) hearing.

In the media reaction to Judge Sweeney's comments, the jurors’ own voices were again silenced by the Contempt of Court Act 1981, which, unlike in the United States, prohibits any interviewing of jurors in any form about their deliberations. The circumstantial evidence available from the textual records points to a situation of discursive conflict: the deliberation was very long (fourteen hours) for a legally simple case; it passed to a majority verdict phase; Question 5, as discussed later, was styled in a way that suggested distance between the author of the questions and the juror that originated the question; the jury ultimately failed to reach agreement; and the forewoman highlighted tensions when, in her final note to the judge about the possibility of reaching a verdict, she underlined ‘highly unlikely’ twice. The polyvocality of the deliberation, though, is for the most part lost as the questions travel back to court and beyond. First, most of the questions are lifted from their interactional situation of conflict and entextualized in a univocal and ordered written list. The requirement to present the questions in written form means that the distinctive voices (physical, discursive and rhetorical) of the individual jurors are lost. We cannot know for sure whether the person who wrote out the questions is merely animating the questions of other jurors or authoring them, nor how many principals are involved (theoretically, each question might represent a different juror's voice or a combination of different voices), nor how much conflict and negotiation went into the styling of the questions. We can speculate that the first eight questions, sent out at the same time and showing stylistic similarities, are authored by the forewoman and I shall both make this assumption and focus on those questions.

If that is the case, though, some of the jurors will have already lost voice in the process of converting oral sentiment into rational text from a given authorial perspective. Question 5 in particular seems to be styled by the forewoman to convey a metapragmatic comment on the juror who is the source of the question:Footnote ⁷

Firstly, by using the indefinite article (‘can a juror’) in place of the collective ‘we’ or ‘the jury’, the forewoman appears to be deliberately singling out the discordant voice of an indefinite individual juror. Secondly, this discordant voice is projected as not merely wanting to ‘consider’ or ‘take into account’ the proffered reason as one of many elements that might support a given verdict but quite simply to ‘come to a verdict’ based on this reason. Finally, that ‘reason’ is presented in an entirely negative fashion: ‘not presented in court’; ‘no facts or evidence to support it’. The styling of the question, then, seems to index it to the hearer as ‘stupid’, though this is not how it appears to have been framed by the judge. Consider how the question might have been styled if the author had aligned with the principal (and the forewoman demonstrates through her other questions that she is perfectly capable of styling in this manner):

This is a far more reasonable question. The answer would still be ‘no’, but would be due to the specific law of evidence (fact finders should consider only reasons presented in court) rather than universal laws of reasoning (basing our decisions on facts and evidence rather than pure conjecture). It is quite possible, then, that the forewoman has distorted one or more dissenting voices in the jury, thus preventing that voice from projecting effectively to the judge. And those voices may not actually be ‘dumb’ but might be challenging the very nature of the controversial law on marital coercion.

Once the questions are written, they are further decontextualized as they are removed from the jury room. They are subsequently recontextualized by the judge who will have read them out in court (animated but probably not performed) with new accents and intonations and without knowledge of the discursive history of deliberation that led to their entextualization. They are now perceived as a univocal monologic text that conforms to the legal institutional view of the jury as a single counterbalancing side of the judicial scales: the judge determines the law; the jury determine the facts. In its institutional role, the jury, like the judge, is singular and speaks with one voice through the ‘foreman’. The judge tells the jury that, in deciding the facts ‘you bring, and are entitled to use, your joint experience of life and your common sense’. However, the polyvocality of deliberation remains locked in the jury room. The judge's metapragmatic comment on the questions as demonstrating ‘absolutely fundamental deficits in understanding’ then steers their recontextualization in the media through the metapragmatic frames of ‘stupid jury’ or ‘defunct system’. The voice of the individual jurors has by this stage long been lost.

We can also not assume that the judge is always focused on conveying his perspective to the jury. Judges are mindful of at least three different audiences: the jury, the legal parties at trial and the higher tribunals that might review the case. In high-profile cases like this one, they will also be aware of the media. Importantly, Judge Sweeney, during the course of the trial, had written a twenty-eight-page Ruling on Marital Coercion that shifted the persuasive burden of this defence from Defence to Prosecution (Sweeney Reference Sweeney2013b). Whereas previously the Defence was required to prove marital coercion on the balance of probabilities, now the Defence only needed to adduce some evidence that the marital coercion defence applied and the burden was now on the Prosecution to prove beyond reasonable doubt that the wife was not coerced by her husband. The jury was not made aware of this, as they are sent out of court whenever legal matters are discussed. Nevertheless, it is well recognized that the primary function of the judge's summing-up to the jury must be to communicate the law effectively to the jury so that they are in a position to apply that law to the case in hand. If the jury do not ‘get it’ then, irrespective of their actions in deliberation and irrespective of the reactions of other potential audiences, the judge's voice will not have projected successfully to the jury. Similarly, assuming the institutionally homogeneous status of the jury, if the judge fails to understand what the jury are ‘getting at’ then their univocal voice will have failed to project (as indeed it failed to project to the media).

The Voice of the Judge

We cannot hope to understand the jury's questions (see Appendix) without some understanding of at least the immediate communication to which they respond: the judge's summing-up on the law (his ‘legal directions’, ‘instructions’ or ‘jury charge’).

The Voice(s) of the Jury and Judicial Hearing

The jury's questions come in response to the judge's oral and written summing-up and were construed by the judge as evidence of serious mishearing. I argue in this section that, though the questions constitute a limited amount of data, several of them suggest actively responsive understanding of the judge's directions while the judge's own responses are likely not to have projected well.

Failed Projection

It is this last point about forgetting jury equity that is the key to interpreting the judge and jury's failure to project successfully to each other. Figure 9.2 summarizes the key elements of voice projection in this case, with plain type indicating points relating to the judge's projection and italics indicating points relating to the jury's projection.

Figure 9.2 Key Elements Affecting the Judge and Jury's Voice Projection

The central issue is one of authority. Whereas the judge orients to the law alone as his normative centre, the jury orients not only to the law but also to the community's (or communities’) sense of morality and natural justice. However, in the trial context, the judge has the full weight of authority behind his orientation, both as an authorized voice ‘making’ the law on marital coercion and as a reciter of authoritative legal discourse. The jury, on the other hand, only has authority to deliver a verdict. This power imbalance has consequences for both hearing and accommodation. In terms of hearing, the judge fits the evidence he has heard in the trial into a legal-institutional frame, backgrounding any elements that do not fall tightly within that frame. The jury index an understanding of that legal-institutional frame but (like lawyers in closing arguments) also frame that evidence in narrative terms that go beyond legal-institutional strictures; this may lead to focusing on elements in the wider evidential context that are not ‘heard’ by the judge. In terms of accommodation, the judge has no immediate need to risk going beyond authoritative legal discourse. Taken as a whole, his summing-up is a model of instructional clarity but his key legal directions (those for the most part queried by the jury) converge little with everyday communicational norms despite the jury's own attempt to converge with legal discourse. He thus recites rather than persuades, highlighting legal salience through repetition of formulas not understood by the jurors. His styling consequently conforms with legal register, which the forewoman succeeds in emulating, but which is not necessarily comprehended by the other jurors. Finally, though the forewoman seems to fail to convey her perspective to the judge (who, apparently focused on the legal semantics, misunderstands the pragmatics of Question 5), we must not forget that the other jurors’ voices are filtered through (and perhaps suppressed by) the forewoman herself.

Conclusion

In their seminal study of the American jury, Kalven and Zeisel (Reference Kalven and Zeisel1971: 219) noted that ‘in many ways the jury is the law's most interesting critic’ and that jurors are often critical of ‘the nicety of the law's boundaries’. What we see in the Pryce jury's questions is a group of individuals struggling with the niceties of these boundaries. Considering the way the judge projects his own voice, with a preference in the key directions for recitation of rules over persuasion of people, and the way he appears to fail to hear (and thus respond to) the jury's narrative framing of events, the jury, rather than forgetting the judge's directions, appear to be actively responding to them as best they can. The questions they ask show an awareness of the law but also challenge its subtle distinctions and even its very foundations. This is arguably precisely what is required of the jury as a democratic institution. Nevertheless their perspective clearly failed to project to the judge and they also clearly failed to persuade each other.

The Voice Projection Framework outlined and applied here can help produce a richer and more holistic analysis of such institutional contexts. One could certainly discuss the linguistic complexity of the marital coercion direction or the nicety of the law's legal and linguistic boundaries without recourse to such a model. The claim, though, is that the framework can help ‘give voice’ even to those who, like a jury in court, mostly remain silent. The advantage of the framework is that it encourages the analyst to consider multiple aspects of the discursive context, not only at the time of the speech event but through its discursive history (to the extent this can be established). For example, a legal instruction conveyed to the jury needs to be considered not only in relation to its authoritative discursive history, which might significantly constrain styling, but also in relation to communication policy arising from centring institutions such as the Judicial College, which in this case promotes more active accommodation to the jury. And it can never be assumed that audiences will hear what is intended by the speaker or even that the speaker is the source of the message. The framework thus opens up avenues of investigation that go well beyond a single text in its immediate (institutional) context and is particularly useful in cases where opportunities to voice are restricted and/or the possibility of alternative interpretations is considered limited.

Ultimately, the aim of this framework is to raise awareness of contexts where people's voices are not projecting successfully and to help promote change that will ensure actively responsive understanding. However, I have indicated here that this does not just concern minority ‘powerless’ voices but also powerful voices. Powerful speakers have far more resources at their disposal to ensure that their voices do project successfully to less powerful audiences, but in many cases they need to be made more aware of this. The Voice Projection Framework can help articulate why even powerful speakers can find themselves losing voice while using it, often with serious institutional consequences.

Appendix: The Pryce Jury Questions

Editors' Note to Chapter 10

For interpreters, who perform in front of an audience, it is against the professional code of ethics to conduct themselves in a way that could give rise to an appearance of bias. Even so, there is no shortage of research publications which document how personal bias seeps into the practice of interpreting. In literary translation, typically a more reclusive activity, there is an equivalent body of research that shows how ethnocentricity and ideology impact on lexical and other choices made in the course of translating. But with legal translation it is less clear how ideology plays a role. By analogy with what happens in interpreting, however, it is reasonable to suppose it may. Although processes of legal translation are not generally subject to public scrutiny, it is still possible, Janny Leung argues in this chapter, to gauge how particular approaches to legal translation may reflect power relations and to assess the nature of the role they play in maintaining or potentially transforming aspects of social structure.

When lawyers interpret a legal text, one of the first questions they ask is what authority that text has. If legal status is in this way crucial to legal interpretation of a text, then it is logical that the equivalent issue should arise as regards how legal texts are produced. Leung also argues, however, that legal status is not the only indicator of power which influences the working and meanings of legal translation. Status, she claims, is complex, and not only legally but also socially determined. An illustration she presents in support of this view is that of jurisdictions in decolonizing territories, where a ‘source-oriented’ translation strategy is commonly adopted in circumstances where law is translated from the language of a departed colonial power into a vernacular. In contrast, she notes, a move is often made toward a ‘target-oriented’ approach where raising consciousness about language equality and giving more attention to notice, in the sense of delivering accessible public information, is recognized as a requirement of due process.

Given the saturation of law with politics – despite whatever efforts are made to claim law as an abstract formal system – Leung critiques a continuing lack of attention paid to power relations in existing theories of legal translation. As essential further components of the field, she urges systematic analysis of forces outside a legal system which influence its processes of legal translation, and the development of more detailed and rigorous ways of understanding legal translation as social and political commentary.

Ideology and Political Meaning in Legal Translation

Existing Conception of the Relationship between Legal Translation and Power

In language and law studies, ideology and power are inevitably recurrent themes, both separately and in relation to each other. In a courtroom context, for example, scholars have studied how unequal power relations among trial participants are expressed in courtroom interaction (Wagner and Cheng Reference Wagner and Cheng2011), how speech styles associated with different demographics have practical legal consequences (Conley et al. Reference Conley, O'Barr and Lind1978; O'Barr Reference O'Barr1982), and how court interpreters have the power to affect the outcome of a case (Berk-Seligson Reference Berk-Seligson1990/2002). Most studies in this area, however, focus on the practice of interpreting, the oral equivalent of translation, in a given legal procedure or for a series of proceedings. When it comes to legal translation, the written practice, the relevance of ideology and power is rarely highlighted, especially as regards translation of the language of the law itself (whether constitution, statute, or statutory instrument). This relative neglect may reflect a number of considerations: the fact that legal translators tend to be invisible in the law-making process, for example; or that there may be a team of translators involved in working on a given legal instrument, especially when it comes to legislative texts; that processes of legal translation are less available for observation and scrutiny; or that there are vetting procedures before any particular translation of a source text of law acquires legal force (so presumably any individual values that have gained a footing in the text will be filtered out at later stages of the editing process).

It is scarcely a new insight in the field of translation studies that translation can be used to achieve social or political ends. Studies of translation and power over many years have acknowledged that power relationships are a significant context of, as well as determinant of, the cross-cultural transfer of texts. Bassnett and Lefevere (Reference Bassnett, Lefevere, Bassnett and Lefevere1990), for instance, have suggested that analysis of the exercise of power provides one important means of explaining changes in approaches to translation. A number of studies that explore ideological forces behind translation, notably research associated with the Manipulation School (Hermans Reference Hermans1985) and with the ‘cultural turn’ (Bassnett and Lefevere Reference Bassnett, Lefevere, Bassnett and Lefevere1990), dissect such forces with respect to literary translation.

There are curiously few studies, on the other hand, that consider whether, and if so how far, power relationships, sociopolitical contexts, and ideological forces are meaningful contexts for legal translation. By and large, current scholarship on legal translation is largely preoccupied with tension between legal and linguistic considerations at work in shaping a translation. This preoccupation, however, obscures the fact that law is not a closed system, and that through their work, whether consciously or not, legal translators are participating in the consolidation, and at times transformation, of a power structure.

Traditional conceptions of legal translation saw translation as transcoding and the reproduction of the form and meaning of the source text in the target language. In recent years more attention has been paid to pragmatics and discourse functions. Vermeer's ‘skopos theory’Footnote ¹ introduces a functional approach to translation (Vermeer Reference Vermeer1996; Reiß and Vermeer Reference Reiß and Vermeer2014). In Vermeer's account, the commissioner of a translation and the translator agree upon the purpose of a translation, or the skopos of the text, which determines the appropriate strategy of translation.Footnote ² The more divergent the function of the translation is from that of the source text, the more freedom the translator enjoys in the method of translation. This account is intuitively appealing, as one might well expect the end to justify the means (Reiß and Vermeer Reference Reiß and Vermeer2014: 90). The most comprehensive theory of legal translation to date is offered by Šarčević (Reference Šarčević1997). Admitting that achieving equal meaning in parallel legal texts is an unrealistic goal, Šarčević proposes that translator of plurilingual legal instruments should aim at producing texts that lead to the same reception – the generation of equal legal effect. In contrast to the situations that Vermeer imagines, where the function of translation and the source text may diverge, Šarčević (Reference Šarčević1997) argues that authenticated legislative texts ‘always’ have identical communicative function (109) and thus the production of parallel legislative texts constitutes one communicative act with the same receiver-orientation. Similar to Šarčević (Reference Šarčević1997), Cao (Reference Cao2007) draws attention to the legal status and communicative purpose of both the source and target language texts in her approach to legal translation.

A Critique

These accounts are essentially prescriptive and normative in nature; they serve a goal-setting function and aim to offer guidance to the legal translator. Their proposition that translation approaches cannot be assessed independently of the (potentially differentiated) function of the source and the target texts and institutional purpose and constraints seems well justified. As far as their descriptive aspects are concerned, these accounts are laudable in their attempt to bring in some situational context (in terms of textual function and institutional goals respectively) into an understanding of legal translation.

However, it is also not difficult to see that existing theories of legal translation project a doctrinal and positivist understanding of law: they take an internal perspective and assume that the communicative function of a legal text is determined by its legal status (Šarčević Reference Šarčević1997: 19). They readily accept that a legal text performs a function that it is said to perform, or that the status that a legal text enjoys is equivalent to the legal status assigned to it. This makes sense considering that many legal translators work for or within a legal institution, through employment or contract. Šarčević (Reference Šarčević1997), for example, understands legal translation as ‘an act of communication within the mechanism of the law’ (55). But legal status does not come about out of thin air, and what is outside of law influences the operation of law; the way law is written not only has significance for the legal system but it also says something about social organization and power struggles. If there are any socially realistic elements in these theories, they are largely confined to the linguistic aspect of translation: for example, that language is inherently indeterminate and meaning is context-dependent. Such characteristics are understood as challenges to legal translation.

If we take an external perspective to legal translation, or aim to offer a descriptively accurate, sociological account of the practice of legal translation, we see an elephant in the room in these existing theories that the concepts of ‘function’, ‘legal effect,’ and ‘legal status’ dance around. Textual function, the determination of legal effect, and legal status are a function of power relations between the source and target text. But legal status is not the sole indicator of power relations: texts that enjoy equal legal status may nevertheless have different perceived status and social status (legal status may be conferred to serve symbolic function; see Leung, forthcoming). It is only through such realization that divergent approaches applied to translating from a source text that is supposed to have the same legal status and function as the target text may be understood. In each of the accounts of legal translation mentioned earlier, reference to power has been avoided, probably because power is in apparent conflict with the ideology that the translator is an expert in language whose professionalism requires him or her to be politically neutral. Without taking power relations into consideration, however, the accounts described cannot tell a comprehensive and realistic story of wider contextual factors that may systematically affect how the translator makes his or her judgment. They also fail to address the issue of potential divergence between the institutional function of a target text and its perceived, wider social function. By contrast, this chapter seeks to present a more multidimensional account of how legal translation approaches interact with the sociopolitical context in which a legal translator works.

Although most of the examples I draw from are legislative texts, it is my contention that the argument made in this essay is equally applicable to the translation of other legal texts such as judicial opinions, legal commentaries, and private legal documents.

The Classic Dichotomy in Translation Approaches

To examine how translation approaches may be related to wider sociopolitical context, it is helpful to review existing approaches in legal translation and their perceived benefits and shortcomings. One important underlying assumption must be that perfect translation is an impossible enterprise. By treating full equivalence as an unattainable ideal which may nevertheless usefully guide the practice of translation, this premise does not deny the value of translation (including interpreting) that is practised on a day-to-day basis. Indeed, divergent approaches to translation exist only because there are different ways of approximating to an ideal translation, depending on which ideal one aims for. If full equivalence is a reachable goal, then disagreement as to the path to get there would be far less prevalent. There is room for a choice of approach precisely because no single translation approach can be used to convey the same message to the target language reader as the source text does to the source language reader.

The classic dichotomy in translation is between a source-oriented and a target-oriented approach. A source-oriented approach emphasizes fidelity to the source text, and may entail the use of techniques such as borrowing, transliteration, neologisms, or literal translation. A target-oriented approach, on the other hand, focuses on the comprehensibility of the translated text, and is associated with freeFootnote ³ or idiomaticFootnote ⁴ translation – for example, substitution of a foreign concept with a native equivalent (e.g. from baguette to naan), a process that may be understood as domestication (Venuti Reference Venuti1994). Between the two extremes there has also been recognition of a third space where cultural hybridity and transformation may take place (Wagner, Sin and Cheng Reference Wagner, Sin, Cheng, Cheng, Sin and Wagner2014).

As far as legal translation is concerned, there are advocates of both orientations. The strongest argument for a source-oriented approach is that departure from the source text is ‘unfaithful’. The Treaty of Waitangi, signed in 1840, is a radical example of how it may seem morally wrong to depart from the source text. That treaty played a crucial role in British colonization of the Maori in New Zealand. Despite general acceptance of the translation of the treaty, in more recent times it has been suggested (e.g. Fenton and Moon Reference Fenton, Moon, Gentzler and Tymoczko2002) that fraudulent manipulation of the translation misled Maori chiefs into accepting the agreement, especially as regards the question of sovereignty. The translation departed so much from the original, some scholars contend, that there are actually two separate treatiesFootnote ⁵. The source-oriented approach has also been justified on other grounds. Literal translation has been praised for its ability to preserve the structure and even the lexis of the source language; as a strategy, this may be appealing in the legal context because it is reversible (and also in a sense, componential – individual words and phrases can be matched, allowing step-by-step comparison). Glanert (Reference Glanert and Glanert2014) argues that retaining the foreignness of a text is also a sign of respect – a reminder to the reader that a translated text has a foreign origin; by contrast, an idiomatic translation compromises the authenticity of the source language text and may be seen as ethnocentric. Similarly, Baaij (Reference Baaij and Glanert2014: 118) dismisses a target-oriented approach as not being useful for comparative legal studies, since such a translation has been ‘contaminated’ by the legal translator's comparative analysis. In the context of the European Union, which currently has twenty-four official languages, Baaij (forthcoming) argues that all European law should be drafted in English and source-oriented translation should be adopted in order to ensure legal integration.

On the other hand, there are frequent complaints that source-oriented translations may be incomprehensible to the reader, for the approach prioritizes the integrity of the source text over the accessibility of the target text. In a legal context, a literal translation of legislation may fail to inform citizens of their rights and obligations adequately. Writing from a sociological perspective, Ng (Reference Ng and Glanert2014) argues that a source-oriented approach to translation reduces the interpretive autonomy of a text: a characteristic defined as the ability of a translated text to stand on its own, as contrasted with having to acquire its meaning through the source text at the time of interpretation. This argument carries particular strength in postcolonial jurisdictions, where indexical translationFootnote ⁶ may be used as an institutional means of allowing two or more languages to coexist and relate to each other in a legal system, while at the same time controlling that relation.

Translation Approaches and Context

As normative theories of legal translation suggest, considerations such as the legal status of a text, communication function, and the intended legal effect, should and do affect translation approaches.

For example, if the purpose of the translation exercise is comparative legal research, which is what Glanert (Reference Glanert and Glanert2014) and Baaij (Reference Baaij and Glanert2014) are concerned with, a source-oriented approach makes perfect sense. The comparative lawyer seeks to understand the foreign text in order to identify similarities and differences across legal systems; in this case it is clear that a translation approach which actively minimizes differences is unlikely to be helpful. For the purpose of comparative legal research, the target text and the source text serve radically different functions. The translated text is not law; and its interpretation does not directly affect people's lives. Instead, the text serves to inform the researcher, by facilitating his or her understanding of a foreign legal system. The stakes of misinterpretation are relatively low.

Sometimes legal texts (e.g. treaties, legislation, contracts) are also translated as reference materials for people who do not speak the dominant language to learn about law that may affect their interests. Such people may include foreigners, migrants, or members of minority communities who occupy a less powerful position in a society. Such translation may be found at immigration controls, printed on custom forms, or posted in public places frequented by tourists. In these cases, the translation will tend not to be idiomatic in the target language; in fact, sometimes translations may be rendered in a lingua franca that may not be the mother tongue of the potential reader (e.g. in English for foreign visitors coming from different countries). Sometimes the translation is a simplified summary of the original. Such translations are also common in colonial and postcolonial settings, where the former colonial language has ultimate authority and the law is translated into vernaculars to facilitate compliance.

In some cases, the same status is enjoyed by two or more language texts. Through becoming authenticated, a legal translation becomes a legal instrument that has authority to stand on its own. In bilingual and multilingual jurisdictions, an authenticated translation of a statute becomes a source of law along with its original. In other words, the law consists of a mega-text made up of two or more language versions (Leung, forthcoming). This is also what happens in treaties. As an object of legal interpretation, an authenticated translation may even come into conflict with the source text, raising questions as to what the intended legal meaning is. In this situation it is not immediately obvious which approach to translation should be adopted, given the need to balance legal certainty with accessibility to law. People who prioritize notice as a requirement of due process may urge for a more target-oriented translation; those who prioritize uniformity of legal effect may prefer a source-oriented approach to translation (e.g. Baaij, forthcoming); yet others have found middle ground through alternative methods of text production (such as bilingual drafting in Canada).

The Political Meaning of Translation Approaches

Note that where multiple legal texts have the same function and legal status, the choice between a target-oriented translation approach or a source-oriented translation approach necessarily disturbs the presumed balance of power and is not an apolitical decision, even if the justification is perfectly reasonable (e.g. due process or uniformity of legal effect). In other words, the translation approach may not only reflect power relations but also be used as a tool in maintaining or subverting the balance of power.

Authentic legal texts that have the same legal status and institutional function may nevertheless be divergent in their perceived status and social function. Even where both a source language text and a target language text are authentic sources of law, they are likely to be associated with different language communities; and the languages may well correspond with different social status. Despite the equal status conferred on languages in some bilingual and multilingual jurisdictions, such as English and French in Canada, Chinese and English in Hong Kong, the eleven official languages in South Africa, or the twenty-four official languages of the European Union, there is an implicit understanding that some languages are more dominant or relevant than others. In legal translation, more likely than not, the source language will be a more powerful language than the target language. An interesting example is judgments of the European Court of JusticeFootnote ⁷ (ECJ), which are drafted in French but authentic in the language of procedure (McAuliffe Reference McAuliffe, Tiersma and Solan2012). In other words, although the language of the case enjoys higher legal status, it is a translation from French, which is the single internal working language of the court (and thus more powerful institutionally).

Although Šarčević (Reference Šarčević1997) has not incorporated power relations and social changes in her normative theory of legal translation, in her seminal book she traces the evolution of strategies used in legal translation from an early preference for literal translation to the rise of idiomatic translation, leading all the way to the bilingual co-drafting method (as employed in Canada). The analysis seems to suggest that the move away from source-oriented translation is associated with social changes such as equality of language rights and growth in national language consciousness. Let us explore this association further.

Toward a Descriptive Theory of Legal Translation

Referring to general translation, Jin and Nida (Reference Jin and Nida2006: 14) argue that historically translation strategies appear to follow something of a pendulum action:

Though it is true that preferences in translation strategies have swung between literalism and freedom, subject to the underlying continuity also observed by Jin and Nida, this chapter argues that where such motion occurs it is not random, at least as regards legal translation. What may appear to be chaos or randomness close-up takes on a different and more specific shape if one steps back and adopts a macroscopic perspective that embraces history and context.

This chapter has not sought to find flaws in existing normative theories of legal translation. Rather, it critiques a lack of a descriptive theory of legal translation, and a lack of effort in understanding the meaning of legal translation outside the legal system. In other words, I am less concerned with what legal translators ought to do than with what is practically influencing the way they work, and how the way they work takes on a social and political meaning. A successful account of legal translation should recognize that in some cases, notwithstanding the overtly stated function of the target text, its symbolic function supersedes its practical legal function. The symbolic value of legal status explains why many postcolonial bilingual and multilingual jurisdictions that have granted official status to vernaculars have not even started translating their law into them (see examples and further discussion in Leung, forthcoming). A more nuanced understanding of function takes into account the specific ways in which translations establish, reinforce, or revise the relationship between different language communities. Such a more nuanced understanding needs to take power relations as a basic parameter of legal translation.

Although there seems to be a tendency for more equal societies to move away from a source-oriented approach to legal translation, I wish to reiterate the warning against inferring a one-to-one mapping. For one thing, sources of power struggles are multiple, involving not only sovereign power but also pressure from community and market value of languages. What should be recognized is that, although power relations cannot always be gauged through translation approaches, power always forms part of the context of legal translation. The actual and perceived status of a translation or its target language can become a factor in its meaning potential, beyond linguistic and legal meaning (which are the usually considered factors in legal translation). However, such an effect of translation status on meaning does not occur in a simple relation of single cause and effect. Strategies adopted may show not only personal attitude or bias of individual translators in any given instance, but also may amount to a fully institutionalized practice, which reflects the systematic development of an institutional translation culture and structural preferences through guidelines given to translators. Moreover, the effect of translation status on meaning impacts not only the legal status of the translation, or its reference value for legal professionals and laypersons, but also a wider perception of the target and source language community. In other words, extra-linguistic and extra-legal factors have an effect, in multiple and complex ways, on translation strategy, which in turn has social and political meaning beyond its value in the legal system.

From choice of word to the way the target text positions itself in relation to the source text, translation can be read as commentary (Mulligan et al. Reference Mulligan, Douma, Lind and Quinn2014). This powerfully stated proposition from Venuti (Reference Venuti1998: 158) illustrates the point:

Ethics in Legal Translation

Consider, finally, the moral weight implicit in the vocabulary of translation studies: ‘fidelity’ (and ‘infidelity’), ‘faithfulness’ (and ‘unfaithfulness’), ‘loyalty’, ‘betrayal’, and ‘violence’, just to name a few. Since textual fidelity is usually applied in relation to the source text, the expressions imply that source-oriented translation is somehow more ethical.

On the other hand, some have seen more moral relevance in the underlying motivation behind translation than in translation approach. In analyzing the language conflict between England and France in Shakespeare's Henry V, Nouss (Reference Nouss and Glanert2014: 29) discusses the ethical dimension of translation:

This analysis taps into implicit motivations which underpin translation and attempts to use translation to affect power relationships, beyond whatever explicit function a translation is said to serve. It is tempting to infer from the preceding analysis that domination is immoral and respect is moral, with the result that looking for sameness is immoral and looking for difference is moral. Although both source-oriented and target-oriented approaches to translation involve looking for sameness and difference across source and target languages and cultures, it is generally the case that a target-oriented approach demonstrates more respect to differences.

Can ethics in legal translation be linked systematically or consistently with translation approach? My position is that there is no inherent moral value in a translation approach. This view is consistent with Gentzler and Tymoczko (Reference Gentzler, Tymoczko, Gentzler and Tymoczko2002: xx), who write that “No single translation strategy can be associated with the exercise of oppression or the struggle for resistance; no single strategy is the strategy of power” (emphasis in original). But it is nevertheless a mistake to think that translation is value free, or that ‘politics may play no part’ in the choice between literal and free translation, simply because, for example, literalism has been advocated by both conservatives and radicalsFootnote ¹³ (Wolff Reference Wolff, Malmkjer and Windle2011: 229). The analysis developed in this chapter suggests that politics can play a major part in choices between literal and free translation, but that the exact interaction between politics and translation approaches is highly dependent on a cluster of contextual factors, including the implicit and explicit purpose of the translation and the actual and perceived status of the languages involved.

Legal certainty, accessibility, and transparency are some common motivations behind a translation approach. It is simplistic, however, to suggest that one motivation is nobler than another. Prioritizing one value over another does not automatically entail moral deficiency. On the other hand, the means to achieve these ends tends not to be ideologically neutral. If source-oriented translation is adopted in a bilingual or multilingual jurisdiction in order to ensure legal certainty, for example, one may ask why one language is chosen as the source but not another.

The broader lesson to be learnt by reflecting on the complex interrelation between different translation approaches is that, since such approaches are sensitive to power relationships, any adequate descriptive theory of legal translation needs to take this into account. Sensitivity to power relations is not automatically a critique of the ability or work of the translator. The observation calls for scrutiny, not alarm; after all, not all power is corrupt or illegitimate. Further, power imbalance may be transitional; in some cases, it is the cost of political stability during a particular period or political moment. Power relationships are, simply put, part of the context that constitutes the source and target culture that the legal translator needs to work with. Translation not only marks linguistic, cultural, or status differences across texts, but is also an instrument that creates, reinforces, and may attenuate such differences.