I was kinda hoping that nobody would notice my recent lack of productivity here at Language Log Plaza but nay, not so. Arnold Zwicky must have observed how much time I've been spending playing ping-pong with Eric Backovic in the Plaza's well-equipped recreation and weigh-training room. So he sent me an interesting article from Law.com to prime my pump, I suppose.
The article shows something that most of us already knew anyway–that language is central to the field of law. The latest development is that a number of courts in the US are now forbidding lawyers and witnesses to use certain words during trials. Words like "rape," "victim," "crime scene," "killer," "murder," "drunk," "homicide," "embezzle," "fraud," and "robbery" are now not allowed in some courtrooms. Language engineering like this usually has a social or political basis. In this case it's more a problem of trying to treat the accuser and the accused fairly. District Attorneys want to keep on using words like these as they prosecute alleged criminals, while some defense attorneys claim that using such words violates the presumption of innocence that has been held dear by the legal system. They call the forbidden words, "loaded terms."
But not all defense lawyers are in agreement. One defends the use of the words but adds that he would object strongly whenever the other side uses them, saying: "Your tool is the language that is used in front of the court. The words are swords and shields." Another defense attorney pointed out how hard it is when a woman who claims to have been raped is forced to say that she "had sexual intercourse" with the man she accused of raping her, implying that the act was consensual. And a prosecutor argued that it's hard to try a murder case without using the word, "murder."
I'm not sure that this recent ban on certain words is actually a new phenomenon. For example, I can recall a time when I was told that I couldn't use the word, "insurance," during my testimony in a property damage case. So some version of word-banning must have been hanging around for a long time.
At the heart of this ban on certain words is the conflict between due process and the First Amendment. Wendy Murphy of the New England School of Law reports that there has been no federal court ruling on matters like these. She argues in favor of the victim's right to tell her story freely and candidly in court using her own words, which I suppose would include "rape." Murphy calls the banning of words "the ultimate anti-American thing to do."
"Using your own words" isn't all that common in trials I've experienced. Among other things, you can't introduce your own topics, you have to answer the opposing lawyer's questions according to the form in which they are asked (usually yes/no questions, or worse, tag-questions), and you have to be ready to be interrupted at any time. Testifying requires a witness to learn a new set of communication skills, many of which can seem counterintuitive. Doing this can be daunting for anyone not trained in the special culture of the courtroom.