Legal precedent based on false beliefs proves hard to overturn

This article is part of an ongoing series from the Post-Truth Initiative, a Strategic Research Excellence Initiative at the University of Sydney. The series examines today’s post-truth problem in public discourse: the thriving economy of lies, bullshit and propaganda that threatens rational discourse and policy.

The project brings together scholars of media and communications, government and international relations, physics, philosophy, linguistics and medicine, and is affiliated with the Sydney Social Sciences and Humanities Advanced Research Centre (SSSHARC), the Sydney Environment Institute and the Sydney Democracy Network.

Judges consider their profession to be among the most accountable of those whose opinions and actions shape our society. After all, every judicial decision is presented publicly, open to the scrutiny of critical colleagues ready to appeal to a higher court if any error is detected.

The outcome of a criminal appeal is life-changing for the appellant. But it also has significant ramifications for the rest of us. This is because opinions expressed by judges in appeal courts gain the status of legal authority, used as precedents to guide judgments in subsequent trials.

This development of the law has many advantages. By ensuring consistency in trial outcomes, it contributes to fairness in the justice system. It allows practices of law and law enforcement agencies to be standardised, in confidence that rulings about admission of evidence will be applied in similar ways in similar cases.

However, it does have disadvantages. One troubling example is provided by the development of practices for admitting covert recordings as evidence in court.

Read more: The dark side of mondegreens: how a simple mishearing can lead to wrongful conviction

While lawyers may pounce on judges’ legal errors, errors of scientific fact are less likely to be detected. Indeed, scientific errors in an appeal ruling are liable to be propagated under the mantle of legal authority from judgment to judgment down the years.

This problem is exacerbated by the fact that the mantle of legal authority applies not just to the substantive decision that is the focus of the appeal, but to comments judges make in explaining their decision.

What’s the problem with covert recordings?

Covert recordings are conversations captured by secret listening devices. During the 1980s, increasing use of covert recordings in criminal trials raised a number of procedural problems for the law. One related to recordings featuring foreign languages.

It can be hard for a jury to follow examination and cross-examination of translators presenting competing opinions about speakers’ meanings. One judge decided to help by allowing translations to be provided in written form.

This may seem, from today’s perspective, like simple common sense. But it actually marked a significant departure from the long legal tradition that juries should hear all testimony orally.

That’s why the decision was appealed all the way to the High Court of Australia. It was ultimately upheld in a landmark judgment called Butera, back in 1987.

There is no reason to question the substantive decision in this particular 30-year-old case. What does raise concern is the commentary explaining the judges’ decision.

Among other anomalies, the High Court judges called written translations “transcripts”. The effect of this is that their judgment has been taken to apply to English as well as non-English recordings. They also endorsed a range of emerging practices regarding who could create transcripts, and how they should be evaluated.

What’s wrong with that?

The judges in the Butera case, reasonably enough, based their comments on common knowledge shared by all educated people. The problem is, with language and speech, educated common knowledge includes many beliefs that linguistic science has shown to be false (collectively dubbed “folk linguistics”).

Some of the judges’ comments embodied these kinds of false beliefs. As a result, they created legal authority for a range of practices that turn out to be highly problematic.

These include, among others, allowing juries listening to indistinct covert recordings to be “assisted” by a transcript prepared by detectives investigating the case. That may have seemed like a good idea at the time, but, like the practice of allowing eye witnesses to identify perpetrators, it has been shown to create actual and potential injustice. That’s because the power of “priming” means errors in police transcripts are surprisingly unlikely to be detected.

Read more: Covert recordings as evidence in court: the return of police ‘verballing’?

Solution isn’t as obvious as it seems

The solution might seem clear: inform the judiciary that there has been a misunderstanding and let them fix it up. Turns out, it’s not that simple.

The recommended fix is for a new appeal case to create a better precedent. Unfortunately, in the matter of transcripts, it hasn’t worked like that.

Some time ago, an appeal court found a detective’s transcript to be misleading, and quashed the conviction based on it. But that was seen as a mere aberration, so the judgment is not cited as a precedent. Legal authority for the concept that detectives’ transcripts “assist” juries remains undented. Indeed, that very detective still provides transcripts for juries, never questioned about his track record.

So getting a new precedent is hard. And even if it happened, it wouldn’t be enough. After 30 years, practices based on Butera have become entwined with other precedents and embedded in every corner of law and law enforcement.

Conflict or collaboration?

For some, this story might evoke criticism of the law for denying scientific facts. But there’s a bit more to it.

Countering false beliefs isn’t just a matter of telling true facts. To help the law avoid false beliefs about science, scientists need to avoid false beliefs about the law, which operates under conditions and constraints very different from those of the laboratory.

That’s why Australian linguists have offered a Call to Action, seeking dialogue and collaboration with the judiciary. Though the solution is not immediately clear to either party, together we can figure one out.

After all, facts – true, false or otherwise – are embedded in language. When it comes to sorting out problems involving language, collaboration between lawyers and linguists can create good results.