African American English often misunderstood in court
Research shows verbatim trial records are sometimes anything but. Jeff Glorfeld reports.
At the end of 2017, federal and state prisons in the US held about 475,900 inmates who were black and 436,500 who were white, according to a survey by the Pew Research Centre think tank.
Meanwhile, the National Association for the Advancement of Coloured People reports that African Americans are incarcerated at more than five times the rate of whites.
Statistics such as these bring into sharp focus the importance of a new study that finds that court reporters, whose transcriptions constitute official court records, fall significantly below their required levels of accuracy when recording speakers of African American English.
The study, published in the journal Language, and titled “Testifying while black: An experimental study of court reporter accuracy in transcription of African American English”, found that the court reporters tested were only able to transcribe 82.9% of words accurately when asked to record everyday sentences in African American English, although they are required to be certified at 95% accuracy.
The US criminal justice system rests on the idea that every criminal defendant has the right to a speedy and fair trial – guaranteed under the sixth amendment of the US Constitution – note the study’s authors, led by Taylor Jones from the University of Pennsylvania.
Their report states every trial must be recorded by a highly trained court reporter so that a verbatim official record will be available.
“But what happens when the verbatim official record is not so verbatim?” the authors ask.
“What happens to the right to a fair trial when the words of the defendant, or the witnesses, are misunderstood and inaccurately inscribed in the official court record?”
Jones and co-author Jessica Kalbfeld from New York University give some examples of African American English in a separate blog, also titled “Testifying while black”.
These include the deletion of conjugated is/are, as in he workin’, for “he is working”; negative inversion (for instance, don’t nobody never say nothing to them, meaning “nobody ever says anything to them”); deletion of the possessive ‘s’, as in his baby mama for “his baby’s mama”; first-person use of nigga, where the word does not denote another person, but rather indicates the speaker, as in a nigga hungry, for “I am hungry”; and the modal term tryna, used to indicate intent or futurity, as in when you tryna go?, for “when do you intend to go?”
The researchers recruited native speakers of African American English from the Philadelphia area and recorded them reading sentences in the dialect. The audio recordings were played for 27 court reporters – one-third of the official court reporting pool in Philadelphia – who were asked to transcribe the sentences they heard.
The reporters were also asked to paraphrase the sentences into classroom English, to determine if miscomprehension contributed to mistranscription.
A total of 31% of the transcriptions inaccurately changed the record of the people involved, the action or subject matter, the time or aspect, or the location.
In addition, the test subjects, on average, paraphrased only 33% of the sentences correctly. Accuracy was not related to any individual characteristics of the court reporters such as age, race, where they were trained, or number of years on the job.
The authors describe African American English as “the language variety spoken primarily but not exclusively by black Americans. It is the language variety associated with the descendants of enslaved people of African descent (as opposed to recent immigrants from Africa).”
It is a rule-governed dialect, and previous research has demonstrated that speakers of mainstream American English sometimes have difficulty understanding African American English, but are unaware of their miscomprehension.
This lack of awareness of the potential for miscomprehension has significant potential to impact the outcomes of both criminal and civil trials where witness testimony is evaluated by jurors, judges, and attorneys.
In their blog, Jones and Kalbfeld point out that transcriptions of depositions can be used in cross-examination, and transcriptions are also used in appeals.
They cite one appeal that was decided “based on a judge's determination of whether ‘finna’ is a word (it is), and whether ‘he finna shoot me’ is admissible in court as an excited utterance”.
“The judge claimed, wrongly, that it is impossible to determine the ‘tense’ of that sentence, because it does not have a conjugated form of ‘to be’, claiming that it could have meant ‘he was finna shoot me’. If you know African American English, you know you can drop ‘to be’ in the present but not in the past. That is, you can drop ‘is’ but not ‘was’. The sentence unambiguously means ‘he is about to shoot me’; that is, in the immediate future.”
The researchers conclude that “all of this suggests a way that African Americans do not receive fair treatment from the judicial system; one that is generally overlooked”.