The Eastman transcripts: A case study calling Australian linguists to action against legal misconceptions about language in forensic evidence

ABSTRACT

This paper presents a new case study examining the use of police transcripts to assist the court in understanding poor-quality forensic audio admitted as evidence in criminal trials. The 1995 trial it studies was the first major Australian case to include extensive expert opinions about police transcripts provided by the prosecution. Despite the fact that experts on both sides noted serious problems with the police transcripts, the judge allowed them to assist the jury, with the expert opinions offered as (ineffectual) subsequent commentary. The legal procedures the judge used in doing this were upheld on appeal, and have been followed ever since as a model for judges admitting opinions of both police and experts. The paper demonstrates how these procedures (unintentionally) privileged the opinions of police “ad hoc” experts over those of genuine experts, enabling the erroneous transcripts to influence not only the 1995 verdict, but a 1997 appeal and a 2014 inquiry. Analysis reveals the reason for these anomalies as the fact that the procedures incorporate misconceptions about spoken language and its representation in a transcript, which, though they have been thoroughly refuted by linguistic science over many decades, remain deeply embedded in the “common knowledge” accepted by wider society – including powerful institutions such as the law. The paper ends by calling on Australian linguists to find effective ways to address the misconceptions that affect the legal handling of forensic audio, by building further on the success of other branches of forensic linguistics in seeking direct engagement with the judiciary outside the trial process. The first step in achieving this is for linguists to gain a thorough understanding of how the legal procedures for handling poor-quality forensic audio operate, both in principle and in practice. The aim of the present paper is to contribute to that understanding.

KEYWORDS:

• Transcription
• forensic transcription
• forensic linguistics
• language ideologies
• speech perception

Acknowledgements

This article has been several years in the writing and has benefited from discussion with many individuals, including: Alex Bowen, Kate Burridge, Andy Butcher, Stephen Cordner, David Deterding, Diana Eades, Gary Edmond, Peter French, George Georgiou, Peter Gray, Simon Moodie, Jeremy Robson, Roger Shuy, Laura Smith-Khan and Michael Stanten. Since I have not always taken their advice, it is more true than usual that remaining failings are the responsibility of the author. Thanks are also due to two very helpful anonymous reviewers.

Disclosure statement

No potential conflict of interest was reported by the author.

Data availability statement

This paper is based on the referenced resources available in the public domain.

Correction Statement

This article has been corrected with minor changes. These changes do not impact the academic content of the article.

Additional information

Notes on contributors

Helen Fraser

Helen Fraser studied linguistics, specializing in phonetics, at Macquarie University and the University of Edinburgh, then worked for many years at the University of New England, NSW, where her theoretical and practical interests revolved around the representation of spoken language – both internally, in the minds of language-users, and externally, in writing and transcripts. Casework experience, starting in the 1990s, led her to research specifically on forensic transcription. In 2017, she instigated a call to action, led by the Australian Linguistic Society and endorsed by three other national organizations, asking the judiciary to review and reform problematic legal practices in relation to transcription of poor-quality audio used as forensic evidence in criminal trials. Following more than a decade as an independent researcher and consultant, in 2020 she became the inaugural Director of the Research Hub for Language in Forensic Evidence at the University of Melbourne.