Linguistic Estoppel: A Custodial Interrogation Subject’s Reliance on Traditional Language Customs when Facing Unknown Expectations for Legally Efficacious Speech

Authors

Taylor J. Smith

Abstract

For various reasons, speakers often communicate indirectly, hiding their words’ true meaning beneath an apparent surface meaning. For example, a woman trying to brush off her co-worker’s date invitation might respond, “I have to prepare for a presentation tomorrow.” While the words’ surface meaning doesn’t relate to the date invitation, the hearer usually understands the underlying message—that is to say, the words’ function differs from their form. However, because the law’s language ideology requires directness and surface-level meaning, lay-speaking interrogation subjects often have difficulty effectively invoking their Miranda rights. Because the legal system’s search for determinacy often results in reliance on affirmative speech or actions, lay speakers often face significant disadvantages when held to the exacting expectations for legal speech because the law’s insistence on direct affirmative behavior contradicts natural and frequent linguistic behaviors, which implement indirectness. Warning lay speakers about exacting legal language requirements would allow these individuals to effectively communicate in a new language environment without improperly relying on societal conversation norms while still allowing the law to maintain its affirmative language expectations.

Rights

© 2021 Brigham Young University Law Review

Recommended Citation

Taylor J. Smith, Linguistic Estoppel: A Custodial Interrogation Subject’s Reliance on Traditional Language Customs when Facing Unknown Expectations for Legally Efficacious Speech, 46 BYU L. Rev. 1675 (2021).
Available at: https://digitalcommons.law.byu.edu/lawreview/vol46/iss6/10