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Copy of Forensic Linguistics and ELP

Introduction to Applied Linguistics Tuesday, November 27, 2012
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Alissa H

on 17 March 2014

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Transcript of Copy of Forensic Linguistics and ELP

Law and Language
Applied Linguists as Expert Witnesses
(Hitt, 2012)
Oral
Analysis of spoken evidence
Evaluation of asylum seekers
Written
Author identification
Trademarks
Plagiarism
Nonnative speakers and police interrogation (Pavlenko, 2008)
Problems with associating language and national identity in asylum cases (Blommaert, 2009)
Courtroom argumentation and conceptual blending (Pascual, 2008)
Works Cited
Abbuhl, R. J. (2005). The effect of feedback and instruction on writing quality: Legal writing and advanced L2 learners. PhD, Georgetown University, Washington, D.C.
Biland, É., & Israël, L. (2011). A l'école du droit: les apports de la méthode ethnographique à l'analyse de la formation juridique. Cahiers de Droit, 52, 619-658.
Blommaert, J. (2009). Language, asylum, and the national order. Current Anthropology, 50(4), 415-441.
Bruce, N. (2002). Dovetailing language and content: Teaching balanced argument in legal problem answer writing. English for Specific Purposes, 21, 321-345.
Deegan, D. H. (1995). Exploring individual differences among novices reading in a specific domain: The case of law. Reading Research Quarterly, 30(2), 154-170. doi: 10.2307/748030
Enquist, A. (2008). Unlocking the secrets of highly successful legal writing students. St. John's Law Review, 82, 609-674.
Gotti, M., & Williams, C. (Eds.). (2010). Legal discourse across languages and cultures. Bern: Peter Lang.
Hafner, C. A. (2011). Professional reasoning, legal cultures, and arbitral awards. World Englishes, 30(1), 117-128.
Hitt, J. (2012, July 23). Words on trial. The New Yorker, LXXXVIII, 24-29.
Howe, P. (1990). The problem of the problem question in English for academic legal purposes. English for Specific Purposes, 9(3), 215-236.
Hutton, C. (2009). Language, meaning, and the law. Edinburgh: Edinburgh University Press.
Lundeberg, M. A. (1987). Metacognitive aspects of reading comprehension: Studying understanding in legal case analysis. Reading Research Quarterly, 22(4), 407-432.
Maclean, R. (2010). First-year law students' construction of professional identity through writing. Discourse Studies, 12(2), 177-194.
Mertz, E. (2007). The language of law school: Learning to "think like a lawyer." New York: Oxford University Press.
Oates, L. C. (1997). Beating the odds: Reading strategies of law students admitted through alternative admissions programs. Iowa Law Review, 83, 139-160.
Pascual, E. (2008). Text for context, trial for trialogue. Annual Review of Cognitive Linguistics, 6, 50-82.
Pavlenko, A. (2008). "I'm very not about the law part": Nonnative speakers of English and the Miranda warnings. TESOL Quarterly, 42(1), 1-30.
Philips, S. (1982). The language socialization of lawyers: Acquiring the "cant." In G. Spindler (Ed.), Doing the ethnography of schooling: Educational anthropology in action (pp. 176-209). New York: Holt, Rinehart, and Winston.
Skinner, A. M. (1988). Writing in a law firm: Cognitive processes and texts grounded in social knowledge. PhD, University of Texas, Austin.
Stratman, J. F. (1994). Investigating persuasive processes in legal discourse in real-time: Cognitive biases and rhetorical strategy in appeal court briefs. Discourse Processes, 17(1), 1-57.
Tiersma, P. (2000). Legal language. Chicago: University of Chicago Press.
Winter, S. L. (2001). A clearing in the forest: Law, life, and mind. Chicago: University of Chicago Press.
Examples of research on oral communication in the legal process
Examples of research on published legal texts
Translation of statutes and regulations for international contexts (esp. the EU and UN) (Gotti & Williams, 2010)
Analysis of court decisions and arbitration awards (Hafner, 2011)
Legal definitions (Hutton, 2009)
Cognitive linguistics and legal argumentation in case law (Winter, 2001)
Plain English and comprehensibility of legal texts (esp. contracts, statutes, and regulations) (Tiersma, 2000)
Examples of research on academic legal language
L1 language socialization in law school (Mertz, 2007; Philips, 1982 (U.S.); Biland & Israël, 2011 (France))
L1 legal literacy development (Lundeberg, 1987; Deegan, 1995 (reading); Oates, 1997; Enquist, 2008; Maclean, 2010 (writing))
L2 legal writing (Abbuhl, 2005; Howe, 1990; Bruce, 2002)
Examples of research on language in legal practice
Processes of writing and reading an appellate brief in practice (Stratman, 1994)
Metacognition in legal writing in a law firm (Skinner, 1988)

English for Legal Purposes
What feedback would you give this student? What information would help you give better feedback to this student?
Under the California Penal Code Section 487, grand theft is not committed when property is not taken directly from the victim. In William case, the purse was taken from the guest seat instead of the victim’s body or pocket. In William, the victim was finished shopping and threw her purse onto the front passenger seat Defendant approached her, pushed her back in her seat, and grabbed her purse from the passenger’s seat. The court held that, under these facts that the victim throw her purse on the next seat of the car instead of attaching the victim herself, the grand theft will not be adopted on this situation. In McElroy and George B this doctrine are also adopted.
Grand theft is theft committed in any of the following cases:
(a) When the money, labor, or real or personal property taken is of a value exceeding nine hundred fifty dollars ($950), except as provided in subdivision (b).
(b) Notwithstanding subdivision (a), grand theft is committed in any of the following cases:
(1) (A) When domestic fowls, avocados, olives, citrus or deciduous fruits, other fruits, vegetables, nuts, artichokes, or other farm crops are taken of a value exceeding two hundred fifty dollars ($250).
(B) For the purposes of establishing that the value of domestic fowls, avocados, olives, citrus or deciduous fruits, other fruits, vegetables, nuts, artichokes, or other farm crops under this paragraph exceeds two hundred fifty dollars ($250), that value may be shown by the presentation of credible evidence which establishes that on the day of the theft domestic fowls, avocados, olives, citrus or deciduous fruits, other fruits, vegetables, nuts, artichokes, or other farm crops of the same variety and weight exceeded two hundred fifty dollars ($250) in wholesale value.
(2) When fish, shellfish, mollusks, crustaceans, kelp, algae, or other aquacultural products are taken from a commercial or research operation which is producing that product, of a value exceeding two hundred fifty dollars ($250).
(3) Where the money, labor, or real or personal property is taken by a servant, agent, or employee from his or her principal or employer and aggregates nine hundred fifty dollars ($950) or more in any 12 consecutive month period.
(c) When the property is taken from the person of another.
(d) When the property taken is any of the following:
(1) An automobile, horse, mare, gelding, any bovine animal, any caprine animal, mule, jack, jenny, sheep, lamb, hog, sow, boar, gilt, barrow, or pig.
(2) A firearm.
Statute: California Penal Code Section 487
Case: People v. Williams
People v. Williams
Cal.App. 2 Dist.,1992.
Court of Appeal, Second District, Division 5, California.The PEOPLE, Plaintiff and Respondent,
v.
Charles Edward WILLIAMS, Defendant and Appellant
No. B058383.
Sept. 30, 1992.
Pursuant to California Rules of Court, rules 976(b) and 976.1, this opinion is certified for publication with the exception of parts II, III, and IV.
As Modified on Denial of Rehearing Oct. 22, 1992.
Review Denied Dec. 30, 1992.
*1467 **243 Robert F. Howell, San Diego, under appointment by the Court of Appeal, for defendant and appellant.
Daniel E. Lungren, Atty. Gen., George Williamson, Chief Asst. Atty. Gen., Carol Wendelin Pollack, Acting, r. Asst. Atty. Gen., Linda C. Johnson, Supervising Deputy Atty. Gen., and Jaime L. Fuster,
Deputy Atty. Gen., for plaintiff and respondent.
**244 GRIGNON, Associate Justice.
Defendant and appellant Charles Edward Williams appeals from a judgment after a jury trial in which he was convicted of three counts of second degree robbery and two counts of grand theft person with findings that two of the victims were 65 years of age or older, that defendant intentionally inflicted great bodily injury on one of the victims, and that he had suffered three prior serious felony convictions. On appeal, he contends: […] (3) there is insufficient evidence to support *1468 a conviction for one of the counts of grand theft person; In the published portion of the opinion, we reverse the conviction of one count of grand theft person …..

PROCEDURAL BACKGROUND
Defendant was convicted […] in count 3 of grand theft person of Francis Cirrencione on April 30, 1990, in violation of Penal Code section 487, subdivision 2; ….

FACTS
April 30, 1990

At approximately 5:00 p.m. on April 30, 1990, 72-year-old Frances Cirrencione and 68-year-old Eliette Strasbourg had just completed their shopping *1469 at a Von's market on Third Street. They returned with their groceries to Cirrencione's car. Cirrencione put her groceries on the backseat of the car, threw her purse onto the front passenger seat, sat down in the driver's seat, and opened the passenger door. Defendant approached her, pushed her back in her seat, and grabbed her purse from the passenger seat. Cirrencione got out of the car and screamed for help.

Defendant went around the back of the car to the passenger side where Strasbourg was standing. Strasbourg was holding a purse. Strasbourg saw defendant approach and she began to run. Defendant ran after her, grabbed her purse, and **245 pushed her. She fell and broke her kneecap.

Jane Raymond heard Cirrencione screaming and saw defendant steal Strasbourg's purse. Raymond saw defendant leave in a blue gray New Yorker or Lincoln automobile with license No. 1MIS375.

At trial, Cirrencione and Strasbourg identified defendant as the person who stole their purses. Raymond testified that defendant resembled the thief somewhat, but Raymond was not 100 percent certain. Cirrencione also identified defendant at a physical lineup on September 5, 1990. Strasbourg identified someone other than defendant at a photographic lineup on August 10, 1990, but identified defendant at a physical lineup on September 5, 1990. Raymond identified defendant at a photographic lineup on June 11, 1990, and at a physical lineup on June 21, 1990.

Cirrencione did not testify at defendant's preliminary hearing and was not shown a photographic display. At the physical lineup, she indicated she was 80 percent sure of her identification of defendant. Strasbourg testified at defendant's preliminary hearing on October 1, 1990. She was not asked to identify defendant, although she did describe her attacker. At the photographic lineup, Raymond indicated defendant looked “a little like the person.” At the preliminary hearing, she indicated defendant looked like the purse snatcher, but she was not 100 percent certain.

[…]
*1471 DISCUSSION

I. Sufficiency of the Evidence Grand Theft Person-Cirrencione

Defendant contends the evidence is insufficient to support his conviction for grand theft person of Cirrencione in count 3. He argues that Cirrencione's purse was not taken from her person but rather from the car seat beside her. In reviewing the sufficiency of the evidence on appeal, the appellate court “must review the whole record in the light most favorable to the judgment below to determine whether it discloses substantial evidence-that is, evidence which is reasonable, credible, and of solid value-such that a reasonable trier of fact could find the defendant guilty beyond a reasonable doubt.” (People v. Johnson (1980) 26 Cal.3d 557, 578, 162 Cal.Rptr. 431, 606 P.2d 738.)

Grand theft is committed when property is taken from the person of another. (Pen.Code, § 487, subd. 2.) “[T]he crime of theft from the person contemplates that ‘... the property shall at the time be in some way actually upon or attached to the person, or carried or held in actual physical possession ... or ... held or carried in the hands, or by other means, upon the person; ... [the crime] was not intended to include property removed from the person and laid aside, however immediately it may be retained in the presence or constructive control or possession of the owner while so laid away from his person and out of his hands.’ ” (In re George B. (1991) 228 Cal.App.3d 1088, 1091-1092, 279 Cal.Rptr. 388, citing People v. McElroy (1897) 116 Cal. 583, 586, 48 P. 718, italics in original.) In McElroy, the Supreme Court held that the theft of money from the pants pocket of a victim who had removed his pants and was sleeping with his head resting on them as a pillow did not constitute grand theft person; the pants had been removed from the victim's person and laid aside. In George B., the Court of Appeal held that the theft of a bag of groceries from a shopping cart as the victim was pushing the cart in the parking lot of a market constituted grand theft person; the victim carried the bag by means of the shopping cart; the contents of the shopping cart were attached to the victim through the medium of the shopping cart, which the victim was both in physical contact with and in control of.

Compare the elements of robbery set forth in Penal Code section 211, which require a felonious taking from the victim's person or immediate presence.

The evidence is undisputed that at the time defendant took Cirrencione's purse from her, the purse was lying on the car seat. The purse was not upon Cirrencione's person, attached to her in any way, or carried by her. Cirrencione had laid the purse aside, although it remained in her immediate *1472 presence and was under her actual control. Under the authority of McElroy, we are compelled to conclude that the evidence is insufficient as a matter of law to sustain the conviction for grand theft person in count 3. (Auto Equity Sales, Inc. v. Superior Court (1962) 57 Cal.2d 450, 20 Cal.Rptr. 321, 369 P.2d 937.)

Respondent cites a number of cases from other jurisdictions with similar statutes which have concluded under similar circumstances that the crime constitutes grand theft person. Although these cases are persuasive and we might arrive at a different**247 conclusion if we were working on a clean slate, we are compelled by stare decisis to conclude that property taken from the actual and immediate control of the victim is not taken from “the person” of the victim within the meaning of Penal Code section 487, subdivision 2, unless the property is physically attached to the victim in some manner. (See, e.g., CALJIC No. 14.23, “the property must be either on the body or in the clothing being worn or in a receptacle being carried by the person from whom it is taken.”) Accordingly, the conviction for grand theft person in count 3 must be reversed.

See, e.g., State v. Tramble (1985) 144 Ariz. 48, 695 P.2d 737, 740-741; State v. Blow (1975) 132 N.J.Super. 487, 334 A.2d 341, 342-343; State v. Jones (Mo.App.1973) 499 S.W.2d 236, 237-240; State v. Kobylasz (1951) 242 Iowa 1161, 47 N.W.2d 167, 170; see also People v. Evans (1980) 44 Colo.App. 288, 612 P.2d 1153, 1156; Prigmore v. State (Tenn.Crim.App.1977) 565 S.W.2d 897, 898-899; compare Annotation (1976) 74 A.L.R.3d 271 and cases cited therein noting a split of authority on this issue.

Although the grand theft person conviction could be reduced to a misdemeanor petty theft conviction, respondent has not raised this issue on appeal.

[…]

*1475 DISPOSITION

The judgment of conviction of grand theft person in count 3 is reversed. The sentence is modified by striking the eight months imposed on count 3, reducing the total sentence to twenty-nine years and eight months. In all other respects, the judgment is affirmed.

BOREN, J., concurs.TURNER, Presiding Justice, concurring in part.
I concur in the majority opinion except for that portion of the disposition which dismisses the felonious grand theft conviction under count 3. Although defendant may not be convicted of grand theft person, the act of taking the purse was a petty theft, a lesser included offense of grand theft person. **249(People v. McElroy (1897) 116 Cal. 583, 584, 48 P. 718.) Therefore, I would reduce the offense to petty theft pursuant to Penal Code section 1260 and remand for resentencing on the misdemeanor count.

Cal.App. 2 Dist.,1992.
People v. Williams
9 Cal.App.4th 1465, 12 Cal.Rptr.2d 243

END OF DOCUMENT
"actually upon or attached to the person"
"not intended to include property removed from the person and laid aside"
"property [...] is not taken from "the person" of the victim [...] unless the property is physically attached to the victim in some manner"
Rule Explanation Paragraph
Function:
To explain a legal principle from a published case. The court's reasoning, or rationale, from the published case becomes a part of the law.
Structure:
I. Rule Statement
II. Case facts
III. Holding
IV. Rationale
Element: Taking from the person
Now, take another look at the student sample with your partner. How might your feedback be different with the information you now have?
[00:03:07.08] Student review of TA comments
Student: And for-for-for for this uh homework
AH: Mm-hmm
Student: Um, I think um when I-when I saw-see these comments, I think the biggest problem for me is that they use a lot of words to say that um "You should put more detail," "You should put" -um like uh - "what the issue's saying," all those comments just like that and- except for one- but uh, uh for that one- uh I think it's this one- they let me to, well, to rewrite again, 'cause at first I don't know what the rule explanation paragraph means
AH: Ah
Student: Okay, so that's my, I think, that's the biggest problem for me.
AH: Mm
Student: You can see these comments, uh, 'kay?
AH: Mm-hmm
Student: They're trying to find another fact, oh that's so- I find uh- I think I find the wrong one, and uh, this one says that uh um "emphasis should be attachment" or "discuss" and uh "expand" or "summarize it" uh by myself
AH: Mm-hmm
Student: And uh this one, it's uh ah...well...okay. They think, they think that uh that it's in the good track, but I think my biggest problem is I think I should like uh trying to make my words more like native speakers.
[00:05:06.00]
[00:07:02.17] Rationale: Civil law country
AH: And then rationale. Now, usually, in a rule explanation (.) the biggest part would probably be the rationale. Usually we'd expect to see two to three sentences at least.
Student: Well, ah, I just- you know, we come from civil la[w ]court system
AH: [uh-huh] yeah
Student: Uh, we don't have rationale- well, in my- 'cause in my opinion the rationale is like a- just like a thing that uh I-I'm not sure if I understand this mistake 'cause uh I think the rationale is just when judges write them down and to let other judges see what could be applied
AH: Mm-hmm
Student: In the future
AH: yeah
Student: Is that right?
AH: Kind of, yeah. Um, so, what's the role of case law in the common law system, based on your understanding?
Student: Uh, based on my understanding, case law is just- uh- the judge uh he look at facts and uh the jury put a judgment or something and the judge give some reason of of-what of the case and then, so the rationale- Is rationale about the reasons?
AH: Yeah, it's the reasons. Uh-huh.
Student: So reasons is- rationale is not what we can see or what we can apply in the future or or
[00:08:42.29]
[00:11:00.05] Rule Statement
AH: Yeah. What's the function of the rule statement?
Student: Give-give the statutes, or yeah. Just give the statutes, or gives, gi- what we- like, ah you know, like in the civil law, well, first we use a statute
AH: Mm-hmm
Student: And we, like, apply the facts into this statute and we make a conclusion.
AH: Mm-hmm
Student: So, so this is like the same.
AH: Mm-hmm
Student: That's what I understand.
AH: Ah, okay. Well, so it's a [little bit different-
Student: [so, so, uh so, all those other things would be around, just around the same sentence.
AH: Right, you're right that they should all be around that same sentence=
Student: = yeah
AH: That's exactly right. Where I might disagree a little bit, is about the rule statement and the relationship to the statute.
Student: Yeah.
AH: So you- so you're right that they mention the statute, usually we mention the statute so that we know exactly what crime we're looking at or what issue we're looking at.
Student: Yeah.
AH: Um, but usually the rule statement is more closely related to case analysis, case law.
Student: Case law?
AH: Mm-hmm, because we're talking about cases that are binding on other cases.
Student: Okay.
AH: Mm-hmm. So, if we looked only at the statute, we'd have the elements, but when we look at a rule statement, we're usually looking for factors.
[00:12:32.20]
Under the California Penal Code Section 487, grand theft is not committed when property is not taken directly from the victim. In William case, the purse was taken from the guest seat instead of the victim’s body or pocket. In William, the victim was finished shopping and threw her purse onto the front passenger seat Defendant approached her, pushed her back in her seat, and grabbed her purse from the passenger’s seat. The court held that, under these facts that the victim throw her purse on the next seat of the car instead of attaching the victim herself, the grand theft will not be adopted on this situation. In McElroy and George B this doctrine are also adopted.
Under the California Penal Code Section 487, grand theft is not committed when property is not taken directly from the victim. In William case, the purse was taken from the guest seat instead of the victim’s body or pocket. In William, the victim was finished shopping and threw her purse onto the front passenger seat Defendant approached her, pushed her back in her seat, and grabbed her purse from the passenger’s seat. The court held that, under these facts that the victim throw her purse on the next seat of the car instead of attaching the victim herself, the grand theft will not be adopted on this situation. In McElroy and George B this doctrine are also adopted.
Rule statement
Case facts
Holding
Rationale
Factors: Attachment, not laid aside
Alissa J. Hartig
The Ecology of Global English
March 18, 2014
Challenges of ELP
Specialized terminology/usage
Genre-specific organization
Difficulty of separating language from content
Full transcript