Cops and Robbers: Selective Literalism in American Criminal Law

Abstract

Police often ask people to consent to a search of their person or possessions. Frequently, these "requests" are made indirectly, with questions like, "Does your trunk open?" or "Do you mind if I search?" Although these questions literally ask only about whether the trunk functions, or about the suspect's state of mind, courts routinely use pragmatic information to interpret them as indirect requests. Yet many people agree to allow such searches because they interpret the officer's ostensible request as an indirect command. Courts, however, stop concerning themselves with pragmatic information at this stage of the analysis, focusing instead on the fact that the officer had literally asked a question. Thus, while they acknowledge that an informational question like "Does your trunk open?" can function as a request for consent to search the trunk, they often fail to go the next step: considering whether under the pragmatic circumstances the ostensible question might actually be understood as a command.

A similar issue arises in the context of custodial interrogation. People being interrogated are inclined to invoke their right to counsel in relatively indirect or tentative terms, with statements like, "Maybe I should talk to a lawyer." Yet courts often take such statements literally, and conclude that the suspect did not actually request the presence of counsel, but was merely thinking aloud.

It appears that courts selectively consider pragmatic circumstances in interpreting the speech of police and suspects in ways that typically favor the police. We refer to this inconsistency as selective literalism, Using analytical tools from linguistic theory, this article explores how courts employ selective literalism. It further examines some of the consequences of this inconsistent use of interpretive devices, both practically and jurisprudentially.

Keywords: law and language, criminal procedure

JEL Classification: K14, K42