Keywords

1 Introduction

Communication and forensic contexts are closely linked and interrelated. It is impossible to conceive of the idea of forensic contexts without the existence of communicative acts. Forensic contexts are understood as any situation in which issues related to the law arise, encompassing all stages of a judicial process (Granhag & Strömwall, 2004), and including aspects relating to the language used in this process. They involve everyday issues from all kinds of justice and law enforcement institutions—the courts, police, and detention facilities (the courts and criminal police agencies will be the only institutions described, as they were the only ones possible to contact within the scope of this work). These institutions function under the umbrella of the Law but, even so, have different realities and their own ways of working. In other words, and in a broad sense, here we understand forensic contexts as all situations in which language interacts with the legal, judicial and ethical system (www.linguisticaforense.pt). The individuals who move through forensic contexts are also parts of them, such as judges, public prosecutors, lawyers, criminal investigators, and the common citizen, each one performing a distinct function, with an equally different role and focus. This investigation aims to observe how these law enforcement institutions work, namely the courts and police agencies, in relation to the way they process communication, particularly the discursive strategies used, and interrogation methods followed. This study will highlight the way communication functions in the Polícia Judiciária (Criminal Police), notwithstanding the real and everyday relevance of the other police agencies that exist in Portugal, due to the importance of this police agency in combatting crime, both at a national and international level. It also aims to present a technological project, which will be developed by the author, following the first steps of this research.

2 The Courts

The rhetoric used by lawyers when they attempt to defend or accuse an individual is well known. What happens in a courtroom will be better understood if it is seen as a story or narrative (Tiersma, 1999). The argumentation strategy used by forensic professionals is not chosen by chance and is appropriate for the intended purpose. Many scholars of judicial language and, specifically, argumentation strategies used in courtrooms, call this use ‘narrative’ (Cotterill, 2003; Heffer, 2005).

A narrative can be defined as a series of events communicated in order and in a logical sequence, emphasizing its textual organization (Cotterill, 2003). The discourse presented in courts, principally the opening statement, is also characterized and defined as a narrative discourse, with a logical and very specific sequence, passing through the following phases (Heffer, 2005): orientation, problem, evaluation, and resolution. This discourse can often be decisive in a trial (Cotterill, 2003; Heffer, 2005). Lawyers are aware of this and do not choose arguments at random. A well-articulated, convincing discourse, with strong, plausible arguments and words meticulously chosen for the specific context, can very often not only change the course of a trial that was considered almost decided, but even influence the judge’s final decision (Heffer, 2005).

Semantic prosody has real and often decisive effects on decision-making in a trial. It consists of an aura of meaning marked by the placement of words spoken to us (Louw, 1993: 157). That is to say, each word occurs alongside other types of words (collocates), which normally have more positive or negative connotations. Often, there are words that collocate with others with a notably negative connotation, which, when used in a specific context like a trial, are capable of influencing a judge to discredit the defendant.

So, the speech used by public prosecutors and lawyers at a trial should not be disregarded in any linguistic analysis of a legal case. Furthermore, the whole narrative and discursive strategy used throughout the course of a trial should be considered in a linguistic analysis of the matter. This is because it is usually through language that legal proceedings test the applicability of generalizations found in the law, generalizations related to specific issues of behavior (Gibbons, 1994). Therefore, trials are linguistic events. So, language is central to the Law, and the Law, as we know it, is not conceivable without language. Many lawyers pride themselves on their mastery of language and view it as a vital skill for professionals in the field (Gibbons, 1994). In this way, it is not only what is written that is important in legal proceedings, as what is verbalized acquires equal importance in a courtroom. Discourse is as indispensable in Law as the written word: during the defendant’s interrogation, for example, or the witness statements (Schane, 2006).

3 Criminal Police Agencies

In parallel, we should not disregard the discourse or investigative strategies used by criminal investigators. In the United States and the United Kingdom, for example, the police have and follow well-researched, defined interrogation strategies appropriate to the situation at hand. In these countries, there are even companies that train criminal investigators and teach them strategies to interrogate a suspect more effectively. Much of this training is built on the issues surrounding interactive communication that are the subject of the present study, namely the analysis of kinetic movements made by a suspect when they are being interrogated. The North American company Reid (some of Reid’s clients, in addition to many police departments across the United States, include the US Coast Guard, the FBI, and Homeland Security. On their webpage (http://www.reid.com/training_programs/r_interview.html) there is access to a wide range of information about the company itself, as well as the work it does specifically in the area of training on how to conduct a police interrogation, in particular on Reid’s nine steps of an interrogation. It has existed for more than half a century and, among other activities, trains professionals in diverse scientific and geographical areas to conduct criminal investigations effectively. The Reid interrogation method follows nine steps: the positive confrontation, theme development, handling denials, overcoming objections, procurement and retention of the suspect’s attention, handling a suspect’s passive mood, presenting the alternative question, having the suspect orally relate the details of the crime and also elements of oral and written statements (http://www.reid.com/training_programs/r_interview.html). One can see, therefore, that criminal investigators’ discourse is not random either, and that all questions raised to suspects, their order, and even the vocabulary used are carefully chosen and have a well-defined purpose.

So far in Portugal, there are no companies or other entities, public or private, collective or individual, that train criminal investigators to carry out in-depth, rigorous, and methodical interrogations on suspects, and that can, on a substantiated scientific basis, interpret diverse types of human communication.

Here, related to the discursive and interrogation strategies used in trials and criminal police agencies, it is also important to observe, on one hand, to what degree the suspects, defendants, and witnesses have equal command over words when called to provide statements and/or testify—compared with that of the judges, lawyers and criminal investigators; and, on the other, in what way these professionals use words in forensic contexts.

4 Communication in a Forensic Context

The concepts of ‘power’ and ‘ideologies’ and their relation to the language we all use in our communication take on a particularly relevant role when that communication occurs in forensic contexts. A discursive event is shaped by situations, institutions, and social structures that, in turn, are shaped themselves (Fairclough et al. 2011a, b). Discourse is influenced by social relationships of power and ideology, but these are also influenced by themselves. It is an interdependent relationship that, to understand it, requires an analysis of the discourse in question, but also a consideration and an understanding of the historical and social context in which it was produced.

In the specific case of communication in forensic contexts, it seems important to find out how social power, abuse of power, dominance, and inequality are produced, reproduced, or resisted by texts and by speech (van Dijk, 2001). Similarly, we need to understand what type of relationships exist in these contexts—whether they are opaque or transparent relationships of dominance, discrimination, power, and control manifested through language and the way discourses are conducted. In other words, it is necessary to find out to what point social (and hierarchical) inequalities are expressed, signaled, and legitimized by the use of language in these contexts (Wodak, 2001). Language is the principal means through which institutions create a coherent social reality that frames their sense of identity (Mumby & Clair, 1997). In the same way, institutions—their workers and individuals who interact with them (for example, the public)—are constantly constructed and reconstructed by discursive practices (Mayr, 2008).

Although police interrogation, for example, is a highly regulated discursive form, being structured around legal requirements, its “institutionality” is constructed through the interaction of participants as they negotiate organizational roles (Heydon, 2005). Besides this institutional character, we cannot forget that discourse, whether in a prison room or a courtroom, is not only produced by individuals with a command of legal language. There is also the discourse produced by suspects, defendants, and witnesses (lay people), normally individuals who do not have command of legal language and who produce discourse in an everyday linguistic register. There is, therefore, an unequivocal linguistic disparity, not to mention the issue of discursive power and dominance, that is, who leads the discourse in a trial or police station and how they do it, and consequently who has more power than the rest. The discourse, whether produced by a suspect, a defendant, or the witnesses in a legal case, is controlled by whoever dominates, that is, the judges, public prosecutors, lawyers, and criminal investigators. Individuals participating in the courtroom interaction who do not belong to this sphere of the Law, do not have total control over their oral contributions (Clark, 1996). Witnesses face limitations on how and the time they have to formulate and carry out their actions in real-time. They do not possess any control over when to speak or act. They go to their dedicated position when they are called to testify, they must respond to the questions put to them, without avoiding the subject of the questions. They do not express themselves how they would in other circumstances—in part because they find themselves under enormous restrictions due to the rules imposed—they must stick to the questions they are asked, they were called to testify for one of the parties in that particular case and, therefore, feel obliged to follow a determined line of dialogue (Heffer, 2005).

There is a set of characteristics of face-to-face interactions that are considered fundamental to communication: (1) copresence, (2) visibility, (3) audibility, (4) instantaneity, (5) evanescence, (6) recordlessness, (7) simultaneity, (8) extemporaneity, (9) self-determination and (10) self-expression. By considering each one of these characteristics we can determine that communication in a courtroom, for example, entails considerable complexity (Clark, 1996).

In this regard and knowing that the main parties involved in a trial share the same physical space, we can state that they are co-present (1) and that they can see each other (2) and hear each other (3). However, at a trial, these basic matters of face-to-face interaction can be affected in several ways: the judge may not be able to see the facial expressions of the defendant and witnesses clearly and, frequently, they must ask them to raise their voices. It can also happen that the parties involved are not able to immediately perceive the behavior and actions of each other (4), although the complexity of the communicative act that takes place in a courtroom does not permit everything to be filtered and fixed in the same way for all those present. The oral means of discourse guarantees, normally, that what is said is rapidly forgotten (5) given that it is not.

Shared Understanding and Memories, Expectations, Presuppositions, Stereotypes, Preconceptions, Discrimination

Every individual has a unique and very particular worldview. However, this individual, apart from their uniqueness as a human being, is not an isolated person. The context where they were born, where they grow up, where they will live and their adult life (and these contexts can vary during the course of their life) will mold their personality, their way of thinking, of seeing the world, their ideologies and assumptions. It will, in the same way, create and help to define the stereotypes, preconceptions, and discriminations they will use to make their value judgments concerning others, thereby molding their attitudes and behavior, making them think x or y in relation to a or b. Think about, for example, the ideas argued by Islamic jihad soldiers about individuals outside their belief system—ideas profoundly marked by the sociocultural context they belong to.

So, each one of us is an individual full of preconceived ideas, sharing memories and beliefs with those closest to us. The entirety of our circumstances will influence and shape what we do and say on a day-to-day basis, whether in a social and family context, or a professional context. Van Dijk (1998) addresses these issues related to ideas, beliefs, and values, arguing that they are products of each person’s thoughts or a community or group’s collective thinking. The ideas and beliefs that each one of us, or a group, possess about a given reality are not limited to being based on the reality that surrounds us or that which we believe to be true or false but are equally products of the judgments we make—whether we think of something as good or bad, pretty or ugly (Van Dijk, 1998). So, our vision of the world that surrounds us is based on partiality and subjectivity, and that which we judge to be right and fair is often in fact not.

The ideologies that guide us function like a system of ideas, belonging to the field of thought and beliefs. They are, in the same way, a social reality, often associated with groups, conflicts, and interests. They can be used to legitimize the dominance and power of one group over another or symbolize social problems. They are, also, linked to language and discourse, as these mechanisms express ideologies to society (Van Dijk, 1998). Ideologies are not just a set of beliefs, but rather beliefs shared and socially accepted by certain groups. These beliefs are acquired and utilized in social contexts, based on the interest of groups or the social relationships between groups (Van Dijk, 1998). As an example: in a courtroom in Portugal, if a defendant belonging to a football supporters’ group is presented to a judge and is accused of having provoked disorder, this defendant, as well as the accusation attributed to them (it does not matter here, for now, whether they are innocent or not), will have all the preconceptions, beliefs and ideologies against them that exist surrounding football supporters’ groups in Portuguese society—disorderly groups, prone to acts of violence. Moreover, depending on the football club the defendant belongs to—which may be different (and rival) to the one the judge possibly supports in their time—other beliefs and ideologies will certainly be associated. Now, no one is totally objective and impartial, or completely devoid of beliefs, expectations, preconceptions, and ideologies, enabling them to judge a situation without interference. In the case of this example, even unconsciously, this judge will cognitively activate what they think about the defendant’s club circumstances, possibly then judging the case in a conditioned manner.

Communication can therefore be based on the relationship between individual and culture and on the knowledge, memories, stereotypes, and preconceptions inherent in each one of us that mold how we communicate and relate to others. It then becomes important to also address face-to-face interaction from a cognitive perspective, in an attempt to find out how our way of thinking influences how we communicate and interact, particularly the way we gesticulate and move the other parts of our body in face-to-face interaction.

5 The Personal and Sociocultural Experience of Those Who Interrogate and Judge

It seems necessary to understand whom the individuals in the ‘comfortable position’ are, the people judging and evaluating those accused or suspected of committing a crime. The judges and criminal investigators are, above all, human beings with all their inherent peculiarities. They are professionals that have studied and taken an academic and professional path that has enabled them to attain roles in the justice system and criminal investigation. All the education and training attached to these high-level responsibility positions are important and aim to prepare these individuals for roles they will perform as judges or criminal investigators. In the training they receive, both are alerted to issues of the impartiality of justice, their teachers trying to train them not to be prejudiced individuals or biased in their views and convictions. However, we also know that what happens, in reality, is a little different.

The intention here is not to criticize the personality or performance of judges and criminal investigators on a day-to-day basis, but to reiterate that no human being, no matter the training they have received on this subject, is void of convictions, assumptions, preconceptions, choices, and preferences (Anastácio, 2009). Every judge, just like every criminal investigator, is a human being with their own, conditioned circumstances, who grew up in a particular family, with specific convictions, values, and beliefs. They may have (or not) more or less affinity with a particular political party, football club, or religion, and they will have lived through certain experiences (positive and negative) that molded them into the person they are. There is, therefore, a circumstance or worldview that makes that judge and that criminal investigator—that individual in particular—with those characteristics unique and distinguishes them from others.

However, as much as someone tries to remove themselves from all preconceptions and convictions, trying to be as impartial as possible in their opinions and judgments, it is not humanly possible for there to be total impartiality and objectivity. It will be very difficult, for example, for a Roma individual to be presented as the defendant in a Portuguese court and for the judge to not immediately activate all the ideas and preconceptions they have in their mind regarding that ethnic group. Their role as a judge is to analyze the case at hand using the testimonies presented and the evidence (if there is any) shown to them, independently of the race, ethnicity, or creed of the person in front of them. They should analyze all this material and judge the case based on the law in place. Even when the individuals in question belong to the same culture as the judge, there will always be questions that raise problems—religious differences, differences in social status, education, and the way one lives their life and presents themselves, to name a few. Furthermore, the probability of incorrect and prejudiced judgments increases considerably when in front of a judge from another culture.

Milton Bennett (2004) developed a model that addresses the issue of “intercultural sensitivity”. Bennett considers that there are people able to interact with other cultures more easily, and some visibly find this type of interaction more problematic. His model, which he called the Developmental Model of Intercultural Sensitivity, DMIS (Bennett, 1986, 2004; Bennett et al., 2003), describes the phenomenon of the sensitivity individuals have or do not have to different cultures and the various stages this phenomenon can encompass.

As people become more interculturally competent, there appears to be a great change in the quality of their communicational experiences, which Bennett calls the transition from ethnocentrism to ethnorelativism. The author used the term ethnocentrism to refer to the experience of the individual’s own culture as “central to reality”. In other words, the beliefs and behaviors that people acquire in their primary socialization are not questioned—they experience things exactly the way they are. By “ethnorelativism”, Bennett intends the opposite of ethnocentrism—the experience of our own beliefs and behaviors as just one possible organization of reality among various others (Bennett, 2004).

This study by Bennett (2004) serves as the basis for an essential question in the present investigation: to what extent are judges and criminal investigators endowed with this “intercultural sensitivity”? Could it be that when they are faced with an individual from another culture, they activate questions in their mind which will allow them to not evaluate the other in a prejudiced way for belonging to another culture, or will exactly the opposite happen? Will they be able to direct their interrogation and assessment, bearing in mind that they are dealing with a person with a different world view to their own, with ideas, beliefs, and values that are culturally marked and different from theirs? And that these do not necessarily make them better or worse? The responses to these questions vary depending on the judge or criminal investigator in question, and the intercultural sensitivity they may have (or not).

Despite the existence of greater or lesser cultural sensitivity, the human condition of prejudice and partiality will very often be a decisive factor present in all evaluations and judgments that are made. So, there exist several aspects that can influence the opinion of a criminal investigator and a magistrate’s judgment in court, however impartial these professionals try to be (and we do not question or doubt that the majority indeed try to be so). Here, an essential part of the human being comes in, linked to beliefs, preconceptions, and values, which is the emotional component.

6 The Emotions of Those Who Interrogate and Judge

What is an emotion? This question was formulated exactly like that by William James (1884), as the title of an article he wrote for Mind (Mind is a scientific publication focused on fields such as Psychology and Neuroscience, among other related areas) more than a hundred years ago (Lewis & Haviland-Jones, 2004).

One of the first and most preeminent authors to study emotion was Charles Darwin (1872). Darwin observed and analyzed facial expressions, as well as gestures/body movements, both in humans and animal species, and argued that while gestures/body movements can be related to thoughts, actions, desires, and fantasies among other things, facial expressions relate only to emotions.

Although Darwin maintained the idea of universality in the expression of emotions, above all through the facial expressions exhibited, he recognized that gestures are not universal, but rather socially learned and culturally marked conventions (Darwin, 1872: xxii). However, many of his contemporaries disagreed with his theories of universality relating to the expression of emotions, namely some anthropologists like Margaret Mead (1901–1978, North-American cultural anthropologist.). She believed facial expressions varied from culture to culture, and that the same expressions meant a different emotion depending on the culture in which it was exhibited (Darwin, 1872: xxiii). Later, Ekman (1992) concluded that while there are emotions that are expressed universally, there are also emotions that belong to a certain social/cultural group and that individuals react not only to life phenomena (music, thunder, physical activity) but also when handling interpersonal interactions (Ekman, 1992).

Damásio (1999), in a brief historical perspective, says that emotions were, for a long time mainly after the works by Darwin, James, and Freud (Charles Darwin, William James and Sigmund Freud (XIX century) studied and investigated emotions. Their works in this area are well known. However, in the twentieth century, emotions were set aside in laboratory studies linked to neurological and cognitive studies, and only later given the importance they deserved (Damásio, 1999), viewed as an overly subjective topic and not rational enough for the neurological and cognitive sciences. Once emotions were understood as antipodes of reason, the ultimate quality of the human being, they did not merit being studied (Damásio, 1999). However, in recent years, the neurological and cognitive sciences have begun to address the topic of emotions in more depth, reporting that it did not make sense to place them at the opposite extreme to reason, as emotion and reason are complementary elements of the human being rather than opposites.

The results of investigations carried out in his laboratory showed that emotion is an integral part of reasoning and decision-making processes. The discoveries came from a study of diverse individuals, entirely rational in the way they led their lives until the moment when, as a result of a neurological injury in specific areas of the brain, they lost a certain group of emotions and, at the same time, lost their capacity to make rational decisions (Damásio, 1999).

Damásio also distinguishes emotion from feeling. He suggests the term feeling should be reserved for the mental, private experience of an emotion, while the term emotion should be used to describe the set of responses that an emotion comprises, many of which are publicly observable. An individual cannot observe a feeling in another person, but they can observe a feeling in themselves when they are conscious and aware of their emotional states. In the same way, no one can observe feelings that are not their own, but some aspects of emotions that are at the foundation of these feelings are manifestly observable by others (Damásio, 1999).

Damásio, like Ekman (1992), believes that there are six primary or universal emotions: happiness, sadness, fear, anger, surprise, and dislike. But there are other emotions, called secondary or social emotions, which include shame, jealousy, blame, and pride. There are further background emotions, like well-being or malaise, calmness, and tension (Damásio, 1999). So, according to the author, emotions are complicated sets of neurochemical responses that form a pattern. All emotions play a regulating role that drives, in one way or another, the creation of advantageous circumstances for the organism that manifests the phenomenon. Although learning and culture alter the expression of emotions and redress them in new meanings, emotions are biologically determined processes depending on innate cerebral mechanisms established by a long evolutionary history. Individual history and the fact that culture has a role to play in the formation of some drivers does not negate stereotyping, automation, and the regulatory objective of emotions (Damásio, 1999).

The exact composition and dynamics of emotional responses are formed in everyone through a unique development and environment. However, the evidence suggests that, on the most part, or even totally, emotions result from the long genealogy of evolutionary tuning. They are part of the bioregulatory mechanisms we are born with to prepare us for survival. There are different forms of expression, just like variations in the exact configuration of stimuli that can induce an emotion in different cultures and individuals. However, it is the similarities, not the differences, that are surprising. These similarities make intercultural relationships possible, and enable art, literature, music, and cinema to cross borders so easily (Damásio, 1999).

Darwin (1872) argues that our expressions of emotions are universal and a product of our human evolution (Darwin, 1872: xxii). Even though we all, as a species, evolved in the same way, and therefore everything related to neurological, cognitive, and biological phenomena are similar among human elements belonging to different cultures, it is perhaps more difficult to accept quietly Damásio’s idea that suggests intercultural relationships can develop naturally and without conflicts. The author accepts and assumes that there are developmental and cultural elements in each individual that mold how they externalize their emotions. Now, if, and citing the author, “without exception, men and women of all ages, all cultures, all levels of education and economical status have emotions” and if “there is something very particular about the way emotions are linked to complex ideas, values, principles, and judgments that only human beings can have” (Damásio, 1999: 55), it seems evident that the place where we are born, the way we were educated, ultimately, our circumstances and world view will influence and mold the way each individual expresses themselves emotionally. So, on one side we have the purely biological, cognitive, and neurological part that brings us together as beings from the same species, but on the other, we have our sociocultural side, which distances us as beings belonging to cultures and, in a microcosmic sphere, linguistic communities different from each other.

Despite the universal character of the phenomenon of human emotion, argued by Darwin (1872), but opposed by some other researchers (Birdwhistell, 1970; Klineberg, 1940), we need to bear in mind that a display of emotions can vary from culture to culture (or subculture). As a result, the issue of cultural specificity becomes important (Weigand, 2004). The social life of human beings, in the context of a given cultural environment, creates conditions that differ from culture to culture and, therefore, generates specific needs and emotional responses. For example, members of different cultures learn to fear and appreciate different things. This fact is based on the existence of different cultural standards, levels, and behavioral norms that allow, require or prohibit the expression of this or that emotion in a certain way (Weigand, 2004).

It is accepted that an individual makes kinetic movements and expresses emotions, but that they do it within a certain context, a certain situation, and that those realities will permit whoever is interacting with that individual to interpret what they are feeling. The notion of context is, therefore, fundamental, as it does not appear to make sense that speech, kinetic movements, and expression of emotions are interpreted out of context.

We do not communicate or experience emotions in a vacuum, nor can we say what we are feeling based solely on introspection (Armon-Jones, 1986). But we also learn to give meaning to our experience depending on the context, through our social exposure and our cognitive abilities, which allow us to transform our context by the simple fact of interacting with it (Carpendale, 1997). Our emotional experience is linked to specific contexts and has a unique social history and a current cognitive function. Our unique social history includes our immersion in our culture’s beliefs, attitudes, and assumptions. All these factors help us learn what it means to feel something and do something with it. The concepts we attribute to emotional experience are full of nuances and meanings depending on the context, including the social roles we occupy, our gender, and our age (Lewis & Haviland-Jones, 2004).

Overall, we all have contextual, cultural, and individually determined perceptions of life and the people we interact with. These are more or less ruled by the values learned throughout our socialization stage in the community—what is considered good and what is considered bad—a situation that makes it difficult, unless one is trained and prepared for this—to recognize that there are different ways of seeing the world. All this becomes hugely important when one intends to question or judge someone who views reality in a way, sometimes, completely different to us, without it being more or less correct, as can happen in forensic contexts.

Some sources of cultural variation are identical to individual sources of variation: in different cultures, like in different individuals, different things function as desirable or undesirable, worthy of approval or worship, or the contrary, appealing or detestable (Ortony et al., 1990).

Therefore, the conduct of each judge and each criminal investigator should be guided by inter and intracultural sensitivity, trying to comprehend that in front of them is a human being, in an inferior and vulnerable position concerning themselves, whom they are judging and evaluating. Also, whether they have committed a crime or not, there is a whole set of cultural and life circumstances that cannot nor should not be disregarded when attempting to sentence their future. Related to this sociocultural component are the kinesic movements that integrate into all our communicational systems and that, as we have seen, should not be ignored in an analysis of a legal process.

7 Kinetic Movements in Interactions in Forensic Contexts

Gestures and other kinetic movements made during a face-to-face interaction in forensic contexts are often not included in analyses of this type of interaction. When they are, the observations on them are for the most part based on empirical experiences, normally without scientific support. A questionnaire (although the questionnaire was sent to various professionals in the legal field, responses were only received from public prosecutors and criminal investigators from the Criminal Police) was therefore designed to find out if and how body movements are taken into account by prosecutors and the Criminal Police investigators during interrogations of defendants, witnesses, and suspects.

From the responses obtained, the position of public prosecutors and criminal police investigators seems clear: not only do the majority (81.8%) feel the need for training in this area of body movement analysis in interactions, but they also think interactions taking place in forensic circumstances should be recorded on video (88.6%) for investigational purposes.

Currently, except for some cases in the United States, the subject of kinetic movements in interactions is not normally taken into account by judicial systems when making decisions in court. Furthermore, so far only the defendants’ and witnesses’ discourse is recorded and subsequently transcribed, reproducing only that which was verbalized. In countries like England, and also in Portugal, trials are recorded as audio—so there is no access to images—and the quality of recordings is far from ideal to understand clearly what was spoken in the courtroom.

Transcriptions do not specify whom a given discourse is directed toward or who heard it. Based on the principle that they are accurate records of the words that were spoken (although, often, that is not the case), in the majority of cases, they do not supply important clues about the interaction, such as the emphasis given to words/expressions, intonation (whether it is a question or a confirmation), the pauses (which carry their meaning), interruptions (which can be a significant indicator of the speaker’s control and their intention), among many other aspects (Shuy, 1996).

As well as this, and whether due to the lack of quality recordings, or a poor interpretation of the real words by the person who did the transcription (and transcribers are not linguists), these transcriptions often do not correspond to the whole truth of what was verbalized. In the case of Portugal, the transcriptions of an audio recording of a trial are only done if they are requested by the interested parties, usually to reopen or continue to investigate a case or when filing an appeal, with the presentation of the allegations.

A transcription implies the conversion of speech into written language. The essential problem is that speech and writing are different means, with different properties. Writing, as we use it every day, is not an effective means of recording speech, as it does not include oral conventions and many oral characteristics (Halliday, 1999). Furthermore, it is practically impossible to precisely record everything that happens in speech, like intonation, breathing, voice quality, accent, pauses, rhythm, and other important aspects. So, the information that is lost is enormously important (Gibbons, 2003).

As a minimum, communication requires three key elements: a producer, a text, and a receiver, in which “producer’ and “receiver” are global terms for a set of possible participants (Goffman, 1987), and the “text” can be any type of language (written or spoken) (Heffer, 2005).

Considering, therefore, the process of human communication as it is, how can one believe that, in the analysis of a legal case, essential aspects of the whole process can be neglected: human communication as a whole? Magistrate judges and public prosecutors are qualified in Law and have an understanding of the laws. They are, first and foremost, human beings endowed with common sense and intelligence. However, their academic path will not alert them to the importance of communication as a whole in the context of a trial.

How we communicate—what we verbalize and the co-discursive movements we make—is, therefore, susceptible to problems of interpretation, even when the message being transmitted is in theory truthful and in line with the reality being discussed.

7.1 Forensic Contexts and Analysis of Body Movements

Until now, little has been developed and investigated in the study of gestures and other kinetic movements in an analysis of face-to-face interactions in forensic contexts. Investigators rarely mention body movements and how they relate to speech in interactions taking place in trials, prisons, and police stations (Matoesian, 2010), but some authors have established this relationship (Broaders & Goldin-Meadow, 2010).

The complete and accurate transmission and transcription of information obtained in inquiries and forensic interrogations are very important for the credibility of the justice system. The way questions are asked in inquiries and forensic interrogations influence the responses of those being interrogated (Cotterill, 2003; Heffer, 2005). Equally, speakers make spontaneous co-discursive gestures that can transmit information that was not verbalized (de Ruiter, 2007; McNeill, 1992). In this way, as transcriptions made in forensic contexts only contain discursive elements (Shuy, 1996), as we have seen, a lot of relevant information is ignored (Broaders & Goldin-Meadow, 2010).

There seems, therefore, to be a need for more in-depth material on these contexts, and interdisciplinary knowledge exchange, as ignoring body movements alongside speech in judicial scenarios means not fully comprehending the complexity of the phenomenon being analyzed (Jones & LeBaron, 2002: 512). This need seems justified by the fact that, in the context of the subjects investigated to date, few studies have included an analysis of gestures and other kinetic movements in face-to-face interactions in forensic contexts. In parallel, there have also been few works that relate kinetic movements to interactions in forensic contexts (Matoesian, 2010).

Until now, few investigators have established a relationship between kinetic movements and speech in forensic contexts (Matoesian, 2010: 541). Analyzing acts of communication in a forensic context while ignoring these movements makes for a poorer analysis and eliminates relevant activities in the communicative process (Maynard, 2006: 477). In a courtroom, lawyers direct their gaze to the witnesses when they address them, they mark the rhythm of the speech with hand/arm movements, they show their hand palm facing upwards when they intend to reveal an inconsistency in the testimony given, and witnesses aim their index finger at the defendant, in a pointing gesture (Matoesian, 2010: 542). There are, then, countless kinetic movements that occur alongside speech in any interactive context, but in a forensic context, these can transmit information that may influence the course of the investigation and the judgment in that legal case. As has already been stated, systematically ignoring either speech or kinetic movements in an analysis of face-to-face interaction—as interactions in forensic contexts are—is to set aside vital components of the communicative behavior of human beings, and consequently carry out an incomplete analysis of the whole phenomenon at hand (Jones & LeBaron, 2002).

7.2 The Importance of the Analysis of Body Movements in Forensic Contexts of Interaction

Bearing in mind what has previously been described and highlighted, it seems clear the importance of an analysis of the face-to-face human communication process. When that communication process takes place in forensic contexts (inquiries, police interrogations, among others), and considering, as shown, that two-thirds of the messages that we transmit are passed through body movements (Aghayeva, 2011), to ignore such a significant amount of information means to lose contents that, in the process of analyzing a judicial case, might be vital.

Therefore, it is important that this type of interaction can be legally video recorded (always respecting and updating, if possible, the legislation in force, so that these recordings become possible) so that the interactions can then be analyzed in detail through software (still a project) which allows the upload of the videos, and the recognition and automatic transcription of the speech. By doing so, it is then possible to reach adequately supported findings about the individuals’ communicative behavior in those contexts. It cannot be emphasized enough how important it is to keep these recordings exclusively under the scope of helping in the criminal investigation processes, being confidential material that must be carefully protected.

Because, in fact, human beings can change, omit, and forge information through speech, but they cannot do it permanently through their bodies. It is of major interest to all that justice can comply with its duty, and it is defended here that the interdisciplinarity between Law, Technology, and Linguistics seems to undoubtedly create advantages in ascertaining the truth in a judicial process.

8 Conclusions and Further Research

As such and considering the opinions of the public prosecutors and criminal investigators questioned in the context of the present work, of whom a large majority believe more training in the analysis of interactive body movements is necessary, the argument for the importance of this training gains more traction. Also, implicitly, the need arises for interactions in forensic contexts to be recorded on video—at least for investigational purposes—for a detailed, substantiated, and credible analysis of all information transmitted during interactions to be possible. In a related investigation carried out by the author, it was possible to verify the following—by highlighting just a few aspects—and through an analysis of body movements during interactions:

Through gestures, speakers can transmit information they have not verbalized. In this way, access can be gained to messages and/or mental images that speakers may wish to omit voluntarily or involuntarily, which may turn out to be important depending on the context of the interaction. Gestures thereby function as a window into the mind (de Ruiter, 2007; McNeill, 1992). In addition, pauses and hesitations can reveal that a speaker is organizing their thoughts or, if they are interacting in their second language, that they need more time than they would need in their first language to choose lexical elements or structure the syntax of their discourse.

Common aspects shared by speakers of an interaction (culture, assumptions, expectations, beliefs, ideologies, education…) can help make the interaction more natural and spontaneous, with the message transmitted more effectively and more easily understood.

We confirm, therefore, the importance of understanding and analyzing the communicative process, as not considering two-thirds of the information passed on, particularly for interactions in forensic contexts, means ignoring rich material for criminal investigation.

To try to avoid this loss, and misunderstandings and misinterpretation in verdicts, we think that it is important to include this type of analysis in the wider judicial cases analysis. Therefore, and to help do this faster and in a reasoned and reliable way, the author aims to develop software that, as previously mentioned, will allow the fulfillment of this analysis.