Cornell Law Review Volume 92 Issue 4

Undercover Operatives and Recorded Conversations: A Response to Professors Shuy and Lininger

In Creating Language Crimes: How Law Enforcement Uses (and Misuses) Language, Professor Roger W. Shuy contends that audio recordings of suspects made by undercover operatives, a staple of modern criminal investigations and prosecutions, are potentially misleading. He warns that the unchecked use of such recordings at trial can result in conviction of the innocent. In a review of that book, Professor Tom Lininger focuses on and criticizes one feature of Professor Shuy’s treatment of that danger: his advocacy of expert linguistics testimony to alert juries that undercover recordings may be falsely suggestive of guilt. Professor Lininger’s review begins by describing the “near reverence” that jurors have developed for expert forensic testimony in criminal cases. He is troubled by Professor Shuy’s proposed introduction into criminal trials of “a new category of forensic expertise,” one that presumably will become yet another object of juror veneration. Professor Lininger questions whether jurors need such testimony and fears that it may “obfuscate as well as elucidate,” “usurp the jury’s fact-finding role,” and “invite[ ] jurors to disengage their common sense.”

 

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