tag:theconversation.com,2011:/us/topics/court-cases-59595/articlesCourt cases – The Conversation2023-11-08T06:45:09Ztag:theconversation.com,2011:article/2006352023-11-08T06:45:09Z2023-11-08T06:45:09ZThe words that helped wrongly convict Kathleen Folbigg<blockquote>
<p><strong>Prosecutor:</strong> Are you able to say whether or not Caleb died from a catastrophic asphyxiating event of unknown causes? </p>
<p><strong>Pathologist:</strong> I believe that is likely. […]</p>
<p><strong>Prosecutor:</strong> In relation to Laura […] her cause of death was consistent with smothering? </p>
<p><strong>Pathologist:</strong> Yes.</p>
<p><strong>Prosecutor:</strong> Including deliberate smothering?</p>
<p><strong>Pathologist:</strong> Yes.</p>
<p><strong>Prosecutor:</strong> And that she probably died from an acute catastrophic asphyxiating event of unknown causes?</p>
<p><strong>Pathologist:</strong> Yes. – (<a href="https://www.folbigginquiry.justice.nsw.gov.au/Documents/Amended%20Exhibit%20F.pdf">Transcript pp. 746-48</a>)</p>
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<p>The above exchange occurred during the seven-week trial leading to Kathleen Folbigg’s conviction for the deaths of her four infant children (Caleb, Patrick, Sarah and Laura) between 1989 and 1999. During the trial, the word “asphyxia” in its various forms (-ate; -ation; -ating) was used 208 times; “smother” (-ing; -ed) 221 times; and “consistent with” 233 times. </p>
<p>The pathologists and doctors concurred that the absence of external injuries was “consistent with” Caleb dying of a “catastrophic asphyxiating event”. This was repeated for each of the four children by each of the doctors, with strangling or smothering likely to be uppermost in the minds of the jurors. </p>
<p>Of course, Folbigg’s wrongful conviction had <a href="https://johnmenadue.com/the-wrongful-conviction-of-kathleen-folbigg-why-did-it-happen-and-what-must-be-done-to-stop-it-from-happening-again/">numerous factors</a>. We have no way of knowing why the jury decided as it did. </p>
<p>But there are good reasons for forensic medicine practitioners and advocates to rethink their understanding – and use – of these words. </p>
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<h2>The semantic journey of asphyxia</h2>
<p>“Asphyxia” first appeared <a href="https://quod.lib.umich.edu/cgi/t/text/text-idx?c=eebo2;idno=B22610.0001.001">in print</a> in 1699 defined as “without any Pulse, or sign of Life”. Predictably, this meaning “stoppage of pulse” then sprouted the meaning “stoppage of respiration” – a lack of breath is a salient sign of lifelessness. </p>
<p>Subsequently, the path has been rocky, and it is now understood variously by forensic doctors around the world. What is agreed, however, is that “asphyxia” is not a diagnosis; it is not a condition that can be pointed at or diagnosed. </p>
<p>As far as lay understandings go, things get murkier. Modern dictionaries list many senses but privilege “respiratory failure”, with “suffocation” usually given as a synonym; this in turn is defined as the interruption of breathing, including some means by which it’s brought about (for example, smothering, throttling). </p>
<p>The Urban Dictionary’s definition for “asphyxiation” is “death by strangulation; ergo blockage in air passage”. This dictionary has its problems, but like other collaboratively constructed dictionaries, it is useful for tracking contemporary social meanings of expressions not yet in more mainstream dictionaries.</p>
<h2>More murkiness</h2>
<p>In the trial, confused senses of “asphyxia” were combined with the misleading phrase “consistent with”. As used by experts, this is synonymous with “may or may not mean”. </p>
<p><a href="https://repository.uclawsf.edu/hastings_law_journal/vol59/iss5/7/">Research</a> shows, however, that people without expert knowledge hear the phrase as strong confirmation of the proposed connection.</p>
<p>In the <a href="http://netk.net.au/Canada/Morin10.asp">1998 Canadian inquiry</a> into the (wrongful) conviction of Canadian man Guy Paul Morin, Commissioner Kaufman was scathing in his criticism of the use of “consistent with”. He regarded it as demonstrably misleading language, variably being used to mean:</p>
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<p>‘could have come, or cannot be excluded as coming, from the accused’; ‘not inconsistent with’; ‘more than a possibility but less than a probability’; ‘perfect or near identity of two items’.</p>
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<p>The <a href="https://www.oed.com/dictionary/consistent_adj?tab=meaning_and_use">historical thesaurus</a> of the Oxford English Dictionary suggests this last sense “perfect or near identity of two items” has been around since the 1600s. Clearly, we can’t assume people today would automatically understand “consistent with” as simply a way of saying what is proposed is possible.</p>
<h2>Bad meanings drive out good</h2>
<p>The meanings we carry around in our heads seem so natural we fail to realise other people can have quite different understandings. </p>
<p>As linguist <a href="https://oxford.universitypressscholarship.com/view/10.1093/acprof:oso/9780198709831.001.0001/acprof-9780198709831">Nick Enfield</a> describes, we hypothesise what others mean by the words they use. And the more unusual a word is, the more its meanings will vary because we aren’t given the same opportunities to refine our hypotheses. </p>
<p>For example, what part of the foot do you understand as the “instep” – the upper surface between toes and ankle, the underneath part, or perhaps both the top and underneath? All three meanings are out there, and different dictionaries favour different ones. </p>
<p>Does this really matter? In a highly circumstantial murder trial, it does.</p>
<p>Words are <a href="https://www.cambridge.org/core/books/forbidden-words/E7E4C037E8F1A91DE2ECA05CD70A3078">far more likely</a> to take on negative overtones than favourable ones. The linguistic evidence is compelling – negative senses come to dominate and eventually quash all other senses. This transformation has a name: Gresham’s Law of Semantic Change.</p>
<p>It comes as no surprise that crowdsourced online dictionaries show the homicidal senses of “asphyxia” (and its derived forms) as winning out.</p>
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<h2>Asphyxia permeated Kathleen Folbigg’s trial</h2>
<p>Importantly, it was agreed by all involved none of the babies showed any injuries. (Two pinpoint scratches on Sarah’s lower lip were agreed to be of no significance).<br>
As the prosecutor said: </p>
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<p>All they [the doctors] can say is that there was some form of obstruction that caused oxygen not to be able to get into the lungs and that’s what caused these babies to die […] all they can say is that it was induced asphyxiation from an external cause […]“ (<a href="https://www.folbigginquiry.justice.nsw.gov.au/Documents/Amended%20Exhibit%20F.pdf">Transcript p. 66</a>)_</p>
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<p>It was repeatedly asserted the presence of no injuries in any of the Folbigg children "was consistent with the occurrence of an acute catastrophic asphyxiating event” or “smothering”. This was probably heard by the jury as indicating no injuries meant an “asphyxial event” had occurred – in other words, the children had been strangled or smothered. </p>
<p>There was also repeated reference to the absence of natural explanations for four sudden and unexplained deaths in one family – with the unstated inference that the only reasonable explanation was homicide. Known as Meadows Law, this inference stalked Kathleen Folbigg’s trial and her subsequent appeals relentlessly. Meadows Law falls at the first hurdle: how likely is it there would be four murders – where there are no injuries – masquerading as natural deaths? </p>
<p>In <a href="https://www.austlii.edu.au/cgi-bin/viewdoc/au/cases/nsw/NSWSC/2003/895.html?context=1;query=R%20v%20Folbigg;mask_path=au/cases/nsw/NSWSC">his sentencing remarks</a>, the judge stated:</p>
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<p>No (expert) witness was prepared to say that the signs pointed only to smothering but the medical evidence generally was that the result of each event was consistent with having been caused by acute asphyxiation. The jury accepted that evidence.</p>
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<p>That summary encompasses the following linguistic storm: the doctors might say they thought the prosecutor was talking about asphyxia as meaning hypoxia/anoxia (low oxygen levels) due to any one of a myriad of causes.</p>
<p>The prosecutor believed he was asking whether, and the doctors were telling him that, the babies died from induced airways obstruction from external causes. And the jury thought they were being told the babies were smothered, or even strangled.<br>
All of this is medically incoherent and incapable of establishing anything of significance – but probably had a powerful effect on the jury. </p>
<h2>'The wisdom of the crowd’</h2>
<p>Since its first appearance in English in the 1600s, the term “asphyxia” has caused confusion. </p>
<p>In forensic pathology, it encompasses a number of concepts and is used variously by pathologists – and these uses are out of alignment with common lay usage. Combined with different understandings of “consistent with”, this confusion was very much to Folbigg’s disadvantage. </p>
<p>The jury system relies on “the wisdom of the crowd”. Forensic doctors, advocates and judges must recognise that, despite what they think and dictionaries say, the crowd can understand words very differently, and this can have consequences. </p>
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Read more:
<a href="https://theconversation.com/brekkies-barbies-mozzies-why-do-aussies-shorten-so-many-words-192616">Brekkies, barbies, mozzies: why do Aussies shorten so many words?</a>
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<img src="https://counter.theconversation.com/content/200635/count.gif" alt="The Conversation" width="1" height="1" />
<p class="fine-print"><em><span>Professor Cordner was an expert witness at both Commissions of Inquiry into the convictions of Kathleen Folbigg. </span></em></p><p class="fine-print"><em><span>Kate Burridge does not work for, consult, own shares in or receive funding from any company or organisation that would benefit from this article, and has disclosed no relevant affiliations beyond their academic appointment.</span></em></p>The meanings we carry around in our heads seem so natural and inborn that we fail to realise other people can have quite different understandings.Kate Burridge, Professor of Linguistics, Monash UniversityStephen Cordner, Senior Consultant/Professor Emeritus, Dept of Forensic Medicine, Monash University, Victorian Institute of Forensic MedicineLicensed as Creative Commons – attribution, no derivatives.tag:theconversation.com,2011:article/2042762023-06-19T02:38:10Z2023-06-19T02:38:10ZWhere was the Sun? Here’s why astronomers are more useful in court cases than you’d think<figure><img src="https://images.theconversation.com/files/532540/original/file-20230619-6257-v67z8o.jpg?ixlib=rb-1.1.0&rect=0%2C860%2C3019%2C2091&q=45&auto=format&w=496&fit=clip" /><figcaption><span class="caption">
</span> <span class="attribution"><a class="source" href="https://unsplash.com/photos/ZwW1ouTbv6U">Obed Hernández/Unsplash</a></span></figcaption></figure><p>Over the past eight years, I have been asked to submit astronomical evidence for court cases all over Australia.</p>
<p>Normally when we think of evidence in court, we think of eyewitnesses, <a href="https://theconversation.com/dna-is-often-used-in-solving-crimes-but-how-does-dna-profiling-actually-work-191937">DNA</a> or police reports. Often, this evidence requires an expert to explain it – to be able to communicate the findings and data to the members of the court to make an informed decision. These experts are typically in medicine, engineering, psychology, or other fields.</p>
<p>Expert astronomers usually are not what one pictures in court, but that is exactly what I do.</p>
<p>The first time I was asked by police to do it came as a bit of a surprise. I had never thought about applying astronomy to the courtroom. Once the first group knew I can do it, more and more requests came in, from colleagues in the same police force or division, or investigators having seen my evidence elsewhere.</p>
<p>Now, I’m asked to submit evidence for roughly 1–2 cases per week. Usually this requires submitting a <a href="https://www.cornwalls.com.au/your-words-have-power-expert-evidence-and-witness-statements/">statement of evidence</a> to the court. But sometimes I am asked to attend court and explain what the evidence means.</p>
<p>When I’m needed as an expert in court, it tends to be for matters of consequence. My evidence is either critical to a part of the case, or the case itself is fairly major and all the details are being checked and verified.</p>
<p>But what exactly am I providing evidence for?</p>
<h2>Tracking the Sun and the Moon</h2>
<p>Most court evidence from an astronomer involves calculating the positions and lighting from an astronomical body – the Sun or Moon. Luckily, the <a href="https://gml.noaa.gov/grad/solcalc/azel.html">tools we use</a> to calculate the positions of celestial bodies are very accurate, and can be calculated hundreds to thousands of years into the past or future.</p>
<p>An obvious example is when someone claims the Sun was in their eyes, causing a glare, and they get into a car accident. Someone needs to say where the Sun was, its position, and how it aligned with the street and direction of travel. At certain times and in certain directions, the Sun may indeed hinder someone’s vision.</p>
<p>There is also the situation where someone sees something, but it happened around sunrise or sunset. An expert is needed to say what the lighting level was – as there are very clear definitions based on the Sun’s position below the horizon, and how much you can see. For instance, what if the event occurred five minutes after sunset? The light level depends on the time of year, the location and other factors. It is not a clear-cut case of daytime versus nighttime.</p>
<p>The Moon can feature in court evidence as well. Especially in dark locations away from city lights, an astronomer can provide evidence on how much light the Moon provided on a given night.</p>
<p>There are also historical cases or times when people note the view or phase of the Moon as a way of defining when something happened. The full Moon has a precise definition, but the day before or after may appear to look like a full Moon, despite it not technically being full.</p>
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<a href="https://images.theconversation.com/files/532543/original/file-20230619-15-4m89at.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=1000&fit=clip"><img alt="A photo of a gibbous moon on a black background" src="https://images.theconversation.com/files/532543/original/file-20230619-15-4m89at.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=754&fit=clip" srcset="https://images.theconversation.com/files/532543/original/file-20230619-15-4m89at.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=600&h=337&fit=crop&dpr=1 600w, https://images.theconversation.com/files/532543/original/file-20230619-15-4m89at.jpg?ixlib=rb-1.1.0&q=30&auto=format&w=600&h=337&fit=crop&dpr=2 1200w, https://images.theconversation.com/files/532543/original/file-20230619-15-4m89at.jpg?ixlib=rb-1.1.0&q=15&auto=format&w=600&h=337&fit=crop&dpr=3 1800w, https://images.theconversation.com/files/532543/original/file-20230619-15-4m89at.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=754&h=424&fit=crop&dpr=1 754w, https://images.theconversation.com/files/532543/original/file-20230619-15-4m89at.jpg?ixlib=rb-1.1.0&q=30&auto=format&w=754&h=424&fit=crop&dpr=2 1508w, https://images.theconversation.com/files/532543/original/file-20230619-15-4m89at.jpg?ixlib=rb-1.1.0&q=15&auto=format&w=754&h=424&fit=crop&dpr=3 2262w" sizes="(min-width: 1466px) 754px, (max-width: 599px) 100vw, (min-width: 600px) 600px, 237px"></a>
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<span class="caption">Gibbous, full, waning? Astronomers can define the phases of the Moon with greater precision, which can be useful in a court case.</span>
<span class="attribution"><a class="source" href="https://unsplash.com/photos/b_pRpgLvcF8">Patrick Ilao/Unsplash</a></span>
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<h2>The limitations of expertise</h2>
<p>Of course, like any part of science, there are limits to what I can say. If someone was looking through a window – how refractive was the window? Were there clouds blocking the Moon or Sun? It is up to other experts, and other parts of the legal system to sort out these factors.</p>
<p>Just like many fields, space technology is changing, and so too is its impact on law and crime. Satellites are being used more and more in cases to help track things as they happen. For example, <a href="https://www.maxar.com/">the space technology company Maxar</a> operates some of the highest-resolution commercial satellites to image Earth. For a small cost, people can task these satellites to look at certain areas and/or times. </p>
<p>Lately, we have seen the impact of satellites on Russia’s war in Ukraine, and how they have been instrumental in looking at troop movements, and even evidence of some of the alleged war crimes.</p>
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Read more:
<a href="https://theconversation.com/ukraine-war-offensive-use-of-satellite-tech-a-sign-of-how-conflict-is-increasingly-moving-into-space-207641">Ukraine war: offensive use of satellite tech a sign of how conflict is increasingly moving into space</a>
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<p>Satellite images have been used for a range of criminal investigations, such as <a href="https://blog.maxar.com/earth-intelligence/2018/the-power-of-a-human-network-reflecting-on-500-geohive-campaigns">people smuggling</a> or <a href="https://blog.maxar.com/earth-intelligence/2022/combating-illegal-gold-mining-in-the-amazon-rainforest-with-maxars-high-resolution-satellite-imagery">illegal mines</a>.</p>
<p>They are also being used in Australia for criminal matters. This is yet another situation where an expert is needed to explain the satellite imagery and what it may mean, or even help access it altogether.</p>
<h2>Experts are vital</h2>
<p>Working as an expert witness has given me hope, because I see the extent to which the justice system will sometimes go to get all the details right – like taking into account the phase of the Moon or the position of the Sun. It is also the perfect example of the importance of experts in our society.</p>
<p>In science, we are actively encouraging people to go to sources of accurate and trustworthy information, especially in an era of rife misinformation.</p>
<p>Through experts, fields like space and astronomy can impact people’s lives directly – even in the court room.</p>
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Read more:
<a href="https://theconversation.com/servant-or-partner-the-role-of-expertise-and-knowledge-in-democracy-92026">Servant or partner? The role of expertise and knowledge in democracy</a>
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<p class="fine-print"><em><span>Brad E Tucker does not work for, consult, own shares in or receive funding from any company or organisation that would benefit from this article, and has disclosed no relevant affiliations beyond their academic appointment.</span></em></p>Among the expert witnesses in our justice system, astronomers play a surprising role. This astronomer provides evidence to several cases per week.Brad E Tucker, Astrophysicist, Australian National UniversityLicensed as Creative Commons – attribution, no derivatives.tag:theconversation.com,2011:article/1777952022-05-17T15:01:13Z2022-05-17T15:01:13ZWhy families fight over inheritances – and how to avoid it<figure><img src="https://images.theconversation.com/files/462734/original/file-20220512-24-3eaxs2.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=496&fit=clip" /><figcaption><span class="caption">shutterstock</span> </figcaption></figure><p>Inheritance gone wrong is a popular theme in <a href="https://www.hbo.com/succession">fiction</a>. In the recent German miniseries <a href="https://www.imdb.com/title/tt14122228/">The Funeral</a>, the one-sided will of the family patriarch unhinges the entire ceremony, and long-held hostilities are aired at the grave.</p>
<p>In <a href="https://dx.doi.org/10.1332/204674317X14908575604683">our research</a>, we tried to understand why families go to court to fight over inheritances. We found that there has been an increase in inheritance disputes reported annually since 1985. Using digital case reports databases, we selected 32 court cases which took place in England in 2014 to analyse closely, providing detailed insights into contemporary family life.</p>
<p>Here are four reasons why families can end up in court to contest a will – and how to avoid a court battle. </p>
<h2>Wealth</h2>
<p>Families go to court if there is something worth fighting for. This graph shows the amounts at stake in the cases we looked at. </p>
<p>Smaller inheritance disputes are more likely to be settled out of court. If you have substantial assets to bequest, inheritance planning becomes extremely important.</p>
<h2>Owning a business</h2>
<p>Physical assets are extremely hard to share and distribute among family members. This makes the bequest of the family home a difficult matter, especially if one child continues to live in the family home. If the house is shared among the siblings, the child living in the family home would be asked to take out a mortgage to pay their siblings.</p>
<p>It is even worse, however, for physical assets relating to a working business, such as farm land. Typically, people aim to protect the family business by passing it on to one heir. Problems can arise, though, if a family member is promised the inheritance or given a “<a href="https://www.farminglife.com/business/lessons-recent-case-davies-v-davies-1213427">verbal indication</a>” that they will receive it – and perhaps works in the business in expectation of it – and is then left out of the will. </p>
<p>A promise can be enforced in English law, though, so an heir can have a very sound legal foundation to claim these promised property rights in court. This is especially if they have acted in the past on the expectation of this promise being fulfilled, such as carrying out refurbishments or renovations. </p>
<h2>Sibling rivalry</h2>
<p>Most of the conflicts we came across in our research took place among members of the same generation. Sibling rivalry and envy is a key reason to go to court over an estate. This graph shows the relationships between the parties in the cases we studied. </p>
<p>More siblings and a large extended family make it harder to find common ground about a fair share of assets.</p>
<h2>The legacy of divorce</h2>
<p>Conflicts between ex-partners can become battles fought in court between children and the surviving parent. </p>
<p>One of <a href="https://www.gov.uk/hmrc-internal-manuals/inheritance-tax-manual/ihtm17108">the cases we studied</a> concerned a deceased mother and the tax due on her pension. She had had pension assets in her ex-husband’s business, but had transferred them before her death to ensure that they were passed on to her children, and not to her ex-husband. This is an example of how unsettled divorce conflicts can continue to haunt children even after their parents have died.</p>
<h2>How to avoid conflict</h2>
<p>Inheritances provide a way to maintain social status or get on the <a href="https://doi.org/10.1080/02673037.2017.1408778">property ladder</a>. Drawing from our court case examples, families should follow a few simple rules. Open and honest communication is essential. In many cultures it is a taboo to talk openly about death, but communicating your intentions and expectations during your lifetime will reduce stress and the possibility of unwelcome surprises for your loved ones.</p>
<p>Keeping your promises is key. In other words, don’t change your will at the last minute on your deathbed – this can be easily challenged in court. </p>
<p>And finally, children who fear being left out should seek constructive, non-confrontational conversations during the lifetime of their parents. Building such mutual expectations during the lifetime is key. Afterwards, families are only left with judges as arbitrators.</p><img src="https://counter.theconversation.com/content/177795/count.gif" alt="The Conversation" width="1" height="1" />
<p class="fine-print"><em><span>The research underpinning this article received funding from INTEGRATE (International
Network of Generational Transfers Research) (ESRC ES/J019259/1).</span></em></p>Communicating your intentions and expectations during your lifetime is key.Stephan Köppe, Assistant Professor of Social Policy, University College DublinLicensed as Creative Commons – attribution, no derivatives.tag:theconversation.com,2011:article/1658742021-08-12T20:02:41Z2021-08-12T20:02:41ZClimate science is now more certain than ever. Here’s how it can make a difference in Australian court cases<figure><img src="https://images.theconversation.com/files/415795/original/file-20210812-14-zr1s1m.jpg?ixlib=rb-1.1.0&rect=12%2C0%2C2683%2C1797&q=45&auto=format&w=496&fit=clip" /><figcaption><span class="caption">
</span> <span class="attribution"><span class="source">Shutterstock</span></span></figcaption></figure><p>On Monday, the Intergovernmental Panel on Climate Change (IPCC) released its <a href="https://www.ipcc.ch/report/sixth-assessment-report-cycle/">long-awaited report</a> on the physical impacts of climate change. It painted a terrifying picture of a warming planet increasingly subject to extreme weather events. </p>
<p>If there’s a silver lining to the 3,900 pages of gloom, it’s that there’s still time to avert the worst damage if global emissions are rapidly cut. So what happens if the Australian government continues to lag? </p>
<p>Well, while foreign countries can’t sue Australia under the Paris Agreement, they can apply political and economic pressure, such as through publicly <a href="https://www.sbs.com.au/news/australia-s-climate-change-action-labelled-insufficient-by-biden-administration-ahead-of-crucial-summit">calling our leadership out</a> and applying <a href="https://australiainstitute.org.au/report/carbon-border-adjustments/">carbon border adjustments</a>. </p>
<p>But we’re also seeing another important and growing trend: domestic climate litigation. </p>
<p>In fact, Australia is <a href="https://british-association-comparative-law.org/2021/06/25/climate-change-litigation-global-perspectives-by-ivano-alogna/">second only to the US</a> in terms of the volume of climate change cases brought before the courts. </p>
<p>In the last few years in particular, we’ve seen Australian cases <a href="https://www.abc.net.au/news/2020-11-02/rest-super-commits-to-net-zero-emmissions/12840204">succeed in influencing action</a>. With this new IPCC report, climate science is more certain than ever, making it more likely this trend will continue.</p>
<h2>Avoiding catastrophic impacts</h2>
<p>The IPCC report concluded that escape from climate change is <a href="https://theconversation.com/this-is-the-most-sobering-report-card-yet-on-climate-change-and-earths-future-heres-what-you-need-to-know-165395">no longer possible</a>. And, the report indicates, Australia will be badly hit.</p>
<p>It’s believed our best achievable scenario is to reach net-zero emissions by midcentury, on a global scale. This will hopefully equate with an around <a href="https://theconversation.com/ipcc-says-earth-will-reach-temperature-rise-of-about-1-5-in-around-a-decade-but-limiting-any-global-warming-is-what-matters-most-165397">1.5°C temperature rise</a> above preindustrial levels, which is what the IPCC says is our maximum to avoid catastrophic impacts. </p>
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<p>Although <a href="https://www.wri.org/events/2021/6/net-zero-targets-which-countries-have-them-and-how-they-stack">some countries</a> have made pledges under the Paris Agreement in line with this goal, Australia, we know, <a href="https://climateactiontracker.org/countries/australia/">is shirking</a>. If all countries adopted targets as weak as ours, global warming would be <a href="http://paris-equity-check.org/warming-check.html">in the order of 4.3-4.5°C</a>. </p>
<p>While climate change is caused by the actions of many, some are in better positions than others to mitigate it. So it’s no surprise businesses, financial institutions, and governments have been the prime targets of a new wave of litigation. </p>
<h2>Courtrooms are changing</h2>
<p>Fifteen years ago, the Australian <a href="http://climatecasechart.com/climate-change-litigation/wp-content/uploads/sites/16/non-us-case-documents/2006/20060616_2006-FCA-736_decision-1.pdf">federal court considered</a> the climate change impacts of one particular coal project to be “speculative” and “minute”, citing a “paucity” of detail about the possibility of coal contributing to climate change. </p>
<p>But the situation is changing, and courts are changing with it. One of the reasons for the about-face is the progression of climate science and the availability of new information from advanced modelling. The work of the IPCC is instrumental to this. </p>
<hr>
<p>
<em>
<strong>
Read more:
<a href="https://theconversation.com/this-is-the-most-sobering-report-card-yet-on-climate-change-and-earths-future-heres-what-you-need-to-know-165395">This is the most sobering report card yet on climate change and Earth's future. Here’s what you need to know</a>
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<p>A couple of recent examples of cases show how climate science is becoming more influential in Australian court decisions. </p>
<p>In a <a href="https://www.edo.org.au/2021/08/09/landmark-bushfire-survivors-climate-case-begins">case heard this week</a> between the Bushfire Survivors group and the NSW Environmental Protection Authority, a NSW court <a href="http://climatecasechart.com/climate-change-litigation/wp-content/uploads/sites/16/non-us-case-documents/2020/20201104_106678-of-2020_decision-1.pdf">allowed evidence</a> to be presented from former Australian Chief Scientist Penny Sackett on climate change impacts.</p>
<p>It is the first time this kind of evidence has been allowed in a case about the alleged failure of an authority (the EPA) to perform a statutory duty (the regulation of greenhouse gases). On Tuesday, the Bushfire Survivors asked the court to allow her to comment on the IPCC’s sixth report.</p>
<p>And in a <a href="http://envlaw.com.au/sharma/">landmark case</a> in May against the federal environment minister, the federal court found Australia’s young people are at high risk of suffering personal injury from climate change in their lifetime, including death and hospitalisation. </p>
<p>The judge was considering a coal mine approval. He said even though one coal mine won’t single-handedly cook the planet, it could serve as the proverbial straw that broke the camel’s back, given climate science tells us irreversible “tipping points” may be reached one day, and it could be soon. </p>
<p>The judge cited the IPCC’s findings, recognising the IPCC as the authority on climate change, and called on one of its authors as an expert witness.</p>
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<p>
<em>
<strong>
Read more:
<a href="https://theconversation.com/in-a-landmark-judgment-the-federal-court-found-the-environment-minister-has-a-duty-of-care-to-young-people-161650">In a landmark judgment, the Federal Court found the environment minister has a duty of care to young people</a>
</strong>
</em>
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<h2>How will climate science play into future cases?</h2>
<p>What’s happening in Australian courts is part of a <a href="https://www.lse.ac.uk/granthaminstitute/wp-content/uploads/2021/07/Global-trends-in-climate-change-litigation_2021-snapshot.pdf">bigger global trend</a>. </p>
<p>It’s not just that the volume of cases is increasing, cases are also becoming more creative, exploring new avenues to hold polluters and decision makers to account. These cases are more likely to succeed where a link between actions and impacts can be supported with evidence.</p>
<p>In a case against Shell in May this year, a Dutch court ordered Shell to reduce its emissions by 45% by 2030, relative to 2019 emissions. To reach this figure, the court extensively <a href="http://climatecasechart.com/climate-change-litigation/wp-content/uploads/sites/16/non-us-case-documents/2021/20210526_8918_judgment-2.pdf">cited the past work of the IPCC</a>. It concluded Shell’s corporate policy was “hazardous and disastrous” and “in no way consistent” with the global climate target to prevent a dangerous climate change for the protection of people, the human environment and nature. </p>
<p><div data-react-class="Tweet" data-react-props="{"tweetId":"1424675954337718272"}"></div></p>
<p>There are many ways climate science will be instrumental to the success of future cases. The evidence released so far by the IPCC shows us different warming scenarios under climate change, each depending on the actions we take now and in the near future. </p>
<p>Chapter 3 of Monday’s IPCC report is <a href="https://theconversation.com/communicating-climate-change-has-never-been-so-important-and-this-ipcc-report-pulls-no-punches-165252">dedicated to spelling out</a> the now “unequivocal” influence of humans. This type of evidence could support cases seeking to force government action, as well as cases against businesses for failing to disclose and mitigate climate risk, and for greenwashing.</p>
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<p>
<em>
<strong>
Read more:
<a href="https://theconversation.com/communicating-climate-change-has-never-been-so-important-and-this-ipcc-report-pulls-no-punches-165252">Communicating climate change has never been so important, and this IPCC report pulls no punches</a>
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<p>Next year, the IPCC will release its findings on <a href="https://www.ipcc.ch/report/sixth-assessment-report-working-group-ii/">impacts, adaptation, and vulnerability</a>. This could support cases relating to fire, flood, and sea-level rise, including human rights cases, property, planning, and insurance cases.</p>
<p>Climate change will unfortunately be costly, and litigation can help determine who should take action, and who should pay. </p>
<p>The more Australia’s governments and businesses lag on climate change, the more litigation we are likely to see. And, the greater the extent leadership decisions are at odds with the science, the stronger plaintiffs’ cases will be. </p>
<p><div data-react-class="InstagramEmbed" data-react-props="{"url":"https://www.instagram.com/p/CSYLqpjrPcy/?utm_source=ig_web_copy_link","accessToken":"127105130696839|b4b75090c9688d81dfd245afe6052f20"}"></div></p><img src="https://counter.theconversation.com/content/165874/count.gif" alt="The Conversation" width="1" height="1" />
<p class="fine-print"><em><span>Laura Schuijers receives funding from the Australian Research Council. </span></em></p>IPCC reports are often used as legal tool for bringing the powerful to account. And the more Australia’s governments and businesses lag on climate change, the more litigation we’re likely to see.Laura Schuijers, Research Fellow in Environmental Law, The University of MelbourneLicensed as Creative Commons – attribution, no derivatives.tag:theconversation.com,2011:article/1610522021-07-06T12:09:40Z2021-07-06T12:09:40Z‘Landmark’ verdicts like Chauvin murder conviction make history – but court cases alone don’t transform society<figure><img src="https://images.theconversation.com/files/408423/original/file-20210625-26-14oudjm.jpg?ixlib=rb-1.1.0&rect=76%2C0%2C5017%2C3428&q=45&auto=format&w=496&fit=clip" /><figcaption><span class="caption">It takes generations to know whether a major court ruling has actually changed society.</span> <span class="attribution"><a class="source" href="https://www.gettyimages.com/detail/photo/social-security-law-royalty-free-image/961411540?adppopup=true"> wildpixel via Getty</a></span></figcaption></figure><p>American courts in 2021 have already handed down several potentially historic rulings, from the Supreme Court’s recent decision <a href="https://www.cnn.com/2021/06/02/politics/voting-rights-supreme-court-arizona/index.html">restricting voting rights in Arizona and potentially nationwide</a> to a Minnesota jury’s conviction of police officer <a href="https://www.theguardian.com/us-news/2021/apr/20/derek-chauvin-guilty-verdict-george-floyd-analysis">Derek Chauvin for murdering George Floyd last year</a>. </p>
<p>Cases like these are often called “landmark” cases, because they set forth ideas and ideals that may bring about significant changes in the political and legal landscape. </p>
<p>Many analysts considered the Chauvin trial, in particular, to be a landmark. In it, police officers actually testified <a href="https://www.cnn.com/2021/04/10/us/derek-chauvin-george-floyd-trial-testimony/index.html">against one of their own</a>, which is rare, and <a href="https://www.nytimes.com/2021/04/20/us/george-floyd-chauvin-verdict.html">the jury held</a> a white police officer criminally accountable for killing a Black man. On June 25, 2021, the judge <a href="https://www.cnn.com/us/live-news/derek-chauvin-sentencing/index.html">sentenced Chauvin to 22.5 years in prison</a> for murdering Floyd after he attempted to use a counterfeit bill to buy cigarettes. </p>
<p>People all over the world have followed the Chauvin trial closely, as the culminating event after a year of <a href="https://www.dw.com/en/how-george-floyds-death-reignited-a-worldwide-movement/a-56781938">global protests</a> against police brutality and racism.</p>
<p>Landmark trials may go down in history, but as a <a href="https://scholar.google.com/citations?user=x6EfwM8AAAAJ&hl=en">law professor</a> specializing in alternative dispute resolution, I know that they do not instantly transform the social order. </p>
<p>Courts are limited in the kinds of disputes they can hear and the sorts of relief they can provide. Moreover, major court cases and other moments of reform in American history often result in legislative backlash and a “recalibration,” as my colleague Stuart Chinn <a href="https://www.cambridge.org/core/books/recalibrating-reform/E464D8BCA94559ED9DEA8D6EB5D04D92">has argued</a>. Those reactions may slow or even undermine the momentum for social change. </p>
<p>And even famously “just” verdicts haven’t necessarily pushed U.S. society in a linear direction toward its constitutional ideals.</p>
<figure class="align-center zoomable">
<a href="https://images.theconversation.com/files/408404/original/file-20210625-23-aowztg.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=1000&fit=clip"><img alt="Black woman in a face masks cries on a city street, with a hand over her mouth" src="https://images.theconversation.com/files/408404/original/file-20210625-23-aowztg.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=754&fit=clip" srcset="https://images.theconversation.com/files/408404/original/file-20210625-23-aowztg.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=600&h=400&fit=crop&dpr=1 600w, https://images.theconversation.com/files/408404/original/file-20210625-23-aowztg.jpg?ixlib=rb-1.1.0&q=30&auto=format&w=600&h=400&fit=crop&dpr=2 1200w, https://images.theconversation.com/files/408404/original/file-20210625-23-aowztg.jpg?ixlib=rb-1.1.0&q=15&auto=format&w=600&h=400&fit=crop&dpr=3 1800w, https://images.theconversation.com/files/408404/original/file-20210625-23-aowztg.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=754&h=503&fit=crop&dpr=1 754w, https://images.theconversation.com/files/408404/original/file-20210625-23-aowztg.jpg?ixlib=rb-1.1.0&q=30&auto=format&w=754&h=503&fit=crop&dpr=2 1508w, https://images.theconversation.com/files/408404/original/file-20210625-23-aowztg.jpg?ixlib=rb-1.1.0&q=15&auto=format&w=754&h=503&fit=crop&dpr=3 2262w" sizes="(min-width: 1466px) 754px, (max-width: 599px) 100vw, (min-width: 600px) 600px, 237px"></a>
<figcaption>
<span class="caption">A woman in New York weeps after the guilty verdict was announced in the Derek Chauvin murder trial on April 20, 2021.</span>
<span class="attribution"><a class="source" href="https://www.gettyimages.com/detail/news-photo/woman-weeps-in-response-to-the-verdict-in-the-derek-chauvin-news-photo/1232424977?adppopup=true">David Dee Delgado/Getty Images</a></span>
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<h2>Big verdicts, slow change</h2>
<p>A well-known example is <a href="https://www.law.cornell.edu/supremecourt/text/347/483">Brown v. Board of Education</a>, in which the Supreme Court held unanimously that the doctrine of “separate but equal” in public schools violated the 14th Amendment. </p>
<p>The 1954 Brown decision, which ended legal segregation in the nation’s schools, inspired civil rights activists, drew broader attention to the struggle for racial equality and <a href="https://www.naacpldf.org/case-issue/landmark-brown-v-board-education/">was instrumental</a> in enforcing and encouraging racial desegregation. </p>
<p>But the main objectives of Brown – integrating public schools and leveling the educational playing field – <a href="https://theconversation.com/after-the-civil-rights-era-white-americans-failed-to-support-systemic-change-to-end-racism-will-they-now-141954">have not been realized</a>.</p>
<p>Many schools are <a href="https://www.epi.org/publication/schools-are-still-segregated-and-black-children-are-paying-a-price/">still effectively segregated</a>, in part because of ongoing legal and practical challenges associated with integration. In the 1974 case <a href="https://www.law.cornell.edu/supremecourt/text/418/717">Milliken v. Bradley</a>, for example, the Supreme Court limited the ability of federal courts to compel integration across school districts. That decision, handed down 20 years after Brown v. Board of Education, has made it difficult if not impossible to fulfill Brown’s promise of integration.</p>
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<a href="https://images.theconversation.com/files/408419/original/file-20210625-25-1jp0y79.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=1000&fit=clip"><img alt="Black journalists read papers touting decision in Brown v. Board" src="https://images.theconversation.com/files/408419/original/file-20210625-25-1jp0y79.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=754&fit=clip" srcset="https://images.theconversation.com/files/408419/original/file-20210625-25-1jp0y79.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=600&h=493&fit=crop&dpr=1 600w, https://images.theconversation.com/files/408419/original/file-20210625-25-1jp0y79.jpg?ixlib=rb-1.1.0&q=30&auto=format&w=600&h=493&fit=crop&dpr=2 1200w, https://images.theconversation.com/files/408419/original/file-20210625-25-1jp0y79.jpg?ixlib=rb-1.1.0&q=15&auto=format&w=600&h=493&fit=crop&dpr=3 1800w, https://images.theconversation.com/files/408419/original/file-20210625-25-1jp0y79.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=754&h=620&fit=crop&dpr=1 754w, https://images.theconversation.com/files/408419/original/file-20210625-25-1jp0y79.jpg?ixlib=rb-1.1.0&q=30&auto=format&w=754&h=620&fit=crop&dpr=2 1508w, https://images.theconversation.com/files/408419/original/file-20210625-25-1jp0y79.jpg?ixlib=rb-1.1.0&q=15&auto=format&w=754&h=620&fit=crop&dpr=3 2262w" sizes="(min-width: 1466px) 754px, (max-width: 599px) 100vw, (min-width: 600px) 600px, 237px"></a>
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<span class="caption">Brown v. Board of Education made front-page headlines seven decades ago, but school segregation remains a problem nationwide.</span>
<span class="attribution"><a class="source" href="https://www.gettyimages.com/detail/news-photo/william-gordon-managing-editor-of-the-african-american-news-photo/514957734?adppopup=true">Bettmann / Contributor via Getty</a></span>
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<p>Another instructive example from the same era is <a href="https://www.law.cornell.edu/supremecourt/text/372/335">Gideon v. Wainwright</a>. In the Gideon case, the Supreme Court held that under the Sixth Amendment, the state must provide attorneys to criminal defendants who could not otherwise afford them. </p>
<p>Following through on this constitutional mandate has proven difficult. Many parts of the country allocate grossly <a href="http://fordhampoliticalreview.org/overworked-and-underpaid-americas-public-defender-crisis/">inadequate resources</a> to the defense of indigent defendants. New Orleans’ 60 public defenders, for example, handle approximately 20,000 cases each year, according to a <a href="https://www.pewtrusts.org/en/research-and-analysis/blogs/stateline/2017/11/21/public-defenders-fight-back-against-budget-cuts-growing-caseloads/">2017 report</a>.</p>
<p>Without timely access to legal counsel, many low-income defendants languish in <a href="https://www.kansascity.com/opinion/article237131144.html">jail for prolonged periods</a> before their case gets to trial, while waiting to be assigned a public defender. Others are pressured into <a href="https://www.theatlantic.com/magazine/archive/2017/09/innocence-is-irrelevant/534171/">unwanted or unjust plea bargains</a> by lawyers buried under crushing caseloads.</p>
<h2>Necessary but not sufficient</h2>
<p>Law students learn by the end of their grueling first year that trials alone are not effective mechanisms for addressing complex social and political problems. </p>
<p>Yet landmark trials are important. Legal proceedings are opportunities to articulate and reinforce American ideals around equality and justice and to expose bias and unfairness. They calibrate and restrain state power, test the merit of legal claims and create a public record. </p>
<p>Trials are an official public rendering of guilt or liability. Without them, the United States would lose much of the law’s ability to inspire and call attention to social change.</p>
<p>But as the Brown and Gideon cases show, legal decisions grounded in constitutional ideals of equality and justice do not automatically lead to an individual or collective moral reckoning.</p>
<p>Implementing the aspirational ideals set forth in landmark verdicts requires legislation, systems design, negotiation, collaboration, dialogue, activism and education. </p>
<p>Legal alternatives, too, such as restorative justice – which <a href="https://www.nytimes.com/2020/03/02/opinion/metoo-doesnt-always-have-to-mean-prison.html">provides both perpetrators and victims with alternative routes to accountability and healing</a> – increasingly are recognized as crucial tools for managing individual disputes and moving society toward
greater justice.</p>
<h2>Assessing the Chauvin trial</h2>
<p>The legal proceedings around George Floyd’s murder aren’t actually over yet. </p>
<p>Still to come are the prosecution of the <a href="https://www.reuters.com/world/us/grand-jury-indicts-four-former-police-officers-george-floyds-death-2021-05-07/">other Minneapolis officers present at Floyd’s killing</a> and a federal civil rights case against Chauvin and his fellow officers. There will likely be an appeal process, too; legal verdicts can be overturned. </p>
<p>Ultimately, however, the meaning of the Chauvin murder trial within the larger context of the struggle for racial justice will depend, in part, on how people outside the courtroom respond to calls for reform. </p>
<figure class="align-center zoomable">
<a href="https://images.theconversation.com/files/408424/original/file-20210625-24-c55j62.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=1000&fit=clip"><img alt="A large crowd celebrates the Chauvin verdict outside Cup Foods in Minneapolis, where George Floyd was murdered" src="https://images.theconversation.com/files/408424/original/file-20210625-24-c55j62.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=754&fit=clip" srcset="https://images.theconversation.com/files/408424/original/file-20210625-24-c55j62.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=600&h=400&fit=crop&dpr=1 600w, https://images.theconversation.com/files/408424/original/file-20210625-24-c55j62.jpg?ixlib=rb-1.1.0&q=30&auto=format&w=600&h=400&fit=crop&dpr=2 1200w, https://images.theconversation.com/files/408424/original/file-20210625-24-c55j62.jpg?ixlib=rb-1.1.0&q=15&auto=format&w=600&h=400&fit=crop&dpr=3 1800w, https://images.theconversation.com/files/408424/original/file-20210625-24-c55j62.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=754&h=503&fit=crop&dpr=1 754w, https://images.theconversation.com/files/408424/original/file-20210625-24-c55j62.jpg?ixlib=rb-1.1.0&q=30&auto=format&w=754&h=503&fit=crop&dpr=2 1508w, https://images.theconversation.com/files/408424/original/file-20210625-24-c55j62.jpg?ixlib=rb-1.1.0&q=15&auto=format&w=754&h=503&fit=crop&dpr=3 2262w" sizes="(min-width: 1466px) 754px, (max-width: 599px) 100vw, (min-width: 600px) 600px, 237px"></a>
<figcaption>
<span class="caption">Minneapolis residents celebrate the Chauvin guilty verdict at the site of George Floyd’s murder.</span>
<span class="attribution"><a class="source" href="https://www.gettyimages.com/detail/news-photo/large-crowd-celebrates-in-george-floyd-square-following-the-news-photo/1232428939?adppopup=true">Nathan Howard/Getty Images</a></span>
</figcaption>
</figure>
<p>This explains why so many <a href="https://www.npr.org/sections/trial-over-killing-of-george-floyd/2021/04/20/989335036/finally-america-reacts-to-chauvin-guilty-verdict">people reacted</a> to the Chauvin verdict with relief and also something akin to dissatisfaction. They realized that one guilty verdict, standing on its own, is not enough to address persistent and systemic inequities in the United States.</p>
<p>Police departments and officers, city officials, activists, community members, business owners, state and federal actors – all of these people share collective responsibility for defining George Floyd’s legacy in <a href="https://www.dw.com/en/how-george-floyds-death-reignited-a-worldwide-movement/a-56781938">modern American history</a>.</p>
<p>Landmark cases are moments in time; legacies unfold over generations. If Americans want safer communities and more ethical policing, the work starts now.</p>
<p>[<em>Get the best of The Conversation, every weekend.</em> <a href="https://theconversation.com/us/newsletters/weekly-highlights-61?utm_source=TCUS&utm_medium=inline-link&utm_campaign=newsletter-text&utm_content=weeklybest">Sign up for our weekly newsletter</a>.]</p><img src="https://counter.theconversation.com/content/161052/count.gif" alt="The Conversation" width="1" height="1" />
<p class="fine-print"><em><span>Jennifer Reynolds does not work for, consult, own shares in or receive funding from any company or organization that would benefit from this article, and has disclosed no relevant affiliations beyond their academic appointment.</span></em></p>Even famous Supreme Court rulings like Brown v. Board of Education haven’t necessarily pushed US society forward in a linear direction.Jennifer Reynolds, Professor of Law, University of OregonLicensed as Creative Commons – attribution, no derivatives.tag:theconversation.com,2011:article/1334622020-03-22T08:42:49Z2020-03-22T08:42:49ZForensic linguists explore how emojis can be used as evidence in court<figure><img src="https://images.theconversation.com/files/319857/original/file-20200311-116245-1dt4y2b.jpg?ixlib=rb-1.1.0&rect=9%2C10%2C785%2C544&q=45&auto=format&w=496&fit=clip" /><figcaption><span class="caption">
</span> <span class="attribution"><span class="source">Yayayoyo/Shutterstock</span></span></figcaption></figure><p><a href="https://emojipedia.org/">Emojis</a> have become ubiquitous in text communication – messages are peppered with smiley faces, hearts and other graphic icons. They were first drawn by graphic designer <a href="https://edition.cnn.com/style/article/emoji-shigetaka-kurita-standards-manual/index.html">Shigetaka Kurita</a>, and generated by a Japanese communications firm called NTT DoCoMo in the late 1990s. Now they’re everywhere.</p>
<p>But would you be quite so quick to insert an emoji into a message if you thought it might be interpreted as a threat or might offend the receiver? What if that smiley face could land you in court? Or bind you legally to a contract you never formally signed?</p>
<p>There’s a growing body of case law from around the world – including the <a href="https://metro.co.uk/2019/02/22/judges-need-know-aubergine-emoji-really-means-8708867/">United Kingdom</a>, <a href="https://theconversation.com/how-the-law-responds-when-emoji-are-the-weapon-of-choice-88552">New Zealand</a> and <a href="https://www.telegraph.co.uk/news/2016/03/31/frenchman-jailed-for-three-months-for-sending-ex-girlfriend-gun/">France</a> – where courts have been called on to interpret emojis as evidence. This, in turn, has seen a rise in academic literature on the subject. That includes research in the field of forensic linguistics, which <a href="https://www.ru.ac.za/perspective/2019archives/forensiclinguisticsholdspromiseforsouthafricaslegalsystem.html">we both</a> <a href="https://books.google.co.za/books?id=ahKfDwAAQBAJ&pg=PP1&lpg=PP1&dq=New+Frontiers+in+Forensic+Linguistics:+Themes+and+Perspectives+in+Language+and+the+Law+by+Monwabisi+K+Ralarala,+Russell+H+Kaschula+%26+Georgina+Heydon&source=bl&ots=13ZfdXmpM6&sig=ACfU3U0BRwfAsASY8DPhGgpkBcRFJaK_ow&hl=en&sa=X&ved=2ahUKEwio74ySu5foAhW06uAKHWlQAlcQ6AEwCHoECAoQAQ#v=onepage&q=emoji&f=false">study</a>. </p>
<p>The phrase “forensic linguistics” was first recorded in 1968 by professor of linguistics <a href="https://tale-forensiclinguistics.org/honorary-fellows/jan-svartvik-phd/">Jan Svartvik</a>, who was analysing the language in a set of legal statements. Forensic linguist John Olsson, <a href="https://books.google.co.za/books?id=7HRJDwAAQBAJ&source=gbs_similarbooks">defines</a> the discipline as </p>
<blockquote>
<p>… the interface between languages, crime, law, where law includes law enforcement, judicial matters, legislation, disputes or proceedings in law, and even disputes which only potentially involve some infraction of the law or some necessity to seek legal remedy. </p>
</blockquote>
<p>Globally, forensic linguists are called on to offer expert testimony on emojis as evidence. Contentious emoji use hasn’t made <a href="https://www.pressreader.com/south-africa/weekend-post-south-africa/20191102/282097753506633">too many headlines</a> in South Africa yet, but given instances elsewhere in the world, it’s likely that forensic linguists may soon be called into play in the country’s courts quite soon. That’s why forensic linguists in South Africa should keep abreast of new developments around emojis as evidence.</p>
<p>We <a href="https://www.ru.ac.za/media/rhodesuniversity/content/digitalpublications/Rhodes_Research_Report_2018.pdf#page=78">held a two-day colloquium</a> at Rhodes University in South Africa where forensic linguists and legal practitioners interested in language and the law discussed international developments. We also explored the ways that emojis might be interpreted in the context of South Africa’s cultures and languages.</p>
<p>Similar colloquiums will be held with the legal fraternity to ensure judges and magistrates are able to interpret emojis and the importance of calling forensic linguists as expert witnesses. </p>
<h2>Emojis in other courts</h2>
<p>Forensic linguists are called as expert witnesses in court cases to provide linguistic analysis of legal documents and other forms of oral and documentary evidence – including emojis. They can identify authors based on the language used in a document or statement. They can also provide legal interpretation or translation in a court room.</p>
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Read more:
<a href="https://theconversation.com/forensic-linguistics-holds-promise-for-south-africas-legal-system-108113">Forensic linguistics holds promise for South Africa's legal system</a>
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<p>The US probably leads the way in terms of cases where emojis have been proven to defame others. In one <a href="http://publicdocs.courts.mi.gov/opinions/final/coa/20140102_c312201(51)_rptr_2o-312201-final.pdf">circuit court case</a>, the plaintiff alleged that the “tongue out” emoji insulted and defamed him on social media platforms. The court held that the emoji was intended to insult, ridicule, criticise and denigrate. This interpretation took place in relation to the facts and other circumstances of the case. </p>
<p>The interpretation of emojis, where the true intention of the sender is in question will be determined by other surrounding facts and circumstances, including the nature and tone of other communication, the relationship and surrounding factors. This will have to be carefully interpreted in multilingual settings and where communication is taking place across cultures. </p>
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<a href="https://images.theconversation.com/files/319855/original/file-20200311-116291-11s9qn4.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=1000&fit=clip"><img alt="" src="https://images.theconversation.com/files/319855/original/file-20200311-116291-11s9qn4.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=237&fit=clip" srcset="https://images.theconversation.com/files/319855/original/file-20200311-116291-11s9qn4.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=600&h=600&fit=crop&dpr=1 600w, https://images.theconversation.com/files/319855/original/file-20200311-116291-11s9qn4.jpg?ixlib=rb-1.1.0&q=30&auto=format&w=600&h=600&fit=crop&dpr=2 1200w, https://images.theconversation.com/files/319855/original/file-20200311-116291-11s9qn4.jpg?ixlib=rb-1.1.0&q=15&auto=format&w=600&h=600&fit=crop&dpr=3 1800w, https://images.theconversation.com/files/319855/original/file-20200311-116291-11s9qn4.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=754&h=754&fit=crop&dpr=1 754w, https://images.theconversation.com/files/319855/original/file-20200311-116291-11s9qn4.jpg?ixlib=rb-1.1.0&q=30&auto=format&w=754&h=754&fit=crop&dpr=2 1508w, https://images.theconversation.com/files/319855/original/file-20200311-116291-11s9qn4.jpg?ixlib=rb-1.1.0&q=15&auto=format&w=754&h=754&fit=crop&dpr=3 2262w" sizes="(min-width: 1466px) 754px, (max-width: 599px) 100vw, (min-width: 600px) 600px, 237px"></a>
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<p>In France in 2016 a <a href="https://www.telegraph.co.uk/news/2016/03/31/frenchman-jailed-for-three-months-for-sending-ex-girlfriend-gun/">man was convicted</a> of threatening his ex-girlfriend and was sentenced to three months in prison. The charges were brought based on a text message in which the man sent the gun emoji. The court held that the gun emoji translated to a </p>
<blockquote>
<p>… death threat in the form of an image </p>
</blockquote>
<p>Sometimes emojis have held people to contractual obligations in court. In civil cases in the US, courts have interpreted the “thumbs up”, “fist bump”, “handshake” and “glasses” emojis as <a href="https://www.timeslive.co.za/news/south-africa/2017-10-01-those-smiley-face-or-thumbs-up-emojis-could-land-you-in-legal-hot-water/">constituting an agreement or an intention to enter into a contractual agreement</a>. </p>
<p>The interpretation of emojis will require specialised knowledge in a legal setting and forensic linguists are therefore necessary in court rooms to impart their expert opinion and assist the courts the interpretation of this evidence. With emojis being a form of non-verbal communication linguistic and legal expertise. In courts around the world, forensic linguists are proving to be of vital importance in ensuring that justice is fair and accessible. Their role in a multilingual and multicultural South African courtroom will prove to be vital with the interpretation of emojis. </p>
<h2>Interpretation</h2>
<p>One of the big issues that forensic linguists will have to contend with in South Africa, as in any multicultural society, is that of cross-cultural barriers. These may unintentionally place the sender of an emoji in an awkward – and even legal – dilemma if the recipient interprets it differently from the intended meaning. </p>
<p>For example and based on our own understandings and subjective beliefs and ideas, some emojis may be offensive, racist, culturally insensitive and homophobic. The monkey emoji may be viewed by a recipient as being racist, given <a href="https://theconversation.com/comparing-black-people-to-monkeys-has-a-long-dark-simian-history-55102">the dark history</a> of comparing black people to monkeys. A pig emoji may be read as insulting or degrading. </p>
<p>Of course these sorts of misunderstandings aren’t limited to South Africa. In Italy, pinching your fingers together means “What do you want?” <a href="https://home.unicode.org/">Unicode Consortium</a>, a nonprofit corporation that “standardises software and the representation of text internationally” has said the meaning of this emoji will not be misunderstood as “everyone knows the <a href="https://www.bbc.com/news/world-us-canada-51333661">Italians talk with their hands</a>”. But <a href="https://economictimes.indiatimes.com/magazines/panache/indian-mudras-can-come-in-handy-the-new-pinched-fingers-emoji-debate-shows-need-for-more-precise-gesticulation/articleshow/74092331.cms?from=mdr">in India</a>, for instance, the same gesture is a way of asking whether someone is hungry. The thumbs up sign, meanwhile, tells people in some parts of the world that everything is in order; <a href="https://www.amazon.com/Gestures-Taboos-Language-Around-World-ebook/dp/B003ZSIS7Q">elsewhere, it’s an insult</a>. </p>
<p>Emojis are here to stay. And they will no doubt start to crop up in cases in South Africa’s courts, if the global examples are anything to go by. Forensic linguists can play a valuable role in guiding courts as they seek to interpret emojis as evidence.</p><img src="https://counter.theconversation.com/content/133462/count.gif" alt="The Conversation" width="1" height="1" />
<p class="fine-print"><em><span>Zakeera Docrat receives funding from the National Research Foundation (NRF).</span></em></p><p class="fine-print"><em><span>Russell H. Kaschula receives funding from the National Research Foundation (NRF). </span></em></p>Forensic linguists are called as expert witnesses in court cases to provide linguistic analysis of legal documents and other forms of oral and documentary evidence – including emojis.Zakeera Docrat, Postdoctoral research fellow (Forensic Linguistics/ Language and Law), Rhodes UniversityRussell H. Kaschula, Professor of African Language Studies, Rhodes UniversityLicensed as Creative Commons – attribution, no derivatives.tag:theconversation.com,2011:article/1031902018-09-14T10:35:15Z2018-09-14T10:35:15ZImmigrant detention in the US: 4 essential reads<p>More children are being held in immigrant detention centers in the U.S. than ever previously recorded, according to <a href="https://www.nytimes.com/2018/09/12/us/migrant-children-detention.html">The New York Times</a>.</p>
<p>The number of immigrant children in detention has risen to about 12,800, the Times reports, a significant increase from 2,400 in 2017. Here are 4 stories from our archive that will help readers understand some central issues around immigrant detention:</p>
<h2>1. Legal challenges</h2>
<p>Since President Donald Trump took office, there have been numerous legal challenges to his administration’s policies on immigration, including on immigrant and child detention. In July, <a href="https://www.washingtonpost.com/news/morning-mix/wp/2018/07/31/trump-administration-must-seek-consent-before-giving-drugs-to-migrant-children-judge-rules/?noredirect=on&utm_term=.62df9e8baa04">a federal court ruled</a> that detention centers could no longer give drugs to treat psychiatric symptoms to children without the consent of a parent or guardian. </p>
<p>Immigration scholar <a href="https://theconversation.com/profiles/kevin-johnson-322147">Kevin Johnson</a> writes about several cases in U.S. history that set legal precedents in disputes over detaining immigrants and protecting their rights. For example, a class action lawsuit filed by immigrants in detention in the 1980s argued that moving detainees away from major urban areas deprived them of a right to counsel. The court <a href="https://theconversation.com/history-shows-trump-will-face-legal-challenges-to-detaining-immigrants-72247">agreed and ruled in their favor</a>.</p>
<p>Johnson writes: “The long history of detention has an equally long history of legal challenges. These are likely to continue in the Trump administration, which has made detention a cornerstone of its immigration enforcement plan.”</p>
<h2>2. Standards for children and families</h2>
<p>One case in particular stands out as more relevant to today’s debate about detaining children and families. The Flores case was filed in 1985 and led to what’s known as the “Flores settlement.” This contract between the government and the plaintiffs set standards for holding children and families in detention, which courts continue to use today.</p>
<p>For example, the agreement says that the government must release immigrant children after 20 days of detention.</p>
<p>In a separate analysis, <a href="https://theconversation.com/profiles/kevin-johnson-322147">Johnson</a> <a href="https://theconversation.com/lawyers-defending-immigrant-children-in-detention-are-relying-on-a-court-case-from-the-80s-100918">explains the case</a> and why it has had such a lasting impact.</p>
<h2>3. Who’s to blame?</h2>
<p>Critics have blamed the Trump administration for the inhumane detention of immigrant children. However, public policy professor Susan M. Sterett argues that the contractors who provide the detention facilities <a href="https://theconversation.com/why-its-hard-to-hold-contractors-accountable-for-the-suffering-of-immigrant-children-99186">are also to blame</a> for suffering children.</p>
<p>Although government contracting is not new, the contracts themselves rarely garner attention from the public. There are many reasons why the government uses contracting services. In this case, it is likely because the contractors can act more quickly than the government to provide housing for detained children, Sterett writes.</p>
<p>“[The government] hands nonprofit groups, for-profit businesses and local governments US$1 billion a year or more to house nearly 12,000 children. This money is dispensed through government contracts that do not always gain much public attention,” Sterett writes. </p>
<h2>4. Echoes from the past</h2>
<p>This episode in U.S. history is not unique. In the 1990s, thousands of Haitians fleeing violence started the journey toward the U.S. to seek safety. Presidents George H.W. Bush and Bill Clinton responded by authorizing their capture and indefinite detention at a military base at Guantanamo Bay in Cuba.</p>
<p>Scholar <a href="https://theconversation.com/profiles/a-naomi-paik-501533">A. Naomi Paik</a> writes about <a href="https://theconversation.com/us-turned-away-thousands-of-haitian-asylum-seekers-and-detained-hundreds-more-in-the-90s-98611">conditions on the base</a>: “Under the stress of imprisonment with no end in sight, some refugees fell into despair. The most dire cases purposely hurt themselves or attempted suicide. Children also endured the camp conditions that nearly broke grown adults.”</p>
<p>As information emerges about conditions in today’s detention centers, the parallels to the past may be instructive.</p>
<p><em>Editor’s note: This story is a roundup of articles from The Conversation’s archives.</em></p><img src="https://counter.theconversation.com/content/103190/count.gif" alt="The Conversation" width="1" height="1" />
A record number of immigrant children are being detained in the US. Here’s what you need to know.Danielle Douez, Associate Editor, Politics + SocietyLicensed as Creative Commons – attribution, no derivatives.