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Language Impairments:What’s a lawyer to do??
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Raising the issue• Language related deficits extend beyond 15 (hereinafter **)
• Competency
• Motions to suppress– Miranda– Voluntariness– False Confession– Consent
• Guilty pleas
• Lack of intent or knowledge as a defense
• Mitigation/Culpability
• Revocations
• Juvenile Waiver/Transfer
• Sexual Predator Commitments (failure to comply with treatment)
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Competency
• Ability to assist counsel is the main event and is not just an exchange of information
• Competency requires ability to effectively communicate with counsel. Cooper v. Oklahoma
• **• IQ insufficient measure• Talking slowly doesn’t fix it; neither does repeating it• Request language assessments
– SLP/Psychologist– Expert testimony
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Confessions: Miranda
• Vocabulary• Ability to follow complex sentences• Abstract concepts• Fund of Knowledge– Even if they’ve seen it on TV
• Auditory Processing• Follow directions• Likely to say they understand (they don’t want to look
stupid)• **
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Confessions: Suggestibility & Reliability
• **• More suggestible• More likely to confess• More likely to confess to something they didn’t do• Narrative deficits – Incomplete or misleading statements(“he got in my
face so I shot him”)• Pragmatic deficits (how police interpret the
suspect and his statement)
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Guilty pleas
• Massive amounts of information– Risks– Benefits– Elements– Collateral consequences
• Difficulties with decision making• Time limits on accepting an offer
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Post-dispositional issues• Increased likelihood of disciplinary problems
(Clarke)• Inability to successfully deal with cookie-cutter
verbal based therapies • Many literacy programs assume intact language
system• Difficulties with restorative justice• Compliance with supervision (with a long list of
rules…)• ADA??
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How Language Impairments Impair the Attorney-Client Relationship
• Working within the attorney-client relationship itself
• Narrative skills• Understanding the legal process• Decision Making• Empathy & Trust
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Recognizing LI
• Previously unidentified• Perfect world: routine language assessments• Receptive, processing, & expressive skills– SLP
• Special assessment for pragmatic deficiencies• SLP as advisor and “interpreter”• FAQ: Where do I find an SLP?
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When Money Is An Object:Look for signs
• Forgetting instructions• Confusion with non-literal language• Talking a lot but saying little• Not asking questions• Not answering questions• Seeming “difficult”• “He got in my face so I shot him”• Remember - **
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External clues
• School records esp. IEPs• Verbal IQ (with a word of caution)• Reading scores• Associated disorders or conditions• Disciplinary issues– Behavior Problem?
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Improving Attorney-Client Communication
• Beware of your non-verbal signals• Timelessness• 3 1hour meetings > 1 3hour meeting• Notes as props, not the main event• Atty-client conversations as act of double
consciousness– What is the client doing/saying?– What am I doing/saying??
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Getting beyond “he got in my face so I shot him”
• Lawyer as “archeologist looking for shards”• Allow story to emerge– Assume multiple discussions
• Visuals & Role Play• Targeted discussions– When you say ‘he got in your face,’ show me
exactly what he did• Walk client back for context• Uncovering emotional content
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Getting beyond law talk• Unpack the concepts and language• Put concepts in context of client’s case
– Reframe• Visuals and Role Play• Shorter, less complex sentences• Explain expectations, perceptions, and rules of engagement• Assess understanding (without it looking like a test)• Beware TMI
– What does the client need to know NOW?– Chunk information
• Quit talking like a lawyer– You do not really understand something unless you can explain it to your grandmother. --- Albert
Einstein
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Do you understand?
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Educating judges & prosecutors
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• Easy fit with Daubert/Frye• Not understanding rules vs. non-compliance• Reconsider the “bad attitude” (Pragmatic deficits)• Reconsider “he got in my face so I shot him”• Reconsider poor conduct record• Reconsider poor compliance with
treatment/supervision (“you were given a chance”)• Getting around “he looks like he understands”• Previously unidentified• **
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More trouble spots
• Client testimony– Questioning form– Credibility– Impeachment– Expert to explain?
• Client cooperation/Acceptance of responsibility• Remorse• Presentence interview• Limited time plea offers