Language ideology, fractal recursivity, and discursive agency in the legal construction of linguistic evidence

Abstract

AbstractThis article analyzes the language ideology (Silverstein 1979; Woolard & Schieffelin 1994) circulated in Section 8 of the United States Federal Rules of Evidence (FRE), focusing on the consequences to discursive agency when this language ideology is used to appropriate an utterance for use as evidence. Section 8 of the FRE, or the hearsay rule, bars the testimonial, in-court repetition of second-hand statements. The excited utterance exception to hearsay admits an utterance as long as it was made by an excited speaker, while s/he was under the sway of an exciting event, which the excited utterance must also report. This rule explicitly trusts spontaneous speech, entextualizing it as a trustworthy account of an event, using the reasoning that such an utterance is not made by a speaker capable of self-reflection. I show that this language ideology problematically links discursive agency (Butler 1997; Medina 2006) with an untruthful speaker-role. Using the concept of fractal recursivity (Irvine & Gal 2000), I argue that the presuppositions embedded and circulated metadiscursively in this rule of evidence effectively constitute a speaker without legally “recognizable” discursive agency. This effect is the most noticeable and the most consequential when the excited utterance exception is used to appropriate the speech of women who have been the victims of domestic violence. Ultimately I argue that discursive agency is a feature of language ideology. (Discursive agency, legal discourse, language ideology, evidence, metadiscourse, domestic violence)*