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Indiana Judges Association: Dealing with different takes on language

David J. Dreyer
December 7, 2011
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IJA-Dreyer-DavidNews item: Pope brings back “consubstantial” to Catholic Mass.

News item: Indiana removes “preponderance” from jury instructions.

What happens when honored traditions collide with contemporary preferences?

A trial judge’s job is often befuddling. We have to differentiate between peoples’ language, their values, even their competing views about what language means. So when the Pope and the Indiana Supreme Court have different views about what direction language should take, what is a trial judge to do?

Regardless of one’s faith preference – or not – this is a lively and vital conundrum. On one hand, we lawyers have plenty of cases and experiences to help us address each case and its issues. On the other hand, how do we deal with the enduring dilemma best expressed by the philosopher Ludwig Wittgenstein: “The limits of my language mean the limits of my world.” (I am now presumably the only Indiana judge ever to quote Wittgenstein.) Consider the following courtroom exchange:

Judge: “Raise your right hand.”

Witness reaches for the stars

Judge: “No, just hold it by your head.”

Witness puts hand on top of head

Judge: “No, hold it by your face.”

Witness puts hand on cheek

Judge: “Let me see the palm.”

Witness holds hand out palm up.

Judge: “Let’s forget the hand thing. Do you solemnly swear …”

Believe it or not, this exchange really took place in an Indianapolis courtroom with a native English-speaking person. Overall, it illustrates a simple gap between the interpretations of commonly used words. In law, we oftentimes call this “statutory construction.” A recent Indiana case shows how strained this can become. On one hand, the court subtitled a section by using the word “propinquity.” (This is now presumably the only Indiana court ever to use the word “propinquity” in the 21st century.) On the other hand, the irony is that the case is about contrasting interpretations of common language in a sentence. The court cleared it all up by writing:

“In any event, while the gerund ‘operating’ is nominally a noun, it is not functioning as such in section 3, but, rather, as the object of the prepositional phrase ‘of operating while intoxicated,’ which is functioning as an adjectival phrase to modify ‘conviction.’ As such, ‘conviction’ is the noun closest to the prepositional phrase beginning with ‘that occurred within … five … years’ and, in our view, is clearly being modified by that phrase as well. In summary, while we acknowledge that word order is important, there is nothing in the word order of section 3 to suggest that the phrase ‘occurred within … five … years’ is intended to modify anything other than ‘conviction.’”

Hmm … I guess there is no “on the other hand” here.

What we mean is not necessarily shown by what we say. Given the inherent enigmas present in any language, one wonders how we prevent a virtual Babel everyday in our courtrooms. Consider this famous courtroom example:

Lawyer: “And lastly, sir, all your responses must be oral. Ok? What school do you go to?”

Witness: “Oral.”

Lawyer: “How old are you?”

Witness: “Oral.”

We lawyers are eloquent, educated, engaging and enigmatic. We sometimes seem most betrayed by our ability. The use of language is the exercise of critique. Similarly, the decision to spare language, or say less, is equally essential to analysis. But lawyers all too often require themselves to propagate phrases and purportedly build language fortresses to protect clients’ interests. Judges, then, are all too often left with the resulting conflagration when the fortress is attacked. Some judges are literally confined to confusion. Chief Justice Joseph Weintraub of the New Jersey Supreme Court once confessed: “I don’t know what it means. I am stumped.” (Of course, he was talking about an insurance policy.) Efforts are often proposed to make the law’s language less worrisome and more humane. But, like the Catholic Church, so much of it comes from Latin, for God’s sake. Here is where we return to our opening question about tradition and current preference. Actually I appreciate Latin – like I appreciate the Mona Lisa. It’s not a dead language, really, but more like preserved in a cryogenic state if we need it. My favorite Latin legal phrase is nudum pactum (naked promise). If I ever start a band, I might name it ultra vires (beyond powers). But the everyday challenges faced by judges are squarely derived from the balance of what is meant by the language of the law and what is meant by the language of the world. My young friends often tell me they are “down with that” when they mean they like something. So when I hear it in my courtroom, I have to make the adjustment, dude. Just like when I hear “propinquity.”•

Judge David J. Dreyer has been a judge for the Marion Superior Court since 1997. He is a graduate of the University of Notre Dame and Notre Dame Law School. He is a former board member of the Indiana Judges Association. The opinions expressed are those of the author.

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  1. He called our nation a nation of cowards because we didn't want to talk about race. That was a cheap shot coming from the top cop. The man who decides who gets the federal government indicts. Wow. Not a gentleman if that is the measure. More importantly, this insult delivered as we all understand, to white people-- without him or anybody needing to explain that is precisely what he meant-- but this is an insult to timid white persons who fear the government and don't want to say anything about race for fear of being accused a racist. With all the legal heat that can come down on somebody if they say something which can be construed by a prosecutor like Mr Holder as racist, is it any wonder white people-- that's who he meant obviously-- is there any surprise that white people don't want to talk about race? And as lawyers we have even less freedom lest our remarks be considered violations of the rules. Mr Holder also demonstrated his bias by publically visiting with the family of the young man who was killed by a police offering in the line of duty, which was a very strong indicator of bias agains the offer who is under investigation, and was a failure to lead properly by letting his investigators do their job without him predetermining the proper outcome. He also has potentially biased the jury pool. All in all this worsens race relations by feeding into the perception shared by whites as well as blacks that justice will not be impartial. I will say this much, I do not blame Obama for all of HOlder's missteps. Obama has done a lot of things to stay above the fray and try and be a leader for all Americans. Maybe he should have reigned Holder in some but Obama's got his hands full with other problelms. Oh did I mention HOlder is a bank crony who will probably get a job in a silkstocking law firm working for millions of bucks a year defending bankers whom he didn't have the integrity or courage to hold to account for their acts of fraud on the United States, other financial institutions, and the people. His tenure will be regarded by history as a failure of leadership at one of the most important jobs in our nation. Finally and most importantly besides him insulting the public and letting off the big financial cheats, he has been at the forefront of over-prosecuting the secrecy laws to punish whistleblowers and chill free speech. What has Holder done to vindicate the rights of privacy of the American public against the illegal snooping of the NSA? He could have charged NSA personnel with violations of law for their warrantless wiretapping which has been done millions of times and instead he did not persecute a single soul. That is a defalcation of historical proportions and it signals to the public that the government DOJ under him was not willing to do a damn thing to protect the public against the rapid growth of the illegal surveillance state. Who else could have done this? Nobody. And for that omission Obama deserves the blame too. Here were are sliding into a police state and Eric Holder made it go all the faster.

  2. JOE CLAYPOOL candidate for Superior Court in Harrison County - Indiana This candidate is misleading voters to think he is a Judge by putting Elect Judge Joe Claypool on his campaign literature. paragraphs 2 and 9 below clearly indicate this injustice to voting public to gain employment. What can we do? Indiana Code - Section 35-43-5-3: Deception (a) A person who: (1) being an officer, manager, or other person participating in the direction of a credit institution, knowingly or intentionally receives or permits the receipt of a deposit or other investment, knowing that the institution is insolvent; (2) knowingly or intentionally makes a false or misleading written statement with intent to obtain property, employment, or an educational opportunity; (3) misapplies entrusted property, property of a governmental entity, or property of a credit institution in a manner that the person knows is unlawful or that the person knows involves substantial risk of loss or detriment to either the owner of the property or to a person for whose benefit the property was entrusted; (4) knowingly or intentionally, in the regular course of business, either: (A) uses or possesses for use a false weight or measure or other device for falsely determining or recording the quality or quantity of any commodity; or (B) sells, offers, or displays for sale or delivers less than the represented quality or quantity of any commodity; (5) with intent to defraud another person furnishing electricity, gas, water, telecommunication, or any other utility service, avoids a lawful charge for that service by scheme or device or by tampering with facilities or equipment of the person furnishing the service; (6) with intent to defraud, misrepresents the identity of the person or another person or the identity or quality of property; (7) with intent to defraud an owner of a coin machine, deposits a slug in that machine; (8) with intent to enable the person or another person to deposit a slug in a coin machine, makes, possesses, or disposes of a slug; (9) disseminates to the public an advertisement that the person knows is false, misleading, or deceptive, with intent to promote the purchase or sale of property or the acceptance of employment;

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  4. I grew up on a farm and live in the county and it's interesting that the big industrial farmers like Jeff Shoaf don't live next to their industrial operations...

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