The language of fraud cases by Roger Shuy (review)

Most of Roger Shuy’s book, The language of fraud cases, describes cases in which S was involved as a linguistic expert, called by parties who were accused of some kind of fraud. Written in a journalistic style to engage readers from multiple disciplines, the book is a recent addition to a series of books that S has written over the past decade, describing his experiences as an expert witness. Other books in the series describe murder cases (2014), bribery cases (2013), sexual misconduct cases (2012), perjury cases (2011), and defamation cases (2010).

The case narratives most often describe a hypervigilant investigator or cooperating witness interpreting the target’s ambiguous or incomplete statements to confirm the suspicion that the target of the investigation has indeed committed a fraud. The parties under investigation were ultimately seen by prosecutors as having lied or having been deceptive in some other way about being engaged in illegal activity.

S’s analyses of these cases attempt to turn the government’s narrative on its head. It is the investigator and the cooperating witness who act deceitfully, according to S. And indeed they do act deceitfully. In one case after another, the investigator resorts to double entendre, incomplete statements, and sudden changes in topic in efforts to lure the target into revealing a criminal agenda. The target believes himself to be participating in one speech event (see Hymes 1972), such as negotiation or receiving the report of a subordinate, while the speech event in which the investigator is involved is a fishing expedition to trap the target into an admission. Often, these efforts take the form of creating opportunities for the target to confirm the investigator’s view that the target has engaged or is planning to engage in illegal activity. One must commit a fraud to uncover a fraud, standard law enforcement practices would hold. S suggests that this position is wrongful in principle, and ineffective in that it frequently leads to the prosecution of innocent people, since the government sets low standards for determining when it has actually uncovered a fraud.

Ch. 1 summarizes the law of fraud and the nature of linguistic inquiry in determining whether a fraud has been committed. Fraud is a crime of dishonesty. One commits a fraud by making false or misleading statements to another. If the victim of the fraud reasonably relies on the false or misleading statements and is thereby injured, a fraud has been committed. Some laws make it a crime to engage in a scheme to commit a fraud, which means that the fraud does not have to be successful to be illegal. Other laws require that the fraud be carried out.

Fraud is not the same as lying and does not require a lie, if we understand a lie to be a statement that the speaker believes is false but utters in an effort to pass it off as the truth. If a person makes a false statement, he does not commit a fraud if the statement does not induce a victim to act to the victim’s detriment. If I tell my aunt that the meal she just cooked for me was delicious while in fact it was terrible, I did not defraud my aunt, although I certainly lied to her. In addition, a person can defraud another through the use of half-truths and other forms of dishonesty that do not require making statements that are literally false. The rule promulgated by the US Securities and Exchange Commission that defines securities fraud captures this activity specifically. It declares it to be unlawful:

… (b) To make any untrue statement of a material fact or to omit to state a material fact necessary in order to make the statements made, in the light of the circumstances under which they were made, not misleading … in connection with the purchase or sale of any security.

(17 CFR 240.10b-5)

One can commit securities fraud by making statements that are...