Silence: Civil right or social privilege? A discourse analytic response to a legal problem

According to an understanding of casual conversation articulated by various theories of discourse analysis including Conversation Analysis (Sacks et al., 1974, ), pragmatics (Levinson, 1983, ) and politeness theory (Brown and Levinson, 1987), it is extremely unlikely that silence would ever be regarded as an appropriate response to a question or accusation. Yet, in the specialised institutional setting of a police interview, it is expected by the legislators in many jurisdictions that ordinary people will be able to access this interactional resource unproblematically, and presumably without any assumption of listener prejudice.An analysis of the interactional strategies of police interview participants in 13 police interviews recorded in Victoria, Australia demonstrates that the contributions of the suspect are highly constrained in a number of ways, including allowable turn types and the management of topic initiations. If assumptions about ‘preferred responses’ based on ordinary conversation are used to interpret non-response in this particular institutional setting, then these interactionally restricted contributions, which will be presented as evidence, may be susceptible to adverse inference in a way that is unlikely to be addressed by the judicial system. This paper concludes that by applying principles of pragmatics, and in particular the use of preference, it is possible to present a case against the erosion of the defendant's right to silence.