5 Order in court
A. I don’t know
Extract 5.9
Q. And where was your mother?
8 A. Yes.
9 Q. Lipstick?
10 A. No I was not wearing lipstick.
11 Q. You weren’t wearing lipstick?
12 A. No.
13 Q. Just eye-shadow, eye make-up?
14 A. Yes.
15 Q. And powder presumably?
16 A. Foundation cream, yes.
17 Q. You had had bronchitis had you not?
18 A. Yes.
19 Q. You have mentioned in the course of your evidence about wearing a 20 coat.
21 A. Yes.
22 Q. It was not really a coat at all, was it?
23 A. Well, it is sort of a coat-dress and I bought it with trousers, as a trouser 24 suit.
25 Q. That is it down there isn’t it, the red one?
26 A. Yes.
27 Q. If we call that a dress, if we call that a dress you had no coat on at all 28 had you?
29 A. No.
30 Q. And this is January. It was quite a cold night?
31 A. Yes it was cold actually.
(Levinson 1979: 82–3) These questions start to build up a picture of a teenage girl who paid more attention to making herself attractive than to taking care of herself, despite having been ill.
This episode is followed by questioning about her previous sexual experiences (extract 5.11).
Extract 5.11
1 Q. … you have had sexual intercourse on a previous occasion haven’t you?
2 A. Yes.
3 Q. On many previous occasions?
4 A. Not many.
5 Q. Several?
6 A. Yes.
7 Q. With several men?
8 A. No.
9 Q. Just one.
10 A. Two.
11 Q. Two. And you are seventeen and a half?
12 A. Yes.
(Levinson 1979: 83)
Levinson comments that ‘careful juxtaposition [with what has gone before]
does the job of suggesting that a girl of seventeen who has already slept with two men is not a woman of good repute’. Over the course of the cross-examination, the questions
build up to form a ‘natural’ argument for the jury … that goes something like this: the victim was dressed to go dancing, she was heavily made up – something of a painted lady, in fact – and, despite the fact that she had been ill, she was wearing no coat on the cold winter’s night. The implicit conclusion is that the girl was seeking sexual adventures.
(Levinson 1979 : 84) Cross-examination is necessarily constrained by needing to be carried out in question and answer form – what Atkinson and Drew (1979) call ‘turn-type pre-allocation’ – and by inference, it can construct an argument for the jury, a story that is woven from the juxtaposition of questions and answers and is built up over time as a central goal of the cross-examination. Levinson argues that our understanding of what is going on in the questions
rests on our knowledge of the kind of activity that the talk occurs within. We know that in a rape case it is the job of the defendant and his lawyer to show that the girl asked for it … and the goal of the victim and her counsel to resist this and establish that the defendant committed the crime intentionally and against the girl’s resistance.
(Levinson 1979: 85) Within a cross-examination genre, cleverly phrased and sequenced questions can organize a rape complainant narrative to be interpretable as implying consent rather than resistance. It is the activity within the genre, rather than the genre itself, that produces a narrative of blame rather than victimhood. The power of the cross-examination lies in the lawyer’s skill in assigning blame and responsibility to the victim and presenting this as ‘natural’ (Fairclough 1989). Two particular sequences from extracts 5.10 (lines 27–30) and 5.11 (lines 7–11) can be analysed in terms of how the lawyer uses conjunctions to present unrelated events as
‘naturally’ connected. In extract 5.10 (lines 27–30) a connection is made between the witness having no coat and the month being January and in extract 5.11 the connection is between number of sexual partners (two) and her age (seventeen and a half). The connections provided by the lawyer through the conjunction and links material provided in the witness’s answers with additional lawyer material which has inferential value. The implication in extract 5.10 is that the woman was dressed for display rather than comfort and in extract 5.11 that she had loose morals. Both connections are evaluative too with evaluation of recklessness and promiscuity supplied by juxtaposition that produces inference, rather than by surface features of lexical choice. A critical discourse analysis view of this cross examination extract therefore reveals ‘how power and discriminatory value are
inscribed in and mediated through the linguistic system’ (Caldas-Coulthard and Coulthard 1996: xi). In addition, the master narrative of promiscuous young female looking for adventure produces a context of blame for the victim, rather than a narrative of victimhood.
Conclusion
The competitive and competing goals of interaction that characterize talk in courtroom interaction produce distinctive patterns of lexis and structure. Lexical selection creates semantic contrast between prosecution and defence accounts of the same events and narrative accounts are juxtaposed through challenging questioning that produces inferential meaning. As we saw here and earlier in Chapter 1 and Chapter 3, the courtroom produces a complex context for interaction, with the silent and overhearing audience having a major impact on turn design.
Listeners are indexed in the talk through deictic reference, and particular modes of elicitation indicate the presence of audience design in conscious attempts to accommodate the jury as addressees, particularly in cross-examination. The highly ordered, yet fragmented nature of talk makes the courtroom a rich linguistic domain for study.
Courtroom research produces some of the most critical writing on linguistic issues in the justice system: Ehrlich’s (2001) examination of the representation of rape, for example, or Atkinson and Drew (1979) and Drew’s (1990, 1992) focus on the strategies used by lawyers to undermine witnesses and discredit testimony. O’Barr (1982), as well as looking at lawyer strategies, focuses on what witnesses can do to resist the powerful control of lawyers’ constraining questions that Gibbons (2003: 100–12) outlines. Kurzon (2001) examines another of the participants in the courtroom in his study of the linguistic behaviour of judges and Cotterill (2003) and Heffer (2005) both discuss the language used by and with expert witnesses. The language of all these courtroom participants is extensively researched, but in this chapter we have recognized the central importance of juries and it is perhaps surprising, given their importance, though not given the secrecy that necessarily surrounds much of their talk, that juries are the least researched group. They have a largely silent and invisible role, despite the fact that they are the primary addressees for the vast majority of the linguistic work done in the courtroom.
In this fi rst Part of the book we have examined legal language in a wide range of contexts, from the texts that constitute the law to the way that the language and discourse processes of the law are played out in real settings. We have considered how professional and lay speakers interact in institutional settings from initial calls to the emergency services to interview and court. In Part II we move from the language that characterizes the legal process to look at language which is used as evidence in cases where institutional practice is disputed and where discourse analysis is employed in expert reports and evidence to uncover what might have happened.
Further reading
Aldridge and Wood (1998); Atkinson and Drew (1979); Cotterill (2003); Ehrlich (2001, 2002); Heffer (2005); Jacquemet (1996); O’Barr (1982).
Research tasks
Compare the questioning strategies of two lawyers in examining and cross-examining mode in the same trial. To what extent are their strategies the same? Is the cross-examining strategy of lawyer A more similar to his own examining strategy or to the cross-examining strategy of lawyer B?
‘The default requirement is for the witness in court to provide as answers to the lawyer’s questions preferred second-part responses – which adequately satisfy all four Gricean maxims’ (Cotterill 2003: 104). How far is this true in examination and cross-examination? Is this desirable but constantly resisted?
Harris (1991) writes about evasion by politicians in broadcast interviews. She creates three categories of response on a scale of evasiveness: (i) direct answer (e.g. yes, no, of course, that’s correct); (ii) indirect answer (e.g. well if you say so, where either yes or no can be inferred or where neither can be inferred, because some cohesion or coherence is missing); (iii) challenge where the interviewee challenges one or more of the presuppositions in the question.
Apply her categories of evasive answers to a set of witness responses taken from both examination and cross-examination. What do you fi nd?
Look at the evidence given by two expert witnesses. How are questions posed and responded to? Does the lawyer’s examination enable the expert to make his or her expertise comprehensible for the jury? Cotterill (2003: 180) examines lawyer turns that use the phrase When you say as simplifi cation questions. Are there other questions like this and if so what do they do? Can you fi nd any occasions when the lawyer lays claim to as much expertise as the expert?
O’Barr (1982: 120–1) lists some effective strategies for lawyers and witnesses.
Can you fi nd examples of these being used in examinations and cross-examinations. Which strategies are most common in examination and which in cross-examination? Can you identify any additional strategies that are not on O’Barr’s lists?
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