3 Legal genres
Q. Now, can we just pause for a moment? Of course, these are the formal aspects of the interview and you must have done them many times
A. Yes.
Q. If you could slow down a little, please, then we can all digest what you are saying.
A. The time presently is 9.43 a.m. on Monday the 7th September 1998. I’m Detective Sergeant Walker and the other offi cer is Detective Constable
Denham. We’re in the interview room at Ashton-under-Lyne police station on interviewing. If you could state your full name, please.
…
Q. (Harold Frederick Shipman.
(Shipman Trial, Day 23) In extract 3.9 the most signifi cant item referred to is the police interviews with the defendant. By tracing the references to the interviews, we can see how this interaction is transferred from a spoken and tape-recorded interview to a written document:
the interviews; these interviews; the interviews; a series of interviews; those interviews; transcripts; the interviews themselves; those[transcripts]; a fi le in edited form; it [the fi le]; those [fi les/documents]; the bundle itself, the fi rst interview; the formal contents of this document; it [the document]; the interviewed; the interview;
it [the interview]; a tape reference number; each interview; this document; these interviews; that [activity]; the bundle of documents; gaps; the unnecessary detail;
it [the interview]; this interview.
This chain of reference constitutes a continued focus on the same item whilst transforming it from being distant and removed from the current time and space, though being mentioned in it (those interviews that the offi cer conducted) to being distant but present in the current time and space (those documents or transcripts that are being distributed to the jury) to being fi nally near and present – this document – that the lawyer, police witness, judge and jury are now holding and which now makes these interviews present, tangible and a legally named and transformed object (the bundle; formal contents).
Prosecuting counsel, in performing these acts of deictic reference, ‘take[s] up a position in the deictic fi eld’ (Hanks 2005: 193), one which powerfully objectifi es and appropriates the object from the past and from another time and place and positions it in the current location to be held, handled, viewed and heard. At the same time the defendant, Shipman, the second interviewing offi cer, who has also been positioned by the lawyer in the courtroom, and Shipman’s solicitor who was present during the interviews, are all referred to and therefore ‘thrust into a position’ (Hanks 2005: 193) by being brought forcibly into the current deictic fi eld. In naming all the relevant listeners, through deictic reference, the lawyer positions all these further objects in the fi eld and then includes them by reference:
then we can all digest what you are saying. Now we can see the relevance of the reference to everybody in the police interview (extract 3.8), when in fact only three people other than the defendant were present.
When detective sergeant Walker begins to read the transcript of Shipman’s interview, This interview is being tape-recorded, the deictic reference is simultaneously past and present. The temporal world becomes displaced and transferred to an immediate co-presence. This is part of the power of the legal setting and of the prosecution role. As Hanks (2005: 194) points out, when deictic expressions are
used and embedded in a social setting, they gain meaning: ‘embedding converts abstract positions like Speaker, Addressee, Object, and the lived space of utterances into sites to which power, confl ict, controlled access, and other features of the social fi elds attach’. Embedded in the judicial fi eld, the re-enacted interview transcript becomes an evidential object for scrutiny and evaluation by the jury. It makes the defendant speak for the prosecution, whilst being positioned as a silent spectator. The offi cial trial transcript underlines this position.
In the fi nal line of extract 3.9 Shipman ‘speaks’ through the mouth of the prosecution and the turn is labelled Q for question. The questioner becomes defendant, a stance that is adopted for a whole day, with counsel stepping out of this stance from time to time to assume his prosecution function and comment on procedure, as for example when he asks the offi cer to pause for a moment. Thus the context shifts constantly from the primary reality of the courtroom to the other reality of the interview. This ‘repertoire of stances’ is part of the ‘function of the fi eld’ (Hanks 2005: 210) and involves the lawyer managing the social reality that is presented to the jury. Hanks argues that ‘the various stances that speakers adopt in practice impinge directly on how they construe the world through language’. What this extract shows is that the view inside the courtroom is carefully constructed and managed by the lawyer’s appropriation, positioning and stance-taking in relation to his addressees, the jury, and his object, the evidential interview.
Conclusion
Legal genres, their styles and modes of interaction and the social practices, roles and participant relationships that they produce, constitute complex inter-relationships between text and context. Legal genres are the way they are because of the communicative practices that they employ and the functions that they serve in legal and world contexts. Police statements and courtroom discourse are rich in spatial and temporal expressions, because of the work they do in situating the talk.
If we want to fully account for what the language is doing or what the speaker is doing through use of language, we have to take account of the context of use and the linguistic choices that are made. Holmes discusses the linguistic choices that refl ect to a greater or lesser degree one or more of the following speech situation components:
The participants: who is speaking and who are they speaking to?
The setting or social context of the interaction: where are they speaking?
The topic: what is being talked about?
The function: why are they speaking?
(Holmes 1992: 12) These components, though essential to our understanding of the different situations in the legal and judicial system, are not always easy to defi ne, as we have seen. The answer to ‘Who is speaking?’ and ‘Who are they speaking to?’ is not at
1 2 3 4
all straightforward in the police interview or in the courtroom. An audience can be conjured up, seemingly from nowhere, through the use of the deictic expression everybody, but it only gains its full signifi cance in the courtroom context.
One of the ways that those who are not members of the professional legal community can equip themselves with the necessary resources to make sense of such material is to engage in the study of legal genres, both through studying texts that are the product of legal contexts and through ethnographic research that involves observing the production and use of text in its context of production and use. Although gaining access to many of these contextual domains, such as police interviews or lawyer consultations with clients, is not at all easy, students and researchers can gain insights and understanding through vicarious involvement – that is by learning from the experiences of others, by reading ethnographically based research (such as Heffer 2005; Scheffer 2006), and also by analysing the fi ctional examples provided in fi lms and on television. Television frequently gives viewers lengthy opportunities to get inside the mind of the real-life legal professional, whether it be police offi cer, lawyer or judge. ‘Reality TV’ shows also provide real situations for vicarious learning, as Linfoot-Ham (2006) demonstrates in her discussion of the American reality TV show ‘Cops’. There are limitations to this kind of observation, however, since it can rarely be done without some degree of bias. Ethnographical research can also suffer from observer bias, showing widely different stances from admiration to censure of the professional activity under scrutiny. Whatever the limitations, direct or vicarious observation of professionals at work does allow linguists to move their research focus into understanding the legal context.
Further reading
Gibbons (2003, chapter 4); Halldorsdottir (2006); Hanks (2005); Levinson (1979);
Maley et al. (1995); Maley (2000); Scheffer (2006); Sarangi (2000 – although this is not a forensic linguistic article, the frameworks and models applied to medical discourse have similar and contrastive uses in legal discourse. This article should stimulate thinking about the research tasks below).
Research tasks
1 Examine texts A to D in the epigraphs to this chapter. Identify generic features in each text, particularly in relation to reported speech. Look at other legal texts (see below) and identify other generic features.
2 Find a legal text from one of the genres or subgenres discussed in this chapter, such as opening speeches by prosecution and defence lawyers or an entire witness appearance. Identify generic features which contribute to the communicative functions of the text and consider the effect of the institutional context on the text’s production and effect. Other text types you could analyse are interview, statement, legal statute, all of which can be found without too much diffi culty.
US trials can be found at http://www.courttv.com/trials/
The OJ Simpson trial at: http://www.courttv.com/casefi les/Simpson/
President Clinton in Jones v. Clinton can be found at:
http://www.courttv.com/archive/legaldocs/government/jones/
In the UK, the Shipman trial can be found at:
http://www.the-shipman-inquiry.org.uk/trialtrans.asp
Consider whether some of the following are relevant to your analysis and discussion.
generic structure;
the relationship of the text to the context;
the type of ‘speech event’ (Hymes 1972) or ‘activity type’ (Levinson 1979) and how this is embedded in the context. See Sarangi and Coulthard (2000):4 and their model of activity analysis (fi gure 1.2). How can this framework be used to explain text and discourse features?;
a sociolinguistic framework that involves analysing the social factors affecting linguistic choice (Hymes 1972) and Holmes’ (1992) solidarity, status, formality and function;
use of deictic reference relating to contextual factors: time, space, participants;
communities of practice and common practices, for example, Sandra Harris’ (2001: 451) claim is that in politics ‘systematic impoliteness is not only sanctioned but rewarded in accordance with expectations of Members of the House’ and that this ‘can only be understood and interpreted in relationship to Parliament as an institution and the wider political context’. How do politeness and impoliteness work in legal settings?.
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