general definitions of forensic linguistics
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General definitions of the science of forensic linguisticsTRANSCRIPT
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1. Introduction
Forensic linguistics for its application in real life and for its involvement in the field
that is capable of influencing the course of ones life has become a very interesting and
pragmatic discipline to study, however, one that is still not very widespread in the Czech
academic setting.
The consideration of how language can shape our society and how it affects the
interpretation of interpersonal behaviour has become topical in the quite recently evolved
disciplines, viz. pragmatics and sociolinguistics, which in their discussion of language are
inherently interdisciplinary, looking for links to the external world and to the internal world of
the individual.
In this thesis I want to endorse these views and thus add to the corpus of literature
focussed on forensic linguistics as studies of legal language are not easily accessible in the
Czech academic setting. I also want to explore this field, which is rather distant to the
majority of people while still significantly affecting their lives, and thus help understand the
operation of the judiciary.
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1.1 Glossary of Terms
Conducive Questions
A conducive question is one that shows that a given answer is expected or desired (Bolinger 1957.96), one where A is taken to show preference for one response rather than another, as opposed to a straight question where no preference is manifested (Stenstrm 1984.47).
Cooperative Principle
A principle that states that interlocutors in conversation try to cooperate with each other. They will, in particular, attempt to be informative, truthful, relevant and clear. Listeners will normally assume that a speaker is following these criteria. It is then possible to deduce implications from what had been said concerning what has not been said (conversational implicatures). (Crystal 1985.75-76)
Elicitative Force
Refers to the notion that a question usually expects a response. This expectation is scalar. Also it refers to the fact that the answer that follows should be appropriate, i.e. greeting should be followed by greeting etc. (Stenstrm 1984)
Evidentiary Rules
Rules that prescribe how evidence in trials can be presented and what evidence is deemed admissible.
Illocutionary Force
Refers to the meaning of an utterance. This can be thought of as an attempt to reconstruct what act, considered as a goal-directed communication, was it a goal of the speaker to perform in producing the utterance. (Leech 1983.14-15)
Leading Questions
A legal term for a question which suggests a response (cf. conducive questions). It provides maximum control over witness response during examination, namely its length (usually can be answered by yes or no only). Also it offers the right answer. (Goldberg 1982)
Loaded Questions
see conducive questions Positive v. Negative Orientation
Refers to conduciveness (see conducive questions) to agreement or disagreement. Questionness
Refers to a degree to which an utterance can be recognized as a question. E.g. wh-questions are high on the scale of questionness, whereas declarative questions resemble statements, therefore they are lower on this scale.
Utterance
Basic unit for pragmatic research. Refers to a stretch of speech in a form of act or activity. The situational context is an integral part of the utterance without the context, it is just a sentence. (Leech 1983)
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1.2 Abstract
The M.A. major thesis deals with types of questioning used during the
cross-examination in the Shipman trial. From the point of view of pragmatics it studies the
persuasion devices inherent in each category. Among the features that affect the persuasive
illocutionary force are elicitative force and conduciveness. The differences in force with
regard to general context of conversation and the specific institutional context of the
courtroom are studied. Tag questions are discussed extensively as they are the most frequent
category and they demonstrate the greatest variety of meanings. Other forms of questions,
such as wh-questions, yes-no questions, declarative questions, questions with lexical tags and
alternative questions are discussed.
Keywords: cross-examination, leading questions, tag questions, types of questions,
prosecutor, conduciveness, elicitative force, courtroom discourse.
1.3 Abstrakt
Diplomov prce se zabv typy kladen otzek uvanch bhem kovho vslechu
v kauze dr. Shipman. Z pragmatickho hlediska zkoum pesvdovac prostedky, kter jsou
vlastn kad kategorii. Dleitmi pesvdovacmi aspekty jsou elicitativn sla a
konducivnost. Prce zkoum rozdl v interpretaci tchto prostedk pi uit v bn
konverzaci a specifick situaci soudnho len. Nejvznamnj kategori jsou otzky
pvsn (tag questions), kter jsou nejastj a vykazuj nejvt variantnost vznam. Prce
se dle zabv dalmi typy otzek jako jsou otzky typu wh-questions, otzky typu yes-no
questions, deklarativn otzky, otzky s lexiklnmi markery a alternativn otzky.
Klov slova: kov vslech, navozovac otzky, pvsn otzky, typy otzek, prokurtor,
konducivnost, elicitan sla, soudn diskurz.
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1.4 Aims and Objectives
I will focus on how the different types of questions comply with the goals of the legal
situation. Their illocutionary forces will be interpreted and compared to the discourse tactic of
a cross-examining prosecutor. I will look into the persuasive devices that are used by the
prosecutor and directed at the members of the jury as the crucial factor whose interpretation of
the courtroom communication determines the outcome of the trial. I will also consider the
distribution of power and consequently the possibilities of the witness opposing discourse
strategies and their effectiveness.
I want to test the hypothesis of many scholars that the majority of questions asked
during cross-examination are very restrictive with regard to the answer that can follow. I want
to find out which category is the most frequent one and find pragmatic justification for its
exploitation. I also want to elucidate on how these questions function in comparison to
ordinary casual communication. A quantitative and qualitative discourse analysis based on
pragmatic interpretation will be employed.
1.5 Description of the Case
Dr. Harold Frederick Shipman, Britains most notorious serial killer was convicted at
Preston Crown Court on 31 January 2000 of the murder of 15 of his patients and of one count
of forging a will. He was sentenced to life imprisonment. He was a general practitioner who is
believed to have murdered between 215 and 260 patients by injecting them with a lethal
diamorphine injection. He never pleaded guilty and no motive for his deeds was ever
uncovered (Crimelibrary 2006).
The excerpt I am analysing is taken from a cross-examination of Dr. Shipman
performed by the prosecutor Richard Henriques. He cross-examines Dr. Shipman on the death
of 63-year-old Ivy Lomas, who one day went into his surgery and within ten minutes died of
morphine overdose. Dr. Shipman claimed that she died of a heart attack, for which he had
made appropriate entries in the medical records. The prosecutor exposes the witness to the
fact, that Ms. Lomas died in his surgery of morphine overdose and that Dr. Shipman must
have been there throughout. Next he despises the witness for actually defaming the already
dead Ivy Lomas in inferring that she needed a plaque. The prosecutor also discusses the
witness efforts at resuscitation (trying to prove that there were none) and his diagnose of
heart attack that was written down by him as the cause of death.
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1.6 Material
The material for analysis is provided in the official trial transcript made available on
the internet (The Shipman Inquiry). The duty of making verbatim transcriptions of legal
proceedings is defined by law; the profession of court reporters has been established for this
reason. The transcripts are used in the appellate court proceedings, where only the counsels
are present and the case is discussed on the basis of the transcript only. Consequently the
accuracy of these transcripts becomes an important issue, however, one that is impossible to
reach.
1.6.1 Some Problems in Trial Transcript Analysis
Trial transcripts differ significantly from linguistic transcripts in that intonation,
pragmatic markers and extralinguistic features are not monitored. This of course significantly
deprives the spoken situation of some contextual clues. For example a nod or is recorded as
yes, but one can see that there is a difference as to the implicatures of the agreement.
There are, however, many more difficulties encountered in the process of recording
spoken language.
The necessary presumption behind this task [transcription] is that an accurate record of an oral/acted event can be made by writing down exactly what was said. but in any movement from the oral to the written, certain discrepancies between the original event and its written representation are bound to occur, discrepancies which are traceable not merely to inherent differences between spoken and written language, but in the case of court reporting, to the cultural and professional climates in which reporters do their jobs. (Walker 1990.203)
Walker (1990) in her paper maintains that court reporting is actually another act of
interpretation, which poses problems for the validity of inferences drawn from such data for
the sake of science research. The problems that occur are inherent already in the process of
reducing spoken language into writing. Another, more important aspect is a problem of bias,
which is an inherent, individual, and often unconscious force which is difficult to combat
and redress. [T]ranscription does not exist in a vacuum: the institution in which it occurs has
goals, needs, desires, and biases of its own (1990.239-240). Thus subconscious corrections
of ungrammaticality or smoothing of dialects can occur.
These are definitely valuable insights into the problematic of the fallacy of verbatim
recording and one needs to consider them in the perception of the methodology of this thesis.
However, videotape recordings (which are not without certain problems too) are not
accessible in the Czech academic setting; therefore I have to rely on this kind of data. Also the
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subject of my research does not concern the specific features of spoken discourse to a large
extent (such as hesitation markers, non-verbal phenomena, etc.), but discusses grammatical
structures that are not significantly liable to distortion: from these structures, pragmatic
inferences are made. Also, though the study of intonation would be helpful, it does not in any
way distort my findings; it would only make them more accurate within the discussed
categories (see p.28).
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2. Spoken Legal Discourse
In this chapter I want to comment on the legal background that is vital for
understanding the discourse tactic of the participants in courtroom communication and its
application through linguistic devices.
2.1 Aspects of Legal Language
Let us now consider some general characteristics of legal language. Halliday (1979)
distinguished different varieties of language according to the user (i.e. who uses this particular
variety of language given by social background, sex, age, etc.), which he called dialects, and
varieties according to use (in what situation would a speaker use this or that variety of
language), which he called registers. Legalese, or the language of law, comes under the
heading of registers.
What makes this part of language a use-defined variety? There are several factors
which triggered the differentiation. From the historical point of view the problem is of
an uneven development. Once norms and proceedings are recorded, standardised and
institutionalised, a special legal language develops. (...) In the Anglo-Saxon common law
system, a discrete legal language has been apparent since post-Conquest England (Maley
1994.11). This discrete legal language however did not follow the evolution of the English
language but started to pursue its own processes of change and growth. These processes
occurred within the legal profession, which defined the forms and meanings of words
independently of how use and historical change affected these features i.e. independently of
the ordinary linguistic process. It is the courts, legislatures, and government agencies, which
decide the legal meanings of terms, not ordinary usage and historical change (Charrow
1982.180).
Another factor to look at is sociology. Legal professionals have legal language as the
only instrument of their science law can be accessed and applied through language only.
One of the main functions of this language is a performative one (cf. Austin 1962). Stating
something through legal language is the act of doing it (judgment of conviction, divorce, etc.).
It is perhaps this power of legal language, and the fact that the law can only be
communicated through it, that has led to the ritualistic quality of much legal discourse. The
ritualistic quality, in turn, gives greater credence to the power of the courts (Charrow
1982.182). As Maley (1994) suggests the powerful and the elite need to reserve some kind of
special language for themselves in order to ensure their social differentiation and to reinforce
and perpetuate power by depriving the less powerful classes of access to its mysteries
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(Maley 1994.12). Thus a language within a language evolves, one that is almost impossible to
be understood by laymen.
As in some religions, where it is not necessary (or perhaps even desirable) to understand the meaning of the rituals in order to be impressed by the power of the deity, it is not necessary for the lay person to understand the law in order to be impressed by the power of the law. As with religion, the law has trained intermediaries lawyers who will interpret, even intercede for us. (Charrow 1982.182)
Contemporary legal discourse is still viewed by ordinary people as elitist, trying to
separate them from the possibility of understanding legal texts. This is also reflected in the
emergence of the Plain English Movement in the twentieth century, calling for clear,
understandable legal communication and trying to revise this type of discourse1.
The last factor I want to consider is the one that most lawyers would align with.
Crystal and Davy (1969) look at the language of legal documents which is in some way
connected with the imposition of obligations and the conferring of rights. And from time to
time, of course, someone or other is sure to become morbidly curious about his obligations,
and even scrutinise them closely to see if they may possibly be wriggled out of (Crystal
1969.193). This of course means that for law to be effective and enforceable it needs to be
written down in an unambiguous way, leaving no opportunities for misinterpretation. Thus
intelligibility to masses is surpassed by the much more important aim of achieving
unambiguous communication.
Legal writers, pushed into oddity by their attempts to be unambiguous, are pulled as it were in the same direction by the knowledge that since their productions are for the benefit of someone as familiar with the jargon as themselves, they have no need to bother too much about the simpler needs of a general public. (Crystal 1969.194)
2.2 Classification of Discourse Situations in the Language of the Law
Crystal and Davy (1969) are concerned with legalese as manifested in writing. Let me
therefore consider the more general examination of legal discourse within which I would like
to distinguish another subdiscourses as devised by Maley (1994) these are useful for my
analysis as they are defined against particular situations, thus favouring my pragmatic
approach. In his words, [t]here is not one legal discourse but a set of related discourses. Each
has a characteristic flavour but each differs according to the situation in which it is used
1 For more on this go to http://www.ericdigests.org/pre-926/english.htm.
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(Maley 1994.13). That is, the language of legal documents as examined by Crystal and Davy
has some common features with the courtroom discourse I want to explore in this thesis.
Nevertheless, one could argue that there are more differences than there are similarities. One
of the key features here is definitely the fact that the language of the courtroom is largely
spoken and interactive, exploiting some ritualised parts of legal discourse but on the whole
largely resembling everyday usage the structures that it exploits are taken from the
common language, but as will be shown they are used in different frequencies and for
different purposes. On the other hand, the language of legal documents significantly differs
from common language in both lexis and grammar.
Maley (drawing on Halliday) approaches legal language from semiotic and functional
points of view to describe its constituent discourses. The signs of a semiotic system in their
characteristic configurations communicate meanings.
Linguistically, the configuration of meanings constitute a discourse type (a register or genre) which is realised in texts by lexicogrammar, textual organisation and a structural shape (...) that is identified with the genre. There is then a relationship between the discourse type and the social situation which needs explication. In the Hallidayan model this relationship is derived from the values or components of the social situation: its field, tenor and mode. (...) What is claimed is that the nature and purpose of the ongoing activity (field), the nature and speech roles of the participants (tenor) and the type of channel for communication (mode) are related to meanings typical of discourse type. (Maley 1994.14-15)
Table 2.1 below is a summary of Maleys findings, in which he models the different
discourse types on the basis of different situation types that may arise sequentially in the legal
process. The groups that are formed are labelled as
1) sources of law
2) pre-trial processes
3) trial processes
4) recording and law-making.
The sequence is exemplified on a social conflict between two parties that must first be
recognised as coming under the heading of rule of law (sources of law may be interpreted that
doing of one participant was unlawful). If the parties decide to sue each other, they step in the
realm of pre-trial processes - consulting lawyers, lawyers consulting each other, police
investigation, etc. In the next step the parties appear in court and fight their cases. This step is
the one that my thesis subsumes and investigates from the point of view of persuasion
devices. Each trial has to end with some decision, which in turn can influence the first step,
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i.e. the sources of law (under common law the rulings of judges may become precedents,
i.e. explanations or reformulations of the sources of law). (Maley 1994.15)
Table 2.1: Legal Discourse Situations
2.3 Courtroom Discourse
I will now look more closely at the third step, i.e. the discourse situation - trial
processes, legal discourse - courtroom discourse.
I would like to stress beforehand that under trial we should imagine a criminal trial as
that is the one where the jury is always present. The data I have analysed are taken from
a criminal trial and as will be shown the jury is an instrumental factor in determining
the outcome of a trial a factor to which all the analysed language is actually directed.
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2.3.1 The Legal Situation and Its Consequences for Linguistic Research
As the courtroom situation is an institutional one, the notion of power comes to play
a significant part.
2.3.1.1 Power in the Courtroom
The first phenomenon to be noticed about the courtroom is the physical reproduction
of hierarchical power. Power relations within courtroom are defined via laws. These relations
are actually reflected in the physical layout of the courtroom, with the judge occupying the
dominant position, in the way some of the participants dress, in barristers choice of address
and register, questioning, etc. (Luchjenbroers 1997.480). The witness is usually considered to
be at the other end of the continuum, i.e. to be the one with the least power or as some
scholars would claim with no power at all (Maley 1994.32-34). Although I do not want to
focus entirely on power relations as represented in the courtroom, it is important to
communicate the following: Power is exercised primarily by those who have the most right
to speak, and to choose, control and change topics (Maley 1994.34). The one upon whom the
greatest power is bestowed by law is the judge. However, in the adversarial system of
common-law trial proceedings he or she is conventionally someone who just oversees to the
fluent and lawful progress of a trial. Though his/her decisions overrule any others, they are
not instrumental in influencing the outcome of a trial the decision is up to the jury; the judge
only checks if the information communicated (including evidence) towards the jury is
delivered in accordance with the Federal Rules of Evidence2.
The next participants with the right to speak and a right to control topics (and thus
with the greatest power) are the counsels, representing the two opposing parties. The
consideration of these is fundamental to legal realism.
2.3.1.2 Legal Realism
The trial has been described by many scholars in rather emotive words it is a battle,
a story-telling (Maley 1994.33-34), a theatre (Goldberg 1982.4), a highly constrained play
(Luchjenbroers 1997.477), war of words (Danet 1980.190), etc. To see why these metaphors
are used let us first look at the difference between common-law adversarial system and the
European inquisitorial system as quoted by Maley (1994) from Devlin (1979).
2 Cf. http://www.law.cornell.edu/rules/fre/rules.htm. These are applied in the United States. In other countries, similar rules are devised.
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The essential difference between the two systems there are many incidental ones is apparent from their names: the one is a trial of strength and the other is an inquiry. The question of the first is: are the shoulders of the party on whom is laid the burden of proof, the plaintiff or the prosecution as the case may be, strong enough to carry it and discharge it? In the second the question is: what is the truth of the matter. In the first the judge and jury are arbiters: they do not pose questions and seek answers; they weigh such material as is put before them, but they have no responsibility for seeing that it is complete. In the second the judge is in charge of the inquiry from the start; he will of course permit the parties to make out their cases and may rely on them to do so, but it is for him to say what he wants to know. (Maley 1994.33)
All the labels are based on the simple fact that there are two opposing parties which
present their version of the facts, of what, when and how happened, to the jury (which
comprises laymen) who then produce a verdict based on which version was the most
trustworthy, i.e. which was presented in the most persuasive manner. The way these facts are
presented is through the question-answer sequence, that is more generally through language.
I have shown earlier that the language of legal documents strives for unambiguity and
clarity of meaning. How then can two competing versions of facts emerge in legal language?
The decisive factor is that we are now talking about a spoken discourse within the courtroom
and, moreover, one that is directed towards a lay-, i.e. non-professional jury. In this context
one cannot separate what happened from the language that is used to describe or explain
what happened. When the meaning of an act is ambiguous, the words we choose to talk about
it become critical (Danet 1980.189).
What is there then to the battle, war, theatre? It is the battle of words, of grammatical
structures, of pragmatic phenomena, all directed towards one ultimate goal and that is the
jurys acceptance of your version of the facts. In Goldbergs (1982) words a trial is the
presentation of an idea (why your client should win), to an audience (the jury), through the
medium of performers (1982.4). The important observation here is the fact that the actual
presentation is much more important than the truth. Only a lawyer believing that real
events have more to do with a jury verdict than the theater of the trial will cross examine
a lying witness with the question: Tell the jury how you can explain that, Mr. Benton?
(Goldberg 1982.5-6). The keyword thus becomes persuasion, especially considering the fact
that your play stands against the play of your opponent how can you talk the jury into the
fact that yours is the true one?
Legal realism rejects the view dominant in analytical or positivist jurisprudence, that logic and rules are the essence of the law (...). Facts are seen not as objectively determinable entities, but as constructions, created by persons engaged in interaction and negotiation. In Courts on Trial, Frank contrasted the truth theory of courts with
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what he called the fight theory. (...) [T]he adversary system encourages the use of trial tactics to prevent the judge or jury from correctly evaluating the trustworthiness of witnesses and to shut out the evidence damaging to a case: The lawyer aims at victory ... not at aiding the court to discover the facts. If facts are constructions produced by participants in the legal process, and trials are wars of words, the need to understand better the role of words as the tools for the construction of facts and interpretation of action becomes clear. (Danet 1980.190)
To sum up, I have shown that the courtroom situation is essentially oral and oral
language becomes the medium through which reality is constructed and negotiated.
Although the question-answer sequence that is fundamental to this situation proceeds between
two interactants (counsel-witness), it is directed primarily to the jury as the receiver and the
decoder of the message. The interest for the linguist thus lies in focussing the attention on the
discoursal strategies of all participants, but particularly those of counsel and witness; the ways
in which both counsel and witness exploit the discoursal resources available, given the
discoursal constraints laid upon them, and the inequalities of power that these represent
(Maley 1994.35).
2.3.1.3 Examination of Witnesses
The trial proceedings consist of several stages that form the compulsory structure of
each trial. In each of these the lawyer has substantial space for the persuasion of the jury. The
stages are: voir dire examination (i.e. examination of the members of the jury, of their
acceptability), opening statements, direct examination, cross-examination, possible
re-examination and closing arguments. In my thesis I have analysed data taken from
a cross-examination transcript, therefore this particular stage will be of major consideration.
I will, however, devote some space to comment on some general features of examination as
such and on direct examination as opposed to cross-examination. Although the opening and
closing speeches offer abounding examples of persuasive methods employed by lawyers, they
are simply beyond the spatial limits of my thesis.
Courtroom discourse is referred to by Maley (1994) as spoken and interactive.
Interactivity is definitely more topical in the question-answer sequence of the examinations,
as the opening and closing speeches are delivered to the jury as to the silent participant, i.e.
one that is not contributing and is not allowed to contribute to the communication by any
verbal means. The examination stages are usually perceived to be the core of the trial
process, an arena of opposition and drama (Maley 1994.36). In their description I will draw
on the lawyers manuals as they clearly define the goals of each stage and to some extent also
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show how to achieve them. The handling of language is nevertheless treated only marginally
and it seems that it is effected by lawyers rather intuitively, or it springs from experience. In
the practical part of my thesis some of the features of persuasion that are actively exploited in
the question-answer sequence by an experienced prosecutor will be dealt with.
In the examination of witnesses stages most of the information vital for determining
the trial outcome will be presented. The information that is determining is the information that
the jury accepts. It is the role of the lawyer, one that wholly relies on his/her skill, to ensure
that the vital information gets through he/she has to first make sure that the jurors are aware
of the piece of information that is presented. Second, it has to be presented in a persuasive
manner so as to ensure that the jurors believe it. Examination in its two forms is directed first
at building the pile of evidence supporting the lawyers position which the jury will accept
usually a direct examination (or re-examination). Secondly, it is aimed at tearing down the
evidence presented by his/her opponent which the jury are willing to accept usually
a cross-examination. (Goldberg 1982.210-211)
2.3.1.4 Direct Examination
In the direct examination the witnesses are supposed to be given the chance to tell their
own stories, to build acceptability and thus to persuade the jury of their version of facts. This
is supported by the rule that leading questions (see p.22) may not be asked during direct
examination and if they are, they are subject to objection, which, if sustained, prevents the
witness from answering that question.
The real reason for the rule that you should not lead on direct, but should lead on cross is not an evidence rule, it is a rule of persuasion. The rule of persuasion is based upon the understanding that how a witness says things is at least as important as what the witness says when you are trying to build up the pile of evidence acceptable to the jurors, and that what the witness acknowledges, not how it is acknowledged is more important when you are tearing down the pile your opponent has built. (Goldberg 1982.213) Jurisprudence maintains that the jury will not accept information presented by the
lawyer but will take into account information supplied by the witness. However, studies by
Luchjenbroers (1997) or Hobbs (2002) have shown that witnesses are the lawyers puppets
even during the direct examination the questions asked are not leading, nevertheless they
exercise high control and do not in fact allow the witness to relate his/her story. This is true
even of friendly witnesses, who being laymen, usually for the first time before the court, are
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dangerous for their barristers in the way that by talking too much they could supply
information that could be harmful to their case.
However, it is clear that as leading questions are allowed to be used at
cross-examination, they will be used abundantly and it will be proved in my analysis.
2.3.1.5 Cross-Examination
Let us now look more closely on the processes of cross-examination and how it should
be conducted. Cross-examination follows direct examination and the structure points at the
objectives of this stage: in cross-examining a witness the prosecutor scrutinizes the weak
points of his/her testimony (presented during direct examination) and tries to expose its
inaccuracies or improbabilities to persuade the jury not to take the witness testimony into
account. A cross-examination is very rarely a scene of a destructing logic turning the lying
witness completely to admit that he/she has made it all up as depicted in films and TV series.
It is the ultimate confrontational theater in which the prosecutor tries to show
a demonstration of bias, the admission of omissions, and the failure of detail on the part of
the witness testimony (Goldberg 1982.271-272). It is a play in which the prosecutor tries to
make the witness look untrustworthy and thus destroy his/her highly persuasive account of
events.
The objectives of a cross-examination as defined by Morrill (1973) will be one of the
following:
a) to establish that the witness is lying on one or more material points
b) to show that the witness is prejudiced
c) to show that his/her testimony is improbable
d) to force the witness to admit certain facts
e) to supplement testimony that the witness has already given
f) to weaken the testimony of the witness by showing it as questionable because of
his/her inability to observe, to hear a conversation, or to see because of poor
lighting conditions, or by showing other facts to reduce the value of his/her
opinion
g) to show incompetence of a witness (on expert matters)
h) to impeach a witness by showing that he/she has given a contrary statement at
another time
i) to cast doubt on the witness credibility (e.g. an ex-convict)
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j) to obtain necessary evidence to establish the case through examination of an
adverse witness during the case in chief. (Morrill 1973.55)
The fundamental device to achieve one of these objectives is lawyer control over what
is being spoken about. Absolute lawyer control is enabled by the very question-answer
sequence. The one who asks is in control as the maxims of the Cooperative Principle (namely
that of relevance) are enforced by the evidentiary rules. In contrast to other discourse
situations where the giver of information generally holds power, in this setting a witness does
not (Luchjenbroers 1997.480). It will be argued, however, that the true giver of information
is the lawyer him/herself.
If the safest way to insure against losing a cross examination is to keep the witness from saying anything at all, the next safest technique is to ask questions that allow the witness to answer in one word. Not only is it the safest way to cross examine, it is also the most effective. The less the witness talks, the more the lawyer controls. (Goldberg 1982.275) The very reason that cross-examination is such an effective tool in the hands of a lawyer is that he can choose the area of inquiry the ground rules are all in his favor. If a series of questions can each be answered by a simple Yes or No, a witness can be required to make such answers. (Morrill 1973.61)
In other words, to ensure that your version of facts is produced and presented for the
sake of persuasion of the jury, let the witness answer only yes or no to each question. I
would add and draw the jurys attention to the desired answer; this will be dealt with under
the heading of conduciveness (see p.26). As Morrill (1973) maintains one should never ask
why? at cross-examination. From the pre-trial proceedings the lawyers have all the relevant
information about their case. Thus the next rule to cross-examining questions is that
a question to which the lawyer does not know the answer should never be asked (Morrill
1973.59).
There are many more hard and fast rules about the lawyers conduct in the battle of
persuasion called the cross-examination. Let me just list some of them as they are not central
to understanding of the thesis the examiner must be fair to witness as the witness is someone
the lay-jury will identify with and thus any dishonesty on the part of the lawyer will reflect on
the acceptance of his/her case; similarly do not let the trapped witness be trapped too long so
as not to produce feelings of compassion in the jury; examine step by step and highlight
important information; etc. (Morrill 1973.57-60).
Let me now go back to the types of questions that should be employed while
cross-examining. The question that gets the yes or no response is a declaration, but in a
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form that requires the witness to agree or disagree. (...) Although the lawyer is not privileged
to speak unless he is asking a question of the witness, the question is in form only (Goldberg
1982.276). Producing only polar answers seems to be rather unfair to the witness as nothing is
black and white. However, this is the purpose of the cross-examination and any explanations
can be provided on re-direct examination. Any other answer would allow the witness to tell
his/her story again and in a persuasive fashion; thus it would be unfair to the counsel as
his/her stage of persuasion would be infiltrated by the opponents witness relating to the jury
and maybe gaining their acceptance.
Goldberg (1982) states some more rules as to the nature of the declarations used in
the cross-examination. The declarations should be short and contain only one idea for them
not to be subject to misinterpretation. This is not directed primarily to the jury but to
preventing any evasive responses on the part of the witness: a long question is likely to be
requested for repetition and if the request is a fair one, you have lost a little not in
substance, but in theater (Goldberg 1982.281). Every topic has to be broken down to its
component parts, each of which contains just one idea. In the question-answer sequence this
may seem rather tedious, it is nonetheless the only way how to prevent misinterpretation and
more than one word answers.
2.4 The Discourse Tactic A Summary
The role of the lawyer in the adversarial system is to make sure that the vital
information that supports his/her case is presented and gets through to the members of the jury
and the judge. Their responsibility is in interpreting the information, not in evaluating its
(in)completeness.
Therefore, the discourse tactic of the prosecutor, i.e. cross-examining lawyer, is clearly
determined by the views of legal realism. In the courtroom, competing versions of facts are
presented by the opposing parties. The tools for the construction of these facts are words, i.e.
language. The prosecutor needs to exploit all possible means of persuasion in order to
persuade the jury of his/her version of the facts - the skilful handling of language is crucial to
achieve this end.
The successful presentation of facts is conditioned by tight interrogation control. This
is ensured by the power relations within the courtroom after the judge, the lawyer is the one
with the most right to speak. Therefore he/she chooses the topics that are discussed. During
the cross-examination, these topics relate to the preceding direct examination and involve
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a scrutiny of its weak points: the prosecutor strives to make the witness look untrustworthy so
that the jury does not take his/her testimony into account.
For the successful persuasion of the jury about the untrustworthiness of the witness,
leading questions are exploited. The prosecutor thus significantly controls the elaboration of
the witness answers (and consequently his/her chances for building credibility) and at the
same time uses these questions to construct his/her version of facts. The prosecutor will hence
use a lot of declarations to build the pile of evidence that supports his/her case and will
usually allow the witness to answer in one word only (or rather will be able to request the one
word answer).
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3. Questions in Courtroom Discourse
Before I embark on the classification of questions that will be analysed in my material,
I want to focus on some problems connected with the definition of questions.
3.1 The Difficulties of Question Definition
To be able to discuss the effects of questioning on the participants in courtroom
discourse, we have to first look at the difficulties we encounter when trying to define
questions.
Quirk et al. (1972) classify questions formally as
sentences marked by one or more of these three criteria: a) the placing of the operator in front of the subject:
Will John speak to the boss today? b) the initial positioning of an interrogative or wh-element:
Who will you speak to? c) rising question intonation:
You will speak to the BSS? (Quirk et al. 1972.386)
It is clear that this definition is not exhaustive as for example a sentence: You like it,
dont you? is a question (though as we will see on the lower level of the scale of
questionness), which can be uttered with falling intonation (and very frequently is).3
Though Bolinger (1957) claims that a question cannot be defined by the utilization of
just one element, he adds that sometimes this ability is ascribed to question intonation.
However, elaborating on this subject he finds four criteria, any of which may serve to define
a given question and no question will lack all of them. They are:
1) interrogative distribution
2) interrogative syntax
3) interrogative intonation
4) interrogative gesture (Bolinger 1957.2-3).
The first criterion employs the fact that questions usually elicit answers and thus an
answer usually indicates that a question has preceded (Bolinger 1957.3). Those linguists that
take this criterion as the one element capable of exhaustive definition, however, usually go
round in circles looking for the definition of an answer. Moreover, not every question elicits
an answer, viz. rhetorical questions and similar.
3 It is surprising how much importance linguists devote to question intonation. The study by Stenstrm (1984) shows that a large number (28%) of questions in face to face conversation are those that ask for confirmation (this will be elaborated on later) and out of these as many as 72% have a falling tone (Stenstrm 1984.177-178).
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Under the label of interrogative syntax Bolinger (1957) includes inversions, wh-words
plus inversions, interrogative tags etc. As regards syntax, there is the problem of a
considerable degree of syntactic and functional overlap; negative interrogatives and
imperatives can be realized by identical surface form, such as in Dont you drink any brandy,
which can either function as a command or as a Q (syntactic overlap), (...) whereas Will you
pass me the book bears a close functional similarity to imperatives (functional overlap)
(Stenstrm 1984.31-32).
Interrogative gestures are raised eyebrows, eyes focused on the interlocutor, hand
gestures etc.
Bolinger (1957) concludes that if we want to have some ultimate foundation for the
definition of question, it would have to be an attitude, some kind of behaviour. A question
appears to be a behavior pattern, and is as real but as hard to pin down as other behavior
patterns: aggressiveness, deference, anxiety, or embarrassment (1957.5). Considering all the
difficulties accompanying the attempts at formal definition of questions, many linguists (e.g.
Anthony, Lyons, Brazil, Coulthard) quoted in Stenstrm (1984) emphasize the irrelevance of
linguistic form in favour of the importance of the linguistic function in discourse, which, of
course, influences the form (Stenstrm 1984.32).
Although it is difficult to define questions from the linguistic point of view, the very
nature of courtroom discourse enables us to overcome this difficulty. The court dialogue is
essentially a linguists passion as it is wholly organized in institutionally enforced adjacency
pairs, one part of which is labelled a question and the other an answer or response. As
Stenstrm (1984) maintains, the characteristics which set examination apart from
conversation are:
1) the turn order is fixed
2) the type of the turn is fixed.
[T]alk is organized into series of Q/R [question/response] pairs and the minimal demand on each speakers turn is that it should be designed either as Q or as R. The distribution of speaker turns is predetermined insofar as the right to ask Qs is restricted to the party who conducts the examination, whereas the examined partys utterance always occurs post-question and is heard as an answer. Speaker-change is consequently unidirectional and occurs in a fixed ABAB order, i.e. is restricted to two parties. The pre-allocation of turns is built into the system and not locally managed. In conversation, by contrast, features of turn order, turn size and what is done in a turn are locally managed, i.e. occur in no pre-determined order. (Stenstrm 1984.257)
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3.2 Classification of Questions
Bearing all this in mind it is nevertheless useful to find some categorization for the
questions to be discussed in a logical and structured way. As courtroom discourse is a field of
study approached by both linguists and lawyers, let me propose two types of classifications.
One based on the lawyers research, the other, more familiar, based on the linguistic
approach.
3.2.1 Questions from Legal Perspective
From a legal point of view, there are only four types of questions that can be asked
during an examination:
a) questions that call for a narrative response
b) questions that define the subject of response
c) questions that call for a specific response
d) questions that suggest the response.
The questions are listed in an ascending order of interrogation control, and
simultaneously, in a descending order of witness credibility (Goldberg 1982.212).
Table 3.1: Questions From a Legal Point of View
Questions from a legal point of view
interrogation control witness credibility
questions that call for a narrative response
questions that define the subject of response
questions that call for a specific response
questions that suggest the response
The first type lets the witness take floor and allows him/her a relatively unhindered
relation of facts. It thus permits the jury to evaluate the speaker and it permits the speaker to
fully employ his/her skills of persuasion.
Example 1:
Q. Would you now explain why on that Lloyd George card you have recorded the time of
death as 14.45?
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The second category includes questions that define the subject of response and thus
give more control over the subject of the witness speech, at the same time they are open
enough to give the witness opportunity to relate to the jury and build credibility.
Example 2:
Q. What is there in 1991, page 847, that permits you to write on this Lloyd George summary
card "Ischaemic heart disease?"
More control is exercised in the specific response questions. The length of the answer
is regulated in order to regulate the display of the witness charisma (or lack of charisma for
that matter).
Example 3:
Q. What time did you admit the next patient to your room?
The last type, referred to in legal terminology as a leading question is a very
significant type, the occurrence of which is even regulated by rules concerning examination.
A question which suggests a response provides maximum control over witness response,
namely its length (usually can be answered by yes or no only), and as the heading suggests it
very importantly offers the right answer. The witness chances of a persuasive appeal to the
jury vanish as soon as this question is uttered.
Example 4:
Q. You had abandoned her as dead at 16.10, hadn't you?
3.2.2 Linguistic Approach
Let us now look more closely at how the linguists usually categorize questions. While
analysing a text, those utterances that are recognized by their function as questions can be
roughly classified into three major categories as to what response they may elicit.
In Quirk et al. (1972) these are:
1) yes-no questions
2) wh-questions (Bolingers how-why questions)
3) alternative questions.
Bolinger (1957) defines also complementary questions, which ask for continuation or
completion, such as And John?, But later?. This is, however, a minor category; moreover, one
that could be treated as an elliptical form of wh-question, where the completion is supplied by
the context (And John did what?, But what happened later?).
Yes-no questions are those that expect an affirmative or negative answer, be it
a gesture (nod, shake), rewording of the question, or simple yes or no with all their possible
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alternatives (e.g. ok, alright, indeed, no way, etc.). Yes-no questions include tag questions and
declarative questions, both of which have a positive or negative orientation, or in other words
are conducive (Quirk et al. 1972.387-392). This will be dealt with in greater detail later on
(see p.26).
Bolinger (1957) does not subdivide yes-no questions in this way; instead he divides
them according to whether:
1) they contain inversions (Do you like it?, the auxiliary precedes subject) - these are
called auxiliary questions
2) they contain increments, i.e. question markers that make what looks like
a statement into a question
3) they manipulate towards affirmative or negative response these are called
conducive questions.
Wh-questions are formed with the aid of one of the following interrogative words who,
what, which, when, where, how, why. They call forth an elaboration of a questioned point.
Alternative questions are of lesser importance; they expect an answer, which is one of
the alternatives (usually two but can be more) presented in the question. Any positive yes-no
question can be converted into an alternative question by adding or not? or a matching
negative clause:
yes-no: Are you coming? alternative: Are you coming or not?
Are you coming or arent you (coming)? (Quirk et al. 1972.399).
Bolinger (1957) adds to the low importance of this category by maintaining that
alternative questions could be subsumed under the heading of yes-no questions. He considers
or to be a coordinating conjunction of two yes-no questions. Will you have oranges? No.
Grapefruit? No. Tangerines then. (Bolinger 1957.114).
Quirk et al. (1972) also mention some minor types of questions, such as rhetorical
questions and exclamatory questions. I would claim that their role is rather connected with
their function in discourse, since on the level of syntax they resemble one of the above stated
categories and only through context can one draw further conclusions.
In my analysis I will employ the basic categorization as devised by Quirk et al.
(1972). Within the category of yes-no questions I will recognize the subcategories of tag
questions, questions with lexical tags (drawing on Bolingers question markers), declarative
questions and yes-no questions proper.
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3.3 Question Functions
A question in discourse can serve a variety of functions, e.g. encouraging the
interlocutor to continue the action, initiating exchange, signalling cooperation, requesting
something, etc. For the purposes of my thesis, I will be dealing with two functions that are
decisive in terms of the degree of persuasion of the addressee, i.e. elicitative force and
conduciveness.
3.3.1 Elicitative Force
As discussed by Stenstrm (1984), different types of questions have different
elicitative forces, which is connected with the perception of questions as utterances that are
asked for the sake of receiving an answer. However, there is a scale to the urgency to
respond, which then influences our perception of whether the question was actually responded
to or not. That is if no R [response] follows a request for information, such as Whats the
time?, the absence will be noticed, but if no R follows a request for acknowledgement, e.g.
This I think is a lovely picture, isnt it?, it would hardly be noticed at all (Stenstrm
1984.46). It is suggested that the degree of elicitative force is bound to the form of the
question. It will be shown in the analysis that this is true, in that a repeated occurrence of
certain forms in human communication creates an expectation as to whether an answer is
needed or not.
The term elicitation suggests not only that an answer should follow, but it also points
at a crucial fact that the question should be responded to in a way that is appropriate, i.e.
coherently with what the addressee is asked about. This notion is incorporated in the
characteristics of adjacency pairs that were introduced by Schegloff and Sacks (1973).
Referring to them, Raymond (2003) presents five features of adjacency pairs in their basic,
unexpanded form:
1) They are composed of two turns that are
2) produced by different speakers and
3) are adjacently placed;
4) these turns are differentiated into First Pair Parts (FPP) and Second Pair Parts
(SPP) and
5) FPPs and SPPs are type-related (e.g. question-answer, greeting-greeting, etc.)
(Raymond 2003.942)
What a speaker says in pair part one preconditions what should follow in the next slot
and if this slot is not filled appropriately the question is not answered. Thus a question not
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only predicts the occurrence of an answer (by means of its elicitative force) but also lays
constraints on the appropriateness or relatedness of this answer (cf. Grices Maxim of
Relation (Leech 1984)). Hence, it follows that some continuations become more socially
acceptable than others; it is definitely much more acceptable to give an answer rather than to
refuse to give it.
Franck (...) suggests that there exists a hierarchy of preference for continuation options, consisting of three levels: 1) acceptance or positive confirmation, 2) refusal or doubt, and 3) indeterminate, postponing reactions like check-ups. (...) Sinclair and Coulthard suggest the following options for utterances ending in an open elicitation: 1) a minimal, totally fitting response, 2) something which satisfies the notional presuppositions of the elicitation but is structurally independent, 3) something which implies an adequate answer but principally sets up further presuppositions, and 4) something which challenges the terms of the question. (Stenstrm 1984.35) Typically, preferred responses are produced immediately and without qualification. (...) Dispreferred responses may be 1) delayed by silence or other conduct, 2) prefaced by appreciations or other items, 3) mitigated or qualified, and 4) explained or accounted for. (Raymond 2003.943)
It will be seen that lawyers formulate their examination questions in such a way that
they elicit a minimal response moreover, an acceptance or negation (cf. conduciveness
below). Thus they exercise great amount of control over the response possibilities of the
witness, who, if dissatisfied with the terms of the question (e.g. considering them harmful for
him/her), chooses a different kind of response from the one expected or socially accepted and
thus loses some of his/her credibility (be it on the subconscious or conscious level). As has
been discussed above, he/she can moreover be forced to provide just the minimal response
that is called forth by the question and the jury may be instructed not to take the part that
does not satisfy the notional presuppositions of the question into consideration.
Let me conclude this part by listing three types of questions commented on by
Stenstrm (1984) according to their elicitative force. She distinguishes:
a) requests for information
b) requests for confirmation
c) requests for acknowledgement.
The first two are taken over and modified from Labov and Fanshel (1977), the last one
is devised by herself. The rule for requests for information states:
If A addresses to B an interrogative focussing on I, and B does not believe that A believes that
a) A has I b) B does not have I
then A is heard as making a valid request for information.
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[The] rule for request for confirmation reads: If A makes a statement about B-events then it is heard as a request for confirmation. I [Stenstrm] suggest the following rule for request for acknowledgment on the same lines: If A expresses his personal opinion or makes an assertion about an A-event either of these utterances may be heard as a request for B to acknowledge. (Stenstrm 1984.46)
For my thesis requests for confirmation acquire a central role. The boundary between
requests for confirmations and requests for acknowledgement is rather vague, usually
disambiguated by intonation only or by occurrence of accentuating pragmatic markers. This is
beyond the scope of my thesis, I will therefore make use of requests for confirmation, adding
some comments if the function tends towards acknowledgement.
3.3.2 Conduciveness
As a characteristic aspect of yes-no questions (with the exception of declarative ones),
Quirk et al. (1972) recognise the use of non-assertive forms any, ever, etc. As opposed to
statements, questions have neutral polarity, meaning that they are open to positive or negative
answers. Hence questions like negatives belong to the class of non-assertions (Quirk et al.
1972.389). Nevertheless, various linguistic devices enable us to formulate these questions in
such a way that they are biased towards a positive or negative answer. This phenomenon is
described by Quirk et al. (1972) as positive versus negative orientation. Leech (1983) uses the
term loaded questions, Pope (1976) the term biased. Bolinger (1957) and Stenstrm (1984)
use the one that I am going to employ, i.e. conduciveness.
A conducive or leading (NB. the term leading, cf. with the legal terminology) question
is one that shows that a given answer is expected or desired (Bolinger 1957.96), one where
A is taken to show preference for one R [response] rather than another, as opposed to a
straight question where no preference is manifested (Stenstrm 1984.47). Paraphrasing
Hudson (1975) Stenstrm (1984) presents one important characteristic of conduciveness, i.e.
that the conducive aspect is read into [the question] by B, who hears a sentence of a certain
form and interprets what he hears on the basis of what he knows about A (1984.48).
It is important to realize that in the case of cross-examination the speaker has more
hearers - the witness and the members of the jury (also the judge). If a conducive question is
interpreted by the jury as calling for a specific answer, viz. agreement or disagreement, and
the answer provided by the witness does not conform to this expectation, a tension is created
and the credibility of either the speaker or the addressee is thus questioned. Along the same
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lines, as the form of a question can employ a variety of conducive devices and can have a high
degree of elicitative force, as opposed to the addressees minimal response options, it
becomes clear against which side the scales of justice are likely to be tipped. This will be
shown later in the analysis of questions used in the Shipman trial.
3.3.2.1 Conducive Devices
Let us now look more closely at the characteristics of conducive devices. There is an
endless variety of means indicating our preference for a particular answer. I will only select
some instances mentioned by Quirk et al. (1972), Bolinger (1957) and Stenstrm (1984) for
the sake of illustration and I will elaborate on them in greater detail when dealing with
specific types of questions.
Bolinger distinguishes between conducive intonation, conducive gestures and
conducive negation in yes-no questions. I will exclude intonation and gestures here, as the
character of my data does not allow me to study these features. Conducive negation relates to
the expectation of a given answer on the basis of assumed absence of any reason for
disagreement on the part of the hearer (often on the basis of known prior agreement)
(Bolinger 1957.99). E.g. Isnt it a nice day? As Quirk et al. (1972) mention there can be an
element of surprise or disbelief, which implies a positive meaning. These questions may often
express disappointment or annoyance, as the assumption of the speaker is not being fulfilled
and thus creates new assumption. Cant you drive straight? (Id have thought youd be able
to, but apparently you cant) (Quirk et al. 1972.389).
Although Bolinger (1957) does not interpret declarative questions as conducive, in his
discussion of tentative assertions it is apparent that he understands them as such. These are
non-questions (statements) that are modified into a question by a tentation; examples are no
doubt, I suppose, I assume, I think. In tentative assertions the speaker expresses his/her
assumption, which is then put forth for confirmation by means of the lexical tag (i.e.
tentation). This is a very important piece of observation that will be employed later in my
study of various types of tag questions and declarative questions. (Bolinger 1957.73-78)
Bolinger (1957.157-164) also touches upon the matter of conducive wh-questions.
Yes-no questions are normally answerable in only one of two ways, which makes it easy to
suggest a yes-no answer in advance: You like it, dont you? is unambiguously conducive.
Answers to hwQs [how-why questions, i.e. wh-questions] are drawn from a theoretically
unlimited semantic field. ... It is therefore difficult to make a hwQ conduce to a specific
answer (1957.157). He recognizes two types of wh-questions that through the context in
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which they are uttered cancel all other possible answers rhetorical questions and
suggestions-for-action. The former are more like forceful statements, What would I give to
see them again!, Who would applaud to such a mediocre performance?, which conduce but
do not compel an answer. The latter are usually those started by the expression why (...) not
Why not try a little harder?. The answer is self-evident, however, some expression of
affirmation is usually present. To the group of conducing wh-questions Bolinger also adds
some that are marked lexically. The lexis usually indicates undesirability Why bother?, Why
worry about such a trifle?, Where would I drive that old wreck?.
As one of the conducive devices Quirk et al. (1972) characterise an insertion of
assertive forms into questions. These expressions indicate that the speaker expresses belief in
his assumption and merely asks for confirmation. They are often used in offers. Would you
like some cake? Did someone call last night? Has the boat left already?. Two forms of
questions are discussed as inherently expecting positive or negative answers tag questions
and declarative questions. They will be discussed in detail (see pp.40-47). Let me now just
state that the former are conducive as they consist of a statement, where the assumption is
expressed, and a tag part, where the interlocutors confirmation is invited. The latter are
conducive along the same lines, however they are even more so as the tag element is missing
and what is an assertion is turned into a question only by intonation. The declarative question
is a type of question which is identical in form to a statement, except for the final rising
question intonation. (...) The speaker takes the answer yes (or no) as a foregone conclusion
(Quirk et al. 1972.392-393). Let me just note that in their terminology declarative questions
are somehow mixed up with questions with different tags like I suppose, I think (cf. Bolinger
(1957)).
A high value is usually ascribed to intonation. As my data does not contain intonation
markers I present here a justification that conduciveness can be studied without a detailed
investigation of intonation.
Assuming that falling tone correlates with assertiveness and finality and that rising tone correlates with lack of assertiveness and non-finality (cf. Pope, 1976:79), these relations do not affect the order already established for the syntactic forms involved; it may be concluded that a Q of a certain syntactic form with rising tone reflects As assumption to a lesser degree and is also less conducive than the same Q with falling tone. Despite the effect of intonation, the interrogative form is still the least conducive and the declarative form the most conducive. (Stenstrm 1984.50)
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It is also notable that these presuppositions about intonation in tag questions and
questions overall are not completely fulfilled in reality, with the falling tone representing a
large amount of questions (cf. Stenstrm (1984)). Let me conclude this chapter with a simple
table taken over from Stenstrm (1984.49), which will be later elaborated on.
Table 3.2: A Basic Scale of Conduciveness
Did John go to London? Weak assumption - least conducive
John went to London, didnt he?
John went to London?
Strong assumption - most conducive
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4. Questions in the Shipman Trial
Let me first introduce a table with the frequencies of the above categorized questions
as they occurred in the analysed text.
Table 4.1: Frequencies of Question Categories I.
Y/N questions 80 23,74%
Alternative questions 12 3,56%
Declarative questions 57 16,91%
Tag questions 117 34,72%
Questions with lexical tag 19 5,64%
Wh-questions 52 15,43%
Sum 337 100%
As can be seen, the most represented categories are tag questions, followed by yes-no
questions. However, as discussed above (see p.25), when we talk about the response they may
elicit, the categories of alternative questions, declarative questions, tag questions and
questions with lexical tag are, technically speaking, subcategories of the category of yes-no
questions. Let me therefore propose another table where this categorization is applied, with
the former category of Y/N questions now being renamed as Y/N questions proper.
Table 4.2: Frequencies of Question Categories II.
Wh-questions Y/N questions
Alt Qs Decl Qs Tag Qs Qs with LT Y/N Qs proper
12 57 117 19 80
4,21% 20,00% 41,05% 6,67% 28,07%
52 285
15,43% 84,57%
Now the disparity between the frequencies of yes-no questions and wh-questions
becomes much more visible and proves what I have stated above (see p.17). The lawyer, in
order to achieve maximum control of the interrogation (along with maximal persuasive
advantage), needs to exploit questions that can be answered with a simple yes or no as often
as possible. This is also a finding of Luchjenbroers (1997), Raymond (2003), Danet (1980)
and many others.
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Let me now focus on the diversification within the category of yes-no questions. I will
pay attention to how the subcategories differ in terms of their elicitative force and
conduciveness and how each of them adds to the persuasive discourse tactic of the lawyer.
4.1 Tag Questions
The category of tag questions has proven to be most frequent in the data I analysed,
representing 34.7% out of all the categories and 41% out of the yes-no questions
subcategories. Thus this category deserves further analysis. The following types of tag
questions, i.e. questions with a grammatical tag, were present in the corpus:
1) The reference clause (RC) is declarative:
a. positive clause + negative tag (pos+neg); reversed polarity (rp):
And that was untrue, wasn't it?
b. negative clause + positive tag (neg+pos); reversed polarity:
There is nothing there relevant to ECG either, is there?
c. positive clause + positive tag (pos + pos); constant polarity (cp):
You disagree with that evidence do you?
2) The reference clause is imperative:
a. positive clause + positive tag (pos+pos); constant polarity:
Look at page 918 A will you, the last document before the schedule.
3) The reference clause is exclamatory:
a. positive clause + negative tag (pos+neg); reversed polarity:
We have to say it, don't we, and then we have to ask don't we, how could Ivy
Lomas have taken a massive dose of morphine or diamorphine, how could that
have occurred in her case?
4.1.1 Semantic Interpretation of Tag Questions
Drawing on Nsslins study of English tag questions (1984), I want to clarify the
conducive aspects of this category along with some remarks on elicitative force. Nsslin
(1984.27-32) takes over Hudsons study (1975) and modifies it to some extent to explain the
underlying semantic structure of tag questions. The following remarks apply to questions
where the RC is declarative, as the type with imperative RC is conducive already by means of
the imposition that is present in the RC. On the other hand, conduciveness in the declarative
type is explained by Nsslin (1984) referring to Hudson (1975) as the logical result of
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opposing conversational rules pertaining to the RC and the tag. Simply speaking, telling and
asking the same thing is confusing to the interlocutor, who can only arrive at the one logical
conclusion that the speaker wants him to agree (Nsslin 1984.26). It is this fact that enables
him to claim that tag questions are always conducive at the semantic level. He summarizes his
findings into two sincerity conditions (SC), which, when appearing together, bring about the
conduciveness (be it positive or negative) of the tag question.
The sincerity condition for declarative or the corresponding semantic category, e.g. statement seems to be this: [SC1] The speaker believes that the proposition is true. (1975:24 (59)). The SC of the question in the tag is always: [SC2] The speaker believes that the hearer knows at least as well as he himself does whether the proposition is true or false. (1975:12 (20)). (Nsslin 1984.27)
However, it is a gross oversimplification that these two sincerity conditions always
produce conduciveness. One needs to consider other factors that dominate conversational
behaviour, viz. contextual factors, pragmatic factors and/or intonation. The speaker may
obviously ask the hearer about his/her view as the speaker him/herself is not sure about the
truth value of the proposition. Or the tag with SC2 may appear as a postmodification
(or afterthought) only: the speaker realizes his/her uncertainty only after the assertion has
been uttered and thus adds the tag as a question to which he/she expects rather opposition than
agreement (Nsslin 1984.28). This is to a great extent a matter of politeness strategies which I
will elaborate on in the section on the pragmatic underlying structure of tag questions (see
p.34).
However, given the discourse tactic as defined above (see p.17), I want to claim that
these two sincerity conditions in the institutional setting of cross-examination are always
conducive. Indeed, the prosecutor prepares all his/her questions in advance and thus
an occurrence of a tag that could be interpreted as a postmodification of the too hasty
proposition put forward by him/her, would be a proof of the prosecutors inexperience rather
than a universal aspect of legal cross-examination. The same applies to the lawyer being
uncertain about the truth value of the proposition: as I have mentioned above, the prosecutor
facing a threat of a lost case is virtually forbidden to ask questions to which he/she would not
know the answer. That is, the prosecutor in employing tag questions tells and asks the same
thing and thus the hearers (the witness, but more importantly the jury) can only arrive at the
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conclusion that the speaker is asking them to confirm his/her proposition about the truth value
of which he/she is sincerely convinced.
What I have discussed concerns only reversed polarity tag questions. Nsslin (1984)
proposes another sincerity condition for constant polarity tag questions, which removes from
the speaker any personal opinions as to the truth value of the proposition in the RC.
[SC3] The speaker does not express any personal opinion as to the truth of the proposition, he merely reports what other people say. The speaker has only reasons to believe that the hearer or other people believe the proposition is true. (Nsslin 1984.29)
According to Quirk et al. (1976), constant polarity tag questions indicate the
speakers arrival at a conclusion by inference, or by recalling what has already been said
(1976.392). The conduciveness of this type is of a different nature. The speaker in expressing
no opinion as to the truth value of the proposition and at the same time asking about it does
not provide any contradiction. The clue to conduciveness can be figured out only through
context. The interlocutor has already made the speaker believe that he thinks [a proposition
is true] (...) and, therefore, when asked, he will be expected to agree. If the interlocutor has
not expressed his opinion earlier but other people have said that they think [a proposition is
true] (...), the speaker wants to know if the hearer subscribes to this view too. Now the
sentence is not conducive, not even in the wider sense of conducive when used about cp
APTSs [constant polarity tag questions], i.e. when the speaker expects agreement as a
repetition of a view the interlocutor has already professed (Nsslin 1984.29).
I rather disagree with Nsslin on this point, since I believe that in the legal setting of
the cross-examination the constant polarity tag question is even more conducive than the
reversed polarity tag question. The prosecutor in presenting the witness with a question the
truth value of which has been established in the course of the preceding examination (i.e.
through the preceding context), is usually presenting it in a new context which may now
prove harmful to the witness and thus he/she needs to disagree. This becomes, however, very
difficult by means of the conducive constant polarity tag question which lays the
responsibility on the witness, who once accepted the truth value of the proposition and now
disagrees with him/herself. The jury will of course be aware of this and thus the witness by
rejecting the proposition of the question is corrupting his/her previous testimony which is
exactly the aim of the cross-examining prosecutor. Examples of this procedure will be
provided in the analysis that follows.
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Nsslin (1984) continues examining the constant polarity tag question in terms of
elicitative force.
The comments on the difference between cp APTSs and rp APTSs are vague in linguistic literature. A common statement is that cp APTSs are closer to direct questions than rp APTSs. (...) A speaker who is neutral to the truth value of proposition is experienced by the hearer to be more in need of an answer than a speaker who has already said that he believes or even knows that his proposition is true. (Nsslin 1984.31)
In this case I would once again be inclined to disagree. If the truth value of the
proposition has already been established in the preceding context, the speakers constant
polarity tag question does not really expect an answer (different from a nod or some gesture
encouraging the speaker to continue), the tag is here in my view a polite consideration of the
hearers presence and of the possibility of a different opinion (this possibility is, however,
very limited).
4.1.2 Pragmatic Interpretation of Tag Questions
I touched upon some pragmatic aspects when applying contextual devices to the
discussion of the semantic underlying structures. Now I will elaborate more on conduciveness
as pragmatics would have it. It will be seen that the understanding is similar to the semantic
approach, although using different concepts.
Leech (1983.30-44) discusses the pragmatic interpretation as problem-solving. One
needs to look at what the speaker is trying to achieve through a means-ends analysis and at the
same time how the hearer interprets the message in terms of heuristic analysis. The discussion
is based on universal conversational rules devised by Grice (1968). Gricess rules are devised
via the concept of the Cooperative Principle (CP) to which Leech adds the Politeness
Principle (PP) these two for him are the basic principles that can help us interpret human
communication (there are also others, which are not useful for my analysis; cf. Leech (1983)).
One of the rules of the CP is the so-called Maxim of Quality.
Quality: Try to make your contribution one that is true: ie 1. Do not say what you believe to be false. 2. Do not say that for which you lack adequate evidence. (Leech 1983.8)
The CP enables one participant in a conversation to communicate on the assumption that the other participant is being cooperative. In this the CP has the function of regulating what we say so that it contributes to some assumed illocutionary or discoursal goal(s). It could be argued, however, that the PP has a higher regulative role
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than this: to maintain the social equilibrium and the friendly relations which enable us to assume that our interlocutors are being cooperative in the first place. (Leech 1983.82)
When applying these to the analysis of tag questions we immediately find out why
Quirk et al. (1976) described tag questions and declarative questions as inherently conducive.
The RC of the tag question is in the form of declarative (semantically a statement) and
according to the Maxim of Quality, this statement expresses speakers view that what he/she
says is true (cf. SC1 above). However, such an assertion is rather infrequent in normal
conversation as it contradicts the PP, i.e. telling your interlocutor that what you say is truth
and nothing but the truth would definitely be considered by him/her impolite. Therefore the
grammatical tag is attached to the RC, which has a mitigating effect: it provides the hearer
with the possibility to disagree (as will be seen, in the declarative question this function is
supplied by intonation). The PP which reflects itself in the tag can thus be compared to SC2.
However, as Nsslin (1984.49) argues, in Hudsons theory the sincerity conditions are
balanced, whereas in the pragmatic interpretation, referring to Lakoff (1972), the sincerity
condition of the RC always dominates the sincerity condition of the tag. The domination of
the RC can be highlighted by employing accentuation, which is another frequent pragmatic
feature used to support the speakers standpoint. Accentuation is a feature modifying the
illocutionary force the meaning becomes reinforced, underlined, exaggerated, explicit
(Urbanov 2003.66). As accentuation cannot be studied here in detail, consider the imbalance
that is produced by looking at a few examples.
Example 5:
Q. She could not possibly have done so, could she? Example 6:
Q. Now look, the plain truth of the matter is that you were telling Carol Chapman that your
ECG machine wasn't working, weren't you?
Example 7:
Q. Carol Chapman has every reason to remember vividly what occurred that afternoon, has
she not?
The proposition of the RC purports to be true due to the Maxim of Quality and this is
reinforced by the use of accentuation. Such a strong assertiveness is balanced (not equally as
was shown) by the polite tag, providing the possibility to disagree.
Coming back to the constraints of the institutional setting, my claim is that the polite
feature, i.e. the tag, is directed at the members of the jury (rather than at the witness) as the
prosecutors means of saving his/her face. Were it not for the jury, the prosecutor would, in
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my view, exploit even more conducive devices, maintaining as high degree of interrogation
control as possible. However, not to be despised by the members of the jury for his/her
arrogant assertiveness and abusing his/her institutional power and for the jury not to feel
compassionate with the witness, he/she needs to mitigate the uttered propositions.
The tag question thus allows the prosecutor to employ a high degree of conduciveness
and at the same time be polite. This is then turned against the witness, who interprets the
question as one looking for a particular answer (along with the members of the jury) and by
uttering a response that does not conform to the expectation created by the question (because
the design of the question is harmful to him/her), he/she risks to create the tension: the jury
was looking for some kind of response and the witness produced a different one.
Example 8:
Q. Well, if this lady died at 10 minutes past 4 she must have been administered or
administered to herself diamorphine between certainly 4 o'clock and 10 past 4, mustn't she?
A. You can put the evidence that way and yes I would agree.
Q. You were with Ivy Lomas throughout all that time, weren't you?
A. I don't disagree with that statement.
Q. Continuously with her. We can see when you were first with her because that is shown on
the computer screen. If you pull out the A3 schedule, 15.57 and 16 seconds, "Seen in GP's
surgery. Dr. H. F. Shipman." That is not a backdated entry. And so that indicates that at 3.57
you were in the presence of Ivy Lomas?
A. I'm not disagreeing with that.
Q. And you say to us here and now, do you, that you were continuously in her presence up to
the moment that she collapsed and died?
A. Allowing for the time taken for resuscitation, yes.
Q. How then did Ivy Lomas get that diamorphine into her system?
A. I have no knowledge.
Q. Dr. Shipman, there is simply no sensible explanation, is there?
A. Was that a statement or was it a question?
Q. You know very well it was a question, formulated as a question requiring an answer. Dr.
Shipman, there is no sensible explanation, is there?
A. I know, do not know of any explanation.
This example is one of the crucial points of the whole cross-examination I came across
in my analysis. There are questions that precede the final accusation, all of them formulated as
closed questions and all of them conducive to agreement. Note well that there is an open-
ended wh-question however in the context that is provided, this question cannot be
answered narratively as to win some credibility on the part of the witness; on the contrary, the
only explanation that could answer this question is Dr. Shipmans guilt. Through the context
thus created the final accusation is also strongly conducive and Dr. Shipman in providing the
non-conforming response loses the whole battle of words. It has been proven to him that by
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the time that the fatal dose of diamorphine was administered to the victim, he must have been
there.
The example above also points to another pragmatic feature of conduciveness, which I
have already partly mentioned, and that is the context. I now want to discuss another
pragmatic device, which relates to the context and that is the emphasis on symmetrical
relations between the participants in conversation. Urbanov (2003.45) defines symmetrical
relations between participants in conversation as a state where an atmosphere of mutuality,
confirmation, agreement and commitment prevails, a state, when the participants share the
same ground. The CP and the PP underline these relations as those that are preferred in
everyday conversation. [D]eclarative questions with or without intonation or lexical
markers, as well as declarative questions accompanied by tags or prompters, reinforce the
effect of confirmation and agreement, including commitment (Urbanov 2003.45). Thus
another pragmatic aspect of tag questions that is derived from their conduciveness is that tag
questions are mostly confirmation-seeking. I claim that in the legal setting they always seek
for confirmation, thus creating an atmosphere of agreement.
Example 9:
Q. If an ambulance had been sent to your surgery Ivy Lomas would have been taken away to
hospital, wouldn't she?
A. Yes, she would have done.
Q. And when she was taken away to hospital she would have been the patient of the doctor at
the accident and emergency department of presumably Tameside General Hospital?
A. Yes.
Q. And when it came to whether or not a death certificate