4.1 Overview of Question Types in the Direct and Cross Examination
4.2.4 Declarative Questions in Cross Examination
The analysis of the data for the present study revealed both Negative and Positive Declarative Questions being used in the cross examination phase. The first observation to make in presenting the use of Declarative Questions is that these
were frequently formulated starting with a ‘so’ summariser (cf. 5.3.1 and 5.5.2). The prefacing discourse particle ‘so’ is a marker of coercion as it makes the declarative statement it preceeds sound like the only logical conclusion one can reach or the only explanation there is for an occurrence. Thus, it places an even greater demand on the witness to agree with the assertion of the question (Farinde, 2009). Consider example 9.4 that follows.
Example 9.4: DS2Case09CE
Ac1: Kwa hivyo hukupiga ripoti ya mshukiwa yeyote?
So you never made a report about any suspect?
W: Hapana.
No.
Ac1: Na polisi waliwezaje kujua waliokuibia?
And how were the police able to know who had stolen from you.
W: Hiyo utauliza polisi. Mimi niliitiwa watu tu.
That you will ask the police. I was just called to see people.
Ac1: Polisi alikuwa kwa kitendo?
Were the police at the scene of the incident?
W: Hapana, walikuja baadaye.
No, they came afterwards.
Ac1: Unasema mshukiwa aliye mbele ya mahakama unajua jina lake?
You are saying the suspect before court you know his name?
W: Niliuliza after identification.
I asked after identification.
Ac1: Kwa hivyo wewe uliambiwa?
So you were told?
W: Ndio, niliambiwa na polisi.
Yes, I was told by the police.
Ac1: Kwa hivyo hii ripoti si wewe uliripoti?
So you are not the one who made this report?
W: Unajua wewe ndio umeshika hivyo. Sijui kama unayoshika ndiyo niliandikisha.
You know that is what you have understood. I don’t know whether what you have understood is what I recorded.
Despite the resistance from the witness, the unrepresented accused person in example 9.4 above uses ‘so’ prefaced Declarative Questions to challenge some aspects of the witness’s testimony. In responding to the first such question, which is actually a Negative Declarative Question, the witness concurs with the assertion in the question that in his initial report to the police, he did not name specific
suspects. Given this concurrence, the second ‘so’ prefaced question could thus have been used to portray the witness’s testimony as hearsay as it is what he was told by the police, rather than what he came to know of firsthand, and before this is a Projected Statement of what the witness has said. The last question in the exchange is a conclusion by the accused that it is not the witness, who was also a victim of the crime that was the subject of the trial, who made the report that led to the arrest of the accused persons to the police. This question is probably meant to impute improper motives on the part of the police in arresting and charging the accused persons with robbery. The power of Declarative Questions to challenge witness testimony and impute improper motives on the witness or other parties lies in the fact that such questions avail the examiner with means to word his or her ‘beliefs about the truth of the evidence’ (Woodbury, 1984, p. 217). This is what the lay litigant seems to be doing in example 9.4 with an almost formulaic repetition of the words ‘so you…’ followed by what he believes the witness did or did not do.
A second observation with reference to Declarative Questions was that they can also be used to coerce a witness to accept facts that are contrary to what he or she knows or witnessed as examples 10.4(a)-(c) below show.
Example 10.4: DS1Case03CE
(a) W: Tulikuwa tunaenda hivi sasa tukiwa upande huu. {((demonstrating))}
We were going this way on this side
C: Kwa hivyo hiyo gari ulisema, ilitoka nyuma yenu?
So the vehicle you were saying, came from behind you?
W: Hapana. Ilitoka upande wa mbele. Mahali tulikuwa tunaenda.
(b) C: Sasa mkitembea kwa barabara, mlikuwa aje wewe na huyo mtoto? Ni wewe ulikuwa mbele au ni yeye?
Now as you walked on the road, how were you and that child? Were you in front or it wasthe child?
W: Alikuwa mbele.
He was infront.
C: Kwa hivyo wewe ulikuwa unatembea nyuma yake?
So you were walking behind him?
W: Ndiyo.
(c) C: Lakini haukuwa umemshika mkono kwa sababu alikuwa mbele yako?
But you were not holding him or her by hand as he or she was in front of you?
The defence counsel’s questions in example 10.4 appear to be seeking to establish pertinent facts regarding the case whose subject is a fatal road accident. She first seeks to establish the direction from which the vehicle approached with a question that declares it came from the back; a declaration the witness disagrees with. The second question seeks to establish that the witness and the child who was hit were not walking together and it leads to the third Declarative Question which is a conclusion that the witness was not holding the child’s hand. This third question is more coercive as it is negatively formulated making it even more difficult for the witness to reject the proposition it contains. The trap in Declarative Questions lies in the fact that a skillful examiner utters them with ‘a rather casual tone, which suggests that the speaker takes the yes or no as a foregone conclusion’ (Quirk and Greenbaum, 1973, p.195). The counsel in this case was observed to ask such questions in a casual way while even perusing her files. Such an offhand manner might obscure the real import of the proposition expressed in the declarative and make a witness who is not keen to agree to damaging propositions.
The third observation made was that Declarative Questions were at times combined with other question forms to mount and sustain an attack on a witness’s testimony on a given issue. Such a use of questions is partly what achieves the pragmatic effect that Matoesian (1993) refers to as nailing down (cf. 5.1). Consider the question forms in example 11.4 below.
Example 11.4: DS1Case03CE
C: Lakini umesema barabara ina mashimo mengi, si ndio?
But you have said the road has many pot-holes, isn’t that so?
W: Ndio [kuna-]
Yes there is-
C: [Kwa hivyo] gari haiwezi kwenda kasi, si ndio?
So a vehicle can’t move fast, isn’t that so?
W: Ilikuwa ikienda mbio ina hepa hepa hizo mashimo.
It was moving very fast, it was evading the potholes.
C: Lakini dereva alishindwa kuhepa shimo kwa sababu alikuwa anazuia kugonga mtoto?
But the driver was unable to avoid one of the pot-holes as he tried to evade hitting the child?
W: Hapana. Aligonga shimo, sasa gari ikakuja ikagonga mtoto.
No. He hit a pot hole and the vehicle came and hit the child.
C: Wewe umesema haukugongwa na gari, si ndio?
You have said the vehicle didn’t hit you, isn’t that so?
W: Ndio [nili-]
Yes I-
C: [Ndio.] Ulikuwa kando na ukatoroka ukaacha mtoto mwenye alikuwa mbele yako kwa barabara, si ndio?
Yes. You were on the side and you ran away and left the child who was ahead of you onthe road, isn’t that so?
W: Sote tulijaribu kutoroka.
Both of us tried to run.
C: Lakini wewe haukugongwa. Umesema uliruka mtaro. Mtoto aligongwa kwa sababu alibaki kwa barabara, si ndivyo?
But you were not hit. You said you jumped over a ditch. The child was hit because he or
sheremained on the road, isn’t that so?
W: Hapana. [Alikuwa-]
No. He was-
C: [Ilikuwa saa] ngapi wakati accident ilitokea?
What time was it when the accident occurred?
W: Ilikuwa jioni
It was in the evening
C: Usiku?
At night?
W: Hapana. Kama saa kumi.
No. It was around 4 o’clock.
C: Kulikuwa kunanyesha?
W: Hapana.
No.
C: Ilikuwa mchana na hakukuwa kunanyesha, kwa hivyo dereva aliwaona vizuri?
It was during the day and it was not raining, so the diver could see you clearly?
Example 11.4 shows that a combination of Tag and Declaragtive Questions, each containing propositions that mean to weaken prosecution’s case, could make it difficult for the witness to resist the version of facts the cross examiner is portraying. The overriding assertion in the Tag and Declarative Questions in example 11.4 is that the vehicle was not moving fast, the driver saw the child but could not avoid hitting him or her as he or she was on the road and the person who should have prevented it all, the witness, ran and left a small child on the road. The accusations are made and sustained through declarations in the statements preceding Tag Questions. One notes that some of these statements are pre faced by ‘so’ or ‘but’ which increase the demand on the witness to agree with what is said.
In addition, some of the statements preceding the tags take the form of Projected Statements. Projected Statements are a subtype of Declarative Questions where the questioner quotes back to the witness something they said earlier when giving testimony. Projected Statements are hard to deny because denying them would seem like denying one’s testimony. Example 11.4 also has two Declarative Questions, and coupled with this, one notes that in the extract, the counsel violates the witness’s turn three times through interruption, so the witness is not allowed to elaborate on his responses to the questions. The cumulative effect is that the
witness, who witnessed the events that are the subject of litigation firsthand, is a constrained party in the attempt to reconstruct what had happened. The final picture that emerges is made to reflect more what the lawyer wants the court to believe happened. This happens because courtroom discourse empowers attorneys to pursue a particular response. Matoesian (1993) notes that the ‘conversational resources for initiating a topic…and deleting/overriding a response…are asymmetrically distributed’ (p. 180) in courtroom discourse. Given this, the exchange in example 11.4 is reproducing and affirming the power relations among the discourse participants in line with the third tenet of CDA which holds that discourse constitutes society and culture (Fairclough & Wodak, 1997).
The most conducive type of Declarative Questions is the negatively formulated Declarative Question. The negatively formulated Declarative Questions not only make assertions but also sound like accusations that the witness did something wrong. Consider the following exchange in example 12.4(a)-(b).
Example 12.4: DS1Case07CE
(a) C: So as you were there at ___ Law Courts you did not record whatever happened did the normal occurrence book?
W1: Yes, I recorded at the ____ Police Station.
C: But you never reported anything of what you had done. In other words, _____ Security has no record from you as their employee as to what happened that day?
(b) C: The paper bag which you referred to- have you produced any paper bag?
W1: No.
C: So you never found a paper bag?
The three questions in example 12.4 use the negative words ‘not’, ‘no’ and ‘never’. The first and second questions paint the witness as negligent for not
having made a record of what had transpired at her work place with regard to the case at hand. The last question seems to be an attempt to show a contradiction in the witness’s testimony that she found drugs on the accused that were wrapped in a paper bag, yet she has not produced it as evidence. This makes the counsel declare the paper bag not to have been there in the first place thus, placing blame on the witness for things beyond her control because a witness is not in charge of handling exhibits and deciding which one is produced during trial.
Finally, we go back to the subtype of Declarative Questions already mentioned in example 11.4 that is Projected Statements. Projected Statements are questions in which the examiner quotes back to the witness something the witness had said earlier. Such questions are powerful resources of control especially when paired with pragmatic strategies like reformulations, as they call for agreement with what the examiner is asserting. Whereas in example 8.4 Projected Statements were shown to serve supporting functions in direct examination, in cross examination, Declarative Questions formulated as Projected Statements, were mainly used to pin down the witness on certain aspects of their testimony by pushing them into a dilemma. The witnesses have to choose between giving a response that could make them sound unsure or untruthful, or a response which makes them reject their earlier own words. This is illustrated in example 13.4 below.
Example 13.4: DS1Case02CE
C: Umesema kwamba sista yako alikutuma sukari na unga dukani?
You said that your sister sent you sugar and flour at the shops?
W: Ndiyo.
C: Halafu ukasema mtoto wake alikufuata, si ndivyo?
Then you said her child followed you, isn’t it?
W: Ndio.
Yes.
C: Kwa hivyo wewe ulitoka ukienda halafu yeye akakufuata nyuma?
So you left and then he followed you from behind?
W: Tulitoka pamoja.
We left together.
C: Kwani huna uhakika vile unasema? Ulitoka nayeye akakufuata, si ndio umesema?
Are you not sure of what you are saying? You left and he followed you, isn’t that what you have said?
Only the first question, in example 13.4, is categorised as a Declarative Question with the other three being categorised as Tag Questions but there is no mistaking that their prefacing statements are projections of the witness’s earlier testimony. The first two questions elicit affirmative responses from the witness, and they are followed by a positive Declarative Question in which counsel asserts that the witness and the child who was hit did not leave home together. This could have an implication that a young child had wandered into the road alone attempting to go after his uncle. Such an assertion would be damaging to the prosecution’s case as it imputes negligence on the part of the child’s caretakers. When the witness disagrees with this assertion, the counsel casts doubt on his testimony by declaring he seems not to be sure of what he has said. So the witness is in a dilemma: to accept the damaging allegations or to reject them and seem to be rejecting the testimony he has just given in examination-in-chief.
Moreover, as example 14.4 illustrates, Projected Statements can be used to get the witness agree with something which is then made the subject of antagonism.
Example 14.4: DS1Case03CE
W: Yes.
C: How come you didn’t go to hospital that night if you were badly hurt?
W: At 11 am on my own. It was very late and bleeding stopped after I was given first aid. C: It was late. But you had gone to a bar alone at night and you finally went home alone
right?
W: The clinic I went to does not operate at night. C: KNH operates 24 hours.
The witness in the example above admits seeking treatment the following day after being assaulted at night, an assertion which is put to her in the declarative Projected Statement. The defence counsel immediately picks on this concession to show the witness’s actions are contrary to what would be expected from someone who has just sustained serious injuries in a fight. Thus, the examples show that in cross examination, Projected Statements are almost always traps for the witness ‘because they have an inbuilt mechanism of repeating what was said earlier, commenting on it and focusing the attention of the court on what the examiner deems important’ and there is little the witness can do to resist (Moeketsi, 1999, p. 53). This is further evidence of the combative nature of the cross examination phase of trial.