The present study established that questions occupied a central place in the discourse of the sampled trials as they were the primary mode of eliciting testimony from witnesses in examination-in-chief, and the means through which testimony was challenged in cross examination. However, focusing on the cross examination phase shows a big difference between counsel and lay litigants in their use of questions. Adding up the totals of question types used in cross examination shows that while counsel used a total of 750 questions in cross examining defence witnesses, the unrepresented accused persons only used a total of 315 questions.
This difference could be indicative of the challenge that lay litigants face while defending themselves in court (cf. 4.2.2). As a result, their cross examinations mainly consisted of declarative statements despite the fact that the rules of courtroom procedure restrict examiners to using questions to pursue their goals. Such statements could not be coded as questions. Though it has been established that questions are powerful tools of manipulation and control because they place the examiner in charge of topic choice and change and avail means by which the examiner can constrain witness responses, it is important to remember that the ability to exploit the power in questions depends on great skill and experience on the part of the examiner. The assertion that ‘for CDA, language is not powerful on its own - it gains power by the use powerful people make of it’ (Wodak, 2001, p. 10) is important as it could help us explain the challenge that most lay litigants face even when availed the resource of questions when they take on the role of cross examiners. The lay litigants may not have the benefit of formal training in law or language, and lack experience due to infrequent appearance in court. This could impact negatively on their skill in the use of questioning as a mode of challenging the testimony of adverse witnesses. But this is the skill that lawyers possess from formal training and practice through frequent appearance in court. Thus, unequal access to training means that power asymmetries in the courtroom remain in favour of the officers of the court because unrepresented accused persons cannot exploit the language resources that would give them power.
Another possible explanation for the difference between counsel and lay litigants in their use of questions during cross examination could be that the use of questions as the primary mode of communication is a creation of the conventions of courtroom procedure that is divorced from the conventions of everyday conversation (Conley & O’Barr, 1990). These authors also identify rules regarding hearsay, relevance and the expression of personal opinion as the other impediments that lay litigants have to contend with in the courtroom context. In example 21.4, the pro se litigant is reminded by the magistrate to ask questions that are helpful to his case. A judgment on the question types that best serve the interest of the defendant may require knowledge of the logic of the law which many lay litigants may not be versed with. In addition, it was observed that many litigants resorted to giving their version of facts when invited to cross examine the prosecution’s witnesses. This led to constant interruptions from magistrates and court clerks urging litigants to stop narrating their version of facts and instead ask questions (cf. chapter five). Those unable to comply are forced to end their cross examination.
Thus, as Anesa (2011) notes, within the CDA framework, the identification of powerful versus powerless participants calls for a critical analysis of the context and the participants. Our analysis of the examples presented in this chapter on question use leads us to conclude that assuming the role of an examiner does not automatically render accused persons powerful. One of the tenets of CDA is that
discourse is history and can therefore only be understood by appealing to extra linguistic factors like the different facets of culture (Fairclough & Wodak, 1997). Thus, the access to formal education or the presence or absence of legal education for the general citizenry could be factors to consider in explaining the challenges lay litigants face in the use of questions and ways of assisting them.
This study approached the analysis of questions by adopting a classification system based on the coerciveness of questions from Tkačuková (2010). The typology has the least coercive question types being WH- Questions and these are followed by Polar and Alternative Questions. More coercive than these are Declarative Questions and the most coercive question types are Tag Questions. WH- Questions are considered least conducive, and it would be expected that they would find more use in the friendly phase of direct examination where the examiner and the witness collaborate to build a given set of facts.
However, this expectation is not fulfilled by our findings which, instead, show the distribution of WH- Questions being almost equal in direct examination and cross examination phases. The frequencies for WH- Questions in direct examination were 327 and in cross examination they were 357. This finding is in contrast to those by Farinde (2009) and Luchjenbroers (1993). In the data by Luchjenbroers, WH- Questions of 342 (16.7%) in direct examination and 133 (8.1%) in cross examination while Farinde (2009) reports frequencies of 119 (62.6%) in direct
examination and 98 (18.3%) in cross examination. The comparison of lay litigants and the counsel by Tkačuková (2010) established that the lay litigants used WH- Questions more than the lawyer did, but in our data the distribution of WH- Questions between these two groups presents a different scenario with the frequencies being 126 (40.0%) for pro se litigants and 231 (30.8%) for counsel as cross examiners. It needs to be noted that the differences between the present study and others cited here is mainly at the level of numbers. Our analysis within the framework of CDA involves looking at how different forms identified find use at the local level. As examples 28.4 to 30.4 show, WH- Questions can be used to achieve antagonistic ends. Thus, it would be hasty to assume that the high incidence of WH- Questions in cross examination phases of the trials in the study sample makes this trial phase any less combative.
Indeed, the view that question form need not always correlate with a certain degree of coerciveness has always been acknowledged (Berk-Seligson, 1999; Danet, 1980). However, it is Eades (2000) who puts it somewhat more forcefully stating ‘I question the assumption that an isomorphic relationship exists between language form and function’ (p. 169). In her study of the treatment of Aborigine witnesses in Australian courts, Eades (2000) concluded that witness control is achieved through a range of discourse devices and asserted that ‘looking at broader chunks of discourse, reveals the isomorphic form-function assumption problematic’ and thus warns against overreliance on ‘question form to discover
how witness are controlled’ (p. 189). She identified the use of other strategies like interruption, metalinguistic comments and silencing of witnesses’ explanations on culture and lifestyle as other strategies of dominating witnesses.
The present study shares these assertions, and, therefore, our analysis of questions goes beyond mere counting of interrogative forms. The micro-analysis of the examples presented in this chapter is meant to show the use and effect of questions in broad chunks of discourse. In addition, the remaining analysis chapters, (cf. chapters five, six and seven) shift focus to a discussion on how pragmatic and other language resources can point out to the unequal relationship among discourse participant in the courtroom.
4.5 Summary of Chapter
This chapter has presented an analysis of question types in the study sample of the present study. The analysis involved presenting bar graphs and tables that showed the frequencies of various subtypes of the major question types. These presentations were followed by a detailed discussion of examples to show the discourse ends that the said question types were used to achieve by various participants in courtroom discourse. To achieve their desired ends, discourse participants in the courtroom setting do not just rely on questions alone but use them in conjunction with other strategies that are pragmatic in nature. These pragmatic strategies are the focus of chapter five that follows.
CHAPTER FIVE
USE OF PRAGMATIC STRATEGIES IN DIRECT AND CROSS EXAMINATION PHASES OF THE SAMPLED TRIALS 5.0 Introduction
Language use in both direct and cross examination phases of a trial is goal oriented. Thus, the choice of both questions types and responses is strategically done by the discourse participants. Bearing this in mind, an analysis of the syntactic form of questions used in these two phases of trial, while important, would give an incomplete picture of the discourse if it is not linked to the fact that pragmatic factors influence linguistic choices. Pursuant to the second objective of the study, this chapter looks at the use of pragmatic strategies by examiners in the study sample. The chapter begins with a summary of the typology of pragmatic strategies adopted for this study, and this is followed by presentation of data to show the use of these strategies in the sampled trials. The chapter ends with a discussion the significance of the use of these strategies by different participants in courtroom discourse.
5.1 Overview of Pragmatic Strategies in Direct and Cross Examination