Presentation of Question Types in Direct and Cross Examination

The data for this study comprised transcriptions of a total of 30 hours of audio recorded court proceedings from three sampled courts (cf. 3.3.1). The data were divided into two sets to make the analysis easier. The first data set (cf. Appendix 1), which featured criminal, corruption and civil cases, had defendants who were represented by counsel. This means that whereas a police prosecutor or a state counsel (for criminal and corruption cases) or a lawyer (for civil cases) did the questioning during direct examination, cross examination was done by the counsel for the defence. In the second data set (cf. Appendix 2), which

exclusively featured criminal cases, the defendants were unrepresented and, thus, did the questioning in cross-examination; however, the examination-in-chief was done by a police prosecutor.

Figures 1 to 5 that follow present the percentage frequencies of the various question subtypes identified in section 4.1 as they were used by different examiners in the direct examination and cross examination phases of the sampled trials. Figure 1 shows the percentage frequencies of question types used by prosecutors during examination-in-chief in trials without a defence counsel; meaning the defendants appeared pro se. These are the trials in data set two (cf. Appendix 2).

Key:

WHQ1 = Requestion without Embedded WH- Trigger

PDQ = Positive Declarative Question

WHQ2 = Requestion with Embedded WH- Trigger

NDQ = Negative Declarative Question

NSQ = Non-sentence Question Proj. = Projected Statement WHQ3 = Routine WH- Question Agr. = Agreement Statement

WHQ4 = Open WH- Question Mem. = Memory/Knowledge

Question

PYN = Positive Yes/No Question CNT = Confirmatory Negative Tag Question

NYN = Negative Yes/No Question EOQ1 = Either/Or Question with a

Vacant Slot

Figure 1 shows that in the second data set, featuring trials with no defence counsel, the total number of questions asked by the police prosecutors in direct examination were 589 out of which 261 (44.31%) were Open WH- Questions. Next in frequency of occurrence were Positive Yes/No Questions which occurred 116 times (19.69%). The two question types constituted 64% of all the questions asked. Interestingly, Non-Sentence Questions with a frequency count of 61 (10.36%) were third while Routine WH- Questions and Positive Declarative Questions tied with an occurrence of 54 (9.17%) each. Each of the other WH- Questions subtypes had a less than 10 frequency of occurrence as shown in Figure 1.

The first data set (cf. Appendix 1) featured trials where the defendant was represented by counsel. As mentioned earlier (cf. 4.2.0), this data set had trials in which the direct examination was conducted by counsel (for civil cases) and others where direct examination was done by a police prosecutor (for criminal cases). Figure 2 that follows shows the distribution of question types used by police prosecutors during examination-in-chief in trials with a defence counsel.

Key

WHQ1 = Requestion without Embedded WH- Trigger

EOQ1 = Either/Or Question with a Vacant Slot

WHQ2 = Requestion with Embedded WH- Trigger

EOQ2 = Either/Or Question NSQ = Non-Sentence Question PDQ = Positive Declarative

Question

WHQ3 = Routine WH- Question NDQ = Negative Declarative Question

WHQ4 = Open WH- Question Proj. = Projected Statement PYN = Positive Yes/No Question Agr. = Agreement Statement NYN = Negative Yes/No Question

As captured in Figure 2, Open WH- Questions were the most frequently used with a count of 138 (44.37%) followed by Positive Yes/No Questions whose frequency was 75 (24.12%). These two constituted over two thirds of the 311 questions

asked by the prosecutors. At a distant third were Positive Declarative Questions with a frequency of 26 (8.36%) and fourth were Routine WH- Questions with a frequency of 22 (7.07%). Non-Sentence Questions and Projected Statements, each with a frequency of 19 (6.11%) and 12 (3.86%), were the only other question types with frequency counts of more than ten.

Turning to direct examination conducted by counsel in the same data set, an almost similar situation as the one in direct examination by police prosecutors was observed (cf. Figure 2). Figure 3 attests to this.

Key

WHQ1 = Requestion without Embedded WH- Trigger

EOQ2 = Either/Or Question NSQ = Non-Sentence Question PDQ = Positive Declarative

Question

WHQ3 = Routine WH- Question NDQ = Negative Declarative Question

WHQ4 = Open WH- Question Proj. = Projected Statement PYN = Positive Yes/No Question PCT Positive Confirmatory

Tag Question

NYN = Negative Yes/No Question CNT = Confirmatory Negative Tag Question

EOQ1 = Either/Or Question with a Vacant Slot

Figure 3 shows that Open WH- Questions had the highest frequency of 106 (39.11%) followed by a virtual tie between Positive Declarative Questions and Positive Yes/No Questions which had frequencies of 56 (20.66%) and 50 (18.45%) respectively. The only other question types with percentage frequency counts of more than ten were Non-Sentence Questions 19 (7.01%) and Routine WH- Questions 12 (4.43%).

We now turn to the cross examination where there were trials that featured counsel as cross examiners while others had unrepresented accused persons cross examining the prosecution’s witnesses. The bar graph in Figure 4 shows the percentage frequencies of the various question types used by lawyers in the cross examination phase.

Key

WHQ1 = Requestion without Embedded WH- Trigger

NDQ = Negative Declarative Question

WHQ2 = Requestion with Embedded WH- Trigger

Proj. = Projected Statement NSQ = Non-sentence Question Agr. = Agreement Statement

WHQ4 = Open WH- Question Mem. = Memory/Knowledge

Question

PYN = Positive Yes/No Question PCT = Positive Confirmatory Tag Question

NYN = Negative Yes/No Question NCT = Negative Confirmatory Tag Question

EOQ1 = Either/Or Question with a Vacant Slot

NTG = Negative Tag Checking Tag Question

EOQ2 = Either/Or Question PTG = Positive Tag Checking Tag Question

PDQ = Positive Declarative Question

CNT = Confirmatory Negative Tag Question

Figure 4 shows the distribution frequencies of the total 750 questions asked by counsel as cross examiners. Of these, 191 (25.47%) were Open WH- Questions followed by Positive Yes/No Questions 184 (24.53%), the two accounting for about 50% of the total. These were followed by Positive Declarative Questions with a frequency of 90 (12.00%) and a virtual tie between Confirmatory Negative Tag Questions and Positive Confirmatory Tag Questions with frequency counts of 54 (7.20%) and 52 (6.93%) respectively. Projected Statements, projected from what the witness has stated earlier, had a frequency count of 44 (5.87 %).

Turning to cross examination by lay witnesses, the graph in Figure 5 shows percentage frequencies of question types used by pro se litigants in the second data set as they cross examined the prosecution’s witnesses.

Key

WHQ2 = Requestion with Embedded WH- Trigger

PDQ = Positive Declarative Question

NSQ = Non-Sentence Question NDQ = Negative Declarative Question

WHQ4 = Open WH- Question Proj. = Projected Statement PYN = Positive Yes/No Question Agr. = Agreement Statement NYN = Negative Yes/No Question Mem. = Memory/Knowledge

Question EOQ1 = Either/Or question with a

Vacant Slot

PCT = Positive Confirmatory Tag Question

EOQ2 = Either/Or Question CNT = Confirmatory Negative

Tag Question

According to Figure 5, Open WH- Questions had the highest frequency of 120 (38.10%) followed by Positive Yes/No Questions whose frequency of occurrence

was 83 (26.35%). The two question types are of special significance for this group of examiners given that they accounted for over 60% of all the question types used by pro se litigants and, for this group, they were the only ones with frequencies of more than 10%. In sections 4.2.1 to 4.2.2 that follow, the use of various question types in both the direct examination and cross examination phases is exemplified.