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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

17

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

18

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).

20

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)

21

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?

22

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

23

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

25

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.

26

[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

27

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

28

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)

29

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

30

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.

31

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

32

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