Current Issues in Criminal Justice
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Current Issues in Criminal Justice |
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Diana Eades[∗]
Abstract
This article presents a sociolinguistic examination of the ways in which stories are told and retold in the criminal justice process, particularly in court. The main argument concerns the fundamental contradictions between everyday storytelling and retelling on the one hand, and the expectations and interpretations of storytelling and retelling in court on the other. Drawing on research on police interviews, lawyer interviews and courtroom talk, the article examines issues such as consistency and inconsistency, and the role of questions in shaping a person’s story. While there are a number of distinctive assumptions and practices in the culture of the law which are not shared in the wider Australian community, there are particular implications for Aboriginal people, who are still 20 times more likely to come into contact with the criminal justice system than non-Aboriginal people. These implications are introduced and exemplified, and the article concludes by raising questions about alternative approaches to storytelling and retelling in court.
Culture can be defined as the ways of thinking, believing and acting which are shared within a social group, and passed on from generation to generation. We typically think of the social group which shares culture to be an ethnic group, such as Aboriginal people, or Vietnamese people. But there are other kinds of cultural (or sub-cultural) groups, for example in particular religious organisations or professions, such as the legal profession. In legal culture, there are many assumptions about ways of thinking, believing and acting which are at odds with those in other Australian societies. The ways of acting which are the focus of this article are the ways in which stories are told and retold in court in the criminal justice process. And the related ways of thinking and believing to be discussed here are the assumptions about how language works which underlie these courtroom linguistic practices.
While there are a number of distinctive assumptions and practices which are not shared in the wider Australian community, there are particular implications for Aboriginal people, who are still 20 times more likely to come into contact with the criminal justice system than non-Aboriginal people (Findlay et al 2005:326). The main focus in this article is on courtroom hearings, but before a witness gets to the courtroom, they tell their story in interviews with police and lawyers, and these occasions of storytelling cannot be ignored.
The main argument to be developed in this article concerns the fundamental contradictions between everyday storytelling and retelling on the one hand, and the expectations and interpretations of storytelling and retelling in court on the other. The first section of the article will draw on sociolinguistic research to examine characteristics of storytelling in court and the related cultural assumptions about how language works. The second section will highlight some aspects of Aboriginal language use which give rise to particular implications of courtroom storytelling practices for Aboriginal people. The final section will ask about alternative approaches to storytelling in court.
The approach in this article is a sociolinguistic one, examining the ways in which language is used in social contexts. There is no assumption that readers have any knowledge of sociolinguistics, but those who would like an introduction to the field are recommended to read Holmes (2008). Throughout the article the term ‘witness’ is used to refer to any person giving evidence, including defendants. Informal expressions such as ‘telling your story’ are also used in places, to make this article more readable than it would be with repeated use of the more formal ‘telling one’s story’ or the more cumbersome ‘the witness’s telling of his or her story’. The term ‘storytelling’ is also used in places to include ‘story-retelling’.
Courtroom hearings revolve around competing stories: to a considerable extent the aim of legal representation is to present the winning story. As Mauet’s (2000:26) trial textbook instructs law students: ‘Effective storytelling is the basis for much of what occurs during a trial’. Although it is the witnesses whose stories are told, this storytelling is organised and managed by their legal representatives, and Mauet believes that ‘good trial lawyers are inevitably good storytellers’. While storytelling is central to the legal process, it is more generally a common social activity which probably occurs in all sociocultural groups. But the ways in which you tell your story in the legal process are very strange, and are subject to a number of restrictions which do not occur in other storytelling contexts to anything like the same degree, if at all.
The most striking of these restrictions is that the story has to be told in very short bits, segmented by lawyer questions (see e.g. Heerey 2000; Tiersma 1999). Similarly, in police interviews the interviewee’s story is segmented by the interviewing officers’ questions. It is not just that the questions effectively interrupt any natural storytelling flow that we might expect on the basis of other storytelling situations. More than this, the interviewer questions organise the story, deciding what parts can be told, and in what order, as well as what parts can’t be told.
This structuring of a person’s story by interview questions often begins in the police interview. Cooke (1996) discusses a Western Australian case of an Aboriginal woman – referred to with the pseudonym ‘Daphne’ – who was charged with the stabbing murder of her partner. In her police interview, Daphne had no opportunity to present details of the violence and torture her partner had subjected her to. It was only when she wrote an account for her lawyer, while she was in prison awaiting trial, that crucial details emerged which presented the stabbing in a rather different light. Cooke explains that the way in which the police interview had been conducted had resulted in ‘disrupting or prematurely closing’ Daphne’s story (p283), although there is no suggestion that this was the intention of the officers involved. In contrast, in her examination-in-chief, her lawyer allowed her to give her own narrative account of her story, interspersed by very few questions. Being able to present her own story in this way, and not structured by questions, enabled Daphne to present a rather different account from the one which had been structured and limited by questions in the police interview. The person whose identity in the police interview was that of a killer, emerged during her courtroom evidence as a ‘courageous victim’ (p279).[1] Hearing her tell her own story, the prosecutor dropped the wilful murder charge, substituting it with manslaughter, to which Daphne pleaded guilty.
While Daphne did have the opportunity to tell her story in her own words to the jury, a rather different situation occurred in Kina’s case in Queensland. Robyn Kina is an Aboriginal woman who was also accused of murder in the stabbing death of her partner. In Kina’s case, her own lawyers’ questions in preparation of her defence were unable to elicit crucial factors involved in her fatal stabbing of her abusive partner. Elsewhere (Eades 1996a; 2003b) I have discussed the problems which arose from her lawyers being unaware of cultural differences in how to find out information. These cultural differences – in the use and interpretation of silence for example (see below) – mitigated against her lawyers finding out Kina’s story, in interviews structured by lawyer questions. Kina’s case shows how the preference in the legal system for structuring witness’s stories as short answers to interviewer’s questions can prevent the most important parts of a witness’s or defendant’s story from ever being heard by the jury.
But more typically, in examination-in-chief a witness’s story is managed by their lawyer’s questions, and at times also by the questions of the judge or magistrate. Eades (2000:181-189) shows how the story of an Aboriginal defendant in a sentencing hearing was ‘highjacked’ by her lawyer and the judge, who were unwilling to allow her to tell her story in her own words. The judge asked this defendant How did you set up a legal service? (in response to her evidence that she had done this, as evidence of her important community work). But despite this interest in her story, he was unwilling to allow her to explain this in her own words, and he happily accepted her lawyers’ suggestion that he might be able to cut through some of this (that is, the defendant’s story). Accepting this suggestion, the judge asked her lawyer to put the defendant’s words in legal terms for [him]. Interestingly, these legal terms did not involve any specialised legal terminology. The lawyer simply took control of the story, presenting his own summary of the story in propositions to which the defendant could only answer Yes or No. When she tried to elaborate on an answer, the lawyer ignored this contribution, interrupting her with his next question.
There are good legal reasons why witnesses’ stories are filtered, organised and restricted in the courtroom, as in the example above (such as the prohibition on hearsay evidence, or the strategy of a lawyer in examination-in-chief preventing a witness from introducing any matters which may damage their case). Similarly, there are good legal reasons for constraints on a suspect’s story in police interviews (such as a police officer bolstering the prosecution case by gaining evidence from a suspect in a certain light). But, the way in which a witness’s story has to be filtered through lawyer questions is a fundamental sociolinguistic problem for the ability of witnesses to tell their own story in their own way. It is also a fundamental sociolinguistic problem for the ability of a court to hear, understand and assess the competing stories which form the basis of a courtroom hearing.
In addition to the problems caused by the structuring of stories in court through questions, it can be argued that it is typical for much of a witness’s story to be actually told in the words of lawyers rather than witnesses. Indeed, sociolinguistic studies of courtroom talk have found that witnesses are typically asked a large number of questions requiring a minimal response, and they say very little compared to the verbosity of those who are questioning them (e.g. Danet et al 1980; Harris 1984; Luchjenbroers 1997). Studies also find that the majority of questions put to witnesses contain already completed propositions (Harris 1984), and that ‘witnesses can hardly be thought to tell their stories in their own words’ (Luchjenbroers 1997:501). While these findings apply to both examination-in-chief and cross-examination, the important differences in terms of legal strategy and allowable questions mean that there are different emphases in questioning types. Thus, a number of studies have found that there are more Yes/No (or closed) questions in cross-examination, and more WH (or open questions) in examination-in-chief.[2]
Not only is it the lawyers’ versions of the witnesses’ stories that are told in court, but there are also serious restrictions preventing witnesses from negotiating particular points of the storytelling. The rules of evidence which constrain witnesses to speak only in direct answer to the specific question which has most recently been asked, effectively prevent them from participating in meaningful negotiation on anything but the smallest point of clarification on this most immediate question.[3] This makes courtroom interaction the most highly restricted type of interaction, and is another factor which compromises the ability of witnesses to present their own story.
This subsection has identified major problems for witnesses in telling their own stories, which relate to the ways in which courtroom talk is controlled by lawyer questions. The next subsection focuses in more detail on sociolinguistic research about storytelling and retelling and its relevance for courtroom practices and assumptions.
When a witness tells their story in court, this is by no means the first time they have told it – in effect, it is a retelling of their story, and the similarities and differences between telling and retelling their story are frequently central to cross-examination. Indeed the comparison of different tellings of the witness’s story are at the core of the assessment of the witness’s credibility, reliability and truthfulness. So the process of retelling one’s own story is of central interest to the ways in which courtroom talk works and is evaluated. Practices involved in story telling and retelling have recently been receiving attention from sociolinguists and linguistic anthropologists, both in terms of everyday conversations (e.g. Norrick 1998; Schiffrin 2006), and in some institutional contexts (see below).
The Social Context
Stories cannot be understood or investigated without the context of their telling: this includes such concerns as
• who is the story being told to?
• what is the relationship between the teller and the listener(s)?
• why is the story being told?
• how is the listener(s) reacting to the story as it is being told?
• how do these reactions help to shape the ways in which the story is being told?
Such features of the social context of storytelling relate to both the functions of storytelling (why the story is being told, and what the storyteller is hoping to achieve in telling the story) and to the details of form (what people actually say).
Co-construction of Stories
Further, sociolinguistic research shows that in everyday conversations in diverse societies, storytelling is often a collaborative practice. That is, even if I am telling friends about an event at which they were not present, I develop my story of that event partially in response to the ways in which they respond to my story. This may be for example in the details which I emphasise, or how I emphasise them, which may be shaped by my unconscious response to their reactions – for example, of surprise, or shock, or disbelief. Or it may be more linguistically overt: for example, I may remember details of the event in response to specific questions asked by others. The ways in which conversational interaction contributes to the telling of a story is sometimes referred to as the co-production or co-construction of narrative (e.g. Trinch 2003).
Variations
Often related to the co-constructed nature of many stories, it is common for the same story to be retold in different ways, especially when the participants in the retelling are not the same people as in the original telling. When a story is retold in a different context to different listeners, it is effectively recontextualised.[4] For example, these new listeners may need more background explanation, or this new telling may be fulfilling some different functions. The recontextualisation involved in story-retelling may involve different emphases for different audiences, and it may result in some important changes. For example, it may involve the omission of details from the original telling of the story, or inclusion of details not found in its original telling, or a different choice of some of the words and expressions used. These variations in the way in which individuals tell the same story can be quite subtle, as Norrick’s (1998) and Schiffrin’s (2006) research found. Because it is not common conversational practice to keep a written record of everyday stories with which to compare later retellings, we may often be unaware of the extent to which variation is involved in everyday story-retelling.
Studies of Story-Retelling in the Legal Process
Of particular interest to the concerns of this article is the sociolinguistic research in three domains of the legal process:
1) Trinch (2003) examines the ways in which stories told by domestic abuse survivors are rewritten in affidavit form by the lawyers and para-legals who help them to apply for protective orders. The emphasis in this work is on retelling of the women’s stories by their legal advisers. One of the most interesting findings of this study is that elements of the original stories in which the women present themselves as agents who try to stand up to abusive spouses are omitted from the versions of their stories presented in the affidavits written by their legal advisers. Thus in their retold stories, these women appear only as victims.
2) Work by Rock (2001) in England, Jönsson and Linell (1991) in Sweden, and Komter (2006) in the Netherlands, investigates the ways in which police prepare written reports (sometimes in summary form) of police interviews. These studies all show that while the police statement is produced interactionally – as a result of talk between interviewer and interviewee – it is presented in court as the product of a single person, namely the witness or the suspect interviewed.
3) Maryns (2006) looks at the ways in which the stories of asylum seekers are repackaged and retold as they go through the bureaucratic, and sometimes also legal, steps in verifying their claims to refugee status. She demonstrates the ‘filtering process’ by which significant elements of asylum seekers’ stories are sometimes transformed or deleted.
4) The ways in which lawyers’ questions in cross-examination can retell aspects of witnesses’ stories has been examined by Matoesian 1993, Ehrlich 2001, 2007, Cotterill 2004 and Eades 2008.
All of these studies demonstrate that it is problematic to view the stories which emerge in these contexts as the sole product of the storyteller. As with everyday storytelling, these stories are co-produced or co-constructed. For example, Jönsson and Linell (1991:434) talk about the problem of ‘the blurring of source distinctions’. They explain that ‘one cannot know from reading [the written reports of Swedish police interviews] under what conditions a given piece of information has been introduced’. Has it been introduced ‘more or less spontaneously by the suspect in a narrative turn’, or is it introduced in the proposition of the interviewer’s question and only then ‘confirmed (or sometimes, modified or denied) by the suspect’? This ‘blurring of source distinctions’ has also been investigated by Shuy in his work on undercover FBI recordings, e.g. 2005.
It might be thought that this cannot happen in the Australian legal system, because suspect interviews with police are presented as verbatim interviews, not in summary form (unlike the Swedish examples discussed by Jönsson and Linell). However, the decontextualised way in which extracts from police interviews are read in cross-examination (to be discussed below), arguably can also result in the blurring of source distinctions, making it impossible to understand crucial contextual factors involved in the original co-construction of the story.
This sociolinguistic research on story retelling in the first three of the above four legal contexts concerns the retelling of an interviewee’s original oral story by the interviewer in written form. In the courtroom however the retold story is oral, and it appears to be retold by the original teller. That is, in examination-in-chief the witness retells the story they have earlier told in police interviews, and aspects of this retelling are further retold during cross-examination.
But in the courtroom it is not as simple as a witness retelling their own story. Here too the story is co-constructed, with the interviewer actively contributing to the telling of the witness’s story. This active contribution is seen in the choice of words in the propositions of questions, the order in which topics are introduced, the ways in which topics are linked, and the topics which are omitted or which the witness is prevented from talking about.
While sociolinguistic research has established that there are inevitable variations in the ways in which stories are retold, such variations attract a special significance in the legal process. This is particularly the case in cross-examination, where such variations are more negatively perceived as inconsistencies. For example, Mauet (2000:280) recommends ‘raising prior inconsistent statements’ as the central strategy in discrediting a witness. Skilful cross-examination often involves tripping up a witness on inconsistencies between different earlier tellings of their story (for example comparing two police interviews, or comparing a police interview with examination-in-chief), or between one or more earlier tellings on the one hand, and answers about the story in cross-examination on the other.
These variations or inconsistencies between the ways in which a witness tells a story on different occasions can be interpreted in court as lies, and can enable participants in a trial process to decide that a witness is unreliable or untruthful. But not all inconsistencies are lies. In addition to the sociolinguistic research on variations in storytelling, discussed above, there is a wealth of relevant psychological research on memory (some of which is discussed by McClellan 2006). This psychological research tells us that the memory process involves three stages: acquisition, retention and retrieval, and that recollection is a ‘reconstructive process’ (Parkin 1999:17). Accuracy in recollection involves many complexities at all three stages of the memory process.
Courts may take account of such findings, as for example in the Californian standard (pattern) jury instructions given to jurors in the O. J. Simpson case: ‘Failure of recollection is a common experience, and innocent misrecollection is not uncommon’ (Tiersma 1999:253).[5] But such examples of the legal system appearing to recognise that events are not always remembered in the same way, are somewhat undermined by the central legal activity of exploiting variations in witnesses’ stories. And the ways in which witnesses’ stories in the legal process are structured by lawyer questions appear to ignore psychological experiments which demonstrate that free reports, not interrupted by questions, produce the most accurate recollections (Loftus 1979). Similarly, there appears to be little regard in the legal process for experimental findings on the power of word choice in questions in affecting a person’s recollection (see also Loftus 1979).[6]
So, there are two major issues to be taken into account in the consideration of ‘inconsistencies’ or variations between a witness’s different tellings of their story: perceptual and social. The perceptual issues relate to how the mind processes the past, including what Gray (2007:6) summarises as ‘the innate inaccuracy of human recollection’. The social dimensions include the way in which stories are often co-constructed, and are always told in specific social contexts for specific reasons – that is, contextualised, as well as the fact that there are often variations in the ways in which stories are retold in different contexts – that is, recontextualised.
But, the perceptual and social dimensions of inconsistency in storytelling are often ignored by the legal system, which, as Matoesian (2001:37-38) points out, conceives of inconsistency as ‘logical’ incongruity. Matoesian argues, on the contrary, that inconsistency is not necessarily an attribute or failing of an individual, it can be interactively constituted and sustained. That is, inconsistency can be achieved through the interactional work which is done during the hearing. And in this interactional work, witnesses are greatly limited by the rules of evidence. They can only speak in answer to a question, and attempts to raise issues not addressed by a specific question generally result in commands such as just answer the questions asked. Further, the questioner (lawyer or judicial officer) has the linguistic power to introduce into questions presuppositions which many witnesses may not be able to dispute, as we will see in Extract 2 below.
This interactionally achieved inconsistency between two or more tellings of a story, whether by different witnesses, or the same witnesses in different contexts or on different occasions, is used by lawyers to guide decision makers in making ‘findings of fact’. As Gray (2007:1) explains, this is typically based on determinations about the truthfulness of witnesses. This is not the place to enter into the problematic arena of ‘truth’ in the law.[7] But leaving aside problems in conceptualising ‘the truth’, in the way in which the truthfulness of witnesses is determined there is an underlying ‘linguistic ideology of inconsistency’ (Matoesian 2001:68). The interactional work involved in achieving inconsistency is not considered. It is perceived as the failing of individual witnesses, who can be therefore deemed to be lacking reliability and truthfulness.
In addition to the witness’s story being recontextualised (or retold) in courtroom hearings, it is often also decontextualised in cross-examination questions. That is, when a witness answers questions about an earlier telling of their story (for example from a police interview), parts of the story are often excerpted and questioned in isolation from the rest of the previous telling. To apply the words of linguistic anthropologists Bauman and Briggs (1990:73) to the courtroom situation, the story which the witness has told on an earlier occasion is ‘lifted out of its interactional setting’ or decontextualised. There are several notable features of such decontextualised fragments of a witness’s story. I have mentioned above that such decontextualisation can omit key aspects of earlier questions and answers, which are thus not provided to hearers on the new occasion. This can result in the ‘blurring of source distinctions’, in that it can be difficult to discern the particular conditions in which particular parts of the story have been told.
But there are more serious concerns about how the decontextualised fragments of an earlier telling are read by the cross-examining lawyer from the interview or hearing transcript. Transcripts present propositional content, and do not record many important elements of the talk, such as emphasis, intonation, volume, and pauses (see Eades 1996b). But no-one can read out a transcript without making (often subconcious) choices about these aspects of speech. And they can make a fundamental difference in meaning. For example, a question such as You were there, weren’t you? can be uttered with different word stress (or emphasis), intonation, volume and pauses to convey a range of meanings and attitudes, from bullying coercion, to uncertainty, to supportive reassurance. And the simplest monosyllabic answer Yes can be read from a transcript to convey confident agreement, when it may have been uttered after a lengthy pause in a tentative and barely audible voice.[8] Thus the decontextualised fragment of a witness’s earlier telling of their story can be presented by a lawyer in cross-examination in such a way as to convey a rather different version of the story or part(s) of it. And the rules of evidence which control courtroom talk make it difficult for even the most analytical of witnesses to present a meta-commentary on such a transformation of their story.
A particularly problematic use of the decontextualisation of fragments of an earlier telling of a witness’s story can occur in interpreted proceedings. No matter how accurate an interpreted version of an original utterance may be, there can be minor differences when this interpreted version is re-interpreted into the speaker’s language (this is known as backtranslation). Variations between an original text and its backtranslated version do not necessarily reflect inaccuracy, but rather the reality that there can be more than one way of expressing the same meaning in any language. But asking a witness to recognise the backtranslated version as their own words can be problematic.
And Cooke (1995a) discusses the difficulties which can be experienced by traditionally-oriented Aboriginal witnesses who find it hard to understand why a lawyer is claiming that a written document is the story that they told some time earlier to a different person, namely the police officer. Cooke (p71) cites the example of a witness who expressed his confusion in such a situation, saying My story is a short story, this paper is many pages. I don’t understand why this is supposed to be my story.
We have seen in the previous section that there are fundamental contradictions between everyday storytelling on the one hand, and the expectations and interpretations of storytelling in court on the other. There can be no doubt that these contradictions exist for a variety of complex legal reasons. And there can also be no doubt that they create difficulties for many witnesses, particularly for witnesses with little or no understanding of the intricacies of legal culture. For example, witnesses may be unable to explain that some inconsistencies are memory lapses or failures. They may also be unaware of, and/or unable to explain, the complex ways in which a story may be told in a slightly different way on different occasions and/or to different audiences.
In the remainder of this article, I turn to some implications of these contradictions for intercultural communication in court with Aboriginal witnesses. Despite superficial lifestyle similarities between Aboriginal and non-Aboriginal people in many parts of Australia, Aboriginal culture remains strong. While it is important not to overgeneralise, and there are indeed many different Aboriginal cultures, we can see some subtle but important ways in which Aboriginal ways of thinking, acting and believing differ from those of other cultures in Australia. Of particular relevance here are differences in ways of using and interpreting language between Aboriginal cultures and the culture of the law. There may well be greater similarities between Aboriginal cultures and those of some immigrant groups, than between Aboriginal cultures and the culture of the law, but this possibility is outside of the scope of this article and of my expertise. It is also important to point out that bicultural Aboriginal people can switch between Aboriginal ways of thinking, acting and believing, and those of the mainstream society. It is Aboriginal people who do not have such bicultural skills who are the focus of the discussion in this section.[9]
There are a number of aspects of Aboriginal ways of communicating which are particularly relevant to the consideration of telling your story in court. Some of these will be discussed below in relation to the assumptions about how language works which are central to the legal culture of the courtroom (see also Cooke 1996; Eades 1992; Gray 2000; Mildren 1997; Neate 2003 and Walsh 1994).
We have already discussed the central role of questions in structuring, organising and limiting the ways in which a witness can tell their story in court. But more than this, underlying any adversarial courtroom hearing is the assumption that repeated questioning allows a witness’s truthfulness to be assessed. While repeated questioning undoubtedly puts a cognitive and emotional strain on many witnesses, it is nevertheless consistent with the mainstream western cultural assumption that information is generally sought and verified by questions. And repeated questioning effectively forms the basis of other common speech events in mainstream western societies, such as interviews, questionnaires, quizzes, and so on. But the interview is not a speech event found in traditional Aboriginal societies, and nor is it typical in non-traditional 21st century Aboriginal societies. Important information is often sought and verified in much less direct ways than by repeated questioning. This means that many Aboriginal people are less practised in handling repeated questioning than mainstream non-Aboriginal Australians who have been socialised to deal with this from an early age. Further, the common courtroom questioning strategy of lawyers only asking questions for which the interviewer already knows the answer is one that Aboriginal people may be much less familiar with than other Australians. The next two subsections will briefly consider ways in which Aboriginal people respond to repeated questioning.
It has been documented for many decades that Aboriginal people often answer Yes to a question (or No to a negative question) regardless of whether they actually agree with the proposition being questioned, or even understand the question (e.g. Strehlow 1936:334; Elkin 1947:176). In 1959, Justice Kriewaldt of the Northern Territory Supreme Court explained:
... the very process of question and answer which is the basis of the extraction of evidence, might not fully extract what he [the Aboriginal witness] knows, what he tried to say, nor what his intent was. An answer in the affirmative could indicate that the Aboriginal witness is trying to understand the question, that he has understood it, that he has understood part of it, that he may not have understood it at all, or that he does not want the question to go unanswered, or that he thinks that an affirmative answer is more likely to be acceptable to the questioner than a negative answer (R v Aboriginal Dulcie Dumaia (1959) NT 274, quoted in McCorquordale 1987:33).
This conversational strategy is known as ‘gratuitous concurrence’ (Liberman 1980, 1981), and it has been found to typify many interviews with Aboriginal people (although it is not limited to this sociocultural group). This causes particular problems in legal contexts, where saying Yes in answer to a question is taken as a binding agreement. This widespread Aboriginal tendency to use gratuitous concurrence is a particular problem for the ways in which witnesses’ story retelling is restricted in cross-examination. To express this cultural difference in legal terms, it seems reasonable to assume that many, if not most, Aboriginal witnesses who are not bicultural are highly suggestible, and that this cultural issue compromises the role of cross-examination in the delivery of justice. In Eades (2008), I examine this issue in a particularly disturbing case, widely known as the Pinkenba case (Crawford v Venardos & Ors; see also Eades 2002; 2003a; 2004).
There can be no doubt that cultural factors (sometimes combined with other factors, such as feelings of intimidation) play an important part in the elicitation of gratuitous concurrence by the use of leading questions in the cross-examination of Aboriginal witnesses. Justice Mildren of the Northern Territory Supreme Court points out (1997:15) that while it ‘is generally thought that counsel has the right, in cross-examination to put leading questions to any witness’, this is ‘not the case’. Citing Justice Barry in Mooney v James, Mildren says that
more use should be made of [the] power to prevent questions being put unfairly to Aboriginal witnesses in leading form in cross-examination whenever it appears or it is made to appear to the trial judge that the witness is likely not to be protected from suggestibility … [10]
One of the problematic factors involved in the Aboriginal tendency to use gratuitous concurrence is that this difference in language use is not apparent to many people. The word Yes and its variants, such as Yeah and Mm, are English words. Many people appear to be unaware of dialectal differences in the use of English, and they mistakenly think they can understand any Yes answer.
A related assumption also affects the interpretation of Aboriginal silence following a question. Silence sounds the same in any dialect (or language), but it does not always carry the same meaning. Research with Aboriginal English speakers has found that silence is an important and positively valued part of many Aboriginal conversations (see e.g. Eades 1988, 1991, 2007; Ngarritjin-Kessaris 1997). Silence often indicates a participant’s desire to think, or simply to enjoy the presence of others in a non-verbal way.[11] This is a difficult matter for most non-Aboriginal people to recognise and learn, because in western societies silence is so often negatively evaluated in conversations. For example, between people who are not close friends or family, silence in conversations, or interviews, is frequently an indication of some kind of communication breakdown.
This difference has serious implications for police, lawyer, and courtroom interviews of Aboriginal people. Aboriginal silence in these settings can easily be interpreted as evasion, ignorance, confusion, insolence, or even guilt. According to law, silence should not be taken as admission of guilt, but it is difficult for police officers, legal professionals or jurors to set aside strong cultural intuitions about the meaning of silence, especially when they are not aware of cultural differences in the use and interpretation of silence. Further, a misunderstanding of Aboriginal ways of using silence can lead to lawyers interrupting an Aboriginal person’s answer. Of course, we customarily define interruption as involving a second person starting to talk before the first speaker has finished talking. But if we accept that the first part of an Aboriginal answer often starts with silence, then to start the next question before the Aboriginal interviewee has had the time to speak, is in effect to interrupt the first part of the answer. Similarly, Aboriginal witnesses’ silences in the middle of an answer may also be interrupted.
This important cultural difference in assumptions about silence in answer to questions compounds for Aboriginal people the problems that all witnesses face in being required to present their story in court in the form of answers to questions.
At the heart of cross-examination strategy there are often subtle but key differences in meaning. But in contrast to ordinary conversation, there are strong restrictions on the negotiation of word choice and meaning. And, as we have seen, any negotiation has to be framed in terms of an answer to the immediately preceding question. Witnesses with experience in professional cultures which place a high priority on language manipulation (e.g. lawyers and academics) may have the greatest advantage in defending their earlier storytelling in the face of such questioning. Subtle dialectal differences in word meaning can place Aboriginal witnesses at an even greater disadvantage than other witnesses.
A powerful example comes from Cooke’s (1995a:91) analysis of the cross-examination of an Aboriginal witness in a Northern Territory coronial inquiry. This witness gave evidence that on a particular night there was a half moon shining, and ‘that he knew this because he remembered looking at the moon that night’. One of the cross-examining counsel who was ‘confident that there was no half moon on that night’ saw a chance to present the witness as unreliable, saying to him You’re sure you’re not just making this up now?. In this situation, the manipulation of dialectal difference – which was likely to be unwitting – was averted by the interpreter’s interjection. As a result, the witness was asked to draw the moon that night, and ‘it became evident that he was using the [Aboriginal English] expression ‘half moon’ to mean what is referred to in Standard English as a crescent moon’. On most occasions on which Aboriginal speakers of varieties of English give evidence, there is no interpreter and thus no mechanism for dialectal differences to be drawn to the attention of the court. But this was an unusual case because an interpreter was present in the court for witnesses who did not speak enough English. His initiative and skill in drawing the attention of the court to possible dialectal difference in the meaning of the expression half moon was complemented by the court’s openness to receiving such communication facilitation.[12]
We have seen some particular features of language use which are linguistically significant for Aboriginal people in court. The culture of the courtroom is based on ways of thinking about how language works, and ways of using language which can be quite different from those in Aboriginal cultures. There can be no doubt that these cultural differences have important implications for the delivery of justice to Aboriginal people. But wider societal power relationships are also relevant to intercultural communication. And the difficulties which Aboriginal people experience in telling their stories in court may at times have more to do with race relations, as well as the historical and political dimensions of their Aboriginality, than the cultural ones.
In Eades (2008) I examine in considerable detail the cross-examinations of three Aboriginal boys in the Pinkenba case, which involved a 1995 committal hearing in the Brisbane Magistrates Court (Crawford v Venardos & Ors). The boys were prosecution witnesses in a case in which six police officers had been charged with unlawfully depriving them of their liberty by taking them in the middle of the night to an industrial wasteland (in the Pinkenba area) in three police cars. The Pinkenba hearing highlighted the extremes that are allowable in cross-examination, with the harassment, haranguing and linguistic manipulation of the child witnesses being the worst that many lawyers have seen. In this hearing, there were many disturbing examples of cultural differences in language use, such as the apparent exploitation of the Aboriginal tendency to use gratuitous concurrence. But a number of courtroom linguistic strategies which impacted on the three Aboriginal witnesses, were not related to cultural differences in communication. Space limitations permit just one brief example.
The boys all said in their examination-in-chief that they were walking around the Valley (Fortitude Valley near the Brisbane City Centre), before the police officers approached them and told them to get in the police cars. Walking around is a commonly used general Australian English, as well as Aboriginal English, description for a frequent and widespread youth activity in many cities throughout the world. In cross-examination, the first defence counsel (DC1) did not accept David’s term walking around from his evidence-in-chief, and instead substituted his own term wander around. David did not directly dispute this term, although he did not use it, as we see in the extract below:
1. DC1:You wandered around the streets of Brisbane- we know that you were in the mall up in the heart of the town we know you walked down towards North Quay- we can see you on- tapes- we know you were in the Valley.
2. David: (2.7) Mm.
3. DC1: And you were just wandering around (2.0) [weren’t you?
4. David: [Yes.
5. DC1: For [what?
6. David: [Yes.
7. DC1: For what?
8. David: (2.3) Looking.
9. DC1: Looking (1.5) At what?
10. David: (2.3) We was just walking around for nothing.
Despite David persisting with his expression walking around to describe what the boys were doing that night, DC1 persists with his alternative wandering around in later questions. This might seem to be a subtle difference, but it is not a trivial one: while walk around does not imply a destination, it does imply a purpose (e.g. ‘walking around window-shopping’ or ‘walking around and looking at the people’). Wander around on the other hand seems to connote neither destination nor purpose, and it collocates easily with the adverb aimlessly.[14]
David’s answer in Turn 8 to the for what? question is interesting: looking or ‘observing the comings and goings of others around them’ (Eades 1988:104) is indeed an important Aboriginal social activity. As walking around looking is not an activity commonly practised by middle-class adults, it is possible that DC1 did not understand David’s answers. And as DC1 persisted with his wandering around in later questions, the 13-year-old Aboriginal witness was not able to counter the linguistic skills with which the defence counsel recontextualised his story of what he had been doing that night in the Valley. The difference between these two verbs may seem like a minor matter in terms of the witness’s allegation of being unlawfully deprived of his liberty. But it played an important role in the construction of him and his two mates as a threat to public safety, particularly in combination with evidence about their criminal records – in effect, it was a linguistic tool used to construct these boys as vagrants.
A similar, but more powerful, recontextualisation of the witness’s story by the lawyer took place with the oldest witness, who was 15 years old at the time of the hearing. He also told the court that what he and his two mates were doing that night in the Valley was walking around. This was substituted by DC1, not with wandering around, as we saw with the youngest witness, but with prowling around, as we see in the extract below.
1. DC1: (3.2) And just prowling around looking for mischief weren’t you?
2. Barry: (3.2) No- just walking around.
Central to the meaning of prowl is that the agent is in search of something that is not legitimately theirs: prey or plunder, as the Macquarie Dictionary expresses it. Thus, this word prowl is a clever tool in the implication that the boys were intending to engage in criminal activity, and thus were ‘fair game’ for law enforcement activity. Although no evidence was produced to indicate that the boys were engaged in criminal activity that night, their story about what they were doing was taken over by the lawyers in cross-examination, using such linguistic strategies as we have seen in these two extracts.
Although Barry was able to counter the accusation that he and his mates were prowling around looking for mischief (in the form of criminal activity), DC1 exercised his greater control over Barry’s story to use this loaded verb prowl in the presupposition of a later question, asking of Barry’s previous activities (for which he had already been dealt with by the courts): What sort of things did you steal- when you were wan- prowling around the streets? DC1 started to say the word wandering and changed it to prowling, suggesting the deliberateness of this lexical substitution strategy here.[15]
Although this is just one small example (with two parts), it indicates the ways in which lawyers’ power to decontextualise and recontextualise parts of witnesses’ stories can invoke and perpetuate cultural stereotypes. In the Australian media, Aboriginal people are constantly linked with crime (e.g. Jakubowicz et al 1994:38-39). Using linguistic strategies such as we have seen in this example, the two defence counsel in this case succeeded in connecting to and contributing to this widespread view of Aboriginal people as a criminal threat to public safety. In dropping the charges against the six police officers, the magistrate devoted one-third of his decision to a criticism of the three Aboriginal boys. In taking up their criminal identity that had been the theme of their cross-examination, he said that the boys ‘have no regard for members of the community, their property or even the justice system’.
In my view, there was more going on in the Pinkenba case than simply the reliance on and reproduction of negative stereotypes about Aboriginal people: this case was an important part of the struggle over the rights of police officers to remove Aboriginal people from public places. It is not possible to develop and justify this argument here, but it is the theme of Eades (2008), in which this case is situated in the ongoing societal struggle, which began in the colonial period. Today, the struggle is over neocolonial control over the lives of Aboriginal people, as exemplified in the actions of the police in taking the boys to the Valley that night and abandoning them there (without ever taking them to a police station, or charging them with any offence, or contacting any of their relatives or friends). In the committal hearing in this case, the struggle moved to the courtroom, and courtroom talk played a central role. I show in the book how this case reveals the extremes of language use which are allowable in the ‘proper’ functioning of the criminal process. Central to these extremes of cross-examination are the ways of communicating and assumptions about language which have been discussed in this article.
We have seen that the ways that a witness is allowed to tell and defend their story in court, as well as the ways in which their story is evaluated, are based on a number of cultural assumptions about how language works. These assumptions are part of legal culture, and they are somewhat at odds with the ways that storytelling works in everyday conversations. This can cause problems for any witness who is not familiar with the ways of thinking, believing and acting that are part of legal culture. An example is the way in which evidence in court is structured and controlled by lawyer questions, yet taken as the story of the witness, who may actually say very little in the co-construction of the story. But there are other assumptions about how language works which are found more widely in mainstream Australian culture, but are at odds with the ways that language works in Aboriginal cultures. An example is the assumption that repeated questioning allows a person’s truthfulness to be assessed.
These cultural differences in the ways in which language is used in the courtroom are compounded by a number of other cultural differences. Space permits only a brief mention of these. There are important cultural differences in the ways in which people’s actions outside the courtroom are understood and evaluated. For example, Cooke (1995a:89-91) contrasts the Yolngu[16] evaluation of an individual’s habit of going for a very long walk by himself as a sign of ill-health (particularly of mental health problems), with an Anglo barrister’s evaluation that it is a sign of good health. Cooke explains that this involves profound cultural differences about illness, health, and the ways in which mind and body are connected. And in Eades (2008) I contrast Aboriginal evaluations of the use of ‘four-letter words’ with those found in legal culture.
Also this article has not dealt with intercultural differences in demeanour, which can be very important in assessing the credibility of a witness. One example is that while avoiding eye contact with your interlocutor can be a sign of respect in many Aboriginal societies, in the culture of the courtroom, it can be interpreted as evasion and/or dishonesty (see also Gray 2007). Justice Gray calls into question the judicial tendency to assess the truthfulness and credibility of a witness on the basis of such features of demeanour as a wide range of body movements including foot shuffling, nose-scratching, as well as eye contact or avoidance.
Another area which is not dealt with in this paper concerns the implications of cultural differences in language use for Aboriginal people who require interpreting assistance in giving evidence in court (see Cooke 2002, 2004).[17]
The previous two sections have highlighted some of the problems involved in the ways in which stories are told and retold in the courtroom, and the underlying cultural assumptions. We have seen some fundamental problems in telling your story in court, compounded by other problems involved in the assessment of this storytelling. We have also seen some particular significance of these issues for Aboriginal Australians. It has been beyond the scope of this article to consider issues related to Australians from other cultural groups. But given the well-documented difficulty which the criminal justice system has in delivering justice to Aboriginal people, we should ask: How can the criminal justice system respond to these issues?
The most important legal response to Aboriginal needs to date has been the introduction of Indigenous sentencing courts, such as the Nunga Court in South Australia, the Koori Court in Victoria, the Murri Court in Queensland, and Circle Sentencing Courts in New South Wales. The major focus of these initiatives has been bringing Indigenous community members, particularly Elders and other respected persons, together with legal professionals to deliver justice. These courts are being credited with considerable effectiveness in addressing law and order breakdown in communities, in restoring balance to communities, in giving victims a voice, in rehabilitating offenders, and in assisting them to take responsibility for their actions.
A number of features of the way in which Indigenous courts operate are seen as central to this effectiveness, and one of these relates to language use. A review of circle sentencing in New South Wales found that the ‘use of colloquial language in place of complicated terms and legal jargon was striking’ and that this colloquial language ‘facilitated communication’ (Potas et al 2003:10). Aboriginal participants commented favourably on the fact that they can use ‘Aboriginal English, rather than the language used in other courts’ (Potas et al 2003:20), and that ‘you can use your own language and [the other circle members] know what you mean or understand, and most importantly you are respected for who you are at the same level’ (p43). It is quite likely that using Aboriginal English implies not just accent, grammar and vocabulary, but also ways of communicating, such as the use of silence discussed above.
To date, there is little research on the workings of Indigenous courts (but see Stroud 2006 for a sociolinguistic overview of the Koori Court in Victoria, Australia). But, initial investigations from a sociolinguistic perspective indicate that there are important differences in discourse structure between circle sentencing and traditional courts. These differences are likely to be of far greater consequence than the avoidance of ‘complicated legal terms’ (which in my observations in courts do not actually occur very frequently in talk addressed to witnesses, but much more frequently in talk between legal professionals, often about a witness, see also Heffer 2005). In circle sentencing, defendants’ stories are not structured by questions. While the magistrate convenes the circle, and acts as the facilitator, the aim is to encourage participants to talk, not to control their contributions. Most importantly for the discussion in this article, it appears that questions do not play a central role. The talk is free-flowing, and typically participants often take long turns. Repetition is not a problem, and relevance is not an issue – there is a widespread recognition that the issues facing the circle are complex, and interrelated, and that many factors need to be considered.
The fact that these Indigenous courts operate with everyday ways of using language is an encouraging sign. The emphasis is on communication and community, rather than propositional content and a rigid discourse structure, in which witnesses are limited in what they can say by the questions they are asked. But these innovative courts deal only with sentencing in cases where the defendant has pleaded guilty, and where there would already be a greatly reduced, if any, role for cross-examination. They do not take the place of trials, and it is hard to see how that could ever happen. The rights of an accused person to remain innocent until proven guilty are protected to a considerable extent by the rules of evidence which have the consequences for cross-examination discussed above.
Moving away from criminal courts and away from Aboriginal witnesses specifically, we can also look to civil courts and tribunals for alternative approaches to storytelling in court. For example, it is now common in commercial courts for witnesses to be allowed, or even required, to give their evidence-in-chief in the form of affidavits or witness (written) statements. But this practice means that witnesses do not have any chance to tell their story in evidence-in-chief: what is presented is a carefully crafted written document, co-produced by witness and lawyer. While this approach removes the opportunity for evidence-in-chief to be interrupted by lawyer questions, it also removes the opportunity for the witness to tell their own story in court. And variations between the lawyer language of the statement and the witness’s own words in cross-examination can then lead to extensive questioning over inconsistency. Some judges have become disenchanted with this practice, and have reverted to the previous method of examination-in-chief. But, while practices vary between judges, some other judges invite witnesses to tell their stories in their own words, minimising interruptions and objections by counsel.[18] This approach also minimises some of the problems discussed in this article with decontextualisation and recontextualisation of witnesses’ stories. But, in common with the Indigenous sentencing courts, this alternative approach cannot address the sociolinguistic problems with cross-examination which have been discussed in this paper.
My sociolinguistic perspective has pointed to some problems with legal cultural ways of limiting and interpreting story retelling in cross-examination, as well as story-telling in examination-in-chief. But this perspective is inevitably legally naïve. The adversarial common law system has a long history and is very complex. There are many legal reasons why language is used in courtroom hearings in the ways outlined in this article. I have not made any suggestions about how to address the incompatibility between language practices and assumptions in the courtroom on the one hand, and in everyday language use, on the other. Nor have I made suggestions about how to address the particular implications which have been raised for the participation of Aboriginal witnesses in the legal process. Such suggestions need careful consideration and input from legal professionals and scholars. I hope that this article can provide some stimulus for fruitful inter-disciplinary dialogue on this topic.
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[†] This article is based on a talk I first presented at the annual conference of the Australasian Institute of Judicial Administration in October 2007. Since then, I have drawn on this talk for presentations to the Migration and Refugee Review Tribunals Annual Members conference, the Queensland Magistrates Annual conference, and the Law School at the University of New England. I am grateful to audiences at these talks for questions and comments. I also acknowledge Michael Cooke, Justice Peter Gray, Jeff Siegel, and two anonymous reviewers who made valuable comments on the draft. All remaining errors are my responsibility.
[∗] Diana Eades (PhD) is Research Fellow in Linguistics at the University of New England. Address for correspondence: School of Behavioural, Cognitive and Social Sciences, University of New England, Armidale, NSW 2351. Email: Diana.Eades@une.edu.au.
[1] Another important factor which enabled Daphne to tell her own story in court was the linguistic assistance provided by an interpreter. The court allowed Daphne to use her first language as required, and although she gave most of her evidence in English, she switched to her first language for complex matters such as her mental state at the time of the stabbing (see Cooke 1996).
[2] Yes/No-questions are those which can be answered by either Yes or No (although they are not restricted to these answers), e.g. Was Aunty Mabel at the house? WH-questions are those that ask who, where what, how and why, e.g. Who was at the house? Where was Aunty Mabel? How did that happen?
[3] A reviewer has questioned whether re-examination by the witness’s lawyer can provide opportunities to ‘rectify interferences with the witness’s own story which have occurred in cross-examination’. However, my observations and studies (e.g. Eades 2008) suggest that such a safeguard can only address some of these ‘interferences’, and cannot address the major problems caused by the structuring of stories through questions which occur in both examination-in-chief and cross-examination.
[4] Note that in this section we are considering recontextualisation of a story by its original teller. But stories can be recontextualised by another storyteller, as when lawyers in cross-examination present in their assertions and questions a different version of the witness’s story. We will see an example of this in the Section entitled ‘Beyond Culture’ below.
[5] Tiersma (2006:10) recommends that this example of a triple-negative legalese statement be revised to ‘People often forget things or they may honestly believe that something happened even though it turns out later that they were wrong’.
[6] For example Loftus (1979:77-78) reports an experiment in which subjects were asked questions about a car accident they had seen on film. Asked to estimate how fast the cars were going, those who were asked ‘… when they smashed into each other’ gave higher estimates of speed than those were were asked ‘… when they hit each other’.
[7] For four rather different approaches see Gray (2007), Heerey (2000), McClellan (2006) and McKillop (2002).
[8] See Hale (2004:96-104) for a study of interpreted courtroom talk in which she shows how interpreters’ omissions of pauses and hesitations from witnesses’ Spanish testimony result in a rather different speaking style. Hale (2004:144-157) also conducted an experimental study, which combined pauses and hesitations with other features of witnesses’ speech which are not relevant to this article, such as grammatical errors and problems of pronunication. This experimental study found that such seemingly small aspects of the speech style of testimony can have a significant effect on the ways in which witnesses are evaluated (consistent with earlier American work by Conley & O’Barr and colleagues, e.g. Conley et al 1978; and Berk-Seligson 1990).
[9] It is beyond the scope of this article and my expertise to consider Torres Strait Islander cultures.
[10] Justice Mildren used this power in R v Kenny Charlie 28 September 1995, unreported (see CJC 1996:51-52).
[11] Some similarities can be noted with the use of silence in Native American societies (Basso 1970; Philips 1976).
[12] Other examples are found in Cooke 1995b.
[13] I use standard sociolinguistic transcription conventions:
• underlining indicates utterance emphasis
• - indicates a pause within a turn of less than 0.5 of a second
• a number in parentheses indicates the length of a pause in seconds e.g. (3.2)
• a square bracket [ indicates both the start of overlapping talk and the utterance which is overlapped
DC = defence counsel. The names David and Barry are pseudonyms.
[14] The relevant definitions from the Macquarie Dictionary of Australian English give walk as ‘1) to go or travel on foot at a moderate pace’, and wander as ‘1) to ramble without any certain course or object on view, roam, rove, or stray; 2) to go aimlessly or casually’.
[15] Elsewhere (Eades 2006, 2008) I have discussed this strategy in more depth, using the term ‘lexical perversion’ to describe the substitution of words and phrases such as this, where this substitution distorts (or perverts) the way in which a person reports their own experiences.
[16] ‘Yolngu’ refers to Aboriginal people and culture in Northeast Arnhem Land.
[17] Another area which may prove fruitful for future research would involve extending the work by Malcolm and his colleagues (e.g. Malcolm & Rochecouste 2000; Malcolm & Sharifian 2002) on the stories which Aboriginal children tell in varieties of English about their own experiences (i.e. first person narratives). These stories involve a small number of recurring schemas, of which the most frequent involves travel. The cyclical nature of the stories contrasts with the widespread linear nature of Anglo stories.
[18] I am indebted to Justice Peter Gray (pers comm 19 September 2007) for this information.
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