Using a corpus-based register approach, this study explores language use of authentic and TV courtroom discourse through the lens of WH-questions, with a focus on direct and cross-examinations. Results show that in addition to differences as a result of these two discourse settings (i.e., authentic and TV courtroom), WH-questions accomplish different goals across the registers of direct and cross-examinations. For example, WH-questions are avoided in authentic cross-examinations, while in TV courtroom discourse WH-questions are used to engage viewers. Results explore how the different communicative purposes of authentic and TV courtroom settings impact the use of WH-questions in direct and cross-examinations.
corpus based register approach; courtroom discourse; use of WH-questions; communicative purpose
A partir de uma abordagem de registros baseada em corpus, esse estudo explora o uso da língua em discursos de tribunais autênticos e representados na TV através da lente das wh-questions (perguntas qu-), com um foco em acareações diretas e cruzadas. Os resultados mostram que além da diferença resultante do contexto em que o discurso foi produzido (tribunais na TV ou autênticos), wh-questions cumprem diferentes propósitos em acareações diretas e cruzadas. Por exemplo, wh-questions são evitadas em acareações cruzadas, ao mesmo tempo em que em representações de tribunais na TV wh-questions são usadas para engajar os telespectadores. Os resultados exploram como os diversos propósitos comunicativos de tribunais autênticos e televisionados impactam o uso de wh-questions em acareações diretas e cruzadas.
abordagem de registros baseada em corpus; discursos de tribunais; uso das wh-questions; propósitos comunicativos
TV series that feature courtroom settings are highly popular with viewers. For example, Boston LegalBOSTON LEGAL. 2012. Episodes from Boston Legal. Retrieved from: http://boston-legal.org/episodes.shtml.
http://boston-legal.org/episodes.shtml... , an American courtroom TV series produced by ABC which aired from October 2004 to December 2008, had 12.53 million viewers for season 1 (ABC Medianet, retrieved on 04/30/2020ABC Medianetaverage. 2020. Total viewers per episode for Boston Legal. Retrieved from: https://www.wdtvpress.com/?id=052405_05. Retrieved May 03, 2020.
https://www.wdtvpress.com/?id=052405_05.... ). The question and answer exchanges between attorneys and witnesses are of high interest to viewers and keep them ‘tuned in’ as they watch details emerge through the exchange between the lawyers and witnesses. In a previous study (Reppen and Chen, 2019REPPEN, R. & CHEN, M. 2019. A comparison of lexical bundles in spoken courtroom language across time, dialect, & register. In: T. Fanego & P. Rodríguez-Puente (Eds.).Corpus-based research on variation in English legal discourse: Looking back and looking forward. 105 - 122. Amsterdam: John Benjamins.), we noticed that WH-question bundles were more common than direct questions in the O. J. SimpsonO. J. Simpson. 2019. Retrieved March 20, 2019 from Wikipedia: https://en.wikipedia.org/wiki/O._J._Simpson
https://en.wikipedia.org/wiki/O._J._Simp... trial. We were curious if this trend was consistent in other authentic trials, and also if TV trials reflected this pattern. This study therefore, explores TV courtroom language and authentic courtroom language through the lens of WH-questions during direct examinations and cross-examinations. Direct examination is when an attorney is questioning witnesses favorable to their position (e.g., presenting information favorable to their side of the argument). After direct examination, the attorney for the opposing side can begin questioning the witness. This is the cross-examination.
During a courtroom trial, WH-questions are often used to ask witnesses to tell a story and to give the court their perspective. WH-questions are also asked to prompt witnesses to explain evidence. Syntactically, WH-questions are formed with an interrogative word beginning with the letters ‘WH’ or ‘How’ (i.e., who, whom, whose, what, which, when, where, why, how).
In courtroom discourse, there can be circumstances where it might be helpful to flesh out factual details through WH-questions. For example, questions related to witness’ background (e.g., name, age, education, etc.), positions, or locations might be explored by simply asking the witness to explain or provide more detail.
In this study, we adopt a corpus-based register approach to explore courtroom language with a focus on questions in direct and cross-examination from a lexico-grammatical perspective, linking linguistic features to functional goals (Biber and Conrad, 2009). In particular, this study explores how the use of WH-questions vary as a result of the different communicative purposes of authentic and TV courtroom language and also the different communicative goals of direct and cross-examination.
2. Literature Review
So far, many studies of courtroom questions have focused on a socio-cultural perspective exploring how questioning takes on culture-specific forms and has culture-specific functions. An example of this is Chang’s 2004CHANG, Y. 2004. Courtroom Questioning as a Culturally Situated Persuasive Genre of Talk. Discourse & Society 15 (6), 705-722. study that examined the goal of questions in Chinese criminal courtrooms and found that the goal was to persuade the judge and not to obtain information. There are also many studies exploring questions from a legal (Henderson et al., 2015HENDERSON, E.; HEFFER, C.; KEBBELL, M. 2015. Courtroom Questioning and Discourse. In: Oxburgh G.; Myklebust, T.; Grant, T. & Milne, R. (Eds.). Communication in Investigative and Legal Contexts: Integrated Approaches from Forensic Psychology, Linguistics, and Law Enforcement (pp. 179-208). John Wiley & Sons. DIO: 10.1002/9781118769133.
https://doi.org/10.1002/9781118769133... ) or a psychological-cognitive perspective (Walczyk et al., 2013WALCZYK, J. J.; GRIFFITH, D. A.; YATES, R.; VISCONTE, S. & SIMONEAUX, B. 2013. Eye movements and other cognitive cues to rehearsed and unrehearsed deception when interrogated about a mock crime. Applied Psychology in Criminal Justice, 9(1), 1-23.). Most of these focus on the use of questions in cross-examinations. For example, Henderson et al. (2015)HENDERSON, E.; HEFFER, C.; KEBBELL, M. 2015. Courtroom Questioning and Discourse. In: Oxburgh G.; Myklebust, T.; Grant, T. & Milne, R. (Eds.). Communication in Investigative and Legal Contexts: Integrated Approaches from Forensic Psychology, Linguistics, and Law Enforcement (pp. 179-208). John Wiley & Sons. DIO: 10.1002/9781118769133.
https://doi.org/10.1002/9781118769133... examined courtroom questioning and discourse, with a focus on the advantages and disadvantages of accusatorial systems and inquisitorial systems on the effectiveness and validity of cross-examinations. They point to research by Vrij et al. (2009VRIJ, A.; LEAL, S.; GRANHAG, P. A.; MANN, S.; FISHER, R. P.; HILLMAN, J. & SPERRY, K. 2009. Outsmarting the liars: The benefits of asking unanticipated questions. Law and Human Behavior, 33(2), 159-166.) that suggests using open ended questions are more effective in getting information. Other studies explore questions from a communicative perspective. For example, Catoto (2017CATOTO, J. 2017. On Courtroom Questioning: A forensic linguistics analysis. IOSR Journal of Humanities and Social Science, 22 (11), Ver. 8, 65-97.) employed textual analysis to identify the different types of questions and responses. Catoto’s study used 30 transcripts of stenographer notes and extracted data and information relevant to question types. Results showed that Yes/No questions, probing questions, and open questions were identified as productive types of courtroom questions during trial proceedings. Conversely, unproductive or poor questioning strategies included multiple questions, opinion/statement questions, leading questions, misleading questions, which are discouraged and often lead to objections.
Expanding on previous studies, we explore courtroom language through the lens of WH-questions with a focus on the role of register in authentic and TV courtroom language by the describing influence of the different communicative goals of direct and cross-examination on WH-questions.
3. Description of corpora used in the study
To accomplish the goal of exploring the use of WH-questions in direct and cross-examination in TV and authentic trials we compiled corpora from two different settings: a corpus of high-profile criminal trials and a corpus of courtroom trials from popular TV series, containing both civil and criminal cases. The authentic courtroom corpus is composed of three high profile criminal trials: The O.J. Simpson trial; the Boston Bombing trial; and the Oklahoma Bombing trial. The TV corpus is composed of popular TV series that included trial language: Boston LegalBOSTON LEGAL. 2012. Episodes from Boston Legal. Retrieved from: http://boston-legal.org/episodes.shtml.
http://boston-legal.org/episodes.shtml... ; Murder OneMURDER ONE. 1996. Complete Transcripts for Season One. Retrieved from: http://www.oocities.org/hollywood/1120/m1trans.html.
http://www.oocities.org/hollywood/1120/m... ; and The PracticeTHE PRACTICE. 2000. The Practice Transcripts. Retrieved from: http://www.oocities.org/thepractice_2000/guide/transcripts/season1.html.
http://www.oocities.org/thepractice_2000... . Both the authentic trials and the TV trials were selected based on three criteria. First, both the authentic and TV trials were well known. The authentic trials were high profile trials and the TV shows are popular with high viewership numbers (https://www.ranker.com/list/legal-drama-tv-shows-and-series/reference). Second, for both the authentic trials and the TV shows, transcripts of the entire trials and TV shows were available for free (Linder, 2017LINDER, D. 2017. Famous Trials. Retrieved from: http://law2.umkc.edu/faculty/projects/ftrials/ftrials2printable.htm.
http://law2.umkc.edu/faculty/projects/ft... ). Finally, because we had access to the entire transcripts, we could divide the trials into sub-registers (e.g., direct examination, cross-examination) and explore the impact of these sub-registers on the use of WH-questions. In both these corpora, we only included the language of direct and cross-examination - the focus of our study. The corpora are described in Table 1 and with brief contextual information in the sections that follows.
Description of the authentic and TV courtroom corpora
3.1. Description of authentic courtroom corpora
The O. J. SimpsonO. J. Simpson. 2019. Retrieved March 20, 2019 from Wikipedia: https://en.wikipedia.org/wiki/O._J._Simpson
https://en.wikipedia.org/wiki/O._J._Simp... trial was a high-profile criminal trial held in Los Angeles County Superior Court in 1994. O. J. Simpson, a former professional football star and actor, was tried for the murder of his ex-wife, Nicole Brown Simpson, and waiter Ronald Goldman. This case has been described as one of the most publicized criminal trials in American history (https://en.wikipedia.org/wiki/O._J._Simpson).
The Oklahoma City Bombing was a domestic terrorist car bombing of the Federal Building in Oklahoma City, Oklahoma, on April 19, 1995. Timothy McVeigh and Terry Nichols carried out the bombing that destroyed one-third of the building, killed 168 people, and injured more than 680 others. It was the deadliest terrorist attack on American soil until the September 11, 2001 attacks and still remains the deadliest domestic terrorism incident in United States history.
During the April 15, 2013 Boston Marathon, two bombs exploded near the finish line killing three people and injuring several hundred others. Two Chechen-American brothers, Dzhokhar and Tamerlan Tsarnaev were accused of the bombing. In 2015, Dzhokhar Tsarnaev was convicted of thirty charges, including using a weapon of mass destruction and malicious destruction of property resulting in death.
3.2. Description of the TV courtroom trials
The PracticeTHE PRACTICE. 2000. The Practice Transcripts. Retrieved from: http://www.oocities.org/thepractice_2000/guide/transcripts/season1.html.
http://www.oocities.org/thepractice_2000... is a legal drama that centers on partners and associates at a Boston law firm. The series ran on ABC for eight seasons from 1997 to 2004. It won an Emmy Award in 1998 and 1999 for Best Drama Series, and launched the spin-off series, Boston LegalBOSTON LEGAL. 2012. Episodes from Boston Legal. Retrieved from: http://boston-legal.org/episodes.shtml.
The TV series, Boston LegalBOSTON LEGAL. 2012. Episodes from Boston Legal. Retrieved from: http://boston-legal.org/episodes.shtml.
http://boston-legal.org/episodes.shtml... aired from October 2004 to December 2008 (a total of five seasons, 101 episodes). According to Nielsen Media Research, Boston Legal drew the richest viewing audience on television, based on the concentration of high-income viewers in its young adult audience (adults 18-49 with $100k+ annual income).
Murder OneMURDER ONE. 1996. Complete Transcripts for Season One. Retrieved from: http://www.oocities.org/hollywood/1120/m1trans.html.
http://www.oocities.org/hollywood/1120/m... first aired on ABC in 1995. During the two years of the series it ran 41 original episodes. The first season of Murder One continues to be aired on cable networks such as A&E. In 1997, TV Guide ranked the first episode, “Chapter 1”, #60 on its list of the 100 Greatest Episodes.
4. Situational characteristics
4.1. Description of authentic and TV courtroom discourse
Since our primary goal is to compare the language used in authentic and TV courtroom discourse through the lens of WH-questions, we now explore the situational characteristics of authentic and TV courtroom discourse. This situational description helps to frame how the situational characteristics and goals can impact the use of language, especially WH-questions.
One of the most prominent features of authentic courtroom is that authentic courtroom trials occur in real time, even though attorneys carefully prepare in advance for what they say during a trial in order to have the best chance to win cases. This real-time production situation results in pressure and speakers have little time to plan or edit their utterances. Authentic courtroom trials are held in open court, and since the trials analyzed in this study are all criminal trials, they are often held in the presence of the jurors. The consequences of what is said in the courtroom are high stakes (e.g., the defendant could be sentenced to death). The communicative priority of the trials is to determine if a defendant is guilty or not. Prosecutors, defense attorneys, and witnesses express attitudes and evaluate information presented in the courtroom.
Another discourse feature of authentic trials is that questions and power relationships are interwoven (Mutambwa & Kutsaro, 2011MUTAMBWA, J. & KUTSARU, N. 2011. Power Relations in Courtroom Discourse. Lap Lambert Academic Publishing GmbH KG, 2011. ISBN 3844397620.; Cotterill, 2003COTTERILL, J. 2003. Language and Power in Court: A Linguistic Analysis of the O. J. Simpson Trial. Palgrave Macmillan. ISBN 9781349428960. DOI 10.1057/9780230006010.
https://doi.org/10.1057/9780230006010... ). The judge is the most powerful person in courtroom discourse. Witnesses often see prosecutors, and defense attorneys, as powerful. Attorneys ask witnesses questions during direct and cross-examinations, which can show dominance over the witnesses, especially lay people (i.e., non-expert witnesses) are being questioned. Expert witnesses are less vulnerable because they are knowledgeable in a certain field, and thus often are more experienced in courtroom settings. It is expected that participant roles and power relations will influence the language, especially questions, used in courtroom discourse.
While many of the situational characteristics are the same in TV courtroom discourse (e.g., lawyers interacting with clients and witnesses), there are important aspects of the communicative purpose of TV courtroom language that is very different from that of authentic courtroom language. In addition to the consequences of authentic vs TV trials mentioned above (e.g., real-life sentencing consequences of authentic trials), another major situational difference between TV and authentic courtroom language is time constraints. A TV episode usually takes no longer than one hour (including time for commercials), resulting in significantly shorter direct and cross-examinations, compared with authentic trials where there is no time limit. Another major difference in the situational characteristics that has a direct impact on the language used factor is the very different communicative purposes of TV and authentic courtrooms. The purpose of authentic courtroom language is to determine if a person is guilty or not, however, the communicative priority of a TV legal series is to entertain the audience. The language of TV courtroom series is carefully scripted as opposed to the real-time production situation of authentic courtroom language. Although TV courtroom language is written to imitate authentic courtroom language, it is intended to be more dramatic to attract its primary audience - people who watch the TV series. Therefore the situational characteristics and the language goals of TV courtroom language are markedly different from that of authentic courtrooms.
4.2. Description of direct examination and cross-examination discourse
With the situational characteristics of TV and authentic courtroom language in mind, we turn to the registers of direct and cross-examination within these two contexts. As mentioned previously, by having access to the complete transcripts of the three high-profile trials and the TV series, we were able to divide the transcripts into sub-registers and focus our examination on the use of WH-questions on the two sub-registers of direct and cross-examination. In order to understand how WH- questions vary as a consequence of the different communicative purposes of direct and cross-examinations as well as authentic and TV courtroom language, it is critical to understand the situational characteristics (e.g., audience, communicative purpose) of these registers and sub-registers.
4.2.1. Direct examination
In direct examination, an attorney questions their witness (i.e., one that will provide testimony in support of their client) as to what happened during the event that is being tried. The primary purpose of the direct examination is to elicit information in favor of the attorney’s client from witnesses on the same side, and by doing so to persuade the jurors to believe their side of the story. During direct examination, the addressors are attorneys (prosecution and defense) as they pose questions directly to the witnesses, thus making the witnesses addressees. When answering the attorneys’ questions and providing information before the judge and the jurors, the witnesses become addressors. Direct examinations are highly interactive. Before the trial, the attorneys and the witnesses prepare for the direct examination by discussing the testimony the witness will provide, and by practicing the questions they will be asked the trial. What is said during direct examination is carefully planned, however, it occurs in real time and attorneys need to be flexible. Attorneys will use open-ended questions (e.g., WH-questions) to build up credibility of their witnesses, and the information they are providing with the goal to persuade the jury to accept the evidence they provide during the testimony.
After a witness has been questioned during the direct examination, the attorney for the opposing side has a chance to question the witness. This is the cross-examination. The communicative priority of cross-examination is to cast doubt on the credibility of the witness. In order to achieve this purpose, attorneys on both sides ask questions designed to undermine the opponent’s witness’ credibility and cast doubt on the testimony so that the jury will question the information provided by the witness. Cross-examinations are limited to questioning only matters that were raised during direct examination.
During the cross-examination, addressors are prosecution and defense attorneys, and the addressees are the judge and the jurors. So as in direct examination, the witnesses are both addressees and addressors. In cross-examination, attorneys try to anticipate questions from the opposing side, and prepare their witnesses for these questions.
In this section we begin by describing the use of WH-questions in direct examinations and compare their use between authentic and TV courtroom discourse. We then describe the use of WH-questions in cross-examinations and compare their use between authentic and TV courtroom discourse. The descriptions focus on the same and different functions of WH-questions used in the two types of courtroom discourse.
5.1. Use of WH-questions in direct examination
5.1.1. In authentic courtrooms
In direct examination, the role of the attorney is to assist the witness in describing an event clearly and thoroughly. The first series of questions in direct examinations is typically directed towards permitting the witness an opportunity to introduce him or herself to the jury, because general background information helps the jury to know the witness and assess his/her credibility. As Text Example 1 shows. WH-questions are usually used.
Text Example 1: Authentic direct examination (AC_DE_BB_01) WH-questions are underlined
Q: Good afternoon, Mr. Kilgore. Would you tell the jury, please, where you reside by naming the city and the state?
A: Asheville, North Carolina.
Q: And how long have you lived there?
A: I’ve lived there for four years.
Q: And who do you live there with?
A: I live there with my wife and my eight-month-old daughter.
Q: And are you employed at this time?
A: I am.
Q: All right. Can you tell the jury what you do?
A: Well, I, for the last four years, have been self-employed as a mobile auto detailer, and I’m actually transitioning into a technical director in a new job for a travelling sort of Broadway-style production.
Q: And for that production, what do your duties entail?
A: They entail running sound, lighting, producing videos, just to name the main ones.
In Text Example 1, we see the background information provided through responses to the five WH-questions that are asked of the witness. For all the witnesses in direct examination, background information (e.g., age, address, education background, his/her relation to the defendant) is always the first information asked by attorneys and typically through WH-questions.
Another way that WH-questions are used in authentic direct examinations is to follow up on facilitating questions to elicit specific information. Most people, especially non-experts, have never testified before and are unfamiliar with the norms of courtroom examination. The attorney’s role therefore is to assist and direct the witness through the examination. In direct examination, it is quite common for an attorney to ask a facilitating question followed by WH-questions. The facilitating question usually sets the scene for the following WH-questions, guiding the witness to expand his/her answers around a particular topic.
For example, if the question is too broad, such as “What happened?” the witness will not know where to start or how much detail to provide. Therefore, attorneys usually use questions that provide the witness some guidance on the scope of the question. Text Example 2 below is an example of a facilitating question followed by WH questions to provide more details:
Text Example 2: Authentic direct examination the facilitating question is bolded; WH-questions are underlined (AC_DE_BB_12)
Q: All right. And the owners of California Pizza Kitchen told law enforcement they could stage their operations there?
Q: All right. And after you got there, what happened?
A: Upon my arrival at the California Pizza Kitchen, I was immediately dispatched by an FBI supervisor go to a secondary command post at the Westin Hotel up on Huntington Ave.
Q: And where is that in relation to Boylston Street where the bombings happened?
A: Approximately two or three blocks away.
Q: When you got to the Westin, what happened there?
A: I was assigned, along with Boston Police Department Sergeant Earl Perkins, to head up a video canvass and collection team within the Boylston Street area.
Q: Okay. What does “canvass and collection” mean?
A: The mission of this team would basically be to be dispatched down to the Boylston Street area, recover, collect and preserve any potential video evidence that we could find.
In this example, the first question, the facilitating question, (And the owners… operations there?), functions to guide the witness to talk about what happened when he got to California Pizza Kitchen. The WH-questions that follow then serve to elicit specific additional information and guide the jurors’ attention to information the lawyer wants to present.
5.1.2. In TV courtrooms
Similar to authentic direct examinations, WH-questions are used in TV direct examinations to extract desired information that puts the witnesses in the most favorable light. However, unlike authentic direct examinations, where attorneys usually use a combination of facilitating questions and WH questions to guide witnesses, TV direct examinations sometimes use a series of WH-questions alone to elicit witness’ answers.
Text Example 3: TV direct examination (TC_DE_TP_11) WH-questions are underlined.
A: I spent most of the afternoon walking around window shopping, and then I walked to my car.
Q: And what happened?
A: As I started to pull out, that man, he jumped in the passenger side.
Q: What did you do?
A: I tried to jump out my side, but he grabbed my wrists so I couldn’t get out.
Q: What happened then?
A: He pulled a knife out of his jacket and pressed it against my neck really hard.
Q: Tell me, what was going through your mind?
A: Fear. I was thinking if he just wanted the car he would have let me jump out. I thought he was gonna hurt me.
Q: What happened next?
A: I started talking.
In Text Example 3, the attorney used a series of WH-questions to ask the witness to describe a particular scene where the witness was threatened by the defendant. Instead of eliciting wanted information by asking witnesses more specific WH-questions and facilitating questions, like what attorneys often do during authentic direct examination, in TV direct examination attorneys sometimes only ask “What happened then”, “What happened next”. This is because in TV courtroom discourse, the goal is to build the narrative of the TV series episode, to remind viewer’s of the storyline. Unlike authentic direct examinations, where attorneys guide witnesses to elicit information attorneys want, TV direct examinations do not need to worry about losing control of what witnesses say, because TV direct examination is well “designed” and scripted. This particular use of WH-questions in TV direct examination is due to the primary communicative purpose of TV courtroom discourse - to entertain its audience.
5.2. Use of WH-questions in cross-examination
5.2.1. In authentic courtroom
Overall, as mentioned in Section 5.1, WH-questions are used to introduce detailed background information during direct examinations. It is important to mention that in cross-examination, background information typically is not included because it has already been introduced during direct examination.
In authentic cross-examinations, WH-questions are rarely used because attorneys do not want to lose control by giving witnesses a chance to expand their answers. Cross-examinations function to impeach a witness’ testimony and weaken its force, in short, to discredit the witness (American Bar AssociationAMERICAN BAR ASSOCIATION . 2019. (September 09). How Courts Work. Retrieved from: https://www.americanbar.org/groups/public_education/resources/law_related_education_network/how_courts_work/crossexam/.
https://www.americanbar.org/groups/publi... ). As such, during cross-examination, if attorneys ask a witness to explain “why” or “how” something happened, they permit the witness to say anything, which is the last thing the attorney wants because it could result in damaging testimony, making the examiner lose the battle.
However, there are exceptions - there can be circumstances where it might be helpful to flesh out factual details using more open-ended WH-questions (Curry, 2017CURRY, M. 2017. Trial Fundamentals: A concise handbook on the basics of courtroom evidence, procedure, and tactics. Scotts Valley, California, EUA: CreateSpace Independent Publishing Platform.). Generally, this occurs when the questions concern less contested information. For example, questions related to distances, positions, or locations might be explored by simply asking the witness to explain or provide more detail. Text Example 4 is an example of a WH-question used in authentic cross-examination. It is used to elicit a detailed explanation from the witness in order to later attack the witness by pointing out the conflicts or logical fallacy in the witness’ answers, which is a common way to use WH-questions in cross-examination to discredit the witness.
Text Example 4: Authentic cross-examination (AC_CE_BB_02) the WH-question is underlined, the facilitating question is bolded
Q: I’m sorry. Can you just explain that to me for a minute?
A: So with the proprietary players, you have the ability, some of them, to actually apply the date/time group or not apply the date/time group. I was asked during the processing, that if it did have a date/time group, to ensure that the date/time group was visible regardless if the time was correct or not.
Q: So 2:28:53 would actually - if that time were accurate, would place that image before the previous image we saw, which was in front of Back Bay Social Club, correct?
Q: So you decided to place the image of Jahar Tsarnaev passing the corner of the Fairfield and
Boylston Street after the image of Tamerlan Tsarnaev passing the Montessori school, right?
A: I did.
Q: And what was that based on?
A: It was just the proper way that I laid it out. There was no specific reason why I placed one in
front of the other.
Q: And did you take into account the distances involved?
A: No, I did not.
In Text Example 4, a facilitating question (“Can you just explain that to me for a minute?”) is asked by the defense attorney of Tamerlan Tsarnaev to the FBI audio/video analyst Anthony Imel, before a WH-question (“And what was that based on?”) is asked. Both questions serve to undermine the witness’ credibility. In this case, both open-ended questions ask about the accuracy of the timelines of the security video. As it turns out from the witness’ answers (the witness did not take the distances into account), the accuracy of the camera video timelines is not guaranteed. In Text Example 4, the WH-question “And what was that based on?” is asked in order for the follow-up question “And did you take into account the distances involved?” to be asked, with the intention of eliciting the witness’ answer “No, I did not””, which will discredit the witness. When WH-questions are used in cross-examinations, they are typically used to elicit answers that will jeopardize the witness’ credibility. However, it is important to know that even though WH-questions function that way during cross-examinations, attorneys are quite cautious when using WH-questions. Otherwise, the use of WH-questions may put attorneys in a situation that makes them lose control of the testimony.
5.2.2. In TV courtroom
Unlike authentic cross-examinations, where attorneys tend to avoid WH-questions, in TV cross-examinations WH-questions are used quite often to elicit expanded answers that show conflict in a witness’ testimony and therefore cast doubt on a witness. This serves to keep the TV viewing audience engaged as it creates tension and drama. Text Example 5 is an excerpt of TV cross-examination, in which WH-questions are underlined.
Text Example 5: TV cross-examination (TC_CE_BL_05) WH-questions are underlined
Q: How many years in the lab?
Q: How ‘bout the junior member? How many years did he have?
A: I’m not sure
Q: More than five?
A: I believe so.
Q: Just out of curiosity, what was his finding?
Q: He could not determine that my client fired a gun?
A: Nor could he rule it out.
Q: He could not determine that my client fired a gun.
A: Correct. But I determined she did.
Q: You trace-metaled my client. Did you test for powder residue on her hand?
A: Yes. She tested negative.
Q: Gee, how could that be?
A: We determined that she likely wore gloves when she fired the gun.
Q: So she was careful to wear gloves when she shot them, then afterwards, she took the gloves off and handled the gun?
In Text Example 5, the attorney uses three WH-questions to ask about how long a junior lab member was trained, implying that due to the short training time, the conclusion of the junior member is inconclusive and not convincing. The attorney then asks a WH-question regarding the lab findings, which leads to the conclusion that the defendant tested negative for powder residue. The attorney finally asks another WH-question to the witness about how they determined that the defendant fired a gun when the test for powder residue is negative. These four WH-questions finally lead to the ‘conclusion’ that the defendant did not fire the gun. The purpose of eliciting information to discredit the witness is achieved through the use of many WH-questions.
The use of WH-questions during cross-examinations can also be very effective when the examiner believes the witness’ testimony is false (Curry, 2017CURRY, M. 2017. Trial Fundamentals: A concise handbook on the basics of courtroom evidence, procedure, and tactics. Scotts Valley, California, EUA: CreateSpace Independent Publishing Platform.). WH-questions requesting a witness to explain or provide greater detail can reveal false or contradictory testimony. It requires the lie to become more complicated, which consequently can cause difficulty for the witness. Requiring a witness to provide great detail on fabricated portions of a story often reveals inconsistencies. This is frequently used in TV cross-examinations to create dramatic effects. Audiences enjoy watching a witness being discredited after being asked a series of WH-questions and giving a set of answers, which revel inconsistencies. Text Examples 6 and 7 are typical examples showing the use of WH-questions in TV cross-examinations to elicit false testimonies (note that these two text examples are from the same trial).
Text Example 6: TV cross-examination (TC_CE_TP_03) the WH-question is underlined
Q: As you saw this man standing twenty feet away, what about him made you think that this is the man who robbed you, sir?
A: I don’t know, I just remember thinking that it might be him and so that’s why I got out of the car to take a closer look and when I saw him up close I knew it was him, I knew it!
Q: But you couldn’t recognize him from twenty feet away.
A: That’s right, I said that.
In Text Example 6, the victim says he could not recognize the defendant from twenty feet away and that he had to get out of the car to take a closer look after the attorney asks him the WH-questions - “What about him made you think that this is the man who robbed you?”. This answer leads to the interchange below showing the unreliability of the witness.
Text Example 7: TV cross-examination (TC_CE_TP_03) WH-questions are underlined
Q: But yet the next day in a police lineup standing twenty feet away you did recognize him. How is that possible?
Prosecuting attorney: Objection!
Q: Twenty feet away the night before you can’t tell. Twenty feet away the following morning you pick him out in an instant.
In Text Example 7, the defense attorney’s WH-question about how it is possible that the next day in a police lineup standing twenty feet away that the victim recognized the defendant when he could not the night before. This leads to an objection from the prosecuting attorney, because she realizes the question will bring up detrimental testimony. This interchange resulted in the case being lost. The text examples have shown how TV cross-examinations frequently use WH-questions to create engaging plots. Expanded answers tend to create the risk that information can contradict some of the previous testimonies. As such, many attorneys use a series of WH-questions to elicit desired information and use this information to discredit the witness. In TV series, this type of interaction helps to push the plot to a climax. Audiences watch witnesses gradually trap themselves while answering WH-questions. In contrast, in authentic cross-examinations, attorneys prefer not to use WH-questions in order to maintain control of witnesses. This difference is likely a result of the different communicative purposes of authentic and TV cross-examinations.
This study explored the differences in the language used in authentic courtroom and TV courtroom discourse, through the lens of WH-questions, especially focusing on their use in direct and cross-examinations - the two phases of a courtroom trial where WH-questions are used most often. Results show that in direct examinations, both authentic and TV courtroom use WH-questions to elicit expanded answers in favor of the attorney’s client from witnesses on the same side. TV direct examination, however, uses more ways to elicit information than authentic direct examinations. Rather than using only WH-questions, TV direct examination also uses questioning devices such as statement and repetition. By using such devices, it speeds up the interaction between the attorney and the witness, therefore providing the TV audience with a more coherent context and making the story easier to follow since it moves along more quickly.
In cross-examinations, authentic courtrooms avoid WH-questions because it can make an attorney lose control of the situation, unless the attorney is completely sure about the witness’ upcoming answer to the question. Unlike authentic cross-examinations, TV cross-examinations use WH-questions quite often. These WH-questions are used to elicit expanded and detailed answers from a witness in order to later attack the witness by pointing out the conflict or logical fallacy in the witness’ answers. This is a common strategy to use WH-questions in TV cross-examination to discredit the witness. In TV cross-examinations, the use of WH-questions can create dramatic effects audiences typically enjoy watching how the witness is discredited after being asked a series of WH-questions and giving a set of answers, which finally in turn gives himself/herself up.
This study increases our understanding of how WH-questions function in specific ways to achieve various purposes. The results of this study demonstrate that communicative purpose and the communicative situation play a vital role in determining the use of WH-questions and highlights how these different communicative goals directly impact the language used.
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Publication in this collection
11 Dec 2020
Date of issue
13 Mar 2020
13 May 2020