Language, Power and Control in Courtroom Discourse
Chapter 1
Language, Power and Control in Courtroom Discourse
Language is a powerful tool for social manipulation and seduction. Linguistic utterances are widely used or abused in court for the benefit of the defense or accusation. Throughout the volume, Goffman’s “face-work” (for example, 1959) is the invisible link. In Goffman’s (1967) terms, face is a mask that changes depending on the audience and the variety of social interaction and is the image of the self that is presented. Ordinarily, maintenance of face is a condition of interaction, not its objective (Goffman, 1967, 12). Emphasizing the conventionality on the one hand, and the diversification on the other hand, “face-work,” according to Goffman (1967, 12), is to:
designate the actions taken by a person to make whatever he is doing consistent with face. Face-work serves to counteract ‘incidents’—that is, events whose effective symbolic implications threaten face. … Whether or not the full consequences of face-saving actions are known to the person who employs them, they often become habitual and standardized practices …. Each person, subculture, and society seems to have its own characteristic repertoire of facesaving practices.
He stresses the analysis and understanding of role-playing in the social world and focuses his attention to the micro-sociology of daily life with an attempt to trace the meanings behind various ways of acting in different social situations. According to Goffman (1959, 1961), the mundane daily interaction can be approached from a broad social framework:
The self … is not an organic thing that has a specific location, whose fundamental fate is to be born, to mature and die; it is a dramatic effect arising diffusely from a scene that is presented …. (1959, 252–3).
The self … can be seen as something that resides in the arrangements prevailing in a social system for its members. The self in this sense is not a property of the persons to whom it is attributed, but dwells rather in the pattern of social control that is exerted in connection with the person by himself and those around him. This special kind of institutional arrangement does not so much support the self as constituted it. (1961, 168).
Besides the social reflection of the self, there are some face saving techniques that establish distance between a degrading situation and the self. His face theory helps us to shape and control the impression we make on others (audience) in order to influence their reactions and offers an alternative conception of the self as an aspect of social and cultural arrangements. In other words, we shall pay attention to the invisible links between front stage and back stage (Goffman 1959). The inter-semiotic interaction between the two stages enables us to step back from a subjective reality and symbolize instances, and therefore helps us to understand the inter-semiotic operation between the daily and individual activities to larger institutional social structures and processes of power and control in a given discourse community. These issues will be widely discussed in this volume.
Part I: Power and Control in Language
Mapping the contours of power and control in the courtroom equals an interpretation of linguistic utterances and their uses and abuses. This interpretation of law is apt to contribute to the changing needs of institutionally anchored functions, like those of judges, lawyers, legislators or citizens. In Part I, the contributors will highlight that communication (verbal or nonverbal) is a prerequisite of interaction of law and power in the courtroom.
Balkin suggests (1990/91):
When people speak of the relationship between law and “politics,” they mean law’s relationship to the many different forms of power—economic, social, cultural, political, military and technological—that law constrains, enables or propagates. They also mean the ideals, ideologies and arguments that people use to justify these forms of power. “Politics” refers to people’s contrasting visions and to the values that they want to realize or recognize in public life. But it also refers to the power to realize or recognize those values and visions. So when one considers the relationship between “law and politics” one is also interested in the question of law and power—how people justify and legitimate power directly or indirectly through law. And one must also account for law’s own methods of proliferating its own power, whether it be through legal concepts, legal institutions, legal culture, legal education, legal officers, or the legal profession as such. In any case, law is not simply politics; rather it is a surprisingly plastic medium of discourse about power and for the exercise of power.
In Chapter 2, “Understanding Courtroom Communication through Cultural Scripts,” Kim McCaul emphasizes the way in which the linguistic power imbalance of the courtroom perpetuates the colonial experience of Indigenous people in Australia today. By treating courtroom communication as a natural result of legal culture, the author explicitly avoids the kind of value judgments that some linguists arrive at when analyzing the seemingly asocial use that barristers often make of language. Instead, McCaul focuses on identifying and exposing the implicit assumptions that underpin the adversarial process, particularly exploring the logic of communication in the courtroom and how it arises naturally from the culture of the law. In this chapter the author pursues two aims: (1) to highlight a number of usually unstated premises that underpin courtroom communication, and (2) to propose a method by which those premises can be explained to lay people entering the courtroom, including L2 speakers of English and non-English speakers. To achieve this, Kim McCaul uses a tool from cross-cultural linguistics called the “cultural script.”
In Chapter 3, “Witnesses on Trial: Address and Referring Terms in US Cases,” Sarah Dettenwanger begins by discussing legal and linguistic backgrounds relevant to courtroom discourse. She then explains her choices for finding data through ethnography in DC courts, interviews with two US attorneys and a complete transcript from a federal case in Texas. Her findings focus on results from the DC ethnography and the trial transcript, with the interview data reinforcing facts and hypotheses. These findings indicate how witnesses can be treated differently based on their experience and comfort within the courtroom, using address terms and referring expressions as a “way in” to interaction and credibility.
In Chapter 4, “(False) Confessions Become Compelling at Trial,” Gillian Grebler looks at several high-profile US cases built on confession evidence to see how attorneys manage these tasks. According to her, the purpose of a police interrogation is to get an admission or confession to a crime. Confessions have been called “the queen of proof,” and they come laden with social and moral meaning. Prosecutors repackage confessions strategically and emotively, using a full complement of narrative devices. Their purpose is to provide jurors with a coherent, dramatic and compelling account of the confession. Defense attorneys have to arm jurors with enough knowledge of to evaluate whether or not the confession is reliable and trustworthy, and with knowledge of the ways this confession could be false.
In Chapter 5