Understanding Courtroom Communication through Cultural Scripts




Chapter 2

Understanding Courtroom Communication through Cultural Scripts


Kim McCaul1


The courtroom offers a rich and fascinating field of linguistic research. It represents a unique space of social engagement and a distinct domain of language usage. Linguists have been particularly interested in the way barristers use language to construct particular narratives and evoke specific images in the minds of the judge or jury (for example, Aldridge and Luchjenbroers 2007; Coulthard and Johnson 2007).


While outsiders might think that confusion, ambiguity and misunderstandings should be avoided during the process of “justice,” barristers are not only comfortable with those conditions, but may seek them out to the advantage of their client. To the lawyers, they are seen as a natural part of the adversarial system’s competing narrative process. In this chapter I explore courtroom communication and its origin in legal culture , explicitly avoiding the kind of value judgments that some linguists arrive at when analyzing the seemingly asocial use that barristers often make of language (for example, Laster 2001). Instead, I intend to show how such language usage arises naturally from the culture of the law, and highlight a number of usually unstated premises that underpin courtroom communication. In particular, I will explore how the relationship between barrister and witness is determined by the culture of advocacy.


I will use a tool from cross-cultural linguistics called the “cultural script,” which not only helps to develop succinct synopses of those premises, but could also provide a method by which they can be explained to lay people entering the courtroom, including L2 speakers of English and non-English speakers.


The Natural Semantic Metalanguage and Cultural Scripts


Cultural scripts are an example of the practical application of the Natural Semantic Metalanguage (NSM), first proposed by Wierzbicka (1972) and further developed principally by Wierzbicka and Goddard but increasingly also other researchers (various authors in Goddard 2006b; Goddard and Wierzbicka 2002; Goddard and Wierzbicka 2004). The NSM is a mini-language that consists of approximately 60 semantic primes—words, bound morphemes or fixed expressions (see Table 2.1) that can be combined according to specific grammatical principles.


Table 2.1 Semantic primes adapted from Goddard (2009) and Wierzbicka (2006)


image


These semantic primes share two qualities:


1. their concepts are intuitively clear and almost impossible to define without self-reference;


2. they have equivalents in all human languages (Wierzbicka 2006).


The second point makes the NSM an ideal vehicle to articulate complex cultural concepts in terms that are not ethnocentrically linked to any particular language or culture. It is from these semantic primes of the NSM that cultural scripts are constructed:


The term “cultural script” refers to a technique for articulating culture-specific norms, values and practices in terms which are clear, precise and accessible to cultural insiders and outsiders alike. … The main goal of the cultural scripts approach is to understand speech practices from the perspective of the speakers themselves. (Goddard 2006a, 1)


Cultural scripts are developed on the basis of linguistic evidence, and often drawn from key lexical items used by a given group of people, but can also shed light on the non-linguistic aspects of culturally based behaviors. Wierzbicka suggests that cultural scripts offer a framework within which an ethnography of thinking can be meaningfully and methodically pursued (Wierzbicka 2006, 23). In this approach, “culture” is located in the shared thought processes, some conscious but mostly unconscious, of a given group of people. It is this “culture” that is reflected in the way a group of people uses language.


Two cultural groups are not necessarily distinguished through the lexical level of language. Since English has spread as a world language, it is now spoken by many peoples who are not Anglo-English. But though people may seem to be speaking the same language, the way they use that language differs significantly. According to Wierzbicka, the NSM “provide[s] a paradigm that … could guide future research into ‘differences in communication across cultures,’ including different cultures associated with different varieties of English” (Wierzbicka 2006, 18). While the language is ostensibly the same—English—the underlying thought-emotional connotations are not. The same can be said of legal English, a specialist language the acquisition of which includes acculturation into legal culture.


Communicative competence of legal professionals, within the domain of their profession, is built on a foundation of their communicative competence as members of Anglo society generally (Engberg and Janich 2007, 216). Specialization is such, however, that once a fair degree of communicative competence in the legal profession has been achieved, specialists can converse in ways that will only be understood with difficulty, if at all, by those with good communicative competence in English, but no specialization (cf. Gibbons 2003, 163–4).


My argument here is that acquiring communicative competence in a specialist area goes hand in hand with acquiring competence in specialized forms of thinking, that is, a specialist culture. Consequently, those lawyers who truly master their art are not only skilled in the specialist communication of their profession; they are essentially bicultural (cf. Laster 2001, 243).


My conclusions are based on extensive courtroom attendance, interviews with barristers, and analysis of legal textbooks and court transcripts to explore the underpinnings of this thinking and provide the basis for the cultural scripts developed here. While one could develop scripts for many aspects of the legal process, due to space limits I here focus on one key dynamic of legal communication: advocacy and what it means for the examination of witnesses.


The Culture of Advocacy


Legal culture strongly reflects a number of values that Wierzbicka identifies as core Anglo values. These include the “imperative of acknowledging the limitations of one’s knowledge” (Wierzbicka 2006, 35) and the “emphasis on distinguishing what one knows from what one thinks” (Wierzbicka 2006, 37). Both these values have been encoded in guidelines for expert witnesses before the Australian Federal Court,2 and arguably underpin the law’s evaluation of every witness.


Wierzbicka’s study provides clear evidence for the key role of the following words and values in Anglo culture, each of which we could readily associate with legal decision-making: “accuracy,” “fact,” “truth,” “right,” “wrong” and “fairness.” We speak of “fair” trials, the “facts” of a case and an “accurate” transcript. Legal processes are implicitly designed to sift “right” from “wrong” and establish the “truth,” or as one lawyer I interviewed said, “the truth on the basis of the facts of the matter.”


Despite this semantic overlap, communication in court is not like everyday communication. It is highly regulated and conducted for a specific purpose, and that is to present information relevant to a particular matter to one or more judges or a jury. To present this information, each party puts evidence before the judge by way of one or more witnesses who have something to say about events or facts relevant to the matter at hand. Even where the evidence is really a “thing,” such as CCTV footage or a blood sample, a witness will need to give evidence about its authenticity, origin and so on.


A barrister is a communication specialist whose role it is to present information to the court in such a way that it favors his or her client’s case. Barristers place their communicative skills at the service of their clients. Being an advocate for their client’s cause is their fundamental role in the courtroom. I here explore their role as advocates in the context of the so-called Pinkenba case, analyzed by Eades in a number of publications (Eades 2004b; Eades 2006; Eades 2007; see also Alter 2004).


Very briefly, in the Pinkenba matter, three Aboriginal teenagers (aged 12, 13 and 14) had brought charges against six police officers for unlawful deprivation of liberty. The six officers had picked the three boys up in a Brisbane shopping center. The boys had not committed any offense and were just hanging around. However, they had committed offenses in the past, and apparently the officers wanted them to think about their misdemeanors. For some reason they thought that this could be achieved by taking the three boys in three separate cars to an industrial estate 14 kilometers out of town and leaving them to walk back.


During the trial, the police officers were represented by two of the most senior barristers in Queensland, while the boys’ case was brought by a junior lawyer from the Office of the Director of Public Prosecution. Most of the trial was taken up by the defense barristers cross-examining the three boys in an extremely intimidating and harassing manner, as in the following sample:


Barrister: And you knew when you spoke to these six police in the Valley that you didn’t have to go anywhere with them if you didn’t want to, didn’t you?


Witness: No.


Barrister: You knew that, Mr Coley I’d suggest to you, PLEASE DO NOT LIE. YOU KNEW THAT YOU DIDN’T HAVE TO GO ANYWHERE if you didn’t want to, didn’t you. DIDN’T YOU? DIDN’T YOU MR COLEY?


Witness: Yeh.


Barrister: WHY DID YOU JUST LIE TO ME? WHY DID YOU SAY “NO” MR COLEY? YOU WANT ME TO SUGGEST A REASON TO YOU MR COLEY? THE REASON WAS THIS, THAT YOU WANTED THIS COURT TO BELIEVE THAT YOU THOUGHT YOU HAD TO GO WITH POLICE, ISN’T THAT SO?


Witness: Yeh.


Barrister: AND YOU LIED TO THE COURT, TRYING TO, TO … YOU LIED TO THE COURT TRYING TO PUT ONE OVER THE COURT, DIDN’T YOU?


Witness: No.


Barrister: THAT WAS YOUR REASON, MR COLEY WASN’T IT? WASN’T IT? WASN’T IT, MR COLEY?


Witness: Yeh.


Barrister: YES. BECAUSE YOU WANTED THE COURT TO THINK THAT YOU DIDN’T KNOW THAT YOU COULD TELL THESE POLICE YOU WEREN’T GOING ANYWHERE WITH THEM. THAT WAS THE REASON, WASN’T IT? WASN’T IT?


Witness: Yes.


Barrister: Yes. (quoted in Eades 2004a, 171; capitals indicate raised volume)


While the blatant harassment of minors in this and other transcript excerpts Eades provides is disturbing, on the basis of the fundamental value of advocacy on which the barrister’s practice is based, this kind of cross-examination is entirely logical. One could say it is culturally logical, and this logic is reflected in a number of legal textbooks.


One striking aspect of legal texts is the frequent analogy between courtroom work and war. For example, Napley suggests that “the conduct of a trial at law is, in many respects, comparable with the conduct of a military operation. Going to law is a great deal like going to war” (Napley 1991, 74; see also Phillips 1985, 64). Similarly, Gibbons suggests that “adversarial proceedings … take the form of a ritualized battle between the prosecution and the defence” (Gibbons 2003, 6). Building on this analogy, the barrister is both a general, carefully planning a strategy, and the frontline soldier executing the plan. Obviously, there are certain rules of engagement regarding a barrister’s relationship with other legal representatives, witnesses and the judge. But within those rules the barrister is duty bound “to use every means fairly open on behalf of your client” (Phillips 1985, 4). Tronc and Dearden provide more detail on how barristers should represent their clients:


Ultimately you are there in the interests of the client and you are paid … to represent that client’s interests unashamedly, firmly, vigorously, persuasively and relentlessly. (Tronc and Dearden 1993, 23; my emphasis)


This role of the barrister is considered fundamental to the English legal system. A historic trial in England in the late eighteenth century provides a logical and often-cited foundation for the role of the barrister (for example, Napley 1991; Phillips 1985). In that matter, a barrister by the name of Erskine defended the author Thomas Paine, who had written a book that included negative depictions of the royal family for which he was being sued. Erskine accepted the brief, despite much personal insult and direct threats from senior government figures. In court he gave a rousing speech setting out the role of the advocate that included the following passage:


From the moment that any advocate can be permitted to say that he will or will not stand between the crown and the subject arraigned in the court where he sits daily to practice, from that moment the liberties of England are at an end. If the advocate refuses to defend from what he may think of the charge or the defence, he assumes the character of the judge; nay, he assumes it before the hour of judgment, and in proportion to his rank and reputation puts the heavy influence of perhaps a mistaken opinion into the scale against the accused, in whose favour the benevolent principle of the English law makes all presumptions and which commands the very judge to be his counsel. (quoted in Napley 1991, 60)


Napley comments on this quote:


This is a passage which all advocates should read and read again …. (Napley 1991, 60)


Similarly, Phillips suggests that:


At the core of the modern democratic state are the ideals of freedom from arbitrary arrest and freedom from conviction and punishment without fair trial. … But such ideals will wither unless there exist men and women who are prepared to strive to see that they are given practical application and effect—regardless of personal considerations. Hence, the necessity in every civilised community for a body of skilled and honourable advocates. (Phillips 1985, 18)


It is this fundamental logic within which the barristers defending the police officers in the Pinkenba matter would have been operating. From an outsider’s perspective they may look like manipulating bullies. On the basis of their own cultural logic, their actions were upholding fundamental social principles. In fact, they may have been negligent in their professional duty had they acted otherwise. Here is another statement, this time from a judge, that really brings the point home:


Every counsel has a duty to his client fearlessly to raise every issue, advance every argument, and ask every question, however distasteful , which he thinks will help his client’s case. (Lord Reid in Randel v. Worsely , cited in Dal Pont 2001, 445; my emphasis)


It may seem obvious to the outsider that three young Aboriginal boys are not in a position to assert themselves when confronted by six police officers. The law on the particular charge leveled against the police officers, however, required definite evidence that they had forced the boys, and this is what the barristers successfully undermined. As seen above, the judge has to presume the police officers innocent and maintain their innocence as long as he has any doubt as to whether they forced the three boys into the cars against their will. The officers’ barristers succeeded in creating such doubt.


As recently as 1998, the full bench of the High Court confirmed that “confrontation and the opportunity for cross-examination is of central significance to the common law adversarial system of trial” (Lee v. The Queen , cited in Ross 2007, 340). A fundamental principle of that system is that the two (or more) sides are both competently represented to bring their best case. The Pinkenba case highlights a crucial problem with the adversarial system. While it may support “the ideals of freedom from arbitrary arrest and freedom from conviction and punishment without fair trial,” as suggested by Philips (1985, 18), it does so only when the advocates on either side are evenly matched.


The extent to which the barristers for the police were permitted to use their linguistic and social dominance in their favor reflects badly on the prosecution counsel and on the judge, who should not have permitted the harassment and intimidation of minors. As a result, the barristers for the police were able to push their clients’ case much further than they may have been able if the boys had also had senior counsel representing them. To that extent, the Pinkenba case is an example of the adversarial system failing its own principles.

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