Witnesses on Trial: Address and Referring Terms in US Cases
Chapter 3
Witnesses on Trial: Address and Referring Terms in US Cases
In an idealistic sense, trials are supposed to prove how the examination of facts through rules of evidence ensures personal freedom under the state. Whatever one’s views are about how successfully the adversarial system accomplishes this, the strict rules of evidence supposedly limit the facts presented to peers in jury trials. Once an individual’s testimony is deemed admissible, however, lawyers and judges have greater freedom in how they interact with the witness. Through these interactions, it is possible that non-evidential language and behavior will affect the judgments of jury members and, ultimately, the verdicts they reach.
Language biases can occur at many levels, from conscious efforts to control a witness through question forms to unconscious prejudice towards a particular dialect. The degree of intentionality when affecting social position and credibility means little when someone’s freedom, life or appropriate punishment is at stake. This is particularly worrisome when considering the substantial forethought that lawyers devote to their courtroom preparation and performance, and how juries respond to such efforts.
Legal Background
In order to understand the described behavior and events I will be analyzing, some legal background information is necessary.2 My own academic knowledge has been built up through reading research articles about language and the law, courses dealing with forensic linguistics and language and the law, and prior research on direct and cross-examination in US courts.
The following is a basic overview of what occurs in a United States criminal trial. During the life of a case, there are hearings and other events that take place in the courtroom regarding the development of evidence and possible plea bargains, but do not involve a jury. Before a defendant in a federal felony case goes to trial, he or she must be indicted by a grand jury. The prosecution presents its evidence to the grand jury and compels witness testimonies. If a witness who testified at the grand jury also testifies in the trial, then a transcript of the previous testimony is provided to the defense.
The trial itself begins with the judge explaining basic legal information and outlining events to jurors, followed by opening statements from both the government (assistant US attorney, hereafter AUSA) and the defense (hereafter DEF). The government presents its case to the jury first. The AUSA will examine his or her own witnesses, and there are certain requirements regarding the types of questions a lawyer can ask on direct examination—for example, one cannot lead the witness to certain answers. For each witness, the defense has the option of cross-examination. cross-examination is essentially a re-examination of the testimony by the opposing attorney, generally in order to discredit the witness and testimony, or to emphasize additional information the direct examination did not focus on. The scope of the cross-examination often focuses on information brought out on direct examination, the witness’s reliability as an expert or eyewitness, and in some circumstances, previous convictions. The government generally calls the most witnesses, since it carries the “burden of proof,” and must convince the jury that the defendant committed the crime(s). The defense only needs to establish a reasonable doubt3 of the government’s account of events for the accused to be acquitted. After the government rests, the defense presents its case. The defense calls its own witnesses, and the same process of direct examination, cross-examination and re-direct examination goes on, though now DEF handles direct and re-direct testimony, while the AUSA cross-examines.
After the defense rests, the government begins closing arguments by summarizing its position and highlighting the “deciding proof” of what occurred. Then the defense summarizes its case and seeks to at least reach a point of “reasonable doubt” regarding the defendant’s involvement in the crime. The government is allowed to speak to the jury once more in response to the defense’s closing arguments, and then there are jury instructions.
Jury instructions are frequently studied in linguistics,4 and contribute to this research. Jury instructions are established through a combination of written guidelines, local and federal laws, lawyer agreements and the judge’s supervision. Jury instructions direct the jury on what evidence to consider, the relevant law and what they are to deliberate on. The judge from the Texas case reminded jurors: “as I told you at the beginning and throughout the trial, and in final instructions, that what the attorneys say to you is not the evidence. The evidence is what you heard from this witness stand and the exhibits” (US v. Ramos et al.). In one trial in Superior Court (SC), jurors were reminded to consider just the sworn testimony, facts, stipulations and exhibits. Yet jurors were also instructed to weigh the testimony of witnesses, assessing their credibility. When considering the weight to give a witness’s testimony, jurors could factor in the individual’s demeanor, behavior, manner of testifying, memory and so on. None of these factors were defined or elaborated upon. The ambiguity of this credibility evaluation gives jurors significant liberty for personal judgments about the capabilities of a testifying witness. Such judgments will be created through interaction, and are therefore affected by the lawyers’ and judges’ own communicative choices.
In SC, after receiving these instructions, the jurors are sent to deliberate. The deliberations themselves are private, outside of the presence of the lawyers, judge and defendant(s). The time for jury deliberations varies, but many take anywhere from a few hours to a few days to return with a unanimous guilty or a not guilty verdict for any number of charges of which the defendant may be accused. Judges handle sentencing of the defendant, which normally takes place some time after the jury’s decision, so the judge is able to gather information pertinent to his or her decision.
Literature Review: Language and Law
Legal institutions worldwide provide constrained and formulated interactions that need to accommodate a variety of situations involving diverse populations. These interactions provide an abundance of entry points for research. A number of ethnographic studies and other linguistic analyses have focused on multilingual concerns for reference and politeness (Angermeyer 2006), bias in mediation (Marinova 2007), and question forms and poetic devices in cross-examination (Matoesian 2001). Though opinion questionnaires, re-enactments and perception studies are popular for measuring jury bias, gender bias and other research interests (Kaplan and Miller 1987), ethnography is also well situated to incorporate linguistic particulars within the fabric of courtroom interaction. Lawyers and judges have years of schooling and practice in order to fully engage in the courtroom, so there must be significant contrasts to other “everyday” social environments (Heritage 1997).
Trials are, in many ways, performative presentations of fact to an audience with the power to determine guilt or innocence, with potentially serious ramifications. This has led to studies of factors that can affect jury perception, or ignite social biases. As Hahn and Clayton (1996) detail:
the attorney’s presentation style operates within a system: Not only the attorney is being evaluated, but also the attorney’s relationships with witnesses and defendants, and the defendant in light of those relationships. … [M]ore important in the courtroom is how an attorney’s interactions with witnesses and defendants affect the evaluation of those individuals and of their testimony. (Hahn and Clayton 1996, 536)
In their test of attorney styles, they found that aggressive lawyers were more successful than passive lawyers, and male lawyers more successful than female lawyers. Hahn and Clayton’s (1996) study also looked at juror gender, and found that male jurors are more affected by presentation style than their female counterparts. An earlier study (Conley et al. 1979) focused on the linguistic behavior of witnesses, and also found that gender plays a distinctive role in juror perception. One of a number of features5 of a powerless speaking style was the inclusion of polite forms (including “sir” and “please”), which significantly lowered the perceived competence, professional judgment and believability of witnesses (Conley et al. 1979). This style was especially more likely to be used by witnesses of “low social status,” meaning poor and uneducated individuals, and more often by women than men (Conley et al. 1979, 1,380). Address terms or referring expressions were explicitly cited as part of the research in the previous study, as well as in Riger et al. (1995). The latter was a survey for attorneys and judges to examine factors that might contribute to either real or perceived bias towards female attorneys. In the section of the survey aimed at observable examples of bias, both male and female attorneys were asked if a judge used informal forms of address with female counsel. While the general results are not significant for this study, address terms were acknowledged as contributing to perception and bias within the courtroom among participants who feel more at ease and aligned with the legal system (compared to witnesses, defendants and others unfamiliar with the experience).
Discomfort and unease among certain populations in trials is not unique to US courts. Eades (2000; 2005) investigated Aboriginal populations in Australian courts and published a lawyers’ handbook about the linguistic, cultural and discourse systems available to Aboriginal speakers. Eades utilized the cultural difference approach (Gumperz 1982; Tannen 1994) in the information provided to the legal community, an approach she later criticizes (Eades 2005) since it does not address power inequalities of the Aboriginal population in many social and legal spheres. Acknowledging the social realities that can feign, reinforce or destroy credibility is an important factor in moving forward language and law studies.
Linguistic Research: Reference and Address Terms
In addition to research about legal institutions with their own linguistic concerns, there is pertinent linguistic research regarding address terms and referring expressions. Schiffrin (2006) examines reference, and constructs frameworks for considering the role and realization of referring expressions, and when such efforts go awry. As Schiffrin (2006) defines:
Referrals are communicative attempts by a speaker to evoke a referent (the idea a speaker has of something in the world) through a referring expression (a linguistics expression that can represent and evoke an entity) …. As firstmentions, we can think of the speaker as “accessing” the referent; as nextmentions, as “maintaining” the referent. (Schiffrin 2006, 36)
She goes on to discuss how successful communication is a negotiation between speaker intention and hearer interpretation that mediates their shared world of knowledge. This presents problems in “ordinary” conversation, though confusion can be conveyed through questions or misunderstandings brought to light in dialogic conversation. In the courtroom, however, jurors do not normally participate in discussions or voice confusion over terms or references. Jurors are generally allowed to ask questions of the court during and after trial, but they do not do so frequently (never in the observed SC trials). Whether allowed or not, jurors are more constrained in opportunities for resolving confusion as compared to everyday small group interactions. Since many courts do not have recurrent, structured openings for jurors to talk, it is difficult to break through the structure and flow of institutional talk with respected, powerful and possibly more institutionally fluent lawyers, judges and witnesses.6 Witnesses are likewise limited in their capacity to speak beyond answering questions, and while generally encouraged to seek clarification, may feel they do not have the conversational right to voice uncertainty, or that doing so will adversely affect their credibility. At least as far as jury comprehension goes, attorneys desire a clear and persuasive argument, so they will likely do their best, in order to fulfill their own ends, to keep referrals straightforward and simple. But as Schiffrin (2006) points out, manifest “disfluencies do not always indicate problematic referrals … [and] problematic referrals are not always overtly displayed by disfluencies” (Schiffrin 2006, 41).
Not only can there be problematic referrals, but also troublesome address relationships. Dickey (1997) begins with a discussion about the meaning of references and address terms and their similarity in that both are defined by social usage and not determined solely by indicating a referent. She states that there are myriad choices for referring or addressing someone (for example, Jane, Jane Smith, Mrs. Smith), but that the choice among these options is based on social meanings. In her study of family interactions and academia, Dickey (1997) found different schemas for hierarchical divisions and resultant distinctions in reference and address (age and generation for the former, academic or departmental standing for the latter). Incorporating this into the courtroom could be quite complicated, as witnesses are brought in as authorities (either through personal or expert knowledge), yet attorneys hold much of the interactional power. Juries have the power of deciding guilt or innocence, but do not often talk, while judges have institutional authority. This institutional authority comes from their role in resolving points of law, their experience within the courtroom, and their ultimate ability to control courtroom conduct. Deciding which is most salient at any given point is a challenge, and the formal nature of the courtroom that often deals with personal situations (death, rape, violence, addiction and so on) further complicates the available options and behavior.
It is also necessary to acknowledge the complicated nature of the “listener.” For everyday discourse, Goffman (1981) delineates this category as follows:
broadly speaking, there are three kinds of listeners to talk: those who over hear …; those … who are ratified participants but are not specifically addressed by the speaker; and those ratified participants who are addressed, that is, oriented to by the speaker in a manner to suggest that his words are particularly for them, and that some answer is therefore anticipated from them …. (Goffman 1981, 9–10)
This description applies to the courtroom, with examples of unratified listeners (the public), ratified but not addressed by the speaker (during most of the examination, the judge and jurors) and the ratified and addressed individual (the witness, the attorney, or the judge if a ruling is necessary). The speaker and addressee can take any or all of these individuals into consideration when choosing address or referential expressions. All of this potential complication and variation highlights the difficulty of explaining with certainty why X chose Y expression in a specific situation.
Methodology
This study was an effort to supplement discourse analysis with another qualitative research method, ethnography, to give a richer picture of address and reference in a courtroom. Given the low frequency of address and reference tokens, great variation among personal styles and the importance of discourse sections (opening statement, closing argument, direct examination and so on), a nuanced, qualitative investigation allows for a more definitive conclusion than numerical data alone would suggest. Some quantitative data will be included from the transcript below, but is not the focus of this investigation.
Ethnographic and Interview Data
In order to better understand courtroom behavior and practices, I observed felony trials in SC for over 50 hours. The observation covered a variety of cases, but generally included multiple lay and court witness testimonies, and for two trials, the closing arguments. I also conducted two interviews with practicing US attorneys. The ethnographic observations and interview data will be used to augment and situate some of the data from the Texas trial transcript, and was considered in the above introduction to US criminal procedure.
Transcript Data
Court transcripts provide an opportunity to study many of factors that contribute to address terms, reference and witness credibility. With such information, it is possible to follow the role of a witness in each case’s theory of events and track references across multiple witnesses, as well as in opening statements and closing arguments.
The following provides some information about this particular case, which received media attention in 2006 and 2009. The case is US v. Ignacio Ramos et al. (2006), from a Texas district court. Defendants, Ignacio Ramos and Jose Compean, were working for the Department of Homeland Security as Border Patrol agents on the US–Mexican border. The incident took place on February 17, 2005 near San Elizario. A Mexican citizen, Jose Aldrete-Davila, was shot in the back after fleeing from the agents. Defendants were charged on 11 counts, including assault with intent to commit murder, aiding and abetting, assault with a dangerous weapon and multiple instances of tampering with an official proceeding. Some of the charges relate to Mr. Aldrete-Davila’s injuries, but others address the lack of reporting for discharging firearms. Agents Ramos and Compean were found guilty of all charges except the first counts of assault with intent to commit murder and aiding and abetting. The case was back in the news when former President George W. Bush commuted their sentences before leaving office.