Language and Power in Court: A Linguistic Analysis of the O.J. Simpson Trial

Language and Power in Court A Linguistic Analysis of the O.J. Simpson Trial Janet Cotterill Language and Power in Cou...

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Language and Power in Court A Linguistic Analysis of the O.J. Simpson Trial

Janet Cotterill

Language and Power in Court

Also by Janet Cotterill WORKING WITH DIALOGUE (editor with M. Coulthard and F. Rock) LANGUAGE ACROSS BOUNDARIES (editor with I. Ife) LANGUAGE IN THE LEGAL PROCESS (editor)

Language and Power in Court A Linguistic Analysis of the O.J. Simpson Trial Janet Cotterill Lecturer in Language and Communication Centre for Language and Communication Research Cardiff University

© Janet Cotterill 2003 All rights reserved. No reproduction, copy or transmission of this publication may be made without written permission. No paragraph of this publication may be reproduced, copied or transmitted save with written permission or in accordance with the provisions of the Copyright, Designs and Patents Act 1988, or under the terms of any licence permitting limited copying issued by the Copyright Licensing Agency, 90 Tottenham Court Road, London W1T 4LP. Any person who does any unauthorised act in relation to this publication may be liable to criminal prosecution and civil claims for damages. The author has asserted her right to be identified as the author of this work in accordance with the Copyright, Designs and Patents Act 1988. First published 2003 by PALGRAVE MACMILLAN Houndmills, Basingstoke, Hampshire RG21 6XS and 175 Fifth Avenue, New York, N. Y. 10010 Companies and representatives throughout the world PALGRAVE MACMILLAN is the global academic imprint of the Palgrave Macmillan division of St. Martin’s Press, LLC and of Palgrave Macmillan Ltd. Macmillan® is a registered trademark in the United States, United Kingdom and other countries. Palgrave is a registered trademark in the European Union and other countries. ISBN 0-333-96901-4 This book is printed on paper suitable for recycling and made from fully managed and sustained forest sources. A catalogue record for this book is available from the British Library. Library of Congress Cataloging-in-Publication Data Cotterill, Janet, 1968– Language and power in court: a linguistic analysis of the O.J. Simpson trial / Janet Cotterill. p. cm. Includes bibliographical references and index. ISBN 0-333-96901-4 (cloth) 1. Simpson, O.J., 1947–Trials, litigation, etc. 2. Trials (Murder)–California–Los Angeles. I. Title. KF224.S485C68 2003 345.73’02523’0979494–dc21 2003048270 10 12

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Printed and bound in Great Britain by Antony Rowe Ltd, Chippenham and Eastbourne

Contents Acknowledgements

vi

List of Figures and Tables

vii

Introduction – A Crime Chronology: The Murders of Nicole Brown Simpson and Ron Goldman

1

1

Trial by Jury: Legal Frameworks and Linguistic Consequences

9

2

Macro-, Micro- and Multiple Narratives: Storytelling in Court

19

3

Framing Courtroom Narratives through Strategic Lexicalisation: The Opening Statements

65

4

Interaction in the Criminal Trial: Participants and Processes, Roles and Relationships

91

5

Direct and Cross-Examination: Questions and Answers in Court

126

6

Mind the Gap: Negotiating Power, Knowledge and Status in Expert Witness Testimony

156

7

‘If it Doesn’t Fit, You Must Acquit’: Reframing the Story through Metaphorical Choice in the Closing Arguments

199

8

Judging the Jury: The Deliberation, the Verdict and the Aftermath

220

Notes

233

References

234

Index

244

v

Acknowledgements Many people have contributed many different things to this book (and its writer) in the course of its completion. They are, of course, too numerous to mention individually, but I would particularly like to thank the following. I am grateful to the editorial staff at Palgrave Macmillan, whose patience and perseverance are an example to us all; particular thanks are due to Jill Lake and to all the editors, referees and conference-goers who have read, commented on and listened to earlier versions of the work presented here; they have provided challenging comments and questions, and the book has benefited immeasurably from their insights; my special thanks go to the members of the IAFL and the Forensic Linguistics Group in Birmingham; it would be hard to imagine more stimulating and supportive colleagues. A version of chapter 3 was published in Discourse and Society 12(3), 2001, and of chapter 7 in Forensic Linguistics 5(2), 1998. They are reprinted here in amended form with the kind permission of the publishers. My thanks are due to my friends Chris Heffer and Frances Rock, Kim Landers and Jo Alper, for their constant encouragement, and I would also like to thank Marilyn Washbrook and Michael Hoey for their unwavering support and friendship. There are a number of people who above all deserve my thanks: my family, Michaela and Erik, Jean and Doug, who have always been there for me; and Malcolm Coulthard, the supervisor who helped me to shape the ideas which form the basis of this book. A final and special note of dedication is reserved for my late friend and colleague Sonia Russell, whose friendship I miss very much.

vi

List of Tables and Figures Tables Table 1 Table 2 Table 3 Table 4 Table 5 Table 6 Table 7 Table 8 Table 9 Table 10 Table 11 Table 12 Table 13 Table 14 Table 15 Table 16

Table 17 Table 18 Table 19

Statistics for the original juror pool, pre-selection Jury statistics, post-selection Mapping Labovian narrative structures onto the trial narrative Defence reconstruction of prosecution crime elements in a hypothetical murder Generic crime elements and their corresponding narrative strands in the Simpson trial Distribution of past, present and future events in trial by jury talk Month-by-month breakdown of witnesses in the Simpson trial Breakdown of defence witnesses – July to September 1995 Prosecution and defence witnesses relating to Simpson’s Chicago trip Individual crime elements and associated forensic evidence Collocate list for incident Collocate list for dispute Collocate list for domestic dispute Collocate list for discussion Collocate ‘picture’ of conversation Intra-professional, inter-professional and professional–lay interaction in the adversarial criminal trial Metaphors in the prosecution closing argument Metaphors in the defence closing argument ‘Prejudice triggers’ in the Simpson trial

17 18 24 28 29 38 41 42 44 50 81 84 86 87 88 167

203 204 223

Figures Figure 1 Figure 2

The crime, the investigation and trial narratives Maximal structure of witness examination vii

22 45

viii List of Tables and Figures

Figure 3 Figure 4 Figure 5 Figure 6 Figure 7 Figure 8

Processes and participants in the criminal trial Proportion of time (measured in days) spent on each respective trial phase Turn length in number of words per response – lay vs. expert witnesses Average number of words per response – lay vs. expert witness, direct vs. cross-examination Distribution of the puzzle and bomb metaphors in the prosecution summation Distribution of the puzzle and bomb metaphors in the defence summation

94 127 158 159 209 210

Introduction – A Crime Chronology: The Murders of Nicole Brown Simpson and Ron Goldman

Late at night on 13 June 1994, a man discovered a blood-stained dog in an agitated state on Bundy Drive, West Los Angeles, an affluent suburb of the city. The dog led the man to 875 South Bundy, once the marital home of ex-American footballer Orenthal James (O.J.) Simpson and Nicole Brown Simpson, and now occupied by Nicole and their two young children. The bodies of two Caucasian adults, one male, one female, lay on the walkway to the house. The female victim was Simpson’s ex-wife, 35-year-old Nicole Brown Simpson, murdered as she returned home from dinner; the male, 25-year-old Ronald Lyle Goldman, was a waiter at the restaurant where Nicole had spent the evening. Both victims had been multiply stabbed in a brutal attack and left for dead outside the Westside condominium, while the Simpsons’ two young children slept upstairs. Police officers discovered that O.J. Simpson had left town to attend a Hertz convention in Chicago. On hearing of the murders, Simpson returned immediately to Los Angeles, where he was questioned by police officers for almost four hours before being released without charge. Throughout the interview, Simpson maintained his innocence and claimed to know nothing about the murders. The day after Nicole’s funeral, 17 June 1994, police investigators enforced a warrant for Simpson’s arrest on suspicion of having carried out the double homicide. Simpson failed to surrender voluntarily and became involved in a 60-mile slow-speed chase across southern California, pursued by dozens of police cars, helicopters and news crews. The vehicle, a white Bronco, was driven by a friend, with Simpson reported to be suicidal and holding a gun to his head throughout the pursuit. The chase ended peacefully when Simpson 1

2 Language and Power in Court

returned to his Rockingham mansion, where he finally surrendered and was arrested. On the evening of 17 June 1994, O.J. Simpson was formally charged with two counts of first degree murder, a capital offence under California law. On 8 July 1994, following a six-day preliminary hearing, Judge Kennedy-Powell ruled that there was ‘ample evidence’ to bind Simpson over for trial. He made his first appearance before Judge Lance Ito’s court on 22 July in an arraignment hearing; in response to the two counts of murder, Simpson pleaded ‘absolutely, 100 per cent not guilty’. O.J. Simpson was indicted on two counts of murder and the scene was set for a real-life courtroom drama which came to be known as ‘The Trial of the Century’.

The People vs. Orenthal James Simpson The ensuing criminal trial lasted nine months, involved 126 witnesses and cost Los Angeles County an estimated $9 million. The official court transcripts from the trial, amounting to 50,000 pages, or 6.2 million words, of trial talk, form the basis of this analysis of trial language. In addition to the trial transcripts themselves, however, the Simpson case generated a large range of related texts, most of which are not normally available to the analyst. These include police interviews with the suspect, transcripts of grand jury and preliminary hearings, and pre-trial jury selection questionnaires. The trial itself was broadcast live on US cable station CourtTV, allowing unprecedented audio-visual access to the courtroom proceedings; more than 50 hours of this coverage were broadcast in the UK and were recorded for analysis. These video-recorded data proved invaluable, since they permitted a more three-dimensional analysis of the trial, providing non-verbal and intonational insights. In addition, the recordings served as a means of verifying the integrity and accuracy of the trial transcripts. Finally, post-verdict, a number of jurors wrote and published trial memoirs, and several members of the jury gave extended interviews to TV and print journalists. Together, this multi-modal and multi-perspectival set of resources constitutes one of the most complete, publicly available records of criminal trial proceedings to date. For the analyst of language and the law, it represents a rich source of data, enabling a rare and privileged glimpse into the extended legal process from crime scene to criminal

Introduction – A Crime Chronology 3

courtroom and beyond, into the usually secret world of the jury room. Linguistic insights from each of these pre- and post-trial sources will be incorporated, wherever appropriate, into the discussion of the trial data, in order to provide a comprehensive and contextualised account of the language of the courtroom.

Theoretical orientations and approaches The approach to data analysis adopted in this book is deliberately eclectic. In allowing the data to speak for itself, I have employed a range of theoretical and methodological models and principles. In each case, the choice of approach has been motivated by a data-driven assessment of what type of analysis would best elucidate the particular aspect of courtroom language under scrutiny. Hence, for example, the analysis of the interactional dynamics of the courtroom draws on work in interactional sociolinguistics (Hymes 1972) and participant roles and frameworks (Goffman 1981). The chapter on opening statements applies methods from corpus linguistics and focuses specifically on the notion of semantic prosody (Sinclair 1991; Louw 1993) in its discussion of monologic persuasion and coercion, in an effort to gain an understanding of the potential rhetorical force of a range of strategic lexical choices employed by prosecution and defence. Similarly, research into the conflicting metaphorical constructs used during the closing argument phase of trial, presented in chapter 7, builds on and is informed by insights from researchers such as Lakoff and Johnson (1980) and, more recently, Goatly (1997), into the use of metaphor as a rhetorical device.

Researching courtroom language From a survey of the literature on courtroom language, it is possible to identify four major areas where analytic attention has been focused: interactional dynamics in the courtroom; the formal and functional properties of questions and answers; styles of testimony and their influence on juries, and finally, power and ideology in trial language. It should be noted that the division of research into these four broad categories is intended to give an indication only of the central emphasis of a given study, since many of these studies include commentary on other themes. I will now outline each of these areas in turn, and will discuss the contribution made by the present analysis to our understanding of each aspect, respectively.


Conversational analysis, ethnography and interactional dynamics A number of academics, often with backgrounds in sociology, have studied courtroom talk from the perspective of conversation analysis. Atkinson and Drew (1979) carried out an early study into the language of the UK courtroom, with a sociological and ethnomethodological orientation; their primary aim was to examine the sequential organisation of courtroom participants’ turns at talk. Employing a conversational analytic methodology, they were able to illustrate the essential asymmetry of spoken legal discourse, by reference to the turn-taking mechanisms of interaction in coroners’ courts and tribunal hearings. Drew’s later work (1985, 1992) consolidated and developed these initial insights and shifted the focus to the criminal courtroom. In both these later papers, Drew uses cross-examination data to illustrate the combative nature of courtroom interaction and analyses the way in which lawyers exploit the specialised speech-exchange system of the courtroom to challenge versions of events presented by witnesses. His 1992 paper, based on cross-examinations in rape cases, shows an increasingly critical linguistic dimension to his work. Matoesian (1993, 1997, 2001) also uses extracts from rape trials and similarly adopts a conversational analytic approach to his data; however, his work demonstrates a keener critical orientation than is present in much of Drew’s analysis. In his 1993 study, Matoesian focuses on the interactional characteristics of the rape trial and argues that cross-examination questioning techniques (particularly) serve as an exemplification of patriarchal domination in the courtroom. Matoesian’s later work (1997, 2001) uses data from the Kennedy Smith rape trial and analyses how the repetition of questions and question patterns progressively and systematically serves to reorient the victim’s account of the crime in an attempt to persuade the jury. My own work on courtroom interaction builds on this more recent research base and studies the dynamic complexities of the lawyer–witness–jury triad. In so doing, I attempt to extend the focus of analytic attention away from the locally dyadic lawyer–witness pair, which has preoccupied much of the conversational analysis (CA) literature in this area, to consider some of the ways in which lawyer talk can be seen as talk designed with the third-party juror addressee in mind. I locate in the Simpson trial data some of the linguistic traces present in lawyers’ questions, which illustrate this awareness of audience design and conscious attempts at accommodation.


Lawyer–witness talk Just as the majority of investigations into courtroom discourse have focused on one particular pairing in the trial process – the lawyer–witness dyad – they have also tended to concentrate on one particular utterance type – the question-and-answer adjacency pair. The literature is dominated by studies which look at lawyer questions from a formal perspective, often with a quantitative dimension, comparing, for example, the use of open and closed questions in direct and cross-examination; such work includes early studies by Danet and Bogoch (1980) and Dunstan (1980), which both found significantly more Yes/No (Y/N) interrogatives in cross-examination in comparison with direct examination. During the mid-1980s a series of papers appeared, which examined both the formal and the functional properties of questions; researchers such as Harris (1984), Woodbury (1984), Philips (1987), Walker (1987) and, more recently, Maley and Fahey (1991) and Luchjenbroers (1997) have all analysed the relative strategic value of Wh- vs. Y/N vs. disjunctive lawyer questions in creating and maintaining the asymmetry of the lawyer–witness pairing. Chapter 5 extends this focus on lawyer questions to include not only a discussion of lawyers’ manipulation of pre-emptive question forms which attempt to set the boundaries for witness responses, but also retrospective modifications of witness responses in the form of evaluative ‘follow-up’ moves in the exchange (Sinclair and Coulthard 1975; Coulthard and Brazil 1992). Much of the existing work on lawyer–witness questioning has also demonstrated a tendency towards treating witnesses as a homogeneous group, with a preponderance of research into the testimony of character and eyewitnesses. Thus, with the notable exceptions of Jackson (1995) and Goodwin and Goodwin (1997), there has been relatively little differentiation of the umbrella term ‘witness’, with scant attention paid to the significant differences in status and position of expert and lay witnesses, and the different testimony styles of scientific expert witnesses and pseudo/quasi-expert witnesses, such as police officers. Moreover, where expert witnesses have been analysed (Storey-White 1997; Tiersma 1999), the focus has tended to be on the jargonistic nature of expert testimony and the comprehensibility problems this creates for the jury. Chapter 6 attempts to redress this imbalance, by focusing not only on the top-down transmission of expert jargon to the lay juror, but also on the complex power and status relationship between the expert


witness and the lawyer. This work contributes to a currently small but increasing body of work by researchers such as Maley (2000), Stygall (2001) and Matoesian (2001) in this area. Testimony styles and the narrativisation of courtroom accounts In addition to a focus, both formal and functional, on questions, a number of researchers have extended this work with a comparative analysis of different styles of testimony, shifting the emphasis away from the lawyer towards the witness and, ultimately, the jury. O’Barr’s (1982) much-cited study (critiqued in Kerr-Thompson 2002) contrasted ‘narrative’ and ‘fragmented’ styles of testimony, respectively, and analysed the effect of the two styles on juror perceptions of witness credibility. The study concluded that witnesses who employed (or more accurately were permitted to employ) a narrative style in their testimony were judged by jurors to be both more convincing and more trustworthy than those whose evidence was presented in the form of brief question-and-answer sequences. Stygall’s (1994) work also has a narrative focus and explores the way in which lawyers consistently deny the plaintiff’s attempts to use narrative sequences, systematically dismantling the testimony into nonsequitur and non-sequential segments through the use of constraining questioning strategies. Shuy (1986) provides a more content-oriented account of topic initiation, change and recycling in the courtroom and its role in the construction of ‘believable’ testimony. The concept of narrative plausibility is central to Bennett and Feldman’s (1981) study of narrative structure and coherence in witness accounts, a theme echoed in Jackson’s (1995) research into narrative typification, a cognitive process whereby the plausibility of a particular narrative is assessed according to its matching potential with jurors’ internalised schemata. Much of the research in this area has been conducted by cognitive psychologists and, though of great value to the analyst of language and law, lacks a truly linguistic orientation. The research presented here builds on Jackson’s notion of narrative typification, but adopts a more lexically oriented approach to the analysis of persuasive storytelling. Within the contextual framework of the trial as the telling of multiple versions of reality, I will discuss the ways in which courtroom stories have much in common with their literary counterparts. I also argue that the monologic opening and closing arguments play a crucial role in framing the conflicting narratives constructed by the prosecution and defence. Thus, with reference to the opening and


closing arguments of the Simpson trial, I consider the persuasive force of a variety of lexicalisations and metaphorical representations of both the crime and the trial process itself. Chapters 3 and 5, respectively, address the way in which these powerfully evocative lexical choices serve to frame the witnesses’ testimony, both prospectively and retrospectively, and how lawyers use such strategic linguistic choices in an attempt to orient the jury towards their respective version of reality. Power and ideology in courtroom language In a sense, much, perhaps even the majority, of research into courtroom discourse has some degree of critical orientation, although this may be underplayed or be accessible only implicitly by reference to the assumptions and presuppositions of the analytical approach adopted. In researching language within one of the most institutionalised of settings – the criminal justice system – it is perhaps inevitable that a great deal of the work detailed above has resulted in findings which both identify and exemplify the role of language in the creation and maintenance of institutionalised power and asymmetry. In some cases, this was one of the original, overtly stated aims of the study, in others, a side-effect of more descriptively motivated work. However, researchers working on courtroom discourse are increasingly incorporating an explicitly critical dimension into their work. This trend is, of course, paralleled in other areas of discourse analysis in institutional settings, such as the media, medicine, education and politics. (See Fairclough 1989; Caldas-Coulthard and Coulthard 1996; Sarangi and Coulthard 2000; Toolan 2002 for overviews of critical discourse analytic work in these areas.) As far as the legal domain is concerned, the most comprehensive and contemporary summary of work to date with this critical orientation may be found in Conley and O’Barr (1998). In the domain of the law, much of the critical attention has been directed towards the power and ideology of the Law (with a capital ‘L’), as expressed in the linguistic strategies of the judge, both in trials by jury and in a legislative role, in judicial opinions and statutory interpretations. In the trial context, Wodak (1985) has looked at judge–defendant discourse, arguing that the socio-economic variables of gender and class appear to influence the outcomes of the defendant’s interactions with the judge. Language as revealing of the ideologies inherent in judicial discourse is also central to Harris’s (1989, 1994) research into UK magistrate’s courts. She finds that judges are able to express their ideological stance through a complex range of lexico-grammatical


mechanisms, including mood and modality choices (after Halliday 1985), non-reciprocal access to interactional strategies, and the strategic and selective use of ideologically loaded lexical choices. In the context of US judicial rulings, Solan (1993) has examined apparent inconsistencies in Supreme Court appellate decisions, and suggests that judges, whilst going to great lengths to appear ‘neutral’ in their judgements, are in fact often guilty of concealing hidden agendas and ideological positions which inform and, ultimately, bias their decision-making processes. A final group of researchers has also tackled the issue of ideology in the language of judges, but from a social anthropological perspective, most notably Conley and O’Barr (1990, 1998), and Philips (1998). Philips’ discussion, like that of Solan (1993), centres on the extent to which ideological positions may or may not be made explicit, but her focus is on guilty pleas from criminal defendants rather than appellate opinions. In this role too, Philips’ data appear to show judges as highly politicised and ideological figures, whose orientation is belied by their strategic use of language. The earlier of Conley and O’Barr’s two studies explores the small claims court setting and draws the distinction between rule- and relation-oriented litigant strategies. They identify no fewer than five different judicial approaches to decision-making and conclude that the lack of uniformity in judges’ rulings means that litigants may find their day in court a frustrating and ultimately unsatisfying experience. Conley and O’Barr’s recent contribution (1998) sets out to show how close linguistic analysis of legal language can help to illuminate broader social inequities; to this end, the book includes thought-provoking discussions on, amongst other issues, patriarchy in the law (illustrated by Matoesian’s 1993 and 2001 rape trial data), as well as cross-cultural perspectives on language and law in non-western societies. In seeking to identify and exemplify the linguistic mechanisms of control used by lawyers and judges in their interactions with witnesses and jurors, this analysis too has a critical orientation. In the final chapter, I draw data and insights from post-trial discussions and writings by the Simpson jurors, which provide an ‘insider’ indication of the impact of some of these linguistic strategies on the jury’s decisionmaking process. Having summarised some of the major studies into courtroom language, I will now embark on the presentation of my own contribution to this body of research.

1 Trial by Jury: Legal Frameworks and Linguistic Consequences

Power and persuasion: the role of language in adversarial trial talk The US criminal justice system is founded on the fundamental principle of trial by jury; indeed, the right to elect for trial before a jury of one’s peers is enshrined in the Sixth Amendment to the US Constitution. It has been calculated that every year in the United States, approximately three million jurors serve in some 300,000 cases, and that 85 per cent of the world’s jury trials take place in the United States (Abraham 1998). As the name suggests, the Anglo-American adversarial trial process is based on the adjudication of conflicting and competing versions of events presented by prosecution and defence. Crucially, the adversarial system is not primarily concerned with establishing the true facts of the case; rather, it involves attempts to persuade the jury that one constructed version of reality is more plausible than another. Whereas the inquisitorial system, used throughout much of the world, views the evidence elicited from witnesses with an investigative and exploratory eye, the adversarial approach prioritises argumentation and persuasion, with its primary objective a dialectic and dialogic appraisal of the evidence. One of the inevitable consequences of this basic difference in orientation is that the adversarial system accords the ‘performance’ aspect of the trial a far greater significance than it has in inquisitorial proceedings. Since the orientation of the adversarial trial is inherently a persuasive, even a coercive one, the style in which the evidence is presented in court comes to be of vital importance, to the extent that some critics of the adversarial system accuse trial lawyers of prioritising style of delivery 9


over substance of fact in their attempts to convince the jury. This was certainly a criticism levelled at the Simpson trial, where the presence of the television cameras was widely considered to have added a layer of theatricality on top of the legal proceedings. This does not invalidate the Simpson trial as a piece of authentic, contemporary US criminal trial data; rather, it suggests the need for a cautious approach to extrapolation and generalisation in discussions of phenomena which, on occasion, are perhaps ‘writ large’ in the Simpson data. For all its theatricality and histrionics, those aspects of trial interaction identified and discussed here seem in many respects to be characteristic of US criminal trials more generally, and have been present to a lesser or greater extent in all the US data I have subsequently analysed for these features. The ‘facts’ in an adversarial trial are not therefore simply allowed to speak for themselves; rather, witnesses are called to appear on the stand and are required to present their evidence in person, if need be under subpoena. The overwhelming primacy of the oral over the written in court also means that the verbal dexterity of the speaker becomes a significant factor in the presentation of credible testimony. For the trial lawyer, the challenge consists not only of eliciting the appropriate evidence from the witness in a lucid and persuasive form, but also of crafting these often temporally and logically disjointed versions of events into a coherent account. Thus, in a different but still very real sense, the lawyer is as much ‘on trial’ as the client he1 represents. There is a belief, widespread among both lawyers and lay people, that the outcome of a trial is determined as much by the rhetorical skill of the trial lawyer as by the strength of the evidence. Central to the adversarial process are the twin and interdependent concepts of the burden of proof and reasonable doubt. Since the defendant is basically assumed to be ‘innocent until proven guilty’, the onus rests firmly on the prosecution to construct a case, through the elicitation of evidence, which will adequately fulfil the burden of proof. The essential question in adversarial procedure is thus ‘can the accused be proven guilty, given the evidence available?’, resulting in the brief disjunctive choice of verdict: ‘guilty’ or ‘not guilty’. In Scottish Law, as distinct from the Anglo-American system, the jury has a third choice of verdict, ‘not proven’, reflecting the prosecution’s burden of proof. Significantly, there is no requirement for the defence to put forward an alternative explanation of the crime, nor is it necessary for them to propose an alternative perpetrator; it is sufficient for the defence to suggest that the prosecution’s formulation of events is

Trial by Jury 11

flawed, incomplete or implausible – in other words, to create reasonable doubt in the minds of the jury. The jury’s role in assessing the extent to which the burden of proof has been satisfactorily fulfilled is crucial. A jury of twelve empanelled lay people is given the onerous responsibility of determining the persuasiveness of the prosecution’s account, or the relative plausibility of the two versions if the defence does decide to present an alternative construction. They are instructed by the trial judge that they may convict only if they are satisfied that the prosecution case has been proven ‘beyond a reasonable doubt’; conversely, the jury is instructed to acquit if they feel that this challenge has not been adequately met. The trial by jury process, where this group of ‘neutral’ outsiders is given the job of adjudicating between these conflicting versions of reality, is predicated on and motivated by the very existence of these competing narratives. Given the magnitude and significance of the task, the selection of constituent members of the jury panel is a serious business. I will now analyse this selection process, drawing on data from this phase of the Simpson trial in a discourse analysis of the questionnaire administered to prospective jurors in the Simpson jury pool.

First, choose your audience: the jury selection process The racial and, to a lesser extent, the gender composition of the jury is widely considered to have been a critical factor securing the acquittal of O.J. Simpson. With the jurors as the final arbiters in the case, the jury selection process was of great significance to both sides. A brief discussion of this process and its outcome is therefore in order. Jury selection: an art or a science? A great deal of attention in both law and social psychology has been devoted to the issue of jury selection, to the extent that an entire discipline and, indeed, an industry, has grown up around the decision-making process. The basic principle behind the controversial ‘science’ of jury selection is that, by establishing a range of criteria, relating to issues such as socio-economic status, gender, ethnicity and other socio-cultural factors, it is possible to predict the reasoning and behaviour of prospective jurors during the deliberation phase. Using a variety of statistical measures, specifically correlational techniques, it is claimed that probabilistic predictions can be made as to the likelihood of individual jurors convicting or acquitting a particular defendant on a particular charge. In


a case with both race and gender issues at its core, the Simpson trial was a prime candidate for extensive jury selection activity. Juries are selected by means of the dual mechanisms of peremptory challenge (where up to 20 per cent of the panel may be rejected without cause) and challenges for cause (in cases where, through questionnaires or subsequent voir dire questioning, a juror can be shown to be biased in some respect). From an interactional and psychological perspective, the primary aim of jury selection is to construct, as far as possible, a panel of jurors who are attentive, receptive to argumentation and, for both sides, sympathetic to the issues in the case. However, the notion of jury selection as a scientific pursuit is problematic on several levels, not least on ethical grounds, but also because it is based on the assumption that it is possible to model human behaviour in a systematic and predictive sense. Hans and Vidmar (1986), among others, are critical of the methods employed in attempting to detect bias in jurors, arguing that not only are the procedures themselves flawed, but also the psychological assumptions underpinning them are based on outdated and over-generalised models of human behaviour. The constraints of space mean that a detailed examination of these fascinating issues is not possible; however, the reader is directed to work by Kerr and Bray (1982), Hastie, Penrod and Pennington (1983) and Lloyd-Bostock (1988). Despite the controversy surrounding such methods, it is now commonplace, even expected, for lawyers to employ freelance consultants in jury selection to assist in this process, particularly in determining the significant issues in each case and the profile of the ‘ideal’ jury. The Simpson defence team were no exception; they retained a nationally renowned consultant who had previously advised on jury selection in cases with other high-profile defendants, such as the William Kennedy Smith rape trial. Interestingly, the equivalent prosecution consultant was fired early on in the jury selection process, following a disagreement over African-American women’s attitudes to spouse abuse; lead prosecutor Clark claimed that they would be more likely to convict Simpson, whereas the jury consultant’s view was that they would tend towards an acquittal. The jury selection process as audience design in action It is possible to consider the jury selection process as a socially significant form of audience design. Bell’s (1984) model, originally derived from a study of radio station talk, views decisions of speaker style as essentially responsive to the needs of the addressee. In casual conversational

Trial by Jury 13

contexts, such attempts to accommodate to other speakers are primarily motivated by considerations of face (Goffman 1959), cooperation (Grice 1975) and politeness strategies (Brown and Levinson 1987); in the courtroom, however, these strategies have a more coercive motivation. It is clearly a highly attractive proposition for lawyers to be able to influence the configuration of a jury panel – to design the audience – in such a way that they may be predisposed to respond favourably to their particular arguments. The next section will focus on attempts by both sides in the Simpson case to empanel just such a jury. The jury selection process consists of two main stages. First, an initial questionnaire is given to a group of randomly selected prospective jurors, which aims to gauge their biases and prejudices. This is followed by interviews (known as voir dire) conducted by prosecution and defence attorneys, which allow the lawyers to pursue these issues further and, where necessary, to challenge the impartiality of individual jurors on the basis of bias towards the defendant, personal involvement with the case or prejudicial opinions about the issues concerned (the ‘challenges with cause’, described above). Unfortunately, the voir dire process was the only stage of the trial not televised or transcribed in the Simpson case; therefore, no primary source data are available on the Simpson voir dire, other than that provided by the post-trial memoirs of the attorneys involved, which will be referred to in due course. The focus of this analysis will therefore be based on the questionnaire distributed to prospective jurors in the 1,000-strong juror pool. From an analytic perspective, the questionnaire is of great interest in two respects. First, it provides a fascinating insight into prospective jurors’ attitudes towards three issues of crucial importance in the trial – racism, domestic violence and Simpson’s celebrity status – which are threads that will recur throughout this book. In addition to juror perspectives, however, the content of the questionnaire also provides a clear reflection of the priorities and preoccupations of both the prosecution and the defence attorneys prior to trial. The Simpson juror questionnaire The jury selection questionnaire in the Simpson case was a wideranging survey of attitudes and opinions. It included 294 questions, was over 80 pages long and covered a broad range of topics, including attitudes towards race, religion and the media, as well as prospective jurors’ feelings about the defendant. This final aspect was of unusual significance in the Simpson case, due to the defendant’s celebrity status.


One question encapsulates the nature and magnitude of the task facing the prosecution in their attempts to select even a reasonably ‘neutral’ jury, let alone one which may have been sympathetic to their case: • Will you hold the prosecution to a higher standard than is legally required because the defendant is: African-American? Wealthy? Famous?

Yes? No? Yes? No? Yes? No?

The combination of Simpson’s ethnic origin, fame and wealth constituted a cumulative burden, which would come to haunt the prosecution throughout the trial. Attitudes to O.J. Simpson’s celebrity status, both as a sporting icon in the 1970s and 1980s and subsequently as an actor, presented a number of problems of characterisation for prosecution attorneys. In a typical trial, a picture of the hitherto anonymous defendant is constructed from scratch for the jury, largely on the basis of character witness testimony. In the Simpson case, however, the prosecution were faced with the unenviable task of first deconstructing the prevailing, and overwhelmingly positive, image of Simpson before they could reconstruct him as a credible double murderer. In an attempt to detect any prejudicial bias against or, more likely, in favour of Simpson, a number of (prosecution-inspired) questions alluded to the issue of Simpson’s celebrity, including the following: • Have you ever seen O.J. Simpson as he appeared in movies such as Roots or Naked Gun 221? Yes? No? If yes, describe your feelings towards O.J. Simpson based upon your observations of him as an actor. and: • Did you see O.J. Simpson play football in college or as a professional football player? Yes? No? If yes, describe the circumstances and your feelings towards O.J. Simpson as a football player.

Trial by Jury 15

One question in particular explicitly foregrounded the kind of ‘logic’ which the prosecution felt could be damaging to their prospects of securing a conviction and implies at least the potential, intriguing suggestion that Simpson’s image as a successful ex-athlete may have seemed irreconcilably incompatible with the image of a double murderer: • Does the fact that O.J. Simpson excelled at football make it unlikely in your mind that he could commit murder? There is, perhaps, a subtle presupposition contained in this suggestive, if not ‘leading’, question, which, complete with its negative polarity, suggests that someone of Simpson’s status and celebrity would be unlikely to have committed such a crime. Constructing (or reconstructing) the character of Simpson as a brutal murderer, as chapter 2 will show, was a complex and problematic task for the prosecution, particularly given that Simpson chose not to take the stand, leaving his pretrial status and image relatively intact. Many of the jurors were in awe of him and his persona as they entered the courtroom for the first time, recalling that, ‘I remember feeling almost shy about looking at him directly … People talk of O.J.’s charisma. It hits like a hammer, believe me’ (Knox 1995: 117). A second juror shows the failure of the exhaustive questionnaire to weed out all of Simpson’s admirers from the final dozen selected. Kennedy (1995: 112) describes his first sight of Simpson: There he was, across the room: O.J. … It’s said that O.J. Simpson has charm. He does. That he has charisma. He certainly does. He has a self-confidence that radiated about the room … This was the man who had supposedly butchered two people? Could that be possible? He was so affable, so poised, so likeable. In addition to the issue of celebrity, prospective jurors were also asked to comment on their attitudes to the two cornerstones of the cases for and against Simpson: domestic violence, which was foundational to the prosecution argument; and the relationship between the Los Angeles Police Department (LAPD) and African-Americans, which formed the basis of the defence case. Domestic violence A central feature of the prosecution case was the claim that Simpson had submitted his wife to a sustained campaign of domestic violence


during their turbulent marriage. A number of the prosecution-oriented questions attempted to link Simpson’s testosterone-charged career as an American footballer with a tendency for violent conduct, particularly towards women. The following trio of questions provides an early indication of the prosecution’s thought processes: • Do you believe people with professional lives that involve physical confrontation or the use of violence are more susceptible to imposing violent solutions in their personal lives? Please explain your answer. • Male professional athletes who participate in contact sports are more aggressive in their personal lives than other people. Strongly agree? Agree? No opinion? Disagree? Strongly disagree? • Male professional athletes who participate in contact sports are more aggressive towards women. Strongly agree? Agree? No opinion? Disagree? Strongly disagree? Once again, the polarity of these questions, which appeared without a cross-referencing alternative, proposing, for example that: • Male professional athletes who participate in contact sports are LESS aggressive towards women. meant that the prospective jurors were given a taster of the prosecution contentions with respect to Simpson’s attitudes towards women. Race relations The third major theme that dominated the juror questionnaire was that of race, specifically relations between the LAPD and AfricanAmericans. The foundation for this set of questions was the defence claim that Simpson was the victim of racially prejudiced police officers who had planted incriminating evidence at the crime scene. From the defence perspective, one primary concern centred on empanelling a jury which did not demonstrate racist attitudes towards African-Americans. To this end, the questionnaire included a number of questions, designed specifically to bring out tendencies towards racist beliefs in the pool of jurors, such as the following: • Is there any racial or ethnic group that you do not feel comfortable being around? Yes? No? If yes, please explain.

Trial by Jury 17

However, there are also claims that the defence went even further than this in their attempts to select an O.J.-friendly jury. Simpson’s defence attorney, Johnnie Cochran, a veteran civil rights campaigner, is said to have stated that if he could persuade the judge to empanel ‘even one black juror’, he was convinced he could secure the acquittal of his client (Goldberg 1996). Tick-box questions such as: • How big a problem do you think racial discrimination against African-Americans is in Southern California? A very serious problem? A somewhat serious problem? Not too serious? Not at all serious? Not a problem? represented an attempt to gauge jurors’ perceptions of race and racism in contemporary Californian society. Responses to questions such as the one detailed above revealed a clear divide along racial lines. Perhaps predictably, African-American respondents overwhelmingly felt that racism represented a serious problem, whereas for white prospective jurors, race and racial discrimination were not considered to be major issues. Selecting the Simpson jury – an early victory for the defence In their attempts to construct an O.J.-friendly jury as an audience for their version of the crime narrative, the defence seem to have scored an early victory. The following statistics tell the story of how the original jury pool was whittled down to a dozen jurors and eight alternates. In total, almost 1,000 prospective jurors were screened during the selection process for The People vs. Orenthal James Simpson. The demographic profile of this original group demonstrates the following ethnic and gender split: Table 1

Statistics for the original juror pool, pre-selection

Ethnic Origin

Percentage Composition

White African-American Hispanic Other groups (incl. Native-Americans, Filipinos, Japanese Americans) Gender balance

37.9 28.1 17.0 17.0 50/50

18 Language and Power in Court Table 2

Jury statistics, post-selection

Ethnic Origin

% Composition Post-selection

% Change from Original Juror Pool

White African-American Hispanic Native American Gender balance

12.5 66.7 16.7 4.1 66.7% female 33.3% male

– 25.4 + 38.6 – 0.3 – 12.9 + 16.7 – 16.7

Once the second stage of the jury selection process – the voir dire interviews between prospective jurors and attorneys – was completed, the initial demographic profile had been transformed beyond all recognition. Eight out of twelve jurors who served at the beginning of the Simpson trial were of African-American origin, with two-thirds of the jurors women. The comparative statistics are summarised in Table 2. It should be noted that this was not the final configuration of the jury who voted in the Simpson trial. Taking into account those jurors who left voluntarily or were dismissed during the trial, an amazing 50 per cent of the original jury panel, the final statistics reflect an even greater shift in the defence’s favour. By the time of the deliberation phase, the jury was predominantly made up of African-Americans (75 per cent) – from a racial point of view, a dream jury for the Dream Team.2 Lead prosecutor Clark’s frustration with the racial configuration of the final jury panel was undisguised; as she reflected despairingly in her post-trial memoirs: ‘Why, on this of all cases, did we wind up with the f***ing jury pool from Hell?’ (Clark 1997: 192). With the defendant indicted and the jury empanelled, two of the key participants in the trial were in place. The focus of attention could now shift to the trial itself.

2 Macro-, Micro- and Multiple Narratives: Storytelling in Court

The trial as storytelling Linguists, lawyers and applied psychologists have all conceptualised the jury trial as a process of storytelling (see, inter alia, Maley 1994; Jackson 1995; Brooks and Gewirtz 1996; Hastie and Pennington 1996; Bruner 2002). Simpson’s own lead attorney stressed the centrality of ‘the story’ to the criminal trial, claiming that, ‘whatever the commentators say, a trial is not really a struggle between opposing lawyers but between opposing stories’ (Cochran 1996: 236). Viewed in this light, a trial may be seen to consist of two (or potentially more) competing narratives, elicited from witnesses, structured by the prosecution and defence, and submitted to the critical evaluation of the jury (Brooks 1996: 16). This chapter will examine the metaphor of the trial as storytelling, exploring some of the discursive and linguistic similarities and differences between ‘real world’ stories and their courtroom counterparts. It will also analyse the effects of the constraints imposed by the law and the legal process on the trial participants’ freedom to ‘tell their stories’ in court. The chapter concludes with a discussion of the significance of storytelling to the final judicial phase of the trial, as well as the role that narrative frameworks can play in orienting juries in their decisionmaking task. Each stage will be exemplified by data from the Simpson trial, including metatalk about the trial process by prosecution and defence lawyers during opening and closing arguments, and extracts from Judge Ito’s instructions to the jury. Before embarking on an analysis of the data, it is useful to consider first some of the prototypical properties of both stories and narratives, and to discuss their relevance to the trial setting. 19


Stories and narratives The Oxford English Dictionary defines the terms ‘story’ and ‘narrative’ in the following way: • Story A narrative of real or (usu.) fictitious events, designed for the entertainment of the hearer or reader. • Narrative An account of a series of events, facts, etc., given in order and with the establishing of connections between them; a narration, a story. Although the two terms are signalled as being in some respects synonymous (and indeed are often used interchangeably by non-linguists), this pair of definitions is revealing of the fact that a story may in fact be considered a component of a broader phenomenon, a narrative. In this formulation, a story consists of the ‘events’ themselves, whether real or fictitious, and operates predominantly at the ideational level; a narrative, in contrast, encompasses not only these story ‘facts’, but also the telling of the story, and includes the more interpersonal aspects of the storyteller and audience. Toolan (1988: 5) underlines this point: ‘narratives have to have a teller … narrative is language communication like any other, requiring a speaker and an addressee’. A second important difference between the two definitions is the fact that a narrative consists of a ‘series of events … given in order’ and in a connected sequence, emphasising its textual organisation. In courtroom stories, it is at this level of narrative sequentiality and consequentiality that the notion of the subjectivity of the narrative voice becomes significant. There is potentially a number of different ways in which the basic story elements can be combined to create a narrative, depending on the defence or prosecution orientation and motivation of the storyteller (lawyer). Much of this analysis is concerned with the linguistic means by which the crime story is systematically and strategically transformed into two or more persuasive crime narratives by lawyers and, through enforced participation, by witnesses. The process by which the connections between the story elements are constructed – creating the ‘non-randomness’ of the narrative sequence – inevitably involves a degree of subjective interpretation and inference on the part of the storyteller or narrator. In a literary narrative, as the definition above indicates, the subjectivity of the narrator is

Macro-, Micro- and Multiple Narratives 21

usually innocuous, since most fictional stories are designed and told ‘for the entertainment of the hearer or reader’. Stories told in a forensic context, however, serve a more sombre and strategic purpose than their fictional counterparts. The stakes are far higher in court, because the consequences of an unconvincing courtroom narrative may be dire for one or more of its characters, particularly in jurisdictions with the death penalty, which includes California. Interestingly, the prosecutors in the Simpson case elected not to pursue the death penalty on the grounds that no jury, however successfully empanelled, would be likely to sentence Simpson to death by lethal injection. In contrast, a badly constructed or poorly delivered fictional narrative leaves in its wake only a disappointed reader or a dissatisfied viewer, with no real consequences for the characters involved. The traditional ‘and they all lived happily ever after’ ending seldom if ever applies in court; in the criminal system, a conviction typically leads to punishment and retribution; acquittal, conversely, often leaves a frustrated victim and/or family. In addition, few lay parties who participate in the trial storytelling process – from victim to expert witness – emerge from the experience feeling that they have had the opportunity to tell their story in their own way, due to the constraints imposed upon them by the adversarial trial process (see Luchjenbroers 1997; Taslitz 1999). An analysis of some of these constraints and their linguistic realisations will be the focus of chapter 5. In addition to constraints on the manner of elicitation of the story, the adversarial trial by jury system also imposes a series of controls on the type and shape of the stories narrated in court.

Interwoven narratives: the crime, the investigation and the trial Stories presented in court – which make up the trial narrative – are in fact an amalgam of two macro-level stories which converge and intersect at the site of the trial. These component stories consist of the story of the crime (covering what happened on the night of 14 June 1994, between approximately 22.00 and 22.30) and the subsequent, longerrunning story of the investigation (spanning the period from the reporting of the crime up to and including the beginning of trial proceedings). Jackson (1995: 97) groups these two macro-stories together as the ‘story in the trial’.


The crime and investigative stories are highly interdependent; the investigation after all only takes place in order to tell the crime story more effectively, to fill in the blank spaces and to provide the narrative detail and consequentiality of the crime events. In addition, some (though not all) of the characters are shared between the two stories. Thus, for example, assuming the true felon has been arrested and charged, the perpetrator of the crime becomes the suspect (in the investigation story) and, ultimately, takes on the role of defendant (in the subsequent trial story). Similarly, the eyewitness to the crime is questioned by the police as a witness, before taking the stand to give evidence in the trial. Finally, the scene-of-crime officers, who play a significant professional role in the investigation, may go on to be key prosecution witnesses in the trial story. This chain of continuity and commonality in both character and storyline is responsible for creating the point of intersection of the two stories, and is represented in Figure 1. The trial is the point of convergence of these two stories, and introduces a further set of judicial participants – lawyers, judge and jury – creating an additional narrative layer, which Jackson (1995: 97) terms the ‘story of the trial’. This multiple layering is one reason for the complexity of trial stories; as Maley (1994: 47) notes, trial narratives are complex because they are usually a version ‘not only of the events that have given rise to the legal proceedings in the first place, but as well a narrative of the previous proceedings: charging, sentencing, arguments in lower courts’ (see also Komter 2002). The interaction of these two stories – the crime and the investigation – is therefore responsible for the creation of a third story – that of the trial.

THE CRIME (perpetrator, victim, witnesses)

Figure 1

THE TRIAL

THE INVESTIGATION (police, experts, lawyers, witnesses)

The crime, the investigation and trial narratives


The crime and investigation stories are represented in Figure 1 as overlapping segments, rather than as superimposed in their entirety, reflecting the fact that the two stories do have distinct properties, in terms of both their respective cast of characters and their differing narrative purposes and perspectives. In addition, as this chapter will show, only a small proportion of the crime story and the story of the investigation is actually presented at trial, with some aspects highlighted and others underplayed or glossed over completely. The crime story essentially reports the broad events of the crime – in the Simpson case, the deaths in suspicious circumstances of two Caucasian adults (the essential ‘what happened’, or complicating action in Labovian terms, without which, there is no story); in the forensic context, this element is obligatory, since if there is no detectable crime. The investigation story, on the other hand, consists of establishing the details of the crime story, the modus operandi of the crime, the cause and time of death of the victims, and the forensic traces, which may help to identify the perpetrator. In addition, the investigation seeks to establish the corroborative circumstances of the crime – the means, motive and opportunity. This chapter will explore the different roles that elements from the two stories play in the construction of the respective trial narratives, and the different types of witnesses represented from each respective story domain.

Trial by jury as narrative: some internal structural considerations At the level of macro-narrative, the trial by jury is, in many significant respects, canonically constructed in terms of classic Labovian structure. It offers an introduction and background information to the case during opening statements, a presentation of the crime events in witness examination, and a final evaluative summary in the closing arguments. The trial then builds to a climax during the deliberation process, concluding with a resolution in the form of a verdict and a sentencing or release coda. This series of events is summarised in Table 3, with Labov’s six narrative components mapped onto their trial-by-jury counterparts. The opening statements and closing arguments, which both chronologically and (as the next chapter will show) ideologically frame the witness examination phase of the trial, have greater


Mapping Labovian narrative structures onto the trial narrative

Narrative Component

Narrative Content

Trial Equivalent

Summary of story

Opening statements

Participants, time, place, etc.

Opening statements

Story events, what happened

Witness (cross-)examination

Evaluation

Point of story

Closing arguments

Resolution

What finally happened

Verdict

Closing the narrative

Sentencing/Release

Abstract

Orientation

Complicating Action

Coda (After Labov 1972)

significance in the trial context than the classic abstract/orientation does in non-courtroom stories. The purposive and persuasive nature of the jury trial means that conflicting versions have to compete with one another for the attention of a hyper-critical audience, the jury, whose sole remit is to assess the relative quality of the stories presented to them. In this context, the initial (opening) and terminal (closing) summaries of the narratives presented during the trial function not simply as a preview or aide-mémoire, respectively, but also take on a coercive dimension. Despite these functional differences, there is nevertheless a number of parallels between the abstract and orientation stages of narrative structure and the opening statements of the trial. The classic role of the abstract is to summarise briefly the story about to be told; in very much this spirit, five minutes into the prosecution opening, Darden told the jury: 1 2 3 4 5 6

Now, we’re here today obviously to resolve an issue, to settle a question … everybody wants to know, did O.J. Simpson really kill Nicole Brown and Ronald Goldman. Well, finally, ladies and gentlemen, I am here in front of you this morning to answer that question … The answer to the question is yes. The evidence will show that the answer to the question is yes, O.J. Simpson murdered Nicole Brown


7 and Ronald Goldman. We will expose in this trial the face of a 8 batterer, a wife beater, an abuser, a controller. You’ll see the face of 9 Ron, of Ron’s and Nicole’s murderer. (Prosecution opening statement, 24 January 1995) This brief extract from the two-day-long prosecution opening statement demonstrates all three of the dimensions highlighted by Toolan (1988: 154) as characteristic of the abstract: a global story summary, an assertion of telling rights – ‘I am here before you this morning to answer that question’ (in lines 3 and 4), and finally (in lines 6 and 7), an advertisement for the forthcoming story, albeit a gruesome tale of domestic violence and murder. In this promotional respect, the lawyerstoryteller has a distinct advantage over the literary narrator, since the trial lawyer at least has a captive, if critical, audience. Perhaps the most significant difference between courtroom narratives and literary narratives, in terms of their macro-level structure, is the fact that stories told in court do not possess the same degree of linearity as those described by Labov (although non-forensic narratives do, of course, often demonstrate the properties of circularity and recycling in their internal structuring). There is a number of important features of courtroom storytelling which mean that the linear sequence is disturbed by the demands of the adversarial legal process. This leads to the creation of two simultaneous and conflicting narrative strands: the prosecution and the defence. The trial is, therefore, the telling not of a single story, but of a number of alternative versions from a variety of (conflicting) perspectives. The name often given to the jury in adversarial trial procedure, that of the ‘factfinder’, is actually something of a misnomer, since the jury are not asked to find the truth, but rather to adjudicate between more and less plausible narrative accounts. In a trial, these constructed narratives are both multiple and multi-perspectival, involving the presentation of many of the same crime ‘facts’ in the form of alternative and competing narrative versions. The concept of multiple perspective was superbly captured in the Japanese collection of short stories Rashomon and Other Stories.1 ‘In a Grove’ tells a seemingly straightforward tale of rape and murder. However, there is no definitive and authoritative narrative voice; rather, the story is told in the form of testimony given by seven people, including the woodcutter who found the body, the mother of the female character and even the dead man himself, his story told with the help of a medium, a novel way of bringing the victim’s voice into the narrative.


What emerges is that each version varies significantly from the previous one, indeed the only verifiable ‘fact’ is that there is the body of a man, though even whether there are ‘suspicious circumstances’ indicating that a crime has actually been committed is less than clear. Apart from this, the other details, including the identity of the perpetrator as well as the specifics of means, motive and opportunity, are open to speculation, and the reader is never presented with a definitive version of what actually took place in the grove on that day. This intriguing tale of narrative multiplicity illustrates the claim of Bennett and Feldman (1981: 93) that, ‘in almost any trial, there is the uneasy possibility that [no] case captures the subtle reality of the incident’. The burden of proof means that the onus is on the prosecution to create a persuasive narrative that will secure a conviction. The prosecution must try to account for as many of the contradictions and incoherencies in the story as possible, as well as filling in gaps in the story with hypothetical narratives (Brooks 1996: 17). The following example from the prosecution closing argument (which will be revisited in chapter 7 in the guise of a discussion of the closing arguments) illustrates such a gap-filling strategy. In this extract from prosecutor Clark, the lack of eyewitness or other testimony relating to victim Ron Goldman’s movements on the night of the murders is filled with hypothetical scenarios based on inferential reasoning: Ron Goldman left Mezzaluna at approximately 9:50. That is approximate time. It could have been a few minutes later. So we know that sometime before 10:00 he left. We know he changed his clothes, okay? But the direct thing we know is that sometime before 10:00 he left. We know he changed clothes because he was wearing something different when he was found. We know how long it takes for him to get home, because we have a witness telling us that, but what we don’t know exactly is what time he left his house. (Prosecution closing argument, 26 September 1995) Clark continues to build the hypothetical account, for which there is little or no corroborative evidence: We have to make an inference from the evidence that we know about as to when he got to Bundy. Based on what we know, when he left the Mezzaluna, changing clothes, freshening up, and I think Stewart Tanner testified that he was – they had plans to meet at the Baja Cantina, he was going to get cleaned up to go somewhere. I


think it is reasonable to infer that he took ten minutes or so to do that change clothes, freshen up and then go over to Bundy. (Prosecution closing argument, 26 September 1995) In this way, the prosecution aim is to convince the jury that missing witnesses do not represent a problem in the overall construction of the crime narrative, since it is possible to fill in the gaps with commonsense inferences. According to the legal imperative of the burden of proof, the prosecution must satisfy the jury on several accounts. They must first establish beyond a reasonable doubt that an act actually occurred, in other words, that there is a story to tell, and that the act is classifiable as a crime, thereby legitimising the telling of the story in the judicial arena. In addition, the prosecution need to present the defendant as the perpetrator. In contrast, the defence need only need show that the prosecution’s version is flawed in some significant respect. The defence, in their creation of reasonable doubt, have a number of strategies open to them. They may challenge threads of the prosecution story during cross-examination, highlighting inconsistencies or improbabilities in their account; the defence may also attempt to redefine one or more of the crime elements by suggesting alternatives, such as a different perpetrator; or, most ambitiously, they may construct an entirely different story, formulating a new narrative framework within which to interpret the evidence (Bennett and Feldman 1981). If the defence can successfully create a new context for incriminating evidence, the jury may be persuaded to adopt this interpretation of events and circumstances. Even when the most critical of the prosecution imperatives has been adequately established beyond a reasonable doubt, namely, the identification of the perpetrator of the crime, the defence may still challenge one of the other elements, for example, by suggesting that one of the links in the ‘actor-purpose-act’ triad is defective and must be considered in an alternative context. A possible defence in a hypothetical murder trial is shown in Table 4, below. In this situation, the defence do not dispute the prosecution’s assertion that the defendant is indeed the perpetrator of the crime in question; however, the motivation behind the crime is reformulated in such a way as to favour the defendant. This is one example of a way in which the defence may attempt to reinterpret events and perhaps even persuade the jury to view the perpetrator as a victim himself, as in a domestic violence defence based on a theory of cumulative provocation.

28 Language and Power in Court Table 4 Defence reconstruction of prosecution crime elements in a hypothetical murder Element

Prosecution Contention

Defence Contention

Actor

Positive identification of the defendant Malicious, premeditated intent leading to a charge of murder

Positive identification of the defendant Attempt to disarm the victim Victim killed in act of self-defence Defendant fatally wounded the victim

Purpose

Act

Defendant fatally wounded the victim

In terms of acts and actors, since the burden of proof rests with the prosecution, there is in theory no need for the defence to create a conflicting version of events which includes an alternative perpetrator (although Wagenaar et al. 1993 found that doing so tends to increase the chances of victory); it is sufficient for them to create reasonable doubt that the defendant presently before the court is in fact the perpetrator, in other words, that the defendant-perpetrator strand represents a mismatch, a case of mistaken identity.

Prosecution and defence narratives in the Simpson trial The case for the prosecution To have the best chance of securing a conviction, the prosecution need to present a single, linear, logical story. Hastie and Pennington (1996: 963) conjecture that one reason for Cochran’s rambling and unfocused opening statement for the defence was that it represented a desire not to commit themselves too early to a single crime narrative; with the balance of reasonable doubt in their favour, there was no imperative for the defence to do so. In contrast, the prosecution did (and had to) commit themselves from the start to a single version of events. The abstract of the crime story presented in the prosecution opening statement consisted of a clear and unambiguous picture of the six essential crime elements (see Table 5 – the table should be read vertically, column by column). For some of these crime elements, the prosecution had a number of pieces of corroborative evidence; for example, the DNA evidence both identified Simpson as a suspect (perpetrator) and placed him at the crime scene (providing evidence of opportunity). In those areas where evidence was less available, the prosecution were at pains to point out that the lack

Macro-, Micro- and Multiple Narratives 29 Table 5 Generic crime elements and their corresponding narrative strands in the Simpson trial Crime Element

Issue

Prosecution Narrative

Perpetrator(s) Crime(s) Victim(s)

(who?) (did what?) (to whom?)

Means Opportunity

(how?) (where, when?)

Motive

(and why?)

Orenthal James Simpson murdered His ex-wife Nicole and her friend Ronald Goldman by stabbing them both to death outside her home on South Bundy, some time between 22.00 and 22.30 on 14 July 1994 because he (O.J. Simpson) was possessive of his ex-wife and wanted to punish her for leaving him

of some pieces of evidence did not necessarily mean that they had failed to fulfil the burden of proof. To this effect, Prosecutor Clark counselled the jury in her closing argument on the value of inferential reasoning: 1 2 3 4 5 6 7 8 9 10

Short of a videotape, we very rarely know exactly how any crime occurred … And even if we had a videotape, ladies and gentlemen, it wouldn’t show you everything, what happens before the tape starts, what happens after the tape ends, and what if – of course a camera only picks up what is in its lens. So if you saw, for example, a videotape of this case that had Nicole, that was able to focus on Nicole but not pick up Ron, and you saw the defendant killing Nicole and slashing her throat and then he stepped out of range to attack Ron, would you thereby conclude that he didn’t kill Ron? No, of course not. Of course not. (Prosecution closing argument, 26 September 1995)

The fact that the murder weapon was never found and that there were no eyewitnesses left the prosecution with a number of sizeable gaps in their construction of the crime story. It is conceivable for each witness to believe that their particular version represents an accurate picture of what took place, despite the fact that each one may possess only a small part of the forensic puzzle. The principle of inferential reasoning, whereby gaps are filled and connections established, is just as much a part of the witness’s cognitive activity as it is for the juror, since both are engaged in an attempt to make sense, literally, of the partial ‘facts’ in their possession.


A number of commentators on the Simpson trial felt that the prosecution paid a heavy price by being so specific in their opening gambit, giving the defence a clear target to aim at in their counter-narrative. The sequence of arguments also handed the defence a further potential advantage in that prosecution always precedes defence. To a certain extent, however, the prosecution had no choice but to present a single, linear story, since ambiguity or multiplicity would inevitably have created reasonable doubt. The defence, in contrast, had a number of strategic options available to them in terms of presenting an alternative narrative version of events. The case for the defence The fact that the murders occurred and that the victims were Nicole Brown Simpson and Ron Goldman was beyond dispute. As prosecutor Darden pointed out in his opening statement: Ladies and gentlemen, I can guarantee you one thing in this trial, there will be no dispute as to cause of death. No one will argue about what the cause of death was for Ron Goldman and Nicole Brown. The issue that will be raised is the time of death. (Prosecution opening statement, 24 January 1995) Additional forensic investigation confirmed that they had been murdered at the Bundy location, in approximately the time-window claimed by the prosecution and as a result of multiple stab wounds. This meant that the elements of the crime itself, the victim(s) and the means had been adequately accounted for, beyond a reasonable doubt. This left the elements of perpetrator, motive and opportunity for the defence to counter-attack in their narrative formulation of the crime. Hastie and Pennington (1996: 966) identify four specific challenges which the defence sought to present in order to subvert the prosecution version of these elements; a brief summary of the four counternarratives is presented below, with extracts from the defence opening statement, as appropriate. 1. The ‘O.J. Simpson’ story In this version of the crime story, Simpson was an innocent non-participant in the murders, according to the defence; the murders took place at a time and in a location which meant that it was impossible for Simpson to have been the perpetrator. This counter-narrative placed Simpson elsewhere at the time of the murders and challenged


the category of perpetrator on the grounds that Simpson would not have had the opportunity to carry out the crimes. In Bennett and Feldman’s (1981) terms, this approach falls under the heading of a challenge to the prosecution narrative, since it proposes no alternative perpetrator. The following extract from Cochran’s defence opening statement outlines the logic of this version of the crime story: 1 2 3 4 5 6 7

Now I want to turn our attention to something I alluded to the last time. We call it the time line. One of the things that we expect to show during the course of this trial is not only did Mr. Simpson not commit these brutal murders, but he did not, would not, could not within the time frame have committed these particular killings … Mr. Simpson could not have done it, that this time line is such that there’s no time for him to do it, no indication that he could have done this. (Defence opening statement, 30 January 1995)

In this extract, it is interesting to note the use (in line 2) of the prospective ‘one of the things we expect to show’, which reflects the organic and developmental construction of the trial narrative. By attacking the prosecution’s time line in this way, which, the defence claimed, meant that Simpson did not have the necessary time to have carried out the murders and still make his flight to Chicago, the defence’s aim was to discredit the prosecution narrative on the grounds of implausibility, an illustration of the technique of destructive (as opposed to reconstructive) counter-argumentation (Stone 1995). The second defence narrative had this more reconstructive orientation and proposed a potential (if unnamed) alternative perpetrator, as well as an alternative intended victim. 2. The ‘real killers’ story This counter-narrative portrayed Nicole Brown Simpson and Ron Goldman as the victims of a (mistaken-identity) drug dealer-related killing, caused by Nicole’s association with her friend Faye Resnick, an admitted drug-user. The defence claimed that it was Resnick, and not Brown Simpson, who was the intended victim. The ‘real killers’ narrative, which involved the suggestion of an alternative perpetrator, identified by type (‘a drug dealer’) rather than by name, was always going to be a risky strategy for the defence, because of the number of crime elements which they were required to reconstruct in order to make it plausible. One of the disadvantages (from the defence point of


view) of a reconstructive narrative is that it requires the creation of an entirely new crime story framework, and characters and circumstances to fit into it. Central to this reconstruction was not simply the recasting of the perpetrator, but also the proposal of an alternative victim. In addition, it involved the tarnishing of Nicole’s image, characterising her as pursuing a ‘wild, irresponsible lifestyle involving alcohol, drugs, partying, and sexual promiscuity’ (Gaines 1999). An example from the defence opening illustrates the nature of this complex narrative reconstruction: 1 2 3 4 5 6 7 8 9 10 11

Because they were friends, they would go out at night. These were all of – the evidence will be these ladies would go out two, three, four nights a week and stay out until five o’clock in the morning. Nobody was controlling these women. There is a group of them and you will hear about it, they go out dancing, they would do whatever they would do, and we know Faye Resnick was using drugs during this period of time … I think you will hear from the evidence that she is one of the people that called Miss Nicole Brown Simpson on the night of June 12, perhaps after nine o’clock, that particular night, from this drug treatment facility. We will be talking about that and her role in this whole drama. (Defence opening statement, 25 January 1995)

In the end, this particular storyline fizzled out, however, because Resnick was never called to the stand; Judge Ito ruled her testimony inadmissible on the grounds that the defence had insufficient supporting evidence, a further illustration of the organic nature of courtroom narratives. By the time of the closing argument, the drug-dealer narrative was nowhere to be seen, and Resnick was mentioned only briefly in a single, innocuous reference to her staying temporarily with the Simpsons as a house guest. 3. The ‘rush to judgement’ story This version of events centred on the depiction of the LAPD as responsible for framing Simpson. Motivated by anti-AfricanAmerican sentiment, the defence alleged that a racist investigative officer, Detective Mark Fuhrman, had planted evidence at the crime scene. This narrative construction challenged the integrity of the evidence linking Simpson to the scene, most notably involving a bloody glove allegedly found next to the bodies, and bloodstains found on Simpson’s clothing and vehicle. Hastie and Pennington


(1996) claim that the background of beliefs and experience of the Simpson jurors meant that it was relatively easy for this narrative to be successful with the jury; portraying Fuhrman as guilty of planting evidence, Hastie and Pennington contend, meant that the resulting version was ‘a story more plausible to an African-American juror [who, as we have seen, made up the majority] than to a white juror’ (p. 972). The following extracts from the defence opening illustrate the two strands of this third narrative – the ‘rush to judgement’ and Detective Fuhrman’s involvement in the investigation: 1 2 3 4 5 6

The prosecution’s case, based upon what we heard and the evidence will show, this case is about a rush to judgment, an obsession to win at any cost and by any means necessary … they worked very hard on this case because in their rush to judgment, they fixed on this one individual, and that’s what they focused on we think the evidence will show and that’s exactly what they did. (Defence opening statement, 25 January 1995)

One of the interesting aspects of this ‘rush to judgement’ speech is the attribution of this appraisal to ‘the evidence’ (in line 1), reflecting the ban on overt argumentation in opening statements. On one occasion during the prosecution opening when Clark omitted to signal that it would be the evidence that would prove the case, Cochran lodged a lengthy objection: Judge Ito: 1 Mr Cochran: 2 3 4 5 → Ms. Clark: 6 → Judge Ito: 7 8 → Mr Cochran: 9 Ms. Clark: 10 11 Mr Darden: 12 Judge Ito: 13 Ms. Clark: 14 15

We are at the sidebar. We kind of have like a little agreement so I didn’t want to object, but when she goes into things about amniocentesis, she is testifying. That is what the evidence will show. Well, you are speaking of it in terms of you are telling them this. You told them that. You need to say witnesses will tell you, the evidence will show that. I forgot. … Was that objection sustained? No, it is a caution. Be careful. Yes. (Prosecution opening statement, 24 January 1995)


The second strand of this particular defence narrative concerned Detective Mark Fuhrman and allegations of his racist tendencies: 1 2 3 4 5 6 7 8 9

Detective Mark Fuhrman will play an integral part in this case for a number of reasons … let me tell you why I think he will be a key witness … after arriving at the scene Mr. Fuhrman did a number of things. You saw him in one of the pictures last week where he was pointing down at allegedly the glove and the cap that was under some shrubbery, if you recall. That was a picture of Mr Fuhrman at that point. You notice that he had – his shoes were not covered, that he had walked in that location at that point without shoes being covered, that he made a number of discoveries at that particular point. (Defence opening statement, 25 January 1995)

In this extract, Detective Fuhrman is flagged as being ‘an integral part of the case’ and a ‘key witness’ (lines 1 and 2–3, respectively). 4. The ‘bungling criminal investigators’ story The final defence counter-narrative told of the mishandling of forensic evidence at the crime scene by incompetent and inexperienced LAPD criminalists and by other, external agencies, where laboratory samples were alleged to have been cross-contaminated and misplaced. The following pair of extracts illustrates this version of events: 1 2 3 4 5 6 7

I mentioned before this crime scene and the number of people who were allowed to walk through there, many with just their shoes on walking right through the blood. Some had those little booties on. Some had gloves, some didn’t have gloves. Picking up the evidence, this will become very relevant, important to you as you hear from the experts about the contamination aspect of this and what it means and how easy it is, a sneeze, a touch, whatever for this evidence to become contaminated. (Defence opening statement, 25 January 1995)

1 2 3 4 5 6 7

The important piece of information that we think the evidence will show, however, is that all of this evidence collected, whether at Bundy or Rockingham or wherever, went through the LAPD lab, and we expect to introduce evidence that – from their own records – that laboratory is a cesspool of contamination, not up to speed, not up to standard. We think we can conclusively indicate that during the course of the testimony in this case. (Defence opening statement, 25 January 1995)


In terms of the crime and investigation stories, it is interesting to note that of the four alternative defence accounts of what happened, the first two versions (the ‘O.J. Simpson’ and the ‘Real Killers’ stories, respectively) related to participants in the crime story, whereas the third, dealing with the LAPD, and the fourth, relating to forensic scientists, both foregrounded alleged mistakes in the police handling of the case and so related to the story of the investigation, the second of the narrative layers discussed above. By attempting to refocus attention on the story of the investigation, it was possible for the defence to deflect attention away from O.J. Simpson himself and the crime story, concentrating instead on flaws in the LAPD investigation. In her portion of the closing argument, prosecutor Clark was highly critical of this emphasis, referring to it as ‘smoke and mirrors … all just smoke to cloud everything, cloud all the issues, distract you’; Clark encouraged the jury to ‘open up the windows and let the cool air blow out the smokescreen that has been created by the defense’ (Clark, prosecution closing argument, 26 January 1995). Both the prosecution and the defence narrative accounts of the crime were subject to the constraints and controls imposed by the trial by jury system on courtroom stories. The most fundamental restriction on courtroom stories is the requirement that the narrative voice be that of the witness, whose evidence is elicited by question-and-answer sequences directed by lawyers for both sides.

Storytelling by proxy: the lawyer’s tale? The stories told in court are not narrated by the ‘primary knower’ (Berry 1981), the witness, but rather are elicited by means of the lawyer’s questions. The lawyer was not present at the crime scene and so cannot feign an authentic awareness of the crime events; the witness, who conversely, may have been present, cannot typically claim to possess the same courtroom storytelling skills as the lawyer. The result is a mutual dependency, where the parties need each other in order to enable the story to be told effectively within the confines of the trial framework. The issue at stake for the lawyer is a trade-off between authenticity and narrative competence. A number of researchers, including O’Barr (1982) and Wagenaar et al. (1993), have found that coherent narrative structure plays a greater role than authenticity of narrative voice in determining whether or not evidence is accepted by juries. In other


words, it seems that jurors are more readily persuaded by a well-told story than by one which is a) true or b) well supported; in this regard, Bennett and Feldman (1981: 67) comment: it is quite possible that adequately documented but poorly structured accounts will be rejected because they do not withstand careful scrutiny within a story framework. Similarly, a wellconstructed story may sway judgements even when evidence is in short supply. The lawyer is a proactive participant in shaping the ideational content of the story elicited. Toolan (1988: 252) acknowledges this active role when he calls lawyers the ‘architects of two extended and partially conflicting narratives’; just as architects are responsible for the design and final shape (in the term’s least abstract sense) of a structure, so the lawyer is in control of creating the infrastructure of the crime narrative. Simpson’s lead attorney classed the job of storytelling as ‘the trial lawyer’s real task’, concluding that ‘the jurors must trust the lawyer as a “storyteller”’ (Cochran 1996: 237). The very act of reporting the crime events will almost inevitably engender evaluation and judgement, in both the storyteller and his audience. Witnesses are discouraged from speaking about more than the simple facts as they witnessed them; in fact, as Hall and Smith (1997: 92) note, ‘the opinion of a lay witness based on what he has seen and heard is inadmissible’. Despite this, it is clear that all accounts of alleged criminal activity, whether by victim, suspect or eyewitness, must be treated by the jury as subjective to a greater or lesser degree. This view is supported by Maley (1994: 37), who states: to give an account of the facts, is to provide a version of events ... each party to the exchange is stressing different aspects [and] the meaning choices are tactical, consonant with the version of events that each is expressing. This concept of subjectivity applies throughout the crime-to-trial process, not only in the initial reporting of the crime itself, but also in the subsequent investigation and trial stages. All the participants in the investigative and legal processes have some form of vested interest, which will inevitably be communicated in the linguistic and discursive strategies employed by them. The police clearly have the imperative of securing a conviction; the defence


and prosecution respectively operate according to very different priorities and objectives. This situation is further complicated by the fact that one or more of the participants in the process may be deliberately attempting to deceive, whether to hide their own guilt or to prevent disclosure of the involvement of another. The subjective nature of testimony, whilst inevitable, may be detrimental to the pursuit of criminal justice. Since some of the testimony presented by a witness as ‘fact’ may actually be opinion or inference, and it is impossible for the jury to be sure which facts are contaminated, the potential for exploitation, whether deliberate or accidental, is considerable. Moreover, because the information is intended for the jury, there is also the distinct possibility that some of the evidence could be further reinterpreted (or misinterpreted) by jurors who do not share the belief systems and schemata of the witness. Frank (1949) implicates both judges and lawyers in this process since they add a further narrative layer of interpretation to the facts, meaning that information may be in effect ‘twice refracted’ (p. 22). Bennett and Feldman (1981: 65) refer to the constructions of reality which are presented as ‘capsule versions’, informationally condensed versions of events where the speaker ‘selects data, specifies the historical frame, redefines situational factors and suggests missing observations’. The resulting picture, elicited from witnesses, can therefore only ever be a representation of the scene, the crime and its aftermath, and as such has distinct properties that vary from the actual experience of the crime itself. The representational and transformative dimensions of trial narratives will now be discussed.

Representation and transformation in trial narratives The shift from the original events of the world of the crime story and that of the resulting investigation to the world of the courtroom, involves a number of transformations, both cognitive and linguistic. Since the jurors were not present at the scene of the crime when it was committed, the crime must be reconstructed in order to enable jurors to have a clear understanding of what is alleged to have taken place. Jurors are faced with a number of tasks; not only must they decide, at a macro-level, which version of the crime narrative – prosecution or defence – they prefer to believe, they must also evaluate the individual narratives produced by each witness in terms of their contribution to and position in the final narrative formulation. Ultimately, the jury


must produce an evaluation of the competing versions put forward for their scrutiny in the form of a verdict. Frank (1949: 37) underlined the difficulty, even the inadequacy, of such a process when, more than fifty years ago, he wrote: since the actual facts of the case do not walk into court, but happened outside the courtroom, and always in the past, the task of the trial court is to reconstruct the past from what are at best secondhand reports of the facts. This problem was acknowledged by lead defence attorney Cochran in the Simpson trial. As he told the jury in both his opening and closing arguments: none of us were out there on June 12, 1994. We can only deal with the witnesses, as they were. (Defence opening statement, 25 January 1995) understand this, ladies and gentlemen, that none of us in this courtroom were out at 875 Bundy on June 12th 1994, after 10.30 or 10.45 in the evening, so that everything we say to you is our best effort to piece together what took place in this case. (Defence closing argument, 27 September 1995) Beach (1985: 14) has analysed trials as the construction and presentation of past crime events, producing the distribution of temporal orientation shown in Table 6. The quantitative results from Beach’s study (which looked at more than 10,000 utterances from criminal trials) show that trials are overwhelmingly dominated by reconstructions of the crime and investigative stories; this is supported by qualitative evidence of story elicitation by question-and-answer sequences. The structure of these Q-A sequences will be explored in chapter 5. Table 6

Distribution of past, present and future events in trial by jury talk

Temporal and Tense Orientation Percentage

Primary Function

Past events Present events Future events

Reconstructive Maintenance/monitoring Procedural/instructive

91 per cent 7 per cent 2 per cent


The ‘present events’ consisted primarily of meta-talk about the hereand-now of the trial process, for example in lawyer’s objection sequences and judicial rulings. The following example of one of the 16,000 objections in the Simpson trial illustrates such an instance; the action switches from the past-tense question relating to the crime story (in lines 1–2) to present-tense meta-talk relating to the lawyer’s aggressive questioning style (in lines 6–7): 1→ 2 3 4 5 6→ 7 8 9 10

Q Let me see if I understand this correctly. You asked Denise Brown to talk to Sydney Simpson? A Would you like me to explain it to you, sir? Q No, no. I want you answer my questions first, if you can do that, please. Ms. Clark: Your Honor, there is an objection. That is argumentative and this witness is allowed to explain his answer. Counsel is cutting him off. The Court: Ask the question, Mr. Cochran. Mr. Cochran: Thank you, your Honor. (Witness cross-examination, 23 February 1995)

The final 2 per cent reporting ‘future events’ was made up of the prospective regulation of courtroom activity and included the orientational opening statements and procedural requests. A representative extract from the defence opening in the Simpson trial illustrates this orientation to future testimony in the trial: So when you hear about theories, I’m going to tell you about the facts. So you will hear from Dr Walker and you will hear ultimately about the battery of tests and I think you will find that she will say that in looking at O.J. Simpson and interviewing him, in looking at him, at this point she finds no evidence of antisocial personality disorder and I think you will find that becomes very important in this case. (Defence opening statement, 25 January 1995) In this extract, Cochran makes prospective references not only to the testimony which is due to be presented by Dr Walker, but also to its anticipated reception by the jury. Although the trial consists predominantly of the presentation in the past tense of past events, it is not possible, or desirable, for all those past events which make up the crime story to be reported at trial. Similarly, the investigative stage is presented in the form of a selective,


and therefore potentially subjective, summary rather than in real time and detail. This aspect of temporal and informational manipulation will now be explored. Manipulating time, space and perspective in courtroom narratives The internal measures of time, space and perspective within witness stories are all altered when the crime events are constructed into courtroom narratives. Because the crime story takes place at considerable spatial and temporal distance from the events which precipitated the trial, the temporal and spatial coherence of the story must undergo a series of shifts in deictic centre, involving a translation of the time, location and participant references of the crime scene past to those of the courtroom present. A number of characteristics of the witness examination phase of criminal trials conspire to make life problematic for the jury attempting to keep up with the crime narrative. Genette (1980) identifies three major types of temporal manipulation which occur in literary narratives: • Order dealing with the relationship between the original sequence of events in the story and the order of presentation in the text; • Duration covering the relationship between the time-span of the original story events and the corresponding amount of text devoted to them; • Frequency referring to how often events are narrated in the text compared to how often they occur in the story. I shall now transpose these three categories from fictional narratives into the courtroom context, and discuss the effect of the adversarial jury trial process on each of them. The thematic elicitation of narrative: reordering the story in the trial In courtroom narratives, the first level of reordering occurs as a result of the thematic presentation and elicitation of story components, a process that prioritises legal process over temporal logic. The sequence in which the witnesses are called often bears little if any relation to the chronology of the events precipitating the trial. Decisions relating to the inclusion and positioning of each witness’s testimony are based


solely on their respective evidentiary value or more basic questions of the availability of witnesses, rather than being motivated by a desire to create a ‘juror-friendly’ version of events. As Stygall (1994: 123) comments, ‘the original narrative sequencing is simply ignored, even though its lack creates substantive problems for the jury’. Judge Ito warned the jury of the potential for temporal incoherence in the trial narrative; in his instructions prior to the opening statements, he cited the opening arguments as a useful means of orientation in this respect: This case, as you know, will be relatively long. And by necessity, some of this evidence will be presented to you out of chronological or logical order. So they’ll need to explain to you the case that they intend to present. Table 7 gives a brief, month-by-month, summary of the prosecution case to show how the original crime chronology was manipulated in the Simpson trial, including the jumbling of evidence about Simpson’s character and life history, and the crime and investigation stories. The temporal incongruity inherent in this sequence can be illustrated by the following example. The scene-of-crime evidence was presented in February 1995, and this included evidence from LAPD officers about bloody shoe prints and gloves alleged to have been found at the crime scene. However, the expert testimony relating to these two pieces of evidence was not presented until June 1995, fully four months later. This is because forensic and other expert testimony was held back from its logical position in the crime narrative to allow Table 7

Month-by-month breakdown of witnesses in the Simpson trial

Date of Presentation

Witness Type

Story

January/February 1995 February 1995

LAPD officers Friends, neighbours and family of Nicole LAPD scene of crime officers Friends, house guests, domestic staff of O.J. Simpson LAPD/independent criminalists; shoe, phone and glove experts

Crime/Investigation Life of Nicole/the Simpsons Crime/Investigation

March 1995 April/May 1995

June 1995

Life of O.J. Simpson/ the Simpsons Crime/Investigation


all the expert evidence to be presented together between April and June 1995. A similar phenomenon is discernible in the equivalent witness list from the defence, which if anything was more jumbled than that of the prosecution. This is particularly the case with the testimony presented in July 1995, when an assortment of witnesses appeared, including a selection of Simpson’s family members, eyewitnesses who saw Simpson on the night of the murders, and experts, including Simpson’s own physician. This group of witnesses testified on a variety of issues, ranging from Simpson’s health and fitness level and his career as an American football player, to his demeanour at LA Airport on the night of the murders, as Table 8 illustrates. As well as having to keep up with the twists and turns of the plot in this complex account, the jury were also required to keep some sense of time, faced with this barrage of out-of-sequence events. The degree of temporal and logical incoherence described above is extreme even in narrative fiction, where techniques such as flashback and simultaneous story lines may indeed be present, but rarely in such a jumbled form or with such a lot at stake in keeping up with the sequence and the mass of characters. In courtroom narratives, it is not possible for the jury to request that a witness repeat his testimony in Table 8

Breakdown of defence witnesses – July to September 1995

Presentation Date

Witness Type

Story

July 1995

O.J. Simpson’s relatives; daughter, sister, mother People in neighbourhood and with Nicole on night of murders Airport and airline staff, fellow passengers on night of murders Simpson’s physician and hairdresser LAPD officers/workers Simpson’s fitness instructor LAPD videographer Simpson’s housekeeper LAPD officers LAPD/FBI forensic experts Independent DNA, fingerprint and pathological experts Professional photographers FBI agents

Life of O.J. Simpson

August 1995

September 1995

Life of Nicole/The Simpsons Demeanour of O.J. Simpson Life of O.J. Simpson Crime/Investigation Life of O.J. Simpson Crime/Investigation Life of O.J. Simpson Crime/Investigation Crime/Investigation Crime/Investigation Crime/Investigation Crime/Investigation


situ; moreover, the jury have only limited powers to request repetition of missed or misunderstood evidence when they retire to consider their verdict. Puzzlingly, and rather disturbingly, despite the complexity of the case and the sheer amount of evidence from more than 120 witnesses, the Simpson jurors requested to rehear only one piece of testimony: that of Simpson’s limousine driver on the night of the murders, who was an important witness in the prosecution case. The cognitive load placed on jurors was increased, in terms of memory requirements, by the fact that the only tools which jurors were allowed were old-fashioned notebooks and pens to aid their recall. The structure of the trial also means that jurors are required to make an assessment, at the time of delivery, of which pieces of evidence are of significance and which are less central. One of the functions of the opening statements is to provide an indication of which aspects of the case and their associated witnesses are most important. Cochran, for example, opening for the defence, instructed the jury: 1 2 3 4 5 6

And he will come in here and tell you about this evidence, how sensitive it is and how these police departments are not trained in the collection and use of it, that this is by all accounts, 21st century cyberspace technology that is used by these police departments with covered wagon technology… and so the collection of the evidence becomes very, very, very important in this case. (Defence opening statement, 25 January 1995)

The temporal dislocation and reorganisation of evidence caused by the thematic approach to testimony elicitation is exacerbated by the fact that the prosecution and defence narratives are presented consecutively; the sequence of evidence relating, for example, to Simpson’s demeanour on the flight he took on the night of the murders is complex: not only is it elicited from seven witnesses (two appearing for the prosecution and five for the defence), but it is also referred to in two narrative bursts, four months apart, as the time line breakdown in Table 9 shows. In the intervening 14-week period (between March and July 1995), the jury heard testimony from no fewer than 32 other witnesses, all testifying on unrelated issues. A further complicating factor in the ordering of testimony is the fact that the narrative sequence of trial stories is fragmented by the to and fro of examination and cross-examination, which means that there is

44 Language and Power in Court Table 9 Prosecution and defence witnesses relating to Simpson’s Chicago trip Testimony Date

Witness Details

On behalf of

28–29 March 29 March

Simpson’s limousine driver (LA) LA Airport worker 1

Prosecution Prosecution

12 July 12 July 12 July 12 July

LA Airport worker 2 LA Airport worker 3 American Airlines pilot Three passengers on same flight as O.J. Simpson Hertz employee, driver (Chicago)

Defence Defence Defence Defence

13 July

Defence

not even a linear progression through the story within witnesses, let alone between them. Stygall (1994: 123) discusses how pieces of testimony are broken down into non-sequential fragments during witness examination by the process of direct and cross-examination. The result of this legal dynamic is a fragmented and disjointed narrative account. As law professor Gewirtz (1996: 7–8) states: neither side is allowed to keep its perspective uninterruptedly before the decision-maker until its overall story can be fully presented. Instead, immediately after one side elicits a witness’s story, the opposing side cross-examines, thereby introducing the opposing side’s perspective even as the first side’s story is unfolding … one side’s narrative is constantly being met by the other side’s counternarrative (or side-stepping narrative), so that reality is always disassembled into multiple, conflicting and partly overlapping versions. With each witness, the prosecution and defence stories are interwoven, on up to four occasions, in the sequence shown in Figure 2. Having outlined the complex mechanisms by which testimony is reordered in courtroom narratives, I will now move on to the second of Genette’s categories, duration, and will discuss the relative emphasis or de-emphasis placed on particular story events in the trial. Emphasis and de-emphasis: duration in courtroom narratives At the level of the macro-narrative, the Simpson trial demonstrates a number of shifts in the tempo of the storytelling process. Certain aspects of the case were emphasised, with the defence allegations that blood evidence was contaminated and that the incriminating bloody


Direct examination ↓

Cross-examination ↓

Re-direct examination ↓

Figure 2

Re-cross examination

Maximal structure of witness examination

glove was planted taking up a significant proportion of the trial, whereas in the actual crime story they were momentary incidents (or even, according to the prosecution formulation, non-incidents). Thus, the defence cross-examined all the officers who had been present at the crime scene, as well as the LAPD criminalists who had collected and handled the crime scene evidence. The cross-examination of criminalist Dennis Fung relating to his collection of evidence at the crime scene, which had taken at most a few hours in the crime story, took almost three weeks to narrate (and counter-narrate) in the courtroom. In contrast, other aspects of the case, which were considered to be less central, were summarised by a single witness on a single day. In this way, the injuries Simpson suffered during a professional football career spanning a ten-year period (and which, the defence claimed, rendered Simpson physically incapable of carrying out the murders) were condensed into a single day’s testimony by Simpson’s physician. The legal imperative of the jury trial means that there is no time or space for irrelevant or inconsequential narrative components. This is clearly signalled by the judge’s right (exercised freely in the Simpson trial) to deem evidence and witnesses inadmissible, as occurred, for example, with the ‘real killers’ hypothesis discussed above. One of the judge’s roles in the trial is to monitor and regulate the speed at which the trial narrative unfolds. In the nine-month-long Simpson trial, Judge Ito adopted a fairly liberal approach to time-management, a strategy for which he was subsequently criticised in many quarters. Legal experts considered that the trial had been allowed to go on for too long, and that the overall duration of federal criminal trials should be capped at three months. There


were some limits on the extent of the trial narrative, although it was typically the lawyers rather than the witnesses whose contributions were curtailed. During witness examination, Ito would often be heard to instruct the lawyer to ‘move on, counsel’ or to ‘ask the next question’, particularly during cross-examination when lawyers would pursue the same point repeatedly. The following pair of extracts illustrates some of Ito’s attempts to increase the tempo of testimony elicitation: 1 Q 2 → The Court: 3 Q 4 5 → The Court: 6 Q 7 8 9

If I could, one last question in this area. I think we’ve covered this quite a bit now. All right. One last question. Then if the court feels it’s in the same vein – No. Wind it up, let’s move on. Doctor, if Mr. Simpson’s hand was moving at an angle to the instrument inflicting the injury, that could account for the roughness or shagginess of the edge; isn’t that correct, sir? (Witness cross-examination, 17 July 1995)

When the lawyer ignores the judge’s hedged and veiled directive in line 2 – ‘I think we’ve covered this quite a bit now’ – Ito resorts to a more direct approach, producing a bare ‘no’, followed by two successive direct commands, including an imperative – ‘wind it up, let’s move on’. This achieves the desired result, and the lawyer gives up his pursuit of this particular line of questioning. In the second extract, Ito is even less patient with the lawyer’s protracted questioning of the witness and calls a sidebar conference to which the lawyer is summoned to be reprimanded: 1 Q 2 3 4 → The Court: 5 6 → The Court: 7 8 9 10

Well, Miss Mazzola, you said a moment ago that you had been taught to keep accurate and complete field notes during the training – Let me see counsel at the side bar, please. (The following proceedings were held at the bench) I think I’ve heard enough about the need to have accuracy and completeness. You have asked this question now for about the eighteenth time in the last twenty minutes. All right. You have established the point. Move on. (Sidebar, witness cross-examination, 25 April 1995)


The judge also limits the monologic contributions of the lawyer as well as his capacity to question witnesses. In the next extract, taken from the judge’s preamble to the prosecution closing argument, Ito explains his reasoning on limiting the delivery of the closings and outlines his compromise solution, which restricted each side to two lawyers only: 1 2 3 4 5 6 7 8 9 10

And I should let you know that previously I had contemplated placing a time limit on the lawyers in their arguments. Some of the factors that I considered in whether or not I should place a time limit on them was the quantity of the evidence that was produced, the conflicts in the testimony, and the complexity of the issues that you will have to resolve. And after considering the length of the case and the nature of the evidence, I have decided not to place a time limit on the argument of the attorneys. However, I have placed upon each side a limit of no more than two attorneys may argue to you for this part of the trial. (Judge Ito’s address, 26 September 1995)

Frequency of narration of story events in the court Genette’s final category, frequency, deals with how often a particular story event is narrated. This aspect of courtroom storytelling too is defined and constrained by the structure of the adversarial trial. Genette (1980) divides this aspect into four sub-categories: 1. 2. 3. 4.

Narrating once what happened once – singulative narrative Narrating n times what happened n times – singulative (repetition) Narrating n times what happened once – repeating narrative Narrating one time what happened n times – iterative narrative

The trial-by-jury process is dominated by the presentation of constructions of the same event, as in the description of the murders themselves, or events, as in the description of the repeated domestic abuse against Nicole Brown Simpson. These two possibilities are represented by Genette’s repeating and singulative (repetitive) categories, respectively. However, crucially, these multiple presentations are also multiperspectival in the Rashomon-like sense discussed above; hence, not all (even not many) of the ‘n’ tellings of the event or events (represented by Genette’s second and third categories) are likely to be identical. Although the re-tellings are likely to overlap in their content to a lesser or greater extent, each witness possesses only a partial picture of the event. This means that whereas some aspects of each witness’s testi-


mony may share some features with that of other witnesses (creating a sense of narrative convergence), these versions may equally diverge, in potentially significant respects, from previous and subsequent accounts presented by different witnesses. In the courtroom context, therefore, this aspect of Genette’s model is perhaps more accurately, if more complicatedly, represented as: • narrating n times what happened once (or n times) with each telling (at least potentially) varying from other versions (past and future) A few of the events and details of the crime and investigation stories will be narrated on a single occasion only (represented by the categories of singulative or iterative narrative). This ‘once only’ telling is rare in the courtroom context however, since most witnesses will at least be subjected to the process of direct and cross-examination, resulting in at least one re-telling of the original narrative; if the cross-examiner has succeeded in his task, this will be in a form slightly different to the initial direct examination version. (See Cotterill 2002 for a more detailed discussion of these multiply elicited narratives.) In addition, there will often be a corresponding witness from the other side, who will present the same event or detail, but from a different perspective. Most significant pieces of evidence, whether they relate to a singulative aspect or a repeating aspect of the case, will be presented on at least three separate occasions: in the opening statement, during the witness examination phase and, finally, in the closing argument. Although specific details may be glossed over or disregarded, surprisingly few evidential threads are discarded when it comes to the closing argument phase of the trial; both prosecution and defence attorneys are highly skilled in the art of summary and paraphrase, and the density of information presented is, among other things, what gives the closing argument much of its rhetorical force, as a cumulative line of reasoning is constructed. As we have seen, the constraints of courtroom storytelling mean that the prosecution and defence narratives, far from being linear, cohesive and, in Bakhtinian terms, monoglossic versions of the crime events, are instead presented as temporally incoherent, multi-perspectival and heteroglossic micro-narratives told by many (in the Simpson trial, 126) different narrative voices. It should be noted that micro-narrative is a relative term and must be considered in the context of overall length of the trial; the ‘micro-narrative’ of Detective Mark Fuhrman, for example, took more than a week to tell.


Each of these witnesses may have a potentially conflicting version of events to narrate, and each may have a different perspective and interpretation of the events which they recount, as Scheppele (1989: 2085) points out: the same event can be described in multiple ways, each true in the sense that it genuinely describes the experience of the storyteller, but each version may be differently organised and give a very different impression of ‘what happened’. The judge in the Simpson case pointed out this multi-perspectival aspect of testimony in his final jury instructions, reminding them that ‘it is a fact that two persons witnessing an incident or transaction often will see or hear it differently’. The characteristics and the conflicts created by these individual and individualised narrative accounts, on which both sides are dependent for the creation of the prosecution and defence narrative versions, will now be explored.

Micro-narratives in the courtroom In their attempts to construct an authoritative and convincing version of the crime, both prosecution and defence use the testimony of people who were present at the time of the crime – eyewitnesses and the victim, if available. In addition, lawyers use the evidence of those who were not present, but whose expert testimony can contribute to the interpretation of the forensic traces left behind at the scene, as well as more general issues of relevance to the particular case. In the Simpson trial, this meant a considerable battery of forensic experts in DNA analysis and blood splatter patterning, as well as experts in such diverse matters as domestic violence, athletes’ injuries and the crafts of shoe- and glove-making, respectively. This section analyses the range of micro-narrative voices and their respective roles in constructing the prosecution and defence versions of the crime story. Narrative voices in the Simpson trial There are a number of ways in which macro-narratives – whether defence or prosecution in orientation – may be constructed from micro-narrative testimony, including the evidence of eyewitnesses, forensic scientific evidence gathered from the crime scene and testimony from the defendant and/or victims themselves. I will deal with


the narrative voices of each of these three groups in turn, beginning with the contribution made by the witnesses in the case. The voice of the witnesses The witnesses in any case are obviously crucial to the construction of both the prosecution and defence narratives. The interactional dynamics of lawyer–witness exchanges and the means by which witness testimony is elicited by protracted Q-A sequences are important enough to warrant chapters of their own; hence chapters 4 and 5, respectively, are devoted to these issues. In terms of their contribution to prosecution and defence narratives, however, these witnesses may be divided into two main groups, the lay witnesses and the experts. In the first group, the most important narrative voices are those of the central participants (or non-participants) in the crime story – the defendant and the victim; these crucial characters will be discussed below. However, I will begin by analysing the role of forensic evidence, as voiced by expert witnesses. The voice of the forensic evidence The task of the forensic evidence in a criminal trial, which is given a voice by the criminalists and expert witnesses who collect and analyse it, is to establish one or more of the crime story elements in detail. Table 10 summarises a sample of the types of forensic evidence that may be employed for this purpose, and their particular roles in establishing the facts of the case. The forensic evidence may assume an even greater significance if one or more of the human participants is unable to participate in the Table 10

Individual crime elements and associated forensic evidence

Crime Element

Forensic Categorisation

Examples of Associated Forensic Evidence

By Whom To Whom With What

Perpetrator Victim Means

Where When How Why

Opportunity Opportunity Modus operandi Motive

DNA analysis, Polygraph tests Dental records, DNA analysis Toxicology reports, Gunshot wound analysis Blood stain patterning, Fibre analysis Time of death estimates Crime scene analysis, Ballistics Letters, Insurance policies, Bank records


process of storytelling. This is particularly true of murder cases, where one of the key participants – the victim – is necessarily absent; in the Simpson case, of course, there were two absent parties, since there were two victims. In these circumstances, with no survivors of the nighttime attack and no eyewitnesses to the crime, evidence such as blood splatters, knife wounds and DNA analysis took on an even greater role as active voices in the trial. With three of the key individuals in the crime either silenced (in the case of the victims) or silent (with Simpson declining to testify in his own defence), the forensic evidence became the cornerstone of the prosecution case, with many details of the story of the murders filled in by deductive or inferential reasoning from forensic data collected at the crime scene. Absent voices: the defendant and the victim The voice of the defendant. The Simpson case was missing another significant element, one that Wodak (1985: 185) claims is one of the most important narratives – that of the defendant. Under the fifth Amendment to the US Constitution, the defendant has the right not to testify; because Simpson invoked this right, this meant that the prosecution were not able to cross-examine him. In the UK, the jury may draw a negative inference from the defendant’s decision not to testify in his own defence; in the US, however, prosecuting attorneys are not permitted to allude to this fact as an implication of guilt in their closing arguments. This right does not need to be exercised until the jury has heard all the evidence, just before the closing arguments. Thus, nine months into the trial, Cochran made the following (unusual) request: Mr. Simpson would like to make a brief statement with regard to the reported – Mr. Simpson would like to make a brief statement regarding the waiver, if the Court pleases. (Sidebar, 22 September 1995) The request produced vigorous prosecution objections that this amounted to ‘testimony without any cross-examination’. Clark pleaded with the judge: It is inappropriate and it is done very deliberately by the defense for a clear purpose. Please don’t do this, your Honor. I beg you. I beg you. Take the waiver and let the defendant admit that he will not


testify and waive his right, but nothing further should be said on the record in open court. (Sidebar, 22 September 1995) Ito finally allowed Simpson to speak, resulting in Simpson’s only verbal contribution to his own trial, a (somewhat indirect) waiver of rights: 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19

The Court: The Defendant:

Mr. Simpson, good morning, sir. Good morning, your Honor. As much as I would like to address some of the misrepresentations made by myself and my – and Nicole concerning our life together, I am mindful of the mood and the stamina of this jury. I have confidence, a lot more it seems than Miss Clark has, of their integrity, and that they will find, as the record stands now, that I did not, could not and would not have committed this crime. I have four kids; two kids I haven’t seen in a year. They ask me every week, ‘Dad, how much longer?’ I want this trial over. Thank you. The Court: All right. Mr. Simpson, you do you understand your right to testify as a witness? The Defendant: Yes, I do. The Court: All right. And you choose to rest your case at this point? The Defendant: I choose. The Court: Thank you very much, sir. (O.J. Simpson, 22 September 1995)

In terms of a voice in the trial, Simpson himself had remained silent for the previous nine months. Instead of participating in the trial himself, he had, in direct examination, practised a form of storytelling by proxy, with a combination of lawyers who were paid, literally, to ‘represent’ their client – in Cochran’s words, to ‘tell O.J.’s story’ (Cochran 1996) – expert witnesses, hired to testify on the science of the case, and other witnesses, who were said to have been called by the defendant; each time a new witness was sworn in, the court record states: X, called as a witness by the defendant, was sworn and testified as follows:


This appears to support Kerr’s (1982) view that defendants are treated largely as Object and not Subject, an individual confined to the dock and who speaks only through others. It is also significant in line 16 of Simpson’s ‘statement’ above, that it was Simpson himself, and not his attorney who was asked ‘And you choose to rest your case at this point?’ to which he replied ‘I choose’ and not ‘we’. Although Simpson made the decision not to testify, the victims in the case had no such choice. The ways in which the prosecution sought to involve the voices of the two victims in the creation of the trial narrative, and the construction of the crime story, is the focus of the next section. The voice of the victims. At the start of her closing argument, prosecutor Clark reminded the jury of the victims’ problem in terms of representation in the trial: The victims can’t talk and they can’t tell us what happened. We have to look to the physical evidence and we have to use our common sense and our reason to make reasonable inferences to determine what happened to the best of our ability. (Prosecution closing argument, 26 September 1995) In spite of such severe limitations, the prosecution did, however, have a number of strategies for ensuring that what were perhaps the most crucial voices – those of the victims – were to some extent ‘heard’ in court and therefore could play their part in constructing the prosecution story. Webster et al. (1991), in their discussion of ‘voices from an empty chair’ in mock jury trials, found that absent witnesses, and particularly the voice of the victim, could be even more influential than their physically present counterparts in influencing the jury. This is perhaps because such voices are unchallenged by the demands of cross-examination. Their testimony is potentially even unchallengeable from an ethical point of view, since attacking the evidence of a victim who cannot defend himself is likely to be frowned upon by the average juror. In the Simpson case, one of the central issues was that of domestic violence, with the prosecution alleging that O.J. Simpson’s previous history of violence against his wife was the precursor to her murder. Ensuring that the voices of the victims, and particularly that of Nicole Brown Simpson, were heard in court was accomplished by the prosecu-


tion despite and not because of the criminal trial system, which has a number of controls in place to limit the possible contribution of absent participants. Although obviously neither of the victims was able to testify in person, there was a series of contributions by Nicole Brown Simpson which the prosecution attempted to introduce as evidence. These included Nicole’s two 911 emergency calls to the police, her diary, a will and photographs of her bruised and battered face, which she had stored in a safe deposit box. Clark (1997: 235) saw the contents of this safe deposit box as crucial to their case, claiming that ‘the message in the box was clear: in the event of my death, look for this guy’ (original emphasis). The prosecution therefore had a series of exhibits which they wished to present, but they had varying degrees of success in achieving admissibility of this evidence. The judge admitted testimony relating to O.J. Simpson’s past behaviour, but restricted it to abuse that living witnesses had observed – for example, from Nicole’s sister and mother; however, secondary evidence relating to Nicole’s conversations with others and her diary entries, which documented the Simpsons’ turbulent marriage, was judged inadmissible. The legal justification for this was the ‘hearsay’ rule, which excludes evidence which is for any reason unverifiable. In this case, what Nicole had told others of her abuse and her various writings were censored, because Nicole was not available for cross-examination. This ironic ‘Catch-22’ serves as a powerful illustration of the way in which absent voices can be, in a sense, doubly silenced by the trial process. Gewirtz (1996: 260) concurs that ‘the excluded evidence does underscore the various ways in which victims are silenced at trial – silenced by their murderers, but also by legal rules that reinforce their silence.’ Faced with such legal constraints, the prosecution had to find other ways to give Nicole Brown Simpson a role and a voice in the construction of the case against her ex-husband. The prosecutors achieved representation in two different but interconnected ways. Throughout the case, they ensured that Nicole’s and Ron’s faces and voices were present in the courtroom, playing as active a role as possible in the construction of the prosecution story. They frequently showed photographs and video footage of the bodies, underlining not only the victims’ ‘presence’ in the courtroom, but also the brutality of the crimes. In Nicole’s case, it was also possible for the prosecution to make considerable capital out of the two 911 emergency calls she had made to the police alleging domestic violence at the hands of Simpson. The fact


that the tapes were played rather than simply using transcripts of the calls, which would have conveyed the same informational content, is significant to the storytelling process. This enabled Nicole to ‘speak for herself’ rather than relying on the voices of family, friends and forensics to speak for her; in effect, playing the tapes was a dramatic way of literally introducing ‘direct speech’ by the victim from beyond the grave with the intention of creating a powerful rhetorical effect. Advocacy manuals (Boon 1993; Evans 1993) advise trial lawyers to use this tactic of employing visual and audio evidence whenever possible, not only for this rhetorical purpose, but also because of the positive memory effects it is believed to produce. During the playing of the 911 tapes, Nicole Brown Simpson was transformed into an active witness giving first-hand evidence directly to the jury. The use of this evidence placed the prosecution in a strong position; it was difficult for the defence to challenge such direct and emotive testimony ‘from the horse’s mouth’, and the witness was obviously unavailable for cross-examination. This also meant that the prosecution was able to draw inferences from the tape which went overwhelmingly unchallenged by the defence. Thus, in the opening statement, the jury was told: 1 2 3 4 5 6

You will hear the tape of that 911 call … that 911 tape is a telling glimpse into their relationship that’s for sure, and you will hear Nicole on the telephone talking to the operator. And as you listen to her, you can’t help but discern from the tone of her voice and the things that she says that she is a tough woman, but that she’s also afraid and intimidated. And not only that, but that she feels that her situation is hopeless. (Prosecution opening statement, 24 January 1995)

The tape of Nicole’s first 911 call was the first exhibit and the first ‘witness’ testimony presented to the jury in the prosecution’s case. In their closing argument, a full nine months later, the prosecution played a composite videotape, which Clark referred to as a ‘visual history’ of the crime (Clark, 1997: 474), consisting of audio recordings of both 911 calls, overlaid with photographs of Nicole’s injuries and footage of both bodies at the crime scene, to remind the jury of Nicole’s voice just prior to them retiring to consider their verdict. Prosecutor Darden instructed the jurors: 1 2

Mr Darden: And I want you to listen to a tape, a tape of an emergency call, and you recall that I played that tape a


3 4 5 6 → 7 → 8 Mr Darden: 9 → 10

long time ago, months ago, and you probably forgot about it up until yesterday, I hope, but I’m going to ask you to listen to that tape in just a moment (At 9:35 a.m., People’s Exhibit 21, a videotape, was played.) (At 9:44 a.m. the playing of the tape concluded.) I think we have heard enough of that. You will have this tape in the jury room. I am just a messenger and I think you get the message. (Prosecution closing argument, 27 September 1995)

In this extract, Darden presents himself as nothing more than a facilitative ‘messenger’ (line 9), merely allowing Brown Simpson to present her own evidence. The duration of the 911 call – some nine minutes – is also noteworthy (lines 6/7). When the tape had originally been played, during the witness examination of 911 dispatcher Sharyn Gilbert, the judge had intervened to stop it only one minute in: 1 Mr Darden: 2 3 The Court: 4 → 5 → The Court: 6 7 →

With the court’s permission, your Honor, I would like to play the 1989 911 tape. All right. (At 10:11 a.m. an audiotape was played.) Excuse me, Mr. Darden. Why don’t you stop that at this time. (At 10:12 a.m. the playing of the audiotape ended.) (Witness direct examination, 31 January 1995)

In the closing argument phase of the trial, the lawyer’s floor-holding monologic statement meant that he was able to keep the tape running for the full nine minutes, a considerable length of time to listen to a recording in a setting such as the courtroom. It is somewhat ironic that the most silent and most genuinely absent of witnesses – one of the two murder victims – managed to achieve the longest uninterrupted turn of any of the witnesses in the trial. The relative evaluative freedom of the closing argument also meant that the prosecution could develop their interpretation of and speculation about Nicole’s tone of voice and state of mind at the time of the calls: 1 When you listen to that 911 call, as you take it back into the jury 2 room, listen to the part where she tries to calm him [Simpson can


3 4 5 6 7 8 9 10 11

be heard throughout the call shouting in the background] … as she tries to calm him, she tries to calm him by using a calm voice of her own. You get what I’m saying? … What does that mean? Is that helpful to you at all? Let me suggest to you that what that means is that she has been there before. She apparently feels as if she has a way, some tack, some approach that might help calm him down. It is Nicole’s approach to her problem when the defendant becomes enraged, a calm voice, and she is scared and you know she is scared. You can hear the fear, you can hear the terror in her voice when she calls the 911 operator. (Prosecution closing argument, 27 September 1995)

Following the defence’s equivalent closing argument, the prosecution had one final opportunity to address the jury before they retired to consider their verdict. In a brief rebuttal statement, the prosecution took the opportunity to replay the video compilation. Reminding the jury that the victims had indeed been able to contribute to the telling of the crime story, in their own words, Clark stated: usually I feel like I’m the only one left to speak for the victims. But in this case, Ron and Nicole are speaking to you. They’re speaking to you and they’re telling you who murdered them. (Prosecution closing argument, 29 September 1995) The use of such active verbal processes as ‘speaking’ and ‘telling’ in this extract and throughout the presentation of the testimony on behalf of the victims serves to underline the presence of the victims in the courtroom and their participation in the trial. Clark continued with a powerful evaluative summary of Nicole’s contribution, combining both ‘real’ utterances from Nicole’s police interviews (in lines 2 and 7) and inferential utterances extrapolated from her actions and behaviour (lines 5–7): 1 2 3 4 5 6 7 8

Nicole started before she even died. Remember back in 1989, she cried to Detective Edwards, ‘He’s going to kill me. He’s going to kill me.’ The children were there. 1990, she made a safe deposit box, put photographs of her beaten face and her haunted look in a safe deposit box along with a will. She was only 30 years old. How many 30 years old you know do that, a will, a safe deposit box? It’s like writing in the event of my death … She knew. ‘He’s going to kill me.’ 1993, the 911 tape, the children were there. He was screaming. She was crying


9 and she was frightened. I think the thing that perhaps was so chill10 ing about her voice is that sound of resignation. There was a resig11 nation to it, inevitability. She knew she was going to die. (Prosecution closing argument, 29 September 1995) Clark continued with a summary of the contribution of the second victim, Ron Goldman, interpreting his physical struggle with his assailant as his testimony to the jury: 1 And Ron, he speaks to you by struggling so valiantly. He forced his 2 murderer to leave the evidence behind that you might not ordinar3 ily have found. (Prosecution closing argument, 29 September 1995) The prosecution’s concluding remarks reminded the jury that through a combination of their actual words captured on recordings, and the physical evidence collected from the crime scene, both victims had, in a very real and powerful sense, been able tell the story of their deaths and had made an active contribution to the trial. Clark ended her emotive summation with a final plea for the voices of the victims to be heard by the jury: 1 2 3 4 5 6

They both are telling you who did it with their hair, their clothes, their bodies, their blood. They tell you he did it. He did it. Mr. Simpson, Orenthal James Simpson, he did it. They told you in the only way they can. Will you hear them or will you ignore their plea for justice, or as Nicole said to Detective Edwards, ‘you never do anything about him’. Will you? (Prosecution closing argument, 29 September 1995)

The use of the verb ‘hear’ (in line 4) is of interest in this final extract, since Clark is appealing not only to the auditory, perceptual sense of the verb, but also to its more metaphorical sense, as used in therapeutic contexts in phrases such as ‘I hear where you are coming from, meaning ‘I understand and empathise’. Thus, her plea is for the jury not only to literally listen to and process Nicole’s words, but also to interpret and act on them, according to their collective conscience; this use is signalled by the contrast set up in line 4 – ‘will you hear them … or will you ignore them’, implying a level of processing beyond the straightforwardly perceptual and towards the evaluative.


The role of the jury in the trial narrative I will end this chapter with a discussion of the role of the jury as the audience for the prosecution and defence narratives and will explore what kind of characteristics a convincing account has in the eyes of the jury. Perhaps the most significant difference between fictional and courtroom stories is the role of the reader/listener(/juror) in the process. As Toolan (1995: 8) points out, ‘the ultimate authority for ratifying a text as a narrative rests not with the teller but with the perceiver/addressee’; in the courtroom context, it is the jury that reaches the final decision about the coherence of the authoritative version of the crime narrative. The task facing the jury is to take apart the narratives presented by both sides, and search for a definitive and satisfying crime story, in essence a deconstructive process, stripping away the evaluate layers of evaluation and subjectivity. In contrast, fictional, non-forensic narratives have the primary motivation of achieving and heightening emotional engagement between the reader/listener and the text. The process of deconstruction appears to be progressive, since courtroom narratives are essentially organic and dynamic in nature. The prosecution and defence need to be flexible and responsive throughout the trial, to both new disclosures and judicial rulings on the admissibility of witnesses and evidence. The jury too are, in a very real sense, constructing the story as they go along. Indeed, Hastie and Pennington’s (1996: 957) study suggests that there is some evidence that jurors construct an ‘intermediate summary’ of the evidence presented to them during the trial; this explanation, they argue, rather than the original ‘raw’ evidence, forms the basis of the final decision. Thus, it seems that jurors construct individual narratives throughout the trial before collaboratively negotiating a (hopefully) unanimous consensus and implicitly a definitive version of the crime story during deliberation. This process will be discussed further in chapter 8, dealing with jury deliberation in the Simpson trial. In the case of a literary mystery, the reader has only to turn to the final pages to reveal the identity of the culprit; in the courtroom, this task is a more onerous and arduous one for the jurors, who play an active and decisive role in determining the content of the final scene. In addition to understanding, processing and interpreting a huge amount of often complex information in a way which the story reader does not, jurors ultimately carry the ethical responsibility for the ‘whodunit’.


The trial process is therefore infinitely more interactive than the reading of an already completed narrative, since this is a story without an ending until the jury foreperson speaks. Significantly, the jury can also choose not to decide if they feel that they have insufficient evidence on which to base their judgement – the classic scenario of the hung jury. This was not a distant possibility for the Simpson case, as the rate of hung juries in criminal trials in Los Angeles County currently stands at 13 per cent. Despite widespread fears that a hung jury would be the likely outcome of the Simpson trial, the jury did manage to reach a unanimous verdict, acquitting the defendant on both counts. What makes a good story? Consistency, completeness and coherence Simpson’s lead attorney saw a narrative framework, introduced in the opening statement and reiterated in closings, as the only way in which jurors could realistically remember and process such complex and vast amounts of information. With his mind (unsurprisingly) fixed on the strategic implications of such a framework for the verdict, Cochran (1996: 237) explained: what jurors need is a story into whose outline they can plug the testimony and evidence with which they are constantly bombarded. It is through that process that they form their sympathetic understanding of the case. And it is that understanding that, ultimately, informs their verdict. There are a number of fundamental dimensions which psychologists and psycholinguists have identified as crucial in determining jurors’ acceptance of crime stories in court. According to Hastie and Pennington (1996), there are three key factors which determine jurors’ adoption of a story. The first criterion is consistency; a convincing story must contain no internal contradictions. In addition, the story should have a reasonable degree of completeness; in this respect, the prosecution faced a number of hurdles. The case against Simpson was based largely on circumstantial evidence, as we have seen, with no murder weapon and no eyewitnesses to the crime. Hastie and Pennington (1996: 957) claim that ‘there are some hints that for some jurors [in the Simpson trial], reasonable doubt took the form of the incompleteness and vagueness of major components of the prosecution story’.


The third factor is plausibility, in other words, the extent to which the story corresponds to jurors’ knowledge of the real world and literally ‘makes sense’. This final criterion is worthy of more detailed scrutiny here since it has the most linguistic dimension of the three factors. Simpson’s attorney underlined the importance of constructing a plausible courtroom story, explaining that: the story you present … must be a clear, coherent, credible framework into which the actual evidence and testimony presented will fit … if I have accomplished all of these steps those twelve people will go into the jury room and use my client’s story to piece all the puzzling things they’ve been told into a coherent picture that satisfies both their legal duty and their human curiosity about what really happened. (Cochran 1996: 237) The concept of narrative typification (Jackson 1995) is encapsulated in Cochran’s trial catchphrase ‘if it doesn’t fit, you must acquit’, which he told the jury repeatedly in the defence closing argument. The use of narrative storytelling structures within the trial allows jurors to make ‘judgements about the coherence and completeness of the “story” compared with their story schema’ (Bennett and Feldman 1981: 7), by implying a normative prototype structure against which possible alternative versions may be measured. This normative assumption may, in fact, be dangerous on several levels, not least the fact that many jurors’ schematic prototypes about double homicides are likely to have been constructed through exposure to a diet of TV movies and tabloid newspapers. Nevertheless, narrative forms the basis for the jurors’ decision-making processes and the two cornerstones of criminal justice are based on such a presumption; if jurors collectively decide that the story provided is a suitable match for their schema (an aggregate schema achieved by what Den Boer (1993) calls ‘pseudo-consensus’ in the jury room), then the burden of proof has been satisfactorily fulfilled. If no suitable match has been achieved, the principle of reasonable doubt is applicable. The jury will tend to accept from the various opposing versions of events a single story which makes sense to them, given their understanding of the world. Scheppele (1989: 2080) underlines the importance of jurors applying this real-world knowledge and experience to the courtroom stories presented to them, stating that:


the resolution of any individual case in the law relies heavily on a court’s adoption of a particular story, one that makes sense, is true to what listeners know about the world, and hangs together. If attorneys can succeed in invoking one element of a particular schema or script, then it is likely that the associated elements will follow. Thus, by showing that Detective Mark Fuhrman was guilty of making racist remarks, the defence implied that he was capable of planting evidence, corrupting samples and lying in court – all because Simpson was an African-American. Ultimately, this strategy seems to have been highly effective for the defence in securing Simpson’s acquittal and concurs with Jackson’s (1995: 156) comment that ‘activation of a strong racial, ethnic or religious schema or stereotype may exert powerful effects upon our current feelings or moods’. Chapter 7 will discuss some of the linguistic realisations of these schema activations in the closing argument of the defence. As the chapter on jury selection showed, jurors whose realm of experience encompasses a similar background to that of the defendant are likely to be selected by the defence, since it is anticipated that they will be likely to empathise with defence argumentation and the defendant’s plight; on the other hand, jurors whose background does not include aspects of life which are perceived as relevant to the case may well find themselves rejected by peremptory challenge. The Simpson jury was a perfect example of Jackson’s (1995) observation that narrative typifications, which are emotionally laden, may also be groupable according to particular social and/or professional categories, or ‘semiotic groups’, and may be responsible for activating what Hastie and Pennington (1996) refer to as ‘prejudice triggers’ (see chapter 8). The first opportunity in the Simpson trial for lawyers from both sides to attempt to activate these triggers came in the opening statement phase, heralding the start of the trial.

Opening statements as a conceptual orientation to the trial narrative The stated function of the opening statement by each side is as an ostensibly neutral summary of the trial narrative, in other words, the presentation of an outline of the substantive issues connected with the crime and its investigation. The principal difference between the


respective functions of openings and closings is reflected in the fact that closings are often referred to as ‘arguments’, whereas openings are usually termed ‘statements’, conveying the more neutral intentionality of the opening. Judge Ito pointed out this fact to the jury, prior to the opening statements, directing them that: Any statements made to you by the attorneys during the course of their opening statements are not evidence and should not be considered as such by you. These opening statements are normally given by the attorneys to sort of give you an overall view of the evidence that they intend to present. It’s to give you a road map so to speak as to how to evaluate the evidence. However, the opening statement is less neutral than it appears; it does not simply serve as an initial orientation to jurors regarding the issues to be dealt with in the trial, but also functions as a conceptual orientation to the trial participants and the trial narrative. In addition to providing a summary of the respective stories to be told during the trial, the trial opening statements also provide both sides with an opportunity to exploit a further meaning of ‘orientation’ – that of establishing attitude and stance, echoing Pyszczynski et al.’s (1981) finding that opening statements frequently ‘promise more than the evidence can show’. Both these highly interpersonal aspects – the promotional (discussed above) and the stance-orientational – were expressed in the defence opening statement, where Cochran used the metaphor of a cinema preview, as well as that of a guide or ‘roadmap’: Now, the opening statement is not opening argument, but it is just that, opening statement. If you have had occasion to go to a movie, you know that there is something called the previews of coming attractions, and that is supposed to be – it is supposed to be a guide, a roadmap, if you will, what we expect the evidence to show … As the Court has so appropriately indicated, what I say is not evidence; it is just to aid you and guide you. (Defence opening statement, 25 January 1995) The role of language in constructing this orientational ‘roadmap’ is significant. Perhaps the most crucial aspect of presenting a plausible and satisfying story in court is the way in which the narratives are framed, both prospectively in the opening statements and


retrospectively in closings. Since overt evaluation and persuasion are banned in opening statements, lawyers must achieve a persuasive effect in their opening statements through the subtle use of language. The strategic use of lexical choices in creating these persuasive narrative frameworks is the focus of chapter 3.

3 Framing Courtroom Narratives through Strategic Lexicalisation: The Opening Statements

Introduction Opening statements play a significant role in influencing the jury decision-making process. First, openings have an important primacy effect. Using post-verdict interviews with mock jurors, researchers such as Lindquist (1982) have found that as many as 50 per cent of all jury trials are decided by what is said in opening statements. Advocacy expert Jeans (1975) puts the figure even higher, at 80 per cent. The psychological literature on opening statements suggests that, even despite juror scepticism about their influence, openings can have a hugely persuasive effect, particularly when, as in the Simpson trial, the case hinges on a probabilistic assessment of a defendant’s character or behaviour (Lind and Ke 1985). A fundamental ingredient in producing this persuasive effect is the lexical representation of the acts and actors involved in the crime story. The role of strategic lexical choices in constructing the prosecution and defence narrative frameworks during opening statements will be the focus of this chapter. It will involve a detailed analysis of some of the cognitive and linguistic ‘anchors’ (Vinson 1985; Wagenaar et al. 1993) relating to the depiction of Simpson as a wife-beater in the prosecution opening statement, and the defence response in their equivalent monologic address. In order to elucidate the potential rhetorical effects of these (re)lexicalisations, I will draw on insights from corpus linguistics, accessing the COBUILD Bank of English and focusing specifically on the notion of the semantic prosodies of the lexical choices in the two respective opening statements.

65


Connotation, collocation and semantic prosody Collocation, ‘the company a word keeps’ to use Firth’s (1957) definition, can reveal a great deal about the semantic shape of a word or phrase, and one particular collocational characteristic, semantic prosody, provides information about its associated connotational orientation. Louw (1993: 157) defines semantic prosody as ‘a consistent aura of meaning with which a form is imbued by its collocates’. Sinclair (1987: 155–6) observes that the verb happen, for example, is typically associated with unpleasant things such as accidents and that, similarly, set in appears to collocate frequently with negative events and states, such as ‘the rain set in’ and ‘problems set in’. Later work by Stubbs (1995a, 1995b) has also highlighted a similarly negative semantic prosody in the collocates of the lemma cause. In seeking to describe the prosodies of words and phrases, a corpus is invaluable as a resource since it permits large-scale searches for patterns of word behaviour. Louw’s assertion is that many (or even most) semantic prosodies operate predominantly at an intuitive level, and he advocates the exploration of corpora as a way of elucidating more systematic patterning in semantic profiles. A number of researchers have conducted studies in precisely this way, often with a critical linguistic orientation to their work. Krishnamurthy’s (1996) study, for example, used corpus collocations to bring out racism in the contexts of use of the words ethnic, racial and tribal, respectively; Caldas-Coulthard and Moon (1999) examined collocations of words relating to age and beauty and their gender-differential usage in newspaper reports, highlighting gender marginalisation. More recently, Hunston (1999) has explored the asymmetry of the words deaf and hearing, finding a ‘prosody of disadvantage and suffering’ in the use of deaf (Hunston 1999: 10). The lexical items selected for analytical attention in this chapter relate to references to domestic violence; however, I have not chosen the more obvious representations of Simpson as a ‘wife-beater’, ‘batterer’ or ‘abuser’, although the prosecution argument contains copious examples of these powerfully negatively oriented formulations. Rather, this analysis takes some of the more subtle terms which are used by the prosecution to construct an image of Simpson as a violent man ultimately capable of murdering his wife. The final section deals with the defence response to this presentation of Simpson, and examines some of their attempts to minimise and neutralise the negative prosodies evoked by the prosecution.

The Opening Statements 67

Constructing the prosecution and defence crime narratives through lexical choice Through the skilful exploitation of different layers of lexical meaning, it is possible for lawyers to communicate subtle and partisan information about victims and alleged perpetrators, without falling foul of the rules of evidence and without appearing to subvert the intended function of the opening statement. In order to achieve this, lawyers must manipulate the grey area between denotational meaning, the relatively neutral representational depiction of an entity and its more evaluative connotational meaning. The aim of the lawyer is to use strategic lexical choices which orient the jury towards a particular conceptualisation of the trial events and personalities, in other words, by prescriptive and prospective lexicalisation. In so doing, the lawyer is able to exploit the connotational and collocational properties of the lexical items selected. The opening statement represents a potentially powerful opportunity for lawyers from both sides to map out prospectively the ‘semantic environment’ – to use Sinclair’s (1991) term – of the crime, the victim and the alleged perpetrator, to construct a framework into which the witnesses and physical evidence will be systematically placed as the trial progresses. The power of strategic lexical choice in influencing perception is illustrated by Danet’s (1980) much-cited study of the differential use of lexical items in an American illegal abortion trial. The prosecution argument presented a manslaughter case, constructed around the life (and death) of a baby, whereas the defence conceptualised the case in terms of a foetus. The defence argued that since the foetus was incapable of independent life, there could have been no crime of manslaughter committed against it. The jury agreed with the prosecution formulation and the doctor was convicted of manslaughter. This simple example is an apt illustration of the power of semantic categories and labels and the presuppositions which underpin them. Drew (1992: 478) also discusses the use of loaded lexicalisations in a rape trial, where the lawyer argued that the initial meeting between defendant and plaintiff took place in a bar, with all its potential connotations of sleaze and promiscuity; the defence narrative in contrast refers to the location repeatedly as a club. Through a series of similar relexicalisations, defence lawyers are able systematically to construct elaborate scenarios which rely for their effect upon the jury understanding the connotational loading of the lexical items chosen.


‘Domestic discord’, ‘rocky relationships’: representing marital violence in the Simpson opening statements One central feature of the prosecution case against Simpson was that he had been an aggressive and violent husband, and that a precedent of violence towards Nicole had been established during their marriage, which culminated in the double murder of Nicole Brown and Ron Goldman in a jealous rage killing. For lead prosecutor Marcia Clark, the case – and the opening statement formulation of it – was a straightforward one, with the issue of domestic abuse at its core: ‘Chris [Darden] would lead off with the why of the crime, the motive: domestic violence. And I would follow with the how. A clean one-two punch’ (Clark 1997: 265–6). The defence, however, disputed the claim that Nicole was abused by her husband and had an alternative version of events, which instead presented Nicole Brown Simpson as a manipulative and promiscuous woman. The groundwork for these conflicting images of the couple and their relationship in and out of marriage was laid during the opening statement phase of the criminal trial and was constructed on the basis of a number of significant lexical choices depicting Nicole and O.J. Simpson respectively, as well as the violent acts alleged to have characterised their marriage. The remainder of this chapter will focus on some of the conflicting lexical representations of the couple and their relationship in the two opening statements, drawing on collocational and connotational insights from the COBUILD Bank of English.1 I will begin with the case for the prosecution. Encountering O.J. Simpson In the prosecution opening statement, Simpson was portrayed as an individual with a sharp contrast between his public and private personae. In order for the jury to be able to contemplate Simpson as a potential double murderer, it was crucial for the prosecution to deconstruct the professional image of him as a football icon and movie star. Prosecutor Darden reminded the jury that although 1 2 3 4 5 6 7

we’ve seen him play football for USC, we watched him thrash LA playing the Rose Bowl … we watched him leap turnstiles and chairs and run to airplanes in the Hertz commercials and we watched him with a 15-inch Afro in Naked Gun 33 1/2 [sic] … and we came to think that we know him, what we’ve been seeing ladies and gentlemen, is the public face, the public persona, the face of the athlete, the face of the actor. It is not the actor who is on trial here today. (Prosecution opening statement, 24 January 1995)


The private persona depicted by Darden was far less attractive. One of the alternative images constructed by the prosecution cast Simpson in the role of the jealous, possessive husband obsessed by his ex-wife: 1 2 3 4 5 6 7

That is the face we will expose to you in this trial, the other side of O.J. Simpson, the side you never met before. We will expose in this trial and who [sic] to you in this trial [sic] the other face … the one that Nicole Brown encountered almost every day of her adult life, the one she encountered during the last moments of her adult life; the same face Ronald Goldman encountered during the last moments of his life. (Prosecution opening statement, 24 January 1995)

The verb chosen – encounter – (in lines 4, 5 and 6 of the extract above) is of some significance, not least because it is used to refer rather uncharacteristically to a person (Simpson) rather than an inanimate entity, its more common usage. It also carries a negative semantic prosody, which may be exemplified by examining the semantic profile of the word in the COBUILD corpus. A search of the corpus reveals that the verb encounter collocates strongly with a set of negative phenomena, including those listed here: male hierarchy and regular encounter prejudice from a new Soviet Union seem to encounter new obstacles.Today, Even real hotel managers encounter problems. Earlier then you’re going to encounter a glass ceiling in your for the hazards they will encounter whether it’s radiation, forces continue to encounter pockets of stiff resistance a demand that is sure to encounter fierce opposition from medical risks they might encounter at their intended

In addition to their negative prosodies, these collocates also form subgroups which share a number of other characteristics; both hazards and risks – used here in a scientific sense – represent unpredictable dangers, whilst resistance and opposition have pre-modifiers (stiff and fierce respectively) which indicate a degree of violence. By representing Simpson as the object of encounter, the prosecution were able to evoke


both the negative prosody and the sense of unpredictable violence conveyed by the verb and its collocates. This also ties in with another conceptualisation of Simpson used by the prosecution throughout their closing argument on more than 20 occasions, indicative of the way in which the opening statement is conceptually – and linguistically – connected to the closing argument. Simpson’s lead attorney underlined this point, stating that ‘the first thing you say to a jury and the last things said are all of one piece … a thread that runs through the whole trial’ (Cochran 1996: 236–7). Simpson was portrayed in the prosecution closing using the metaphor of a ticking time bomb – unpredictable, violent and essentially uncontrollable. This would appear to be a good example of the phenomenon described by Louw (1993: 172), whereby semantic prosodies may be supported by metaphorical constructs which serve to reinforce the message conveyed. As he notes: one even finds that the assistance of a metaphor can be enlisted both to prepare us for the advent of a semantic prosody and to maintain its intensity once it has appeared. The following extract illustrates one example of the prosecution time bomb metaphor: the fuse is getting shorter, the fuse is getting shorter, and there is about to be an explosion … he is about to lose control like he did on those earlier occasions. And sure he didn’t kill her on those earlier occasions in October of ’93 or in 1989. But that was then and back then the fuse was a lot longer. But now the fuse is way short and it is awfully short. (Prosecution closing argument, 27 September 1995) The extensive (and equally strategic) use of metaphor, such as that of Simpson as a time bomb, was a defining characteristic of both the prosecution and defence closing arguments, and will be dealt with in further detail in chapter 7. The issue of control – gaining it and maintaining it over Nicole, and, as Darden suggests above, ultimately losing it himself – was the principal depiction of the Simpson marriage in the prosecution opening, in terms of both its frequency of use and the significance attached to it. Their claim was that the domestic violence that Nicole suffered as a result of her ‘encounters’ with Simpson was motivated by his desire to


control his wife, and that it was this need to control which ultimately led to her murder. Just as encounter can be seen to demonstrate a tendency towards a strongly negative semantic prosody, so the notion of control appears to have a similarly pronounced negative profile. This will now be explored and exemplified using evidence from the corpus. Controlling Nicole Brown Simpson The theme of control recurs repeatedly in the prosecution opening statement, the word control itself occurring no fewer than 66 times, in both nominalised and verbal forms. Simpson is depicted as having controlled his wife in a number of different ways, including the following: • O.J. Simpson prevented his wife from having a job outside the home, and thereby from having any measure of financial/personal independence; • He used his wealth to gain power over her by giving her money and gifts; • He interfered with her relationships and friendships, choosing her friends for her; • Simpson stalked his ex-wife after their separation and later divorce. • He was obsessively jealous of her subsequent relationships with other men. (adapted from Gaines 1999) The following pair of extracts show representative samples from the prosecution opening which demonstrate both the extent and context of use of the word control: 1 2 3 4 5 6 7 8

And as the years went on and as they continued to date and as he gained more and more control over her, the more control he gained, the more abusive he became. As you listen to the evidence in this case, you’re going to be hearing evidence regarding domestic abuse, domestic violence, stalking, intimidation, physical abuse, wife beating, public humiliation. As you listen to the trial and you hear this evidence and see this evidence, please keep in mind that all of these different kinds of abuse were all different methods to control her. (Prosecution opening statement, 24 January 1995)

1 He killed her because he couldn’t have her; and if he couldn’t have 2 her, he didn’t want anybody else to have her. He killed her to control


3 4 5 6

her. Control is a continuing thing. It was a continuing thing, the central focus of their entire relationship, by killing Nicole, this defendant assumed total control over her. By killing her, he committed the ultimate act of control. (Prosecution opening statement, 24 January 1995)

The word control was systematically used by the prosecution to construct an image of Simpson as a man who was obsessed by an overwhelming desire to control his wife, to such an extent that he was prepared to murder her in order to prevent her from having a life of her own once they were divorced. The semantic profile of ‘control’ – the corpus evidence An analysis of the collocational profile of the verb to control in the corpus reveals a number of characteristics of significance to the present discussion. Two aspects are of particular relevance: first, the typical agent of control, and second, what or who commonly represents the object of control. These will be dealt with in turn. Evidence from the corpus suggests that the kinds of people who typically control tend to be authority figures, often representatives of official bodies of some kind, for example the police, army or government. Thus, their warrant to control is legitimated to a great extent by their official position and societal status. The following examples from the corpus illustrate this tendency: government is failing

to control

its police in the gold

Mr Arafat’s ability

to control

the PLO’s unruly

Police trying

to control

the violence

forces were attempting

to control

the situation

Labour government would aim

to control

industrial dumping

new powers for UN observers

to control

Iraq’s arms capability.

If we now turn our attention to corpus evidence of what or who is typically controlled, it becomes clear that the majority of objects of control are generally held to be things that represent a danger or a negative influence of some kind. Some corpus examples of the lexical fields which these phenomena fall into include:

The Opening Statements 73 Warfare/weaponry aircraft to overfly Iraq.

To control

chemical weapons, Iraq

recommend measures

to control

terrorist activities

talks on how

to control

arms sales. Together,the

Economic problems to simultaneously

control

inflation and produce enough

for everyone else.

To control

costs, Bill Clinton

our attempts

to control

spending on state pensions.

Medical problems a new programme

to control

the outbreak of cholera in

foreign help

to control

the spread of disease among

It appears, then, that control is legitimised if two criteria are satisfied: 1) that the controller has some degree of official, externally validated sanction to take on this role; and 2) that this control is associated with events and conditions that are generally perceived to be negative and/or dangerous, and as such need be controlled for the greater good. Neither of these conditions is adequately fulfilled in the Simpson context. The sanction for husbands to control their wives traditionally accorded by Christian marriage vows no longer applies in contemporary western society; certainly in California, where the Simpson case took place, the ‘love, honour and obey’ clause has largely been replaced by a range of more egalitarian alternatives. In conceptualising Simpson as a controller of his wife, the prosecution presented Simpson’s behaviour as entirely unjustified and unreasonable, constructing Simpson as an obsessive man excessively concerned with discipline and authority. One further group of collocates which emerged from the corpus search of the verb control demonstrates another context where control seems entirely justifiable. It seems that controlling oneself in a variety of ways is a laudable, if challenging, undertaking. This group of collocates deals with the controlling of various emotional states and conditions:

74 Language and Power in Court Emotions for you to control your impulses when you feel angry large. Struggling to control my emotion, I asked him of Sally’s mother to control an addiction needed to be John was struggling to control his temper

This small sub-group reveals an interesting glimpse of a potentially significant gender difference in the type of collocates associated with self-control. The first and second lines, considered in their broader textual contexts, deal with female control, and the fourth, which deals with a male control issue, seems to highlight a potential gender difference in the connotations attached to the concept. If the perception here of women controlling their emotions and men controlling their tempers is more generalised, then this seems an appropriate conceptualisation for the prosecutors in the Simpson case, who attempted to portray Nicole Brown Simpson as the emotionally vulnerable wife and O.J. Simpson as the violent and abusive husband who finally, in prosecutor Darden’s words, ‘loses control’ of himself. A more in-depth search of the corpus reveals some interesting gender differences in precisely which aspects of themselves men and women seek to control. These differences will now be explored and exemplified. Gender differences in the corpus evidence For the string ‘control’ + ‘her’, the corpus returns 36 examples, of which a representative selection of 12 lines is presented below: weak and powerless, unable

to control

her life but

from taking the drugs needed

to control

her condition.

Danielle, 12, struggled

to control

her emotions.

Laura could barely

control

her excitement.

Nurse who could not

control

her outrage, even

of Michelle as she struggled

to control

her ragged emotions.

preoccupied with trying

to control

her weight, while

The Opening Statements 75 very likely be unable

to control

her spending; once

currently taking medication

to control

her mood swings and

her life, she had vowed

to control

her illness

of her mother’s inability

to control

her alcoholism.

pills and although unable

to control

her feelings, Edina

The female-oriented control seems to cover a range of topics, from emotional difficulties to mental illness, gambling and alcohol addiction, and diseases of various kinds. If this list is contrasted with the male-oriented control, a very different set of references applies: can’t win at blackjack, can’t

control

his temper and now

Drago said struggling

to control

his rising temper.

was hardly able

to control

his rage.

taut from his effort

to control

his fury, he leapt

her dad Vic. Unable

to control

his anger, Vic

got to stop. He must

control

his aggression and

He is a man who can

control

his temperament

be in a position

to control

his impulsive nature

Struggling

to control

his machine he

on because he can’t

control

his drinking

De Voss could not

control

his actions.

was that he could

control

his frustration

A corpus search of the string ‘control’ + ‘over’ + ‘her’, which accounted for 18 instances of control in the prosecution opening, returned only three lines which dealt with individuals (male) controlling other individuals (female). Nevertheless, the context of use of these occurrences is noteworthy; one of the three represented the asymmetry of the parent–child relationship, with the remaining two examples referring to contexts of domestic abuse:

76 Language and Power in Court in the end, after I started having therapy, I realized it was actually all to do with me. The one thing I had never bargained on was that my girlfriend would report me. I actually thought I had control over her. But one night we had a row, I laid into her and she ran to her sister’s. His mother became an alcoholic. Ashby, her youngest son, and his brother Clive, found it difficult to forgive her for her weakness in the face of a boorish husband who demanded complete control over her.

The sole occurrence of ‘control’ + ‘over’ + ‘him’ was a generic-he reference to the potential dangers of controlling a child’s development: as soon as one exerts control over him, his natural growth will be violently interrupted.

The corpus evidence for control seems to present a highly stereotypical, gender-differentiated picture for men and women, an image that was also conveyed in the Simpson trial. Women are represented as emotional and vulnerable, attempting (and struggling) to keep control of their feelings and the affective side of their lives. For the women, the majority of collocates also seem to refer to relatively internalised emotions and situations; in contrast the male representation is one of aggression and outwardly-oriented violence. In the context of the Simpson marriage, this represents a very similar construction of their relationship from the prosecution standpoint. Nicole Brown Simpson was presented as a dependent and over-emotional woman (although this, of course, in no way renders her deserving of physical violence); O.J. Simpson, by contrast, was portrayed as a belligerent man whose desire to control his wife was so great that it progressed over a five-year period from arguments to violence and ultimately to her murder. The idea of progressive violence was central to the prosecution case. They conceptualised the domestic violence as a chain of events where the level of violence increased steadily, until it reached a climax on the night of the murders. The construct chosen by the prosecution to refer to this process was a cycle of violence. ‘A cycle of violence’ A corpus analysis of this string and its semantic profile indicates that it may have been a highly appropriate choice of representation for the prosecution. The phrase appears to have two dominant characteristics,


based on the corpus evidence. The phrase cycle of seems to collocate strongly with negative events and situations, and in addition, cycles, and particularly cycles of violence, have a defining characteristic in that they tend to increase in severity over a long period of time. Both these characteristics represented the Simpson situation, from the prosecution’s perspective. Each of these aspects will be exemplified in turn. From an analysis of the string ‘cycle + of’, the corpus seems to confirm the negative prosody of ‘cycles’: could mean a

cycle of

confrontation and

break free from this

cycle of

repression and violent

east has seen a gruesome

cycle of

revenge killings since

to break out of the

cycle of

poverty. Naturally,the

aimed at ending the

cycle of

violence and tension

have raised fears of a

cycle of

tit-for-tat racial

led to a seemingly unending

cycle of

budget cuts and tax

merely perpetuate the

cycle of

hatred and retribution,

This would create another

cycle of

problems for teachers.

culminating in a vicious

cycle of

addiction. Larger and

locked into a lifelong

cycle of

crime and punishment.

homeless families to a

cycle of

deprivation which in

Cycles of violence are also protracted and increasing in brutality: decades-long

cycle of violence.

Colombia’s new

were in a repeating

cycle of violence,

where the

an escalating

cycle of violence.

For National

halt the worsening

cycle of violence.

Alone, Lebanon

In the prosecution opening, both aspects of the cycle of violence were highlighted in the context of Simpson’s escalating abuse of his wife. Prosecutor Darden began by alluding to the escalation of the violence in a quantitative sense. He uses the verb punctuate (lines 1–2) to evoke


the fact that Simpson’s attacks on his wife grew not only more frequent but also more violent: 1 And the marriage was a stormy marriage and it was a marriage punc2 tuated by acts of violence and that violence would always be followed 3 by an apology. He would apologise, give her jewellery, buy her 4 flowers. He would promise to do better, promise, promise to main5 tain control of himself and he would promise not to do it again. And 6 then those acts of violence would be followed by additional acts of 7 violence, and it became a cycle; violence, apologies, a period of quiet 8 and calm, then violence and apologies, quiet and calm, violence, 9 apologies, quiet, calm, a cycle of violence that characterised their 10 relationship. (Prosecution opening statement, 24 January 1995) 1 2 3 4

What we are suggesting, and the evidence will show, that there was a cycle of violence, a cycle of violence and the dominant theme in their relationship and in that cycle and the ultimate objective was always control, control. (Prosecution opening statement, 24 January 1995)

This is a construct revisited in the prosecution closing argument, again related to Darden’s use of the time bomb metaphor, representing Simpson’s temper as a slow-burning fuse: 1 2 3 4 5 6 7 8 9 10 11 12

This relationship between this man and Nicole, you know, it is like the time bomb ticking away. Just a matter of time, just a matter of time before something really bad happened … You know, you meet people in life and there are people with short fuses. You know, they just go off. And there are others with longer fuses, you know, takes them a little while longer to go off. And relationships are the same way sometimes, you know, especially a violent abusive relationship like this one. This thing was like a fuse, a bomb with a long fuse … that fuse is burning in 1985 … The fuse is lit. It’s burning, but it’s a slow burn. We next go to 1989 … we have to go back in the past to see how we got to where we are today because when you do, you see a pattern developing here. (Prosecution closing argument, 26 September 1995)

In this context, Simpson murdering his wife in a jealous rage is presented as an entirely logical progression of events in the cycle of violence:


1 2 3 4 5 6 7 8 9

As you listen to the evidence, you will see that his decision to kill finally was merely a final link in a progressive chain of abusive and controlling conduct, and it was a chain that consisted of fear and intimidation and battery and emotional and mental abuse and economic abuse and control and stalking. And you’ll see that there was a common scheme and common plan in all of this, and that was to control, to control her. It was all designed just to control her. And in controlling her, it was the private man, private O.J. Simpson, it was the defendant who committed that final ultimate act of control. (Prosecution opening statement, 24 January 1995)

The issue of escalation was to become of great significance in the subsequent evidential stage of the trial, as the prosecution attempted to establish a motive for the killings. An expert on domestic violence was called to testify that, along with some obvious situational trigger for the homicide, the essential criterion in cases where an abusive spouse eventually kills is ‘a pattern of escalating violence’. The significance (and the cleverness) of portraying the events as cyclical in nature is reinforced by the prevalence of a ‘cyclical theory of battering’ (Walker 1979) in the literature on domestic violence. Greene et al. (1985: 207) explain that there is a ‘three-phase cycle typical of many battering relationships … the incidents increase in number and severity’. By portraying the events leading up to Nicole Brown Simpson’s murder in this way, the prosecution’s intention was to convince the jury that her killing was the natural conclusion, even an inevitability, in the progression of violence.

The case for the defence The defence’s response to the prosecution’s opening statement was vigorous and consisted of a systematic rebuttal of each of the prosecution’s contentions. In particular, the defence were faced with a problem in trying to explain away the issue of Simpson’s alleged attacks on his wife, and the representation of them as an escalating cycle. As we have seen, on a number of occasions Nicole had called the police to report domestic abuse by her husband, including the two 911 calls to the emergency services. The prosecution evidence did seem to support the two central criteria of a ‘cycle of violence’ – first, that there had been repeated acts of violence, and second, that the nature of these attacks had grown steadily more serious over the years, culminating in Nicole’s murder.


The defence needed to establish a credible counter-claim such that the cycle of violence was in fact: (a) not a ‘cycle’, and (b) the ‘violence’ was verbal rather than physical. They attempted to do this through the use of a series of carefully selected lexical choices of their own. An analysis of these terms will make up the remainder of this chapter. Unrelated incidents One of the ways in which the defence attempted to subvert the idea of Simpson as a serial wife-beater was by conceptualising the alleged assaults against Nicole Brown Simpson as incidents. This representation aimed to de-emphasise the systematic nature of the abuse and thereby reduce the damage to Simpson’s credibility, since it (presumably) represented a ‘better’ image to be presented as a husband who occasionally loses control and beats his wife impulsively, than to be seen as one who repeatedly assaults her compulsively. An example of this phenomenon is illustrated next: 1 2 3 4 5 6 7 8 9 10 11 12 13 14

Two incidents they talked about, the one incident involving the man Joe Stellini was at Mezzaluna and the other incident was a restaurant called Tryst and in both incidents there was no problem, no fight … Mr Simpson went home with his wife that night, so that this was not any incident where they were stalking or fighting, anything like that. There was no obsessive behaviour. I hope to put those in some kind of perspective. Mr Darden talked in his opening argument about the April 1985 incident in which some damage was done to a vehicle, and as I understand it, the testimony will be that there was not any incident in 1985 because Miss Nicole was pregnant, had a c-section later in that year and they didn’t have any situation like that. They did have some discussion apparently maybe in ’86 or ’84, some damage done to a car and she was not in that car. She was not struck on that occasion, so I think you will find that incident of not great consequence. (Defence opening statement, 25 January 1995)

In the next extract, the insignificance of the incidents is further mitigated by the use of the verb get along, which minimises the severity of the problem and, through the use of the habitual present, underlines the ubiquity of divorce:


1 2 3 4

They may try to bring out incidents about this marriage, and these people did divorce in 1992, and unfortunately in our society there are far too many divorces. People don’t always get along and we sometimes get divorced. (Defence opening statement, 25 January 1995)

The corpus evidence for the relative neutrality of incident supports this formulation, in so far as more generalised usage of the term seems to emphasise the random rather than the systematic nature of events. This is demonstrated by the collocate list in Table 11 and by the selected examples below, which include a number of allusions to the idea of ‘unrelatedness’. The Mutual Information (MI) score provided gives a sense of the strength of collocation in each instance; the higher the MI score, the more likely a particular word is to occur with the node word. Thus, in the following list, the most common word in the corpus which co-occurs with ‘incident’ is the collocate ‘unrelated. With the possible exception of the word spate in Table 11, the corpus evidence appears to suggest that the use of the term incident to describe the domestic abuse in the Simpson marriage may have been highly appropriate for the defence, as it collocates strongly with a series of words which convey singularity and randomness. The following set of examples illustrates this tendency: Table 11

Collocate list for incident

Collocate

Frequency

MI score

Unrelated Submarines Isolated Srinagar Arson Spate Involving Violent Racial Separate Investigate Occurred Minor Unpleasant Terrorist

7 5 20 3 3 4 27 27 20 27 7 12 12 4 6

8.276571 7.808070 7.261989 7.252760 7.149991 7.099048 6.848210 6.677456 6.642780 5.900674 5.861293 5.758393 5.693696 5.687138 5.635717

Note: All the collocates presented here have been studied in a span of four words to the left and right of the node word.


The defence attempt to suggest that these incidents were of a nonviolent nature seems less satisfying, however; despite the presence of It was a series of

unrelated incidents

and falls and it

as a result of one

isolated incident

the attack on

first incident

of its kind,

shot down today in two

separate incidents

over the Persian

the Mentally Ill, said

sporadic incidents

of criminal

what’s said to be the

the collocate minor in the list above, a number of collocates (including violent, unpleasant and terrorist) suggest a high level of violence rather than serving to minimise connotations of aggression. Thus, the corpus evidence on incident presents a somewhat mixed picture. To support the idea that Simpson’s violence towards his wife consisted of a series of unconnected incidents, the defence opening statement also used an interesting grammatical strategy to detach Simpson from responsibility for the events reported. This involved the removal of agency from a number of references to the attacks with the aim of de-emphasising Simpson’s role. This is also perhaps a side-effect of the use of incidents to describe them, since (as can be seen in the collocate list above), incidents collocate with the intransitive verb occur reasonably frequently. In the defence opening, there are numerous examples of this type of unattributed event, either through the use of intransitive verbs or through passivisation, as in the following extracts: He [Darden] told you how, for instance, that this was like a terrible marriage and that all kinds of bad things happened. Apparently maybe in ’86 or in ’84, some damage was done to a car and she was not in that car. She was not struck on that occasion, so I think you will find that incident of not great consequence. Let me say up front that Mr. Simpson is not proud at all of the fact that he and his wife got into an altercation and she was struck on January 1st 1989. (All extracts from defence opening statement, 25 January 1995)


By employing these types of passive constructions (see Ehrlich 2001, 2002 for analysis of similar non-agentive attribution by rape defendants) Cochran attempts to minimise Simpson’s involvement in the violence. This final extract from the defence opening also contains an example of the third strategy employed by the defence in minimising the semantic force of the prosecution opening. By using the word altercation, defence attorney Cochran was attempting to recast the domestic violence as occurring at a verbal rather than a physical level. Relexicalisation: from physical to verbal exchanges A further example of altercation illustrates Cochran’s attempts to separate the two concepts in the minds of the jury: 1 You understand that the fact that someone has an altercation with 2 one’s wife in 1989 is not capable of being predicted whether that 3 person would kill her or be involved in any other fights or whatever. (Defence opening statement, 30 January 1995) The theme of verbal debate rather than physical violence characterising the Simpson marriage was developed by Cochran through the use of a series of verbal process nominalisations – dispute, discussion and conversation, respectively; this first extract shows a typical use of the word discussion by the defence: 1 2 3 4 5

And I think the important thing about a trial is that finally you are going to get to hear all of this tape and what you are going to hear, Mr. Darden didn’t tell you this yesterday, is that there was a discussion on this 911 tape and he alluded to the fact that Mr. Simpson couldn’t get out of his mind what he had seen back in April 1992. (Defence opening statement, 25 January 1995)

The discussion which Cochran makes reference to includes exchanges such as the following which occurred during Nicole’s second 911 call of 1993. Here, as Nicole Brown Simpson is on the phone to the emergency call centre, O.J. Simpson can be clearly heard shouting in the background: 1 Simpson: I don’t give a [expletive] anymore.... That wife of his, she took so much for this mother [expletive] [inaudible] 2 Would you just please, O.J., O.J., O.J., O.J., could you 3 Nicole: please [inaudible] please leave. 4


5 Simpson: I’m leaving with my two [expletive] fists is when I’m 6 leaving. You ain’t got to worry about me any more. A second extract from the defence opening statement illustrates the way in which the defence used the terms dispute and conversation to portray what took place between the couple: 1 2 3 4 5 6 7 8 9

And there was a dispute because when Miss Brown Simpson would ever see Paula Barbieri’s picture, she was very upset about that, and Mr. Simpson, on this date, I believe, saw a picture of somebody that she had dated during the time they had been separated and he said, gee, what is fair for me will be fair to you and they got into this conversation that went over a period of time. At some point there was just a verbal conversation, it escalated, and tempers flare and that sometimes happens with married couples. That doesn’t make it right but sometimes it happens. (Defence opening statement, 25 January 1995)

In this extract, what precisely is involved in the ‘escalation’ of the conversation and the ‘flaring’ of tempers is never explicitly outlined for the jury, and the presumed violence which ensued is further mitigated by the dismissive intransitive verb happen. As Sinclair (1991) has noted, however, this verbal choice is frequently indicative of negative events and outcomes. All these terms – dispute, discussion and conversation – express verbal events. However, a comparative corpus analysis of the context of use of the three reveals some interesting differences between them. I will explore these differences in turn, beginning with dispute. Referring to the events of that evening as a dispute seems to have been an ill-judged depiction for the defence to choose on the basis of collocational prosodic information from the corpus. The top half of the collocate list, as indicated in Table 12, shows that disputes are Table 12

Collocate list for dispute

Collocate

Frequency

MI score

Demarcation Longstanding Territorial Bitter Domestic Damaging

3 3 9 19 14 3

10.830622 10.313171 9.380506 8.296938 7.216790 6.889786


strongly collocated with domestic and that these disputes are typically ongoing and detrimental in nature. Potentially more damaging still to the defence depiction of the Simpsons’ marital problems is the tendency for domestic disputes to be associated with violence and police involvement. If the defence’s aim was to defuse connotations of this type in the minds of the jury, referring to events as domestic disputes, as Cochran did on several occasions, does not appear to be a particularly wise strategy, as Table 13 shows (on p. 86). A few indicative concordance lines from the corpus for domestic dispute further illustrate the defence’s problem:

Held hostage following a

domestic dispute

THE SUN

Crime. He was slain in a

domestic dispute

They’ve charged

Below the heart during a

domestic dispute

at Greenbank,

BOONDALL man involved in a

domestic dispute

threatened police

a man was stabbed in a

domestic dispute

at Brighton

Officers who’d gone to a

domestic dispute

This guy was drunk

for the assault describe a

domestic dispute

call earlier

The second term of reference used by the defence – discussion – seems to belong more consistently to the realm of verbal and nonviolent interaction. The collocate list for discussion emphasises talk on an intellectual and professional level and generally has a positive prosody – in other words ‘it’s good to talk’. The following selected lines illustrate this orientation; perhaps due to the predominance of journalistic texts in the corpus, many of the concordance lines relate to the political arena:

arms cuts, now under

discussion

in Vienna. The

contributing to a wider

discussion

on how monetary union

said there’d be further

discussion

to try and agree on

decision, a community

discussion

on what to do


Collocate list for domestic dispute

Collocate A police this victim called in they that greenbank slain hunted tyne hostage stabbed widow brighton referred drunk assault involving describe threatened charged

The collocate list for discussion also seems to underline the positive semantic prosody associated with a discussion. The only real exception to this tendency is the collocate heated which, in spite of its potential allusions to aggression, remains at the level of verbal rather than physical interaction, referring in the corpus to predominantly political and business contexts, as in these examples: an hour locked in a

heated discussion

with backbenchers.

Once, during a

heated discussion

with Moore over

Of the three terms, however, conversation is perhaps the most positive in terms of its semantic prosody, with a preponderance of collocates expressing socially oriented discourse with no element of threat or violence. The overwhelming majority of the evaluative adjectival collocates – even with a possible euphemistic interpretation of animated – imply a positive prosody, as the collocates picture in Table 15 (p. 88) shows.

The Opening Statements 87 Table 14

Collocate list for discussion

Collocate roundtable extraterrestrial negotiation hmso topic heated initiate informal consultation philosophical preceding lengthy buffet forum tutors rational extracts lively timely engaging teddie dis stimulating

The following representative concordance lines illustrate this picture: in apparently relaxed

conversation

with news presenters

engaged in animated

conversation

and I faded into

it was a pleasant

conversation

I recall. He told

I’d been enjoying our

conversation

so much that I’d

Despite a number of lines, which indicate criticism of conversations deemed to be ‘unintelligent’, there is no suggestion in the corpus that conversations involve any degree of violence or aggression. For the defence, therefore, it perhaps constitutes the most appropriate of the three possible representations of events in the Simpson household. With the exception of dispute, the profiles of discussion and conversation, in terms of their respective semantic prosodies, appear to support


Collocate ‘picture’ of conversation

snatches transcript enjoys engage engaged struck tone listening constant recording strike tape version details having result join trouble middle end

overhear snatches topic steered directing thread resumed sustain engage topics excerpt unintellig enjoys recalled engaged entering enjoying deep loud cinema

taped animated meaningful stimulating lengthy earnest intimate polite casual sample intelligent background pleasant telephone everyday phone friendly private criminal innocent

NODE NODE NODE NODE NODE NODE NODE NODE NODE NODE NODE NODE NODE NODE NODE NODE NODE NODE NODE NODE

piece turns between unintelli alleged pieces starts with model continued turned took among soon about along became without finally led

peppered bengali recorded encouraged impossible someone suddenly appeared somebody music mdnm place french isn seems mx himself turned friends paul

Follows Bus princes friend bar phone include woman husband remembe earlier having girl became main hour couldn gone 25 young

the view that these were highly intelligent choices for the defence to have made in their attempts to relexicalise the Simpson marriage as a non-violent one.

From representation to interpretation: the view from the jury room Any trial jury faces a difficult task; in the unfamiliar setting of the courtroom, both individually and collectively, jurors must sift through evidence and argument in an attempt to determine the innocence or guilt of the defendant. In such an unfamiliar environment, the value and impact of the opening statements may be considerable. The conceptual framework presented during the opening statements forms the foundation of the remainder of the trial, since it is in this context that the evidence presented subsequently is to be considered. The lexical choices made by lawyers in their opening statements are, therefore, potentially of great significance in orienting the jury in their consideration of the evidence. The jury in the Simpson case were presented with an additional, and unusual, problem, however, which was raised in chapter 1. They did not approach the trial as blank slates: not only did the majority of


jurors recognise Simpson; for a significant number he represented a positive role model. In this context, the challenge faced by the prosecution, therefore, was to deconstruct the prevailing image of Simpson as a rich, powerful and successful man, and to reconstruct him as a violent wife-beater and, ultimately, a murderer. On the second of these characterisations, the prosecution clearly failed, since the jury acquitted Simpson of all charges and in record time. On the issue of domestic violence, however, the prosecution seem to have had more success in persuading the jury, although they would undoubtedly have traded this in return for a guilty verdict on the homicide charges. Cooley et al. (1995), a book co-authored by several members of the Simpson jury, provides a tantalising glimpse of the jurors’ thought processes with respect to Simpson and the issue of domestic violence. It is perhaps appropriate that the final words of this chapter, as in the trial, should go to the jurors, as a telling indication of the magnitude of the problem faced by the prosecution in deconstructing and re-presenting their famous defendant: Everybody had a certain perception of O.J., at least I did prior to the trial … I knew nothing about his personal life and I was surprised to know that he had been in a marriage that was abusive. (Male, 46 years, African American) I wasn’t shocked with the accusations. I believe that O.J. and Nicole had a very violent relationship and I didn’t find it shocking or surprising at all. I kind of felt that that was their relationship before this case. (Female, 38 years, African American) O.J. had always been a hero of mine since just before the Rose Bowl game. I didn’t like it when he ran back that … kick-off for a touchdown against Ohio State, but outside of that, he’s always been a hero of mine. I just don’t think his persona viewed on TV and on advertisements doesn’t – you just don’t perceive him as being a violent person or a spouse abuser. (Male, 53 years, White/Native American) This chapter has demonstrated some of the linguistic ways in which prosecution and defence lawyers are able to exploit their respective


opening statements in order to orient the jury towards their side’s version of the trial narrative. Chapter 4 will deal with the subsequent phase in the adversarial trial process – witness examination and crossexamination. I will begin with an analysis of the interactional dynamics of the courtroom, focusing on the various roles and relationships in the jury trial, and their influence on the type of talk produced. In particular, I will address the way in which all talk is designed for a multi-party audience, but above all for the jury.

4 Interaction in The Criminal Trial: Participants and Processes, Roles and Relationships

The criminal trial as an interactional setting The dynamics of courtroom interaction are characterised by the roles adopted by the participants, which are both predetermined and rulegoverned. This fact, coupled with the highly purposive nature of courtroom talk, means that many of the properties of this specialised communicative setting are determined by the hierarchies and power relations in the courtroom context. Interaction in the adversarial criminal courtroom differs in a number of significant respects from its casual conversational counterpart. In addition, trial talk demonstrates both similarities and differences in its dynamic properties in comparison with other, similarly power-asymmetric institutional environments, including the classroom, the workplace and the doctor’s surgery. In this chapter I will explore the following issues: • What types of talk typically occur in the adversarial trial by jury at each stage of the trial process, and who are the participants involved at each of these stages? • How does the institutionalised and hierarchically structured environment of the courtroom influence talk by participants? • In what respects is interaction in court similar to and different from a) casual conversation, and b) interaction in other power-asymmetric, institutional settings? • Finally, and most significantly, how does the presence of the jury – the trial’s ‘silent participant’ – influence the type of talk produced by judges, lawyers and witnesses?

91


Courtroom discourse as power-asymmetric institutional talk From a discourse as well as a legal perspective, the courtroom is a highly role- and rule-governed environment. Not only are the various participants bound by laws and protocols which govern their physical behaviour and demeanour, but there are also clearly defined controls on their language. These linguistic constraints include factors such as the quantity of talk allocated to each participant; in other words, the relative distribution of talk between the judge, lawyers and witnesses, and also the nature of that talk, including interaction, turn initiation and the differential use of declaratives, interrogatives and imperative forms in court. The lines of asymmetry in the courtroom are largely drawn up along a professional–lay cline. Chapter 6 will examine some of the tensions created by this dimension, exploring the complex relationship between expert witnesses, lawyers and jurors. For the trial professionals, the lawyers and judge, the courtroom is a place of work where the seemingly archaic rules and protocols are entirely familiar, whereas the witnesses and jurors, the lay participants in the process, are typically unaccustomed to such an environment and are at a disadvantage, both legally and linguistically. For them, the judicial process can be a bewildering and threatening affair, where the casual conversational rights of generally equal access and free negotiation of turns and turn types are suspended, to be replaced by a hierarchical system of interaction, where control and constraint are the norm. Thus, in the trial-by-jury system, the familiar features of conversational management are, as Matoesian (1993: 79) notes, ‘systematically transformed and exploited to manage the powerful interests and interactional contingencies of legal disciplinary regimes’. Whilst casual conversational talk is managed relatively spontaneously with turn-taking negotiated at a local level, in the courtroom, many of these norms are predetermined, with pre-allocation of turns and turn-types the rule rather than the exception. (See Atkinson and Drew 1979, for a detailed description of the turn-taking system in court.) The expression of institutional hierarchies through control over interaction is embodied in the roles and participant configurations to be found at various stages in the criminal trial. The next section will explore the different types of interaction which occur during each phase of the trial, illustrated with examples from the Simpson data at each point.

Interaction in the Criminal Trial 93

Trial talk: the preliminary, evidential and judicial phases In approaching an analysis of interaction in the courtroom, it is important to consider trial talk not as a homogeneous single entity, but rather as a highly structured and stratified legal process, each stage of which has a clearly defined legal purpose. Each of these phases also has distinctive interactional characteristics determined by the roles played by its participants. The phases of the criminal trial are summarised in the left-hand column of Figure 3; the right-hand column represents the participants involved at each stage, with an indication of the directionality of interaction; a single arrow therefore signals instances of monologic talk, whilst a double-headed arrow indicates dialogic interaction. The trial process is divided into three major stages, as illustrated in the left hand column of Figure 3: the preliminary phase, involving jury selection questionnaires and voir dire interviews; the evidential phase, consisting of the examination and cross-examination of witnesses, framed by the opening and closing arguments; and finally, the judicial phase, where the judge and jury take centre stage, in the adjudicatory portion of the trial, including the delivery of jury instructions and the deliberation process, followed by the verdict and the sentencing or release of the defendant. Each of the key participants (judge, jurors, lawyers and witnesses – including the defendant) is bound by normative standards and protocols which predetermine the language produced at each stage of the trial. One of the primary roles of the judge is to enforce these rules and maintain ‘order in court’. I will therefore begin this discussion with an analysis of the role of the judge as manager of courtroom interaction through the various trial stages.

Judge talk: keeping order in court The judge plays a dual role in the trial process: first, as representative of the Law; second, and more significantly from the point of view of interactional dynamics, as controller and moderator of the talk produced by all the other participants. The judge has the greatest degree of linguistic freedom, commensurate with his status, in terms of his own turns as well as his control over those of the other interactants in court. The judge is responsible for managing the day-to-day running of the trial and has the freedom to address all members of the courtroom cast; from lawyers and witnesses to the jury, press corps and public gallery, the judge has the right not only to address any of those present in court, but also to restrict the turns of these participants.


TRIAL PHASE

PARTICIPANTS AND INTERACTIONAL DYNAMICS

(1) PRELIMINARY PHASE Judge Lawyers

Jury Pool Jury Pool

OPENING STATEMENTS

Lawyers

Jury

WITNESS EXAMINATION

Lawyers

Witnesses

CLOSING ARGUMENTS

Lawyers

Jury

JURY SELECTION

(2) EVIDENTIAL PHASE

(3) JUDICIAL PHASE JURY INSTRUCTIONS & SUMMING UP

JURY DELIBERATION

VERDICT

SENTENCING/RELEASE

Key: Figure 3

Monologic address

Judge

Jury

Juror

Juror

Jury Foreperson

Judge

Judge

Defendant

Dialogic interaction

Processes and participants in the criminal trial

Judicial monologue: jury instructions and rulings For much of the trial, the judge takes on a fairly passive, supervisory role; much of his power lies in his ability to intervene as and when required. The judge’s verbal involvement in the trial is predominantly


a monologic one; he is responsible for a variety of types of address, primarily in providing instructions to the jury at the beginning and end of the trial, as well as rulings on motions from lawyers. Following the verdict, the judge is also required to produce a further powerfully performative monologue, either liberating the defendant (if found not guilty) or, in the case of a guilty verdict, pronouncing the sentence and any concomitant recommendations regarding the appropriate period of incarceration. Judicial dialogue: objections and sidebar sequences When dialogue involving the judge does occur, it is typically in response to an overt request for an audience made by one or more of the lawyers. Objection sequences, where one side protests about some aspect of the other side’s line of questioning or application of the law (there are twelve types of objection permitted under California law), were frequent interruptions in the Simpson trial, with more than 16,000 occurring during the nine-month trial. Objection Sequences: ‘Your Honor, I object’ Objections are usually resolved without the need to suspend trial proceedings, as in the following instance, where the dispute is cleared up with a straightforward insert sequence. This may be in either a two-part sequence (as with the two examples in the first extract) or a three-part sequence, including a redirection to the lawyer (in the second extract): Two-stage objection sequence 1 2 3 4 5 6 7 8 9 10 11

Q

And Miss Mazzola was under the impression that you had left the Rockingham scene earlier than 5:20, wasn’t she? → Mr Goldberg: Calls for speculation. → The Court: Sustained. Q Do you know if Miss Mazzola was under the impression in June that the two of you had left Rockingham before 5:20? → Mr Goldberg: Calls for hearsay. → The Court: Overruled. The Witness: I don’t know when she thought we left Rockingham. (Witness cross-examination, 13 April 1995)

Three-stage objection sequence 1 2

Q

Now, Doctor, did you find, in your review of materials on June 22, 1994 with Dr Baden, that there


3 4 5 → Mr Shapiro: 6 7 → The Court: 8 → The Court: Mr Kelberg: 9 Q 10 11 12

had been a mistake made by Dr Golden with respect to that entry of ‘no injuries’? I’m going to object as leading and assumes a fact not in evidence; misstates the true facts. Sustained. Rephrase the question. Sure. Doctor, on June 22, 1994, did you examine any of the tissue preserved by Dr Golden from the autopsy of Nicole Brown Simpson? (Witness cross-examination, 6 June 1995)

Sometimes the debate continues after the judge’s ruling on the objection, prompting exchanges such as the following: 1 2 3 4 5 6 7 8 9

Judge Ito: Mr Cochran: Mr Darden: Mr Cochran: Mr Darden: Judge Ito:

I will sustain the objection. Wait a minute, judge. The Court has ruled. I hadn’t been heard. Both of you guys talked and that is not fair. You are not – We are accusing you of whining. Hold on. Hold on. Counsel, counsel, ‘hold on’ means stop. (Witness cross-examination, 22 February 1995)

As a last resort, on those occasions when the judge was unable to control the disputes, he was able to impose financial penalties on the lawyers, as in this example of a contempt fine: 1 2 3 4 5 6 7 8

Judge Ito:

You know, wait a minute. I’ve about had enough of this between the two of you. Mr Darden: He started it, your Honor. Judge Ito: You are both baiting each other. You both violated the Court’s order. 250 bucks both of you today. Mr Darden: I am very short today, your Honor. Judge Ito: All right. I’ve had enough of this. Mr Cochran: Thank you, your Honor. (Witness cross-examination, 21 June 1995)

In all, the much-criticised Judge Ito imposed $3,000 of fines on the defence and $850 of penalties on the prosecution, in his attempts to maintain control over the interaction in court.


More complex or problematic matters which cannot be resolved in open court are often dealt with in a sidebar conference, which Walraven (1997), writing about the Simpson trial, refers to as ‘moments of heated legal arguments, mundane banter, humor, sarcasm, redundancy, confusion, verbal diarrhoea, and sometimes, sheer exhaustion’; more than 300 of these conferences occurred in the Simpson trial. Gaines (2002) explores many of these aspects in sidebar data taken from the O.J. Simpson trial. Sidebar conferences Malcolm (1996: 106) asserts that what takes place during these sotto voce sidebar conferences can be crucial to the outcome of the trial, since it is during these discussions that ‘the conflicting claims of narrative procedure – of stories crying out to be told and the law’s constraints on their telling – are argued and adjudicated’. In this context of trial-and-error advocacy, she claims, the jury need to be protected from disbelief, which may disillusion them in their duty. By relegating such discussions to a private place, out of earshot of the jurors, Malcolm (1996: 109) argues that the legal process ‘clearly denotes what is backstage and what is onstage … keeping the illusion-destroying activities of the backstage firmly hidden from view’. The need to keep such discussions from the ears of the jurors is underlined by Judge Ito’s frequent warnings to lawyers during sidebars to keep their voices down, as in the following extract: 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19

→ Judge Ito:

We’re at the sidebar. I want to caution counsel on both sides there’s too much talking going on by counsel over at the jury box on your end and you guys are over in the corner there talking to each other. I can hear you talking. And if I can hear you talking, the jurors can hear what your conversation is. You guys are too close to the jury box. If you want to talk with each other, consult, do it over at counsel table. Ms. Clark: All right. → Judge Ito: I don’t want any conversations while you’re over at the jury box. Counsel, if I have to warn you to keep your voice down one more time, it’s going to cost you 250 bucks. → Judge Ito: All right. We’re over at the sidebar. What’s your authority for being able to force an expert witness to make calculations that he doesn’t agree with? Mr Neufeld: It’s not a question of making calculations. I am allowed to ask him a question, and the question – → Judge Ito: Keep your voice down.


20 21 22 23 24 25 26 27 → 28

Mr Neufeld: The question I asked him is, can one calculate the frequencies of all possible contributors to this mixture. He said, ‘One can, but I disagree with it.’ That’s his answer on that. He also made it clear – Judge Ito: Keep your voice down. How much more are you going to do besides just this chart? Mr. Neufeld: I’m not doing the other – Judge Ito: Counsel, if I have to warn you to keep your voice down one more time, it’s going to cost you 250 bucks. (Sidebar conference, 23 June 1995)

After warning the lawyers that the jury can hear their private discussions about the witness (in lines 1–8), the judge interrupts the lawyer’s subsequent objection on two occasions in close succession, reminding him to ‘keep his voice down’ (lines 19 and 24, respectively). When the lawyer in question disregards the judge’s instruction, Ito loses his patience and threatens to fine the lawyer (in lines 27–8). In the Simpson case, sidebar conferences were often loud and unruly, leading Ito to rule, after one occasion when ten lawyers crowded the bench vying for the judge’s attention, that only one representative lawyer from each side would be allowed to participate in a sidebar conference in an attempt to control the disputes between the two sides: The Court:

I’m going to start a new rule. Starting tomorrow, you only get one lawyer up here. You guys just egg each other on and add to this. (Sidebar, 17 April 1995)

In addition to controlling the number of lawyers involved, a sidebar may also take place without the court reporter present if the matter is of a sensitive nature – the origin of the expression ‘off the record’. In extreme cases, the judge may even suspend the trial entirely and summon the lawyers concerned to a private discussion in his chambers. For the purposes of the present study, both ‘off the record’ and ‘in camera’ discussions were accessed via the official court records. A sidebar conference may be requested by a lawyer or by the judge. When the judge decides to hold a sidebar conference, the lawyers have little choice but to agree: 1 Q 2

Did criminalist Mazzola do anything to cause that in your presence?


3 4 5 6 7

Mr Scheck: Your Honor, move to strike all of this, last two questions. The Court: On what basis? Mr Scheck: No foundation for this witness as to any of this. The Court: Sidebar. (Witness cross-examination, 17 April 1995)

When the sidebar is requested by the lawyer, however, there are mixed fortunes for the attorney concerned. On the occasion shown below, the politely hedged request is successful for the lawyer concerned, and leads to a discussion between Judge Ito and Simpson’s lead defence lawyer: 1 → Mr Cochran: 2 3 The Court: 4 Mr Cochran: 5 The Court: 6 Mr Cochran: 7 8 → The Court:

Your Honor, we would like to put something on the record if we might. Perhaps the court may want us to approach the bench. What is the topic, counsel? With regard to the jury, we have a request. A request? A request, yes. All right. Madam reporter. (Sidebar request, 6 July 1995)

The following example, taken from later in the trial, leads to a less satisfactory outcome for the lawyer concerned and underlines the control held by the judge over the interaction. The judge’s reprimand (in lines 9 and 11) results in a request for a sidebar (line 12) which is subsequently denied by the judge (lines 13 and 15): Q Now, in terms of the arrangements being made with 1 respect to this evidence, what was your understand 2 ing about whether or not the socks were going to be 3 sent to Albany? 4 A I understand the socks was sent to a different loca5 tion than Albany. 6 Q Uh-huh. And was it your understanding that the 7 socks were not going to be sent to Albany – 8 9 → The Court: Sounds like testimony to me, counsel. Mr Scheck: Well, your Honor – 10 11 → The Court: This is testimony. Ask a question about what he did. 12 → Mr Scheck: All right. May we approach for a second, your Honor?


13 → The Court: No. 14 Mr Scheck: A matter of judicial notice? 15 → The Court: No. Proceed. (Sidebar request, 23 August 1995) An adjacent extract of the interaction between the judge, the lawyer and his witness serves as an illustration of the extent to which the judge also controls the topic of discussion and the focus of the relevant question: 16 → 17 18 19 20 21 22 23 → 24 25 26 27 28 29 30 31 32 33 34 35 → 36 37 → 38 → 39 → 40 →

The Court:

Counsel, we’ve had that testimony about EDTA. Let’s proceed with what this witness did. Q When did you get a call with respect to an opportunity to examine the socks? A The night of February 15th, 1995. Q Can you explain how that – where you were? Mr Goldberg: Not relevant. The Court: Overruled. The Witness: That day, I was in Seattle, Washington, attending the Academy of Forensic Science annual meeting held in Seattle, other forensic scientists – The Court: All right. That’s not necessary. Just where were you. Next question. Q Did you have plans to return to Albany? A I come from Connecticut, not Albany. Q Did you have plans to go to the Albany medical center on February 17th after your – after the convention? Mr Goldberg: Irrelevant. The Court: Sustained. Counsel, the jury understands he’s from Connecticut, he works in Connecticut – Mr Scheck: Your Honor, may I approach? The Court: No. Proceed. Mr Scheck: I believe the circumstances here are relevant. The Court: Proceed. No, they’re not. They’re not. (Sidebar request, 23 August 1995)

After directing the lawyer’s line of questioning in lines 16–17, the judge continues with an interruption of the witness’s response, limiting the detail provided and moving the questioning on with a terse ‘next question’ instruction (line 28). The judge then goes on to rep-


rimand the witness again for providing too much detail in his testimony, complete with an interpretation of the jury’s comprehension of the evidence (in line 35–6), and ends by refusing Scheck’s request for a sidebar discussion, dismissing the circumstances as incontestably irrelevant (lines 37–40). In grammatical terms, many of the judge’s contributions take the form of directives and imperatives, as in ‘proceed’ in lines 38 and 40 in the last extract, or the ellipted ‘next question’ instruction. The right to use such forms is symbolic of the judge’s power and influence in court, and specifically of his ability to direct the talk, either by preventing a lawyer from pursuing a particular line of questioning (or a witness a particular response) or, conversely, by encouraging or even requiring it. In summary, the judge may occupy any of the slots in the exchange (after Sinclair and Coulthard 1975; Coulthard 1985), providing (I)nitiations in the form of functional directives, (R)esponses, to requests for rulings and objections, or evaluative (F)ollow-up. In the courtroom, the judge’s decisions are final and binding and, significantly, are contestable only in retrospect, on legal grounds and through the appeal courts.

Lawyer talk Lawyers occupy second place in the interactional hierarchy of the courtroom. They do not have the same control as the judge over other participants in the trial and must defer to the judge, legally as well as linguistically; however, lawyers do have a considerable degree of control over both their own talk and the contributions of the lay participants below them in the interactional chain, the witnesses and jurors. This section will examine the interactional properties of lawyer talk in all its forms, both monologic and dialogic, and during the direct and cross-examination of witnesses. Lawyer monologue: opening statements and closing arguments The right to produce sustained floor-holding monologue is a graphic illustration of the hierarchical structure of courtroom talk. The institutionally more powerful participants – the lawyers and the judge, respectively – are sanctioned to make these monologic contributions, a tendency which may be observed in a wide range of other power–asymmetric discourse settings; holding the floor for relatively extended periods is accorded to other ‘powerful’ participants such as doctors, teachers and managers in similarly asymmetric contexts.


In common with judges, lawyers have a number of opportunities to produce monologue in court, specifically in the initial and final sections of the evidential phase during opening and closing arguments (see Figure 3). In openings and closings, lawyers from both sides are, for the only time in the trial, allowed to address the jury directly. The fact that the lawyer is able to address the jury in the form of an uninterrupted monologue is significant; furthermore, the positioning of these monologues as the first and final contributions lends them even greater importance in the trial process. The previous chapter explored this and other issues relating to opening statements; chapter 7 will deal with the closing arguments in more detail. Lawyer dialogue: lawyer–witness interaction In dialogic lawyer–witness interaction, there is also a high degree of power asymmetry. Whereas in casual conversation, the management of turn-holding is a highly skilled, locally negotiated matter, where participants attempt to negotiate the smooth transition of the turn from one speaker to the next, thereby avoiding face-threatening clashes, in the courtroom context, such considerations of politeness, face and cooperation are less significant. This is because the default position in power-differential interaction is that the more powerful of the interactants may hold the floor until they are ready to give it up. Then, and only then, is it possible for the less powerful participant to join in at the discretion of the other, more powerful, speaker. The Simpson data have endless examples of moments when witnesses are reminded of these interactional rules, as in the following example where the witness is put firmly in his interactional place, subordinated to both judge and lawyer: Judge:

Hold on, Mr Douroux, would you allow Mr Darden and the other lawyers to finish asking the question before you start to answer? Witness: OK. Yes, sir. Judge: See, you just did it right now. Witness: I’m sorry. (Witness direct examination, 8 May 1995)

For Stenström (1994), the ‘taking’ of a turn may be represented along a cline of conversational power, depending on whether the turn-taker demonstrates interactional control or dominance by taking the turn from a speaker who apparently or clearly has not finished his contribu-


tion. In the courtroom, the default assumption is that it is the lawyer who hands over the turn, rather than the witness who takes it himself, even in the presence of what in casual conversation would be genuinely interpretable as a transition relevance place (Duncan 1972). As the next example shows, interruptions by witnesses are not well tolerated by lawyers either: 1 → Q 2 A 3 4 5 6 → Q A 7

You told us at 2:10 you wanted to make a call to the Coroner’s office, right? To make first notification that we had a double homicide out in west Los Angeles, not to ask the coroner’s office to respond. Okay. Let me finish the question. Okay. (Witness cross-examination, 16 February 1995)

Here, the witness misinterprets the tag ‘right?’ (line 2), intended by the lawyer as a simple topic marker and holding device, as a transition relevance place, in other words, a legitimate opportunity to intervene. The witness’s error is hardly surprising, given that the utterance (‘You told us at 2:10 you wanted to make a call to the Coroner’s office, right?’) bears all the hallmarks of a transition relevance place, including a turn-terminal intonational contour (discernible from video footage of the exchange), a completed propositional unit and a tagged interrogative; together this cluster of features is more than indicative of turn completion. The result of the witness’s apparent interruption is an immediate rebuke from the lawyer (in line 6), who seizes back the turn and continues with the remainder of the question. In the examination of witnesses, conducted predominantly by means of dialogic Q-A sequences, the lawyer takes on the role of questioner, a role again typically associated with the more powerful participant in power-asymmetric dyads. The lawyer can therefore be seen to function predominantly in the role of initiator of inquiry and evaluator of witness response (at the ‘I’ and ‘F’ moves of the exchange, respectively), those roles most frequently associated with interactionally powerful participants. Some of the ways in which lawyers exploit this fundamental dynamic will be discussed in chapter 5. In contrast, the witness’s interactional options in court are severely limited. The principal role of the witness is to provide appropriate responses to the questions of the lawyer (and, on occasion, the judge), occupying the ‘R’ move of the exchange, traditionally reserved for less


powerful interactional participants, such as the suspect (in police interviews), the patient (in talk in medical settings) or the candidate (in a job interview). The default requirement is for the witness in court to provide ‘preferred’ second-part responses – answers to the lawyer’s questions – which adequately satisfy all four of the Gricean maxims. When they take their oath prior to testifying, witnesses swear to tell ‘the truth, (maxim of quality) the whole truth (quantity) and nothing but the truth (relation)’, thereby ostensibly satisfying the first three of the four criteria for optimally cooperative talk (Grice 1975). By going through the legally binding performative utterance of the oath, witnesses effectively agree to be ‘cooperative’ participants, under threat of perjury charges. The fourth maxim, of manner (‘avoid obscurity and ambiguity’), is managed by means of the requirement for witnesses to be ‘responsive’, in other words, to answer the question to the satisfaction of both lawyer and judge. If a ‘responsive’ answer is not forthcoming, the judge may rule the witness ‘non-responsive’ and (under the threat of contempt charges) may oblige the witness to provide a more acceptable response, even down to prescribing its form as a restrictive Y/N response, as in the following example: 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15

Q

All right. Now, in the course of your preparing or shooting the video that day, did you ever have occasion to either touch or bump into Mr. Simpson at all? A There was one situation. It was at a break, whether they’re relighting or redoing cameras or whatever it was, and they asked us to stay on the floor, stay in our spots because, as you saw the videotape, each person has a spot and – → Mr Darden: Objection, your Honor. Pardon me, sir. This is nonresponsive. → Mr Cochran: Your Honor, this is – he’s responding seems to me. → Mr Darden: The question called for a yes or no answer. → The Court: Sustained. The witness may answer yes or no. The Witness: I’m sorry, I’ve forgotten the question. (Witness direct examination, 19 July 1995)

At this micro-level of Q-A, the lawyer, and ultimately the judge, control the interaction; in addition to the rule on ‘responsiveness’, lawyers have turn-taking control over answers which are considered


too lengthy or which stray into areas which the lawyer would rather leave unexplored, since they may be damaging to their case. In both instances, the lawyer is able to limit the witness’s response through the judicious and timely use of interruptions. At a macro-interactional level, the very fact that the lawyer is able to summon a witness to take the stand and give evidence at all – if necessary by subpoena – is indicative of the power asymmetry between lawyers, as representative of the judicial system, and the lone witness: The Court: All right. The defense may call their next witness. Mr Blasier: Your Honor, the defense calls Dr Fredric Rieders. (24 July 1995) The lawyer also determines the timing of the end of the witness’s appearance in court, by informing the judge that he has ‘no further questions’ (lines 5–6 in the next extract), signalling the end of the questioning process; finally, the judge conducts the formal dismissal of the witness from the courtroom through the formally declarative directive ‘you may step down’ (line 8): 1 Q 2 3 4 A 5 → Mr Scheck: 6 7 → The Court: 8

And we have looked at page 71, and – okay. Those are the ones that deal with G1, G2, G3 and G4; is that correct? Yes Mr Sims, thank you very much. I have no further questions, your Honor. Thank you, Mr Scheck. All right. We will stand in recess. Mr Sims, you may step down. (Witness cross-examination, 1 June 1995)

In summary, witnesses are poorly placed in the interactional hierarchy of courtroom talk; they have no control over the talk of other participants in the trial process and only a very limited control over their own contributions. Witnesses are cast in the (R)esponse role of the exchange, and attempts by them either to initiate talk or to provide evaluative feedback are penalised. Questions from witnesses are rare and are typically limited to requests for clarification. Despite these general tendencies, it is important to acknowledge the fact that all witnesses do not contribute to the trial narrative in the same way; there are significant variations between direct and crossexamination strategies, in terms of both lawyers’ questions and the


responses of the witness. The discursive characteristics of this type of trial talk will be the focus of attention in the next chapter. It is also necessary to differentiate the term ‘witness’, since not all witnesses are of equal status in the trial courtroom. The differences in power, position and role of lay, expert and quasi-expert witnesses, respectively, have a significant effect on the type of talk that takes place within the lawyer–witness dyad; the contrastive styles and strategies of some of these types of witness will be discussed in detail in chapter 6. Having so far considered the legal professionals who make a significant verbal contribution to the trial process – the judge, lawyers and witnesses – the chapter will now move on to an analysis of the various types of ‘silent’ addressees involved in the jury trial and will discuss and exemplify their respective roles in influencing the interaction which takes place in the courtroom.

Producing talk for multiple audiences The dynamics discussed so far have dealt with the ‘surface-level’ monologue or dialogue occurring in court, involving judge–jury and lawyer–jury monologue as well as judge–lawyer and lawyer–witness dyadic talk. However, the interactional dynamics of the courtroom, and of the criminal trial in particular, are fundamentally more complex and multi-party in nature. Although much of the talk that occurs in court is dyadic in its formal properties, ostensibly involving a single speaker and a single hearer, the participant configuration is more accurately represented as multiparty interaction, since the ultimate destination for all of this talk is the third-party jury. In addition to the jury, there is a range of secondary addressees – from court transcriber and press correspondents to the public gallery and (in the Simpson case) the viewing TV audience. Although all these participants must remain, by law, silent observers of the trial process, they all, to a greater or lesser extent, influence the nature of the talk which is produced. Any utterance that occurs in the courtroom has, is required to have and, as the analysis which follows will show, is designed to have, some of or all these different hearers in mind, all of whom receive the information for different purposes. I will now discuss these silent participants, and their potential role in influencing the Simpson trial process.


The public gallery and the viewing public: voyeurs of the Simpson trial The public gallery Some of the individuals who observe trial proceedings are positioned both legally and linguistically outside the trial process itself, in so far as they have no active role to play in the outcome of the case. The involvement of these individuals in the trial is generally motivated by entertainment and curiosity value; indeed, part of the appeal of attending live court proceedings, as Gewirtz (1996: 151) points out, is that ‘real people have been hurt and that a real defendant may be exposed and punished’; when that defendant is a world-wide sporting icon and media celebrity, so much the better, guaranteeing daily queues around the Los Angeles courthouse for one of the 80 prized seats available in the public gallery of the ‘trial of the century’. The public audience – whom I will refer to as voyeurs of the trial – is made up of the occupiers of the public gallery. These individuals play no active role in the trial as such, however they are symbolic of the constitutionally enshrined ‘public domain’ nature of most American trial proceedings. In addition, there is a powerful sense in which the public gallery, containing a representative, if self-selected, sample of the American people, functions as a (mediated and limited) expression of public morality. Criminal law is fundamentally intended to embody the moral condemnation of the broader community, as reflected in the naming of jury trials as ‘The People vs. X’, represented by a set of prosecution attorneys in the courtroom. The criminal trial may thus be seen as a form of trial by proxy, carried out for, and on behalf of, ‘The People’, a small proportion of whom are present, though silent, in the courtroom. This requirement to observe proceedings in silence was not always adhered to by the public gallery in the Simpson trial, as the following two extracts illustrate. In the first, Cochran asks the judge to ask the public gallery to refrain from commenting on the witness’s demeanour, on the grounds that the jury may hear: 1 → Mr Cochran: 2 3 The Court: 4 Mr Cochran: 5 The Court: 6

We would like to put something on the record if we might. Perhaps the Court may want us to approach the bench. What is the topic, counsel? With regard to the jury, we have a request. A request?


7 Mr Cochran: 8 The Court: 9 10 → Mr Cochran: 11 12

A request, yes. All right. Madam reporter. (The following proceedings were held at the bench) Your Honor, I hear remarks from the peanut gallery [Cochran’s pet name for the public gallery]. I couldn’t hear what was said… (Sidebar, 6 July 1995)

In this second extract, following an outburst of laughter, the judge reprimands the public gallery, underlining their passive role in the trial: Excuse me. Excuse me. Excuse me. Excuse me. Excuse me. This is not an audience participation enterprise here, folks. You’re here as an audience, not as participants. If I hear another outburst from the audience, I’m clearing the courtroom. There’s nothing funny about this. (Judge Ito, 26 May 1995) In addition to these loyal trial attenders, there was also a second, much larger sub-category of ‘voyeurs’ in the Simpson trial – the television audience – positioned both outside the trial proceedings and outside the courtroom itself. The viewing public Record numbers of television viewers tuned in to daily live broadcasts of the unfolding drama; even before the trial got under way, the slow Bronco chase which preceded Simpson’s arrest was watched by 95 million viewers in the US alone, and viewing figures indicate that 91 per cent of Americans who were watching television at 10 am on 3 October 1995 (the day of the verdict), amounting to some 150 million people, were watching a station broadcasting live coverage of the verdict (Alexander 1996: 169). Just as the trial-watchers within the courtroom – the public gallery members – are allowed to remain in the courtroom as long as the judge permits, the same is true of the television cameras. All but three of the US States allow cameras into criminal trials, in stark contrast to the situation in the UK, where cameras are universally barred from all court proceedings, and seem likely to remain so for the foreseeable future. However, such access is at the discretion of the judge and may be revoked at any time; in terms of the viewing public, therefore, the judge controls what may be seen and heard and what may not.


In the Simpson trial there was a number of near-misses when the judge threatened to censor the proceedings, such as in the following extract, where prosecutor Clark was chastised by the judge: 1 2 3 4 5 6

We are at the sidebar. Miss Clark, I expressed to you my desire not to publicly display the body of the victim so that the news media would get pictures of them so it would be on the front of the National Enquirer later this week, and the television camera was focused in on those small photographs on there and you didn’t give me enough warning to tell me what it was so I could cut that. (Sidebar, 24 January 1995)

In two moments of high drama, the judge went further and halted television coverage of the trial, by means of a ‘kill switch’ located on his bench. During the prosecution opening statement, Judge Ito (who constantly monitored the Court TV coverage on a screen under his bench) noticed that one of the alternate jurors was in shot, contravening Rule 980 of the California Rules of Court, which prohibits the identification of jurors (Gill 1999: 141). He immediately suspended broadcasts, stating that ‘that is a direct violation of 980 and I’m going to terminate the television coverage as a result of that’. Only, interestingly, after representations from both prosecution and defence was the transmission resumed. The reasoning of the two sides is significant, since it reveals something of their respective positions on the role and influence of the viewing public as a secondary addressee for the trial proceedings. The defence, who potentially had more at stake than the prosecution, since their opening statement was yet to come, framed their request in terms of Simpson’s, and to a lesser extent, his family’s posttrial reputations, which, they claimed, would be irreparably damaged if the public was not permitted to watch the remainder of the trial: 1 2 3 4 5 6 7 8

We are representing a man whose life is at stake in this trial and we believe that the evidence will show that he is wrongly charged. And, therefore, his life after this trial in the world of public opinion is also at stake. And in fairness to Mr Simpson, to his mother, his sisters, his children, who are here, his friends and supporters worldwide, I think it would be tremendously unfair to have the world see the opening statements of the prosecution and not see the opening statements on behalf of Mr Simpson. (Sidebar, 24 January 1995)


In contrast, the prosecution took the moral high ground in the debate, downplaying the significance of the public audience and focusing instead on the role of the jury, emphasising the importance of their continued access to the trial: 1 2 3 4 5 6 7

Well, your Honor, the important people to hear from both sides is the jury. They’re the ones that matter here. The defendant will have his opening statement heard by the people who will vote on the issue of guilt or innocence, and that is what counts … We are not playing to the world here, your Honor. We’re playing to the jury. The jury is the one that has to hear everything, and they will whether the Court cuts the feed or not. (Sidebar, 24 January 1995)

On the second occasion, which occurred during the prosecution closing argument, the camera focused on O.J. Simpson’s note-filled writing pad positioned in front of the defendant. Ito called it a ‘very flagrant violation and intrusion into the attorney/client privilege’ and stated that he was ‘inclined to terminate the coverage at this time’. This time, the judge was less receptive to attempts to win him over: 1 Mr Cochran: 2 Ms. McFadden: 3 4 The Court:

May we have a second? Your Honor, would you hear argument on the issue? Sit down.

Nevertheless, as on the first occasion, Ito backed down early the next day and allowed the cameras back in after discussions with the TV company. It is interesting to note that, in a very real sense, the Simpson trial as entertainment has now come full circle. On 7 September 2000, the LA Superior Court ruled that the American TV station CBS should be allowed to broadcast a controversial dramatisation of the trial; Simpson’s attorneys had claimed in their representations to the court that the mini-series represented the ‘tabloidization of the 6th Amendment’ (O’Neill 2000). ‘Playing to the camera’ Both sets of lawyers, the judge and some of the witnesses were all criticised by the media for ‘playing to the crowd’ at various stages of the trial (particularly in the closing arguments) indulging their new role as


media celebrities at the expense of their legal responsibilities. It was claimed that they had designed their talk as much for the benefit of the TV cameras and journalists who covered every twist and turn of the trial as for the jurors in court. As Gewirtz (1996: 154) notes: at every point [of the Simpson trial] there was a trial before the broader public at least as intense as the trial before the jury, and this broader public trial, magnified and distended by the media, profoundly affected what went on in the courtroom. Perhaps the most theatrical gesture of all in the Simpson trial occurred when Simpson was asked to try on the bloody gloves found at the crime scene. As Rantala (1996: 44) puts it: On June 15th, the jury watched (once) and the world watched (over and over and over again via the videotape) O.J. Simpson put on the gloves used in the commission of the murders of Nicole Brown Simpson and Ronald Goldman. Simpson struggled and grimaced, finally declaring ‘they’re too small’. Despite the protestations of the prosecution that Simpson was faking it, for many observers, including a number of the jurors, this became one of the defining images of the trial and, as Gill (1999: 144) states, ‘one of the prosecutor’s biggest mistakes’. This incident also coined the trial’s most famous catchphrase (itself a metaphor for the trial by jury process) – defence attorney Cochran’s: ‘If it doesn’t fit, you must acquit.’ Not only were the courtroom players criticised by media observers, perhaps more significantly, a number of jurors expressed a similar view, with one member of the jury stating that ‘they were playing to the media. They were playing to the public, and it caused a lot of delays as far as the trial was concerned … It was a show for a while’ (Cooley et al. 1995: 205). A second juror also claimed that the trial ‘was carried on for the cameras and public opinion’. Both the prosecution and defence lawyers alluded to the role of the television audience in their respective closing arguments, reminding the jurors of their civic duty as representatives of ‘the People’. The prosecution told the jury that the wider community would be watching and would judge the jury according to their verdict: 1 Well, let me say this to you, that today – tonight, the whole world is 2 watching us tonight or watching me, and they have listened to the


3 4 5 6 7 8

evidence and they have watched the witnesses testify here on television and they want to know what you’re going to do and we know what you’re going to do … The world is watching and everybody wants to know what you are going to do. Marcia Clark and I know you are going to do the right thing under the law. And whatever you do, the decision is yours, and I’m glad that it is not mine. (Prosecution closing argument, 26/27 September 1995)

Prosecutor Darden ended with the less than reassuring ‘and whatever you do, the decision is yours, and I’m glad that it is not mine’. The judge was concerned by the pressure put on the jurors to ‘do the right thing’, and again threatened to ‘pull the plug’ on TV coverage of the trial: 1 2 3 4 5

The Court: I’m concerned that attorneys from both sides have referred to what other people around this country may think. That causes me to believe that the lawyers are pandering to the cameras and that causes me to believe that probably I ought to pull the plug on the cameras. I’m contemplating doing that because I’m tired of this kind of argument.

There is much debate over the issue of what Schuetz (1999a) refers to as ‘telelitigation’. With the increasing popularity of voyeuristic ‘fly-on-the-wall’ reality TV such as ‘Big Brother’, the boundary between the real world and the world of the ‘docusoap’ is becoming increasingly blurred. It is perhaps not so fanciful to imagine a world where ‘telelitigation’ becomes an everyday reality, in the same way as the ‘housemates’ in Big Brother are evicted from the house on the basis of votes cast by the general public. It is certainly true to say that the lawyers in the Simpson trial had at least one eye on the relentless presence of the courtroom and TV audience and their shifting opinions on the trial. Having analysed the role of the general public in the trial public, I will now briefly discuss the contribution made by a further group of ‘outsider’ voyeurs, the hordes of journalists from all around the world who reported on the Simpson trial. The press: reporting the trial In the Simpson trial, the press corps represented a substantial group, with 1,159 press passes issued in total. Both jurors and journalists play an overtly productive role in the courtroom, contributing articles and adjudication, respectively, although one (the jury) operates within the


trial process, whereas the other (the press) is confined to the outer reaches of the courtroom, and takes no active part in the trial itself. The fact that the products of these journalists are so firmly out of bounds to the jurors – in fact a number of jurors were dismissed for gaining illicit access to news media – is testament not only to the perceived power of persuasion of the media, but also to the censoring power of the criminal justice system, which in the Simpson case imposed a punitive nine-month period of sequestration on jurors, denying them (among many other things) access to any external media source. The opening paragraph of the court order gives a flavour of the restrictions imposed: The trial jurors and alternates in this case shall NOT read any newspaper article or other written account, including magazines or books, or watch any television programs dealing with this case, the defendant or his family, the victims or their families, the attorneys or any other matter concerning this case. The court will distribute to the jurors and alternates the local daily newspaper of their choice, edited to remove any coverage of this case … So far, I have dealt with two audiences who are relatively detached from the legal process. The next section deals with the two further audiences of courtroom talk who are active within the trial itself – the court reporter (also referred to as a ‘transcriber’), a participant overwhelmingly overlooked in studies of courtroom interaction, and, most crucially the jury, as the ultimate addressee of trial talk. I will begin with a study of the court reporter and their role in influencing trial interaction. Producing a written record of trial proceedings: the role and influence of the court reporter The job of the court reporter is to produce an accurate record of trial proceedings. The accuracy of this written version is of crucial importance, since it represents the official record of what actually occurred in court and is often the sole data source on which any subsequent appeal proceedings are based. (See Graffam Walker 1986; Blackwell 1996; Eades 1996; and Komter 2002 for discussions of the issues and dilemmas associated with the creation of ‘verbatim transcripts’ of forensic proceedings.) An initial prerequisite for the fulfilment of the court reporter’s remit is clearly the ability to hear proceedings in order for them to be accurately


transcribed. This requirement for the basic audibility of witness testimony is underlined in the following extract, where the judge has to remind the witness to ‘keep his voice up’ (contrasting with the examples on pp. 97–8 above, where the lawyer is reminded to ‘keep his voice down’): Q 1 2 3 A 4 5 → The Court: 6

You took out a ruler and you didn’t even touch the swatches. You just got near them and made your best measurements? Excuse me. In millimeters I believe. I’m not sure. All right. Mr Yamauchi, you’re going to have to keep your voice up for the court reporter. (Witness cross-examination, 30 May 1995)

It seems somewhat ironic that the Simpson case was broadcast live around the world in Nicam stereo, using the most up-to-date recording and satellite transmission equipment, and yet the spatial and acoustic environment of the courtroom itself meant that the true and significant ‘audience’, notably the jury and the court reporters seated only feet away from the witness, often had difficulties in hearing the testimony. An associated issue is that of incorporating non-verbal events into the official written record. In the following extract, the judge makes numerous attempts to interpret and accurately convey (by reference to baseball analogies) the gestures expressed by the lawyer in his question: Q 1 2 3 A 4 5 → The Court: 6 Q 7 8 A 9 → The Court: 10 11 Q 12 13 A 14 15 → The Court: 16

Okay. Did you ever see Mr Cochran waive [sic] his hands like this back and forth across his chest today [indicating]? No, sir. I know we have videotape, but do you want to describe the gesture you just made for the record? You never saw Mr Cochran make a motion like this [indicating] with his hands? No, sir. Sort of a gesture similar to an empire indicating safe several times. Did you ever see Mr Cochran make a gesture like this [indicating] during your testimony? No, sir. Indicating a third base coach saying slide. That’s about the closest I can get. (Sidebar, 2 March 1995)


For the court reporter attempting to transcribe trial proceedings verbatim, there are a number of other practical matters which influence the production of courtroom talk. The first concerns the issue of speed of testimony and its turn-taking complexity, an important consideration in the conversion of spoken interaction to a written representation. There are many instances of warnings from the judge to witnesses, asking them to refrain from interrupting the lawyer’s question, with the justification that overlapping talk is difficult for the court transcribers to cope with, as in the following example: 1 Q 2 3 4 5 6 7 A 8 Q 9 A 10 Q 11 → The Court: 12 13 The Witness: 14 → The Court: 15 16

Miss Mazzola, just so there’s no misunderstanding, when I talk about the white sill area on the driver’s door, I’m referring to – well, I’m sorry. Did you know when I asked you those questions that I was referring to that white strip of metal which is under, next to the driver’s door – I had an idea that’s what you – – in that picture? You did have an idea? Yes. Okay. In fact, during your prep session – Excuse me. Excuse me. Excuse me. Miss Mazzola, please, let him finish – Sorry. – asking the question before you start to answer. The court reporter can only write down one person at a time. All right. Thank you. (Witness cross-examination, 25 April 1995)

Sometimes, however, even the attempts of the judge to control the dynamics of lawyer–witness questioning prove unsuccessful. The following extract reports an attempted rebellion on the part of the court reporters in the Simpson trial, in response to the rapid and combative questioning style of one of Simpson’s defence attorneys, which leads to an uncompromising ultimatum from the judge: 1 The Court: 2 3 4 Mr Cochran: 5 The Court: 6

We are over at the sidebar. The court reporters have both threatened to quit if you are allowed to do another witness. They won’t quit; I will slow down. It is not just slowing down, but talking over people and other things. They said if Cochran is doing the


7 8

next witness, I am quitting. That is what they just told me. Okay? (Sidebar, 19 September 1995)

The ultimate sanction ordered by Judge Ito was to deny both sides the recording of their exchanges, because they refused to manage their turns appropriately: 1 Court Reporter: 2 3 The Court: 4

I’m sorry, judge. I can’t make a record when counsel are both speaking at the same time. Just put ‘attorneys ignore Court’s order to talk one at a time, there is no record to report’. (Judge Ito, 8 March 1995)

In addition to these considerations, there are many occasions when lawyer–witness questioning is temporarily halted to allow the complexities of the evidence to be accurately recorded by the court reporter. The following extract illustrates the problem faced by the court reporter in transcribing complex expert evidence; it also serves as an interesting insight into the notion of ‘expertness’ in court (to be dealt with in more detail in chapter 6), as it is the lawyer rather than the expert witness who provides the spelling of the problematic word in line 11, following the witness’s hesitation in line 10: A 1 2 3 4 5 6 7 8 → The Court: 9 10 → The Witness: 11 → Mr Blasier: The Court: 12

Oh, now you’re talking a different thing. Now, what you’re referring to is stoichiometric effect where if you have a minor component, that it’s possible – depending on how much of that minor component is present, it’s possible not to see the other contribution. But that would be at very low levels of DNA. All right. Would you spell stoichiometric for the reporter? S-t-o – I believe I need to write it down. S-t-o-c-h-i-o-m-e-t-r-i-c. I think. We’ll accept that. (Witness cross-examination, 23 May 1995)

Considering the fact that the court reporter, on the surface at least, plays a minor role in trial proceedings, examples such as the three discussed here illustrate that they do in fact exert a considerable degree of


influence over the type of talk produced by the ‘main’ participants in the trial process. A final example serves as perhaps the ultimate illustration of the under-acknowledged power of the court reporter. In this data extract, the court reporter (via the judge) demonstrates her control over the non-verbal as well as the verbal behaviour of the lawyer; to this effect, the judge warns the lawyer in question: Mr Goldberg, the court reporters always hate lawyers who stand there and jingle change in your pocket, so if there is change in your pocket it will be confiscated by the Court tomorrow. (Judge Ito, 22 August 1995) Even displays of power such as this pale into insignificance, however, in comparison with the influence of the final ‘silent’ participant in trial proceedings – the jury – who are responsible for determining the form and the content of the majority of the interaction which takes place in the courtroom. The final section of this chapter will be taken up with an analysis of the ‘juror effect’ on trial talk, in the context of the jury as primary audience. The jury as audience The purpose of the criminal trial is to determine the guilt or innocence of the defendant(s) brought before it. In carrying out this task, the role of the jury is crucial, in so far as the burden of reaching that verdict rests on their shoulders. In the adversarial system, the sole means by which this decision is reached is through the verbal presentation and assessment of evidence elicited during witness examination. In principle, jurors are sanctioned by law to ask questions of witnesses, although they must be submitted in writing and delivered to the witness by the judge. However, this is a little known right, which is only rarely used by jurors; in practice, testimony is overwhelmingly elicited through the medium of lawyer-initiated questions. The controls on juror–juror interaction too are tightly constrained. The jury in the Simpson case were frequently reminded that they might talk only in the privacy of the jury room, and that, prior to deliberation, this talk should not include a discussion of any aspect of the case. Judge Ito’s direction to the jury consisted of the following formulaic speech, reiterated several times a day throughout the nine months of the trial:


All right. Ladies and gentlemen, we are going to take a brief recess. Please remember all of my admonitions. Do not discuss this case amongst yourselves, don’t form any opinions about the case, don’t conduct any deliberations until the matter has been submitted to you, nor are you to allow anyone to communicate with you with regard to the case. I see jurors mouthing the words with me. Thank you. All right. Just as long as you remember them all. (Judge Ito, 1 June 1995) Ito’s jury instructions underlined the court’s control over juror’s interactional rights and responsibilities: You must not discuss this case with any other person except a fellow juror, and you must not discuss the case with a fellow juror until the case is submitted to you for your decision and then only when all twelve jurors are present in the jury room. (Judge Ito, 23 January/22 September 1995) Thus, not only is the timing of juror–juror discussions about the case prescribed (when the case has been ‘submitted to you for your decision’), but also the location for that interaction (‘in the jury room’) and even the required participant-configuration of the discussion (‘only when all twelve jurors are present’). In California courtrooms, the verdict is not even delivered by the jury foreperson, as it is in the UK. Rather, the clerk of the court is handed an envelope containing the verdict, and reads this aloud in the courtroom. The verbal role of the jury is therefore extremely restricted. Although for the majority of the trial, the jury are cast in the role of non-participators, their judicial role is decisive. Since the jury exist and are convened (or empanelled) with the sole purpose of evaluating the evidence and the credibility of the conflicting accounts presented to them, they have a far greater influence on the construction of these versions of reality than the typical ‘audience’ listening, for example, to a play or a speech. An understanding of courtroom interaction as multi-party rather than dyadic is crucial to any evaluation of trial language, and will now be discussed.

Trial talk as multi-party interaction: the role of the jury The precise role of the jury as ‘hearer’ is a complex, and underexplored, area of research. Goffman (1981) identifies two basic cate-


gories of hearer – the ratified and the unratified – with finer distinctions according to the extent to which the hearer’s involvement in the talk is sanctioned by the speaker. These are summarised below: Participation Framework – Reception Roles A: Ratified • Addressed Recipient ‘the one to whom the speaker addresses his visual attention and to whom, incidentally, he expects to turn over his speaking role’ • Unaddressed Recipient ‘the rest of the ‘official hearers’, who may or may not be listening’ B: Unratified • Overhearers ‘inadvertent’, ‘non-official listeners or bystanders • Eavesdroppers ‘engineered’, ‘non-official’ followers of talk (Goffman 1981, summarised in Levinson 1988: 169) Category A here accounts for recipients whose presence is acknowledged and whose involvement in the discourse is sanctioned and approved; in contrast, category B hearers, as representative of ‘unofficial’ participants in talk reception, may either be ‘accidentally’ involved (as in the case of eavesdroppers) or may have deliberately engineered the situation so as to intentionally be overhearers. In terms of eavesdroppers and overhearers, the Simpson trial was unusual in several respects. As we have seen, the trial attracted unprecedented public attention and interest; this group of curious onlookers, both those in court and their armchair counterparts, do not, however, fit easily into the categories outlined by Goffman. They most closely resemble eavesdroppers in his terms, as participants who listen but are not directly involved in the talk, and who are motivated by a purposeful desire to hear what is being talked about; however, this group do not qualify as unratified since their presence is sanctioned by the court. They therefore represent a hybrid group, perhaps best termed ‘ratified overhearers’, a category also used by Levinson (1988: 197). In some respects, the right of the public to participate as recipients of trial interaction was actually less constrained than that of the jury, who were constantly excluded from lawyer–judge debates and disputes over witnesses and trial procedure, and were even required to leave the


courtroom temporarily, almost on a daily basis. The following extract illustrates one such occasion, where the judge ordered the jury to leave until the dispute, involving an aggressive exchange of objections between lawyers, had been resolved: 1 The Court: 2 3 Mr Cochran: 4 5 Mr Darden: 6 7 The Court: 8 9 10 11 12

Objection sustained. Counsel, that’s grand jury, you can’t go into this. All he is going to go into is what he testified about, judge. We have a one-lawyer rule. Stop whining. … Ladies and gentlemen of the jury, we are going to take a brief 15-minute recess at this time. Please remember my admonition to you; don’t discuss the case among yourselves, form any opinions, allow anybody to talk about the case. I’m going to ask you to step back in the jury room, please.

(The following proceedings were held in open court, out of the presence of the jury.) 13 The Court: 14 15

Thank you, counsel. We’ll be in recess for 15. The record will reflect the jury has withdrawn from the courtroom. (Judge Ito, 2 February 1995)

The descriptor which most closely corresponds to the role of the jury in the trial is that of ratified recipient in the first category of ‘hearer’. The ratification of the jury is achieved by means of the process of jury selection where jury members are ‘recruited’ with the primary aim of hearing the evidence put before them; a typical juror oath includes the explicit requirement to ‘listen to every question and answer, without fear or favour’. It is significant that such an explicit instruction is given in the juror oath, since, as Goffman points out, the normative expectations of these roles are not always fulfilled: ‘a ratified participant may not be listening’ and as the category of unratified hearer acknowledges, ‘someone listening may not be a ratified participant’ (Goffman 1981: 132). Drawing on the work of Goffman, Levinson (1988: 197) is also critical of these ‘gross roles of producer and receiver’, arguing that the categories do not adequately take account of the complexities of the receivership role in power-asymmetric talk such as that of the court-


room. Levinson’s model casts the jury in the roles of ‘audience’ and ‘indirect target’ of trial talk. At different stages of the trial, the jury are more or less explicitly identified as the ratified recipient of trial talk. The jury is the overtly acknowledged addressee of the initial and final jury instructions; where the monologic nature of the contributions made by the judge means that the addressee would otherwise be ambiguous or unclear, the intended addressee is signalled by the use of explicit address forms, as in this pair of extracts taken from the judge’s initial and final jury instructions, respectively: Ladies and gentlemen of the jury, it is my duty to instruct you on the law that applies to this case. (Judge Ito, initial jury instructions, 23 January 1995) Upon receipt of the exhibits from both sides, both sides having now rested, ladies and gentlemen, as you heard, the counsel for both the prosecution and the defense have rested their case. There will be no further testimony or evidence presented to you. (Judge Ito, final jury instructions, 22 September 1995) A similar strategy may be observed in the lawyers’ monologic contributions, the opening and closing arguments: But the fact that Mark Fuhrman is a racist and lied about it on the witness stand does not mean that we haven’t proven the defendant guilty beyond a reasonable doubt. And it would be a tragedy if with such overwhelming evidence, ladies and gentlemen, as we have presented to you, you found the defendant not guilty in spite of all that, because of the racist attitudes of one police officer. (Prosecution closing argument, 26 September 1995) Ladies and gentlemen of the jury, I thank you very much for your patience. I’ve tried to reason through this evidence, drawing the fair inferences as best we could looking at the integrity of the evidence, and I just think there is very little question here, is there? (Defence closing argument, 28 September 1995) In dialogic interactional contexts, consisting predominantly of the witness examination phase of the trial, the jury as ratified recipient are signalled less explicitly. Rather than overt acknowledgements of the


jury as the addressee, in the form of direct address forms or eye contact, which occur throughout the monologic contributions, the dialogue of lawyer–witness questioning, which makes up much of the trial, takes on instead the characteristics of display talk. Lawyer–witness interaction as ‘display talk’ Goffman (1981: 137) discusses the notion of ‘display talk’, referring to the jury as the ‘encircling hearers’ and likening them to the audience of a TV talk show, positioned outside the immediate questioner/ respondent dyad, but none the less the intended addressee or ‘target’ in Levinson’s terms. In the Simpson trial, the jury as observers of a courtroom ‘display’ were also noted by the lead prosecutor Clark, who, commenting on the spatial organisation of the courtroom, noted: the rail is the three-foot-high wooden divider that separates the lawyers and parties to the action from the spectators. But its importance far transcends that of a physical barrier. The rail is an unofficial line of demarcation separating the players from the watchers. (Clark 1997: 194) A further sense of the way in which the physical layout of the courtroom reflects the various ‘audiences’ of trial testimony is illustrated by the following dispute over visual access to the evidence. This extract demonstrates, in a spatial sense, the need for many different hearers to have access to each piece of evidence. Q 1 2 3 A 4 5 The Court: 6 7 8 → Mr Clarke: 9 10 → The Court: 11 12 13 14

Would it help to illustrate that point about chromosomes and DNA for you to draw a chart for the jury? Probably. … Could we possibly put this over on this side over here? My only concern is that some of the jurors will be at some distance. Well, the problem is, indeed – defense counsel needs to be able to see it as well. So what we’ll do is, after we complete the drawing, we’ll exhibit it to the full jury panel. …


15 → 16 17 18 → 19 20 21 → 22 23 → 24 25 26 → 27 28 → 29 30 → 31 32 33 34 35 → 36 37

The Court:

The Court:

Mr Neufeld: The Court: Mr Neufeld: The Court: Mr Neufeld: The Court:

Mr Neufeld: The Court:

All right. And let’s see if we can move that back so we’re not cutting off Juror No. 1. … Well, let’s make due [sic] with what we have here and then we’ll exhibit it to the jurors. … I’m sorry, your Honor. Perhaps it could be turned a little bit so the defense can see it. Well, counsel, who is going to be handling this witness on cross-examination? I will. All right. Mr Neufeld, why don’t you sit over next to Mr Goldberg there. Also, the problem is that Mr Simpson is not able to see it. I understand that, counsel, but it’s going to be exhibited for everybody. We have to make due [sic] with the angles we have. Oh, I can see it. … Dr if you could, please, for the jury describe again DNA and this concept of chromosomes and its packaging. (Witness direct examination, 8 May 1995)

The discussion in lines 6–14 highlights the need for the jury, as the ultimate trial adjudicators, to have clear visual (and verbal) access to the evidence, in this case a diagram. The other courtroom participants, however, also need to see and hear the testimony; the lawyer who is about to cross-examine this witness is concerned in lines 21–7 that he and his defence team may have a restricted view and therefore be at a disadvantage in their formulation of cross-examination questions. He is also concerned that the defendant should be able to see the diagram (lines 28–9). The exasperated judge becomes increasingly impatient with these multiple demands, and finally tells all concerned that ‘we have to make due [sic] with the angles we have’. Finally, he moves the process forward, taking a moment to remind the witness that the primary recipient of the testimony should be the jury (lines 35–8). The concept of ‘display talk’ is discussed at some length by Goffman (1981), who talks of the multiplicity inherent in the term ‘audience’, contrasting the courtroom ‘audience’ with its counterparts at the theatre play


and the political speech. One of the important differences between these two contexts and the courtroom is the fact that the interactional rules of the courtroom (including the essential presence of the jury) are legally determined and binding, whereas audiences listening to a play or a speech are voluntary ‘hearers’ and have a degree of interactional freedom; not only are they at liberty to come and go as they please, they may also provide feedback in the form of heckling or cheering, laughter or applause in response to the ‘performance’ before them. In contrast, jurors have no opportunity for feedback of this type, nor are they allowed to provide minimal responses to indicate that they are even listening at all. Jurors in teen courts, for example, are routinely warned during initial jury instructions to ‘Control your emotions (facial expressions, etc.)’. Goffman’s interactional analogy, equating the jury with a TV talk show audience, is perhaps misleading, since the jury have a more important and decisive role to play in the overall outcome of the purposive speech event, beyond the straightforward role of spectator for the purpose of entertainment (in the case of the theatre) or enlightenment (in the case of the lecture or speech). Although the jury are not verbally involved in the dialogic lawyer–witness exchange, the principal aim of examination is to permit the prosecution and defence to display their respective pieces of evidence for the scrutiny of the jury in an attempt to coerce and influence their final judgement. As Levinson (1988: 197) notes of crossexamination, there are ‘many details of the interrogation format that display a sensitivity to the fact that the crucial participants (judge and jury) are in audience role’, and which demonstrate an awareness that questioning is conducted ‘in order to be assessed by (and partly on behalf of) channel-linked adjudicators, namely judge and jury’. The Simpson data contain numerous indications of the awareness of all trial participants of the role of the jury as audience. The extract which follows provides an indication of this awareness on the part of the judge: 1 Q 2 A 3 Q 4 A 5 6 → The Court: 7 8 9 → The Witness:

All right. And do you see bloody shoeprints there? Yes. Can you point to them, please. Here, here, here. There is a faint one here, and I believe there is one right there [indicating]. Officer Riske, can you keep your voice up because everybody in the jury box needs to hear what you are saying. I’m sorry. (Witness direct examination, 9 February 1995)


In addition to such straightforward considerations as audibility, the judge sometimes reminds the witness more explicitly to direct his responses to the jury rather than to the examining attorney, as in the following example: Q 1 2 A 3 Q 4 5 → The Court: 6 The Witness: 7 Q 8 A 9 10 11 12

You have seen those photographs before, have you not? Yes, I have. And what is 1327 a picture of? All right. Mr Ragle, would you address the jury when you are giving your answers, please. I don’t know which one is 13 – The one on the left. Okay. This is a photograph of the glove and part of the pavement that was a sidewalk at Bundy, and this is apparently the hat and someone pointing their finger at this particular item. (Witness direct examination, 21 August 1995)

The interactional rules of engagement in court mean that the usual (and natural) dynamic of ‘reply to the questioner’ is replaced with the more indirect and, for the witness, less intuitive, ‘address the jury’ (line 5). Of all the talk which takes place in the courtroom, the lawyer–witness dyad represents the dominant site of interaction. Chapter 5 focuses on some of the ways in which lawyers are able to prevent witnesses from telling their various narratives in their own way, both through manipulation of the question form employed and through post hoc modification of the witness’s response.

5 Direct and Cross-Examination: Questions and Answers in Court

Introduction Questions and their adjacency pair partner, answers, are of fundamental importance to the trial by jury process. The dialogic questioning of witnesses, by lawyers from both sides, is the basic activity which dominates the trial and is the mechanism by which the elicitation of the conflicting crime narratives is achieved. As Figure 4 illustrates, in the Simpson trial, as in the vast majority of jury trials, the interaction consisted overwhelmingly of the examination and cross-examination of witnesses. Within this dominant evidential phase, the primacy of the Q-A pair as the testimony elicitation technique of choice is undeniable; as Atkinson and Drew observe of witness examination, speakers’ turns should be designed ‘at least minimally as either questions or answers’ (1979: 35). The judge in the Simpson trial frequently reminded both lawyers and witnesses of this requirement, as the following example illustrates: 1 2 3 4 5→ 6 7 8→ 9 10

Q A

Did you see his reaction when that happened? He started literally flying. I mean not flying in the air, but he started jumping around and hobbling and he started screaming, ‘my knee, my knee.’ So he started – The Court: Wait, wait. Next question. This is not a narrative. This is question and answer. Mr Cochran: All right. The Court: Ask the next question. Q All right. At that point – this happened during a break on the set that day; is that correct? (Witness direct examination, 19 July 1995) 126

Direct and Cross-Examination 127

100 91.9%

90 80 70 60 50 40 30 20 2.7%

10

1.3%

1.4%

2.7%

0 Jury Selection

Openings

Witness Exam

Closings

Deliberations

Trial Phase Figure 4 phase

Proportion of time (measured in days) spent on each respective trial

The witness in this extract is reprimanded for (mis)interpreting the Y/N question in line 1 as an opportunity to narrativise; rather than restricting the response to a basic ‘yes’ (as presumably was intended by the lawyer), the witness attempts to offer a full and detailed account of Simpson’s reaction (lines 2–4). The result is a clear rebuke from the judge and a reminder of the requirement for Q-A interaction (lines 5–6). The lawyer’s response takes the form of an optimally controlling Y/N tag question which sets the Q-A sequence of exchanges back on track (lines 9–10). In discussing direct and cross-examination questioning, my intention is not to model these two types of trial talk exhaustively or comparatively, since much of this work has been covered in detailed comparative analyses of the frequency of use of leading and other closed question forms, such as general Y/N and response-restricting alternative questions (see, inter alia, Harris 1984; Woodbury 1984; Phillips 1987; Graffam Walker 1987; Luchjenbroers 1997). Taken as a collective body of research, their findings indicate overwhelmingly that closed questions, as indicative of lawyers’ control over testimony elicitation, are the clear strategy of choice for criminal trial lawyers, accounting for between 64 per cent and 87 per cent of all questions in the cross-examination phase of criminal trials.


In this chapter, I aim to focus on how the specialised interactional dynamics of the courtroom (discussed in the previous chapter) make it possible for lawyers to stretch the boundaries of the concept ‘question’ to its limits, exploiting the discursive properties of both question forms and functions in their attempts to construct persuasive testimony. I will outline some of the mechanisms by which testimony is constrained, in both direct and cross-examination, by a variety of lexical indicators built into the question itself. Finally, I will examine the role of the discourse marker ‘so’ as a cross-examination means of post hoc evaluation of testimony. However, I will begin with a brief discussion of the different aims and characteristics of the two primary sites of questioning in the trial, direct and crossexamination, respectively.

Direct vs. cross-examination: construction vs. destruction From a dynamic perspective, direct examination is, in many ways, the poor relation of its more flamboyant and dramatic cross-examination counterpart. Just as the opening statement is often considered by lawyers to be less cogent than the more overtly rhetorical closing argument, so cross-examination is considered to be where the real cut-andthrust of trial advocacy takes place. I will illustrate this perception with examples from two very different domains. A study of advocacy training manuals reveals not only a greater amount of text devoted to cross- rather than direct examination, but also a preponderance of whole texts which deal with crossexamination techniques, with titles such as Cross-Examination in Criminal Trials (Stone 1995), The Art of Questioning: Thirty Maxims of Cross-Examination (Megargee Brown 1987), Trying Cases to Win: CrossExamination (Stern 1993) and, perhaps most famous of all, The Art of Cross-Examination (Wellman 1998); to the writer’s knowledge, there is not a single equivalent text devoted exclusively to the techniques of direct examination. The existence of so many ‘how to’ manuals for cross-examination is also, of course, a recognition of the fact that it is acknowledged as being more difficult, with its confrontational orientation, than its direct examination counterpart. The second example illustrates the relative lack of dynamic ‘entertainment appeal’ of direct examination in comparison with crossexamination and is drawn from the film world. In a recent survey of more than 50 films belonging to the ‘courtroom drama’ genre, including The Verdict (1982), Presumed Innocent (1990) and The Client (1994), I


found that in the overwhelming majority of instances, the direct examination of witnesses was either severely truncated or omitted entirely; Genette (1980: 94) refers to these types of temporal manipulation as summary and ellipsis, respectively. In contrast, scenes of cross-examination were often protracted and were shown in something approaching ‘real time’, or scene in Genette’s terms. It is difficult not to reach the rather disturbing conclusion that people are entertained more by scenes of destruction (exemplified by cross-examination) than of construction (the essence of direct examination). This basic difference in the respective purposes of direct and crossexamination has significant implications for the linguistic and discursive structure of the two types of questioning. I will now explore each in turn, beginning with direct examination. Direct examination questioning: co-constructing the narrative Despite its comparative lack of excitement, direct examination questioning nevertheless has a crucial part to play in constructing the trial narrative of each side, particularly that of the prosecution, whose need to construct a coherent narrative account, as we have seen, is greater than that of the defence. This is reflected in the name, since direct examination (or examination-in-chief as it is known in the English legal system) represents an initial, dominant narrative statement, which is then responded to, challenged and sometimes subverted in cross-examination questioning. Many advocacy manuals point out that the aim of direct examination, where witnesses from the ‘home’ side are questioned, is to: lay before the tribunal [jury] all that the witness knows which is relevant and material. Defining the purpose in this way is intended to emphasise that the advocate should from the first to last be in control of the witness. (Hyam 1990: 56) Boon (1993: 100) further states that the evidence should be presented in such a way as to be ‘clearly understood and persuasive’. Direct examination is therefore the site of the co-construction of testimony between advocate and witness, but a collaboration where the lawyer remains firmly in control. The dual aims of this type of questioning are to provide the jury with a clear outline of the witness’s contribution to the narrative, and also to construct a persuasive account; as McElhaney (1976: 78) points out:


unless the outlook is so dismal that the only hope in litigation is to create confusion, a coherent statement of the facts by the witnesses is essential to the jury’s understanding and acceptance of your position. (my emphasis) Confusion and miscomprehension are to be avoided in direct examination testimony, particularly in the prosecution narrative, because therein lie the seeds of ‘reasonable doubt’; for the defence, in contrast, confusion can be an asset, and its active creation is even recommended by some advocacy manuals as a legitimate and desirable cross-examination strategy. For the direct examination lawyer, however, the clarity of the elicited testimony is of paramount importance, since, as Stone (1995: 128) advises trainee barristers, ‘evidence must be clear if it is to be understood, remembered and applied in reaching a verdict … evidence which is not clear will be neither remembered nor convincing’. One way in which clarity of presentation is achieved in direct examination testimony is by the use of protracted Q-A sequences, which provide the jury with (what outside the courtroom would be) an overexplicit account of the witness’s micro-narrative contribution. Achieving clarity through overexplicitness: direct examination questioning strategies The enormous number of courtroom interrogatives in the Simpson trial (an estimated 50,000+) can, to a great extent, be accounted for by reference to the triangulated lawyer–witness–jury dynamic discussed in detail in the previous chapter. In the context of questioning where the ultimate destination of the response to any given question is the jury rather than the questioning lawyer, there is a need for particularly unambiguous and explicit transmission of testimony to the jurors. The result of this dynamic is that an adjacency pair which might typically occur in casual conversation as: 1 Q Did he say anything? 2 A Yes, he told me that … efficiently satisfying the cooperative maxims of quantity and manner, tends to become extended in court into a sequence of Q-A turns, as in the following example, where the real informative response is only elicited in line 6 after an additional lawyer-initiated Q-A sequence in lines 3 and 4:


1 → Q Did he say something to you? A Yes he did. 2 Q Was it connected with the bar? 3 A Yes. 4 Q What did he say? 5 6 → A He told me that … This degree of protraction allows the lawyer to ensure that ‘his’ witness’s evidence is explicitly (if inefficiently) transmitted to the jury, by restricting the informational content of each micro-response; the use of a staged Q-A structure has the advantage of ensuring that the implicit be made explicit. Thus, although an exchange may be brief and efficient in casual conversation, leading to an unambiguous understanding between its participants which is both cooperatively and collaboratively negotiated (again in line with Gricean principles), this becomes a more complex exercise in the courtroom. Each aspect of a contribution must be dissected and a relevant Q-A sequence formulated for each. This involves considerable linguistic and logical dexterity on the part of the examiner and also patience on the part of the witness; if the following exchange were to occur outside the courtroom, the ‘witness’ would surely demand the ‘lawyer’ got to the point! In court, both witness and lawyer cooperate in building a systematic linguistic image of the minutiae of the event: 1 2 3 4→ 5→ 6 7 8 9 10 11 → 12 → 13 14 → 15 → 16

Q A Q A Q A Q A Q A Q A Q A Q

Did you write any reports at all at that point? No, sir. You then did something with that tape? Yes, sir. And what was that? I put it in my desk drawer. Okay. Now at this point, was this your regular drawer? Yes, sir. Okay. Now did you ever take that tape up or put it in the socalled Simpson war room at Parker Center? Yes, sir. When was that? That was probably three, four months later. Alright. So you, at first you put it in your desk, is that correct? Yes, sir. And about how long would you say it stayed in your desk?


17

A About three or four months. (Witness direct examination, 31 March 1995)

This line of questioning continued for some considerable time, reformulating the same points repeatedly with a strict Q-A structure. It is clear that the questions in lines 5 and 12 serve to lengthen the discourse sequence, since the preceding questions in lines 3 and 9–10 respectively could easily have produced the required information much more efficiently. It is interesting, therefore, to note the degree of tolerance of this (normally) unusual overexplicit strategy by the witness particularly, as a means of conveying a transparent and unambiguous message to the jury. The use of such a measured, if protracted approach is especially important in the courtroom setting, since arguably the most influential participants, the jury, are not able to request clarification or reiteration of testimony at the time of delivery. From the lawyer’s perspective, all the questions asked, whether in direct or cross-examination, should optimally be display, in other words, dealing with pre-existing knowledge on the part of questioner, rather than referential, involving a genuine request for unknown information. If there is not a preponderance of display questions, this indicates that the lawyer’s trial preparation has been inadequate; indeed, a basic tenet for trainee lawyers is that they should never ask a question to which they do not already know the answer. This applies particularly in the case of direct examination. The lawyer, who is familiar with the witness’s story, must still ‘question’ the witness and follow up pseudo-spontaneously to their responses, all the time hoping that the witness will not falter or stray too far from the script. In addition, the lawyer must hope that the witness will be sufficiently skilled verbally to construct a coherent and rhetorically persuasive account. Schiffrin (1994: 165, 169) makes the useful distinction between information-seeking questions (as in lines 5, 12 and 16 above) and information-checking (in lines 1, 3 and 7). She notes that questions which function to genuinely elicit new information (or in direct examination ‘questioning as display’ terms, apparently genuinely, since there must be a co-conspiratorial suspension of disbelief for such questioning to succeed) represent straightforward realisations of Searle’s (1969) felicity conditions for questions, summarised below: Condition Speaker lacks knowledge of a particular state of affairs

Rule Preparatory


Speaker wants (or feigns wanting) to gain that knowledge Speaker elicits information from hearer

(In)Sincerity Essential

The italicised portions here demonstrate the subversion of the felicity conditions for casual conversation in the context of courtroom ‘display’ talk. Schiffrin observes that information-checking questions also fulfil the same three conditions; however, the essential difference is in the scope of what is being questioned and the type of response sought. In information-checking questions, the information sought is not the completion, in ideational terms, of a proposition, but rather the reception of a referent or proposition. Since the scope of this type of question is so much more limited than its information-seeking counterpart, the questioner is able to formulate the confirmatory question as a restrictive Y/N, thereby constraining the turn length of the witness. Therefore, from the lawyer’s perspective, not only do confirmatory Y/N questions have contribution-controlling ‘benefits’, they also have a secondary consequence in terms of turn-taking; whereas genuine information-seeking questions serve to select a next speaker, an information-checking question either functions as a backchannel device or else allows the current speaker to continue to hold the floor, pending receipt of acknowledgement. ‘When you say . . .’ as a direct examination marker of clarification requests The phrase ‘when you say …’ appears to be an extremely useful one for trial lawyers. Although it also appears in cross-examination, its principal use (in a ratio of approximately 4:1) is in the direct examination of witnesses, both lay and expert; in the Simpson trial data, this string occurs on no fewer than 607 occasions. In this section I will focus on its use with lay witnesses, however, see chapter 6, for an example of its use as a jargon clarification request with expert witnesses. ‘When you say …’ questions allow the direct examination lawyer temporarily to suspend the progression of testimony and return to an aspect which is perceived to be unclear, ambiguous or potentially confusing for the jury. The lawyer can then ask the witness either to reformulate the original response by being more specific, or expand on it, perhaps by providing an example. The extracts which follow demonstrate two uses of ‘when you say …’ questions in direct examination, as 1) a request for clarification/elaboration of a previous response (say more), and 2) as a request for greater clarification/specificity (say it more precisely), requesting better fulfilment


of the Gricean maxims of quantity (1) and manner (2), respectively. In the example below, the witness is asked to expand on a brief and unclear reference to changes in Simpson’s ‘facial structure’: Q Now, was his anger manifested in any way other than the fact 1 that he became – other than the fact that he began screaming? 2 → A Yeah. His whole facial structure changed. I mean, everything 3 changed about him. 4 → Q Okay. When you say his facial structure changed, what do you 5 mean? Elaborate on that for us, please. 6 A It was calm, quiet, normal conversation, like we were sitting 7 here right now, and then all of a sudden it turned into – the 8 eyes got real angry. It was as – his whole jaw, everything 9 started, you know – his whole face just changed completely 10 when he got upset. Umm – it wasn’t as if it was O.J. any more. 11 He looked like a different person and that is what Nicole had 12 always said when he gets angry … 13 (Witness direct examination, 6 February 1995) This cooperatively minded witness obliges with a lengthy turn describing Simpson’s facial expressions and mood on the night of the murders, in lines 7–13. The requests in the second category – those which seek greater specificity than was originally provided in the witness’ response – serve a rather different function in the drive for clarity and comprehensibility. Many of the requests in this second category derive from the deictic shifts involved in transposing the original crime and investigation stories into the trial environment (an aspect previously discussed in chapter 2). This shift means that certain references which relate to the spatial and temporal frame of the crime or the investigation are no longer coherent; it is therefore necessary for the lawyer to ask for the particular referent to be explained in order to ensure that the jury will be able to follow the evidence. The following three extracts illustrate requests for greater specificity in exophoric pronoun, spatial and temporal references, respectively: 1) Pronoun referent: 1 2 3

Q Now, when you say ‘we,’ who are you referring to? A I was making this phone call for Tom Lange, so I was referring to ‘we’ as in Tom and I. (Witness direct examination, 16 February 1995)


2) Location: Q Okay. Then what did you do? 1 2 → A As I went out to my mailbox, which is in the front of the Condo complex and at that point, I was – noticed a dog 3 barking quite profusely. 4 → Q When you say ‘the front,’ would that be on the street of Bundy 5 itself? 6 A Yes. It faces the street of Bundy. 7 (Witness direct examination, 8 February 1995) 3) Time: 1 Q Well, did seeing that photograph refresh your recollection 2 even before you took the witness stand in this case, that there 3 was a rear gate at that location? 4 → A That morning I did not recall seeing a back gate. 5 → Q Miss Mazzola, when you say, ‘that morning,’ you mean the 6 morning of June 13th? 7 A Correct. (Witness cross-examination, 27 April 1995) The final two extracts (‘location’ and ‘time’) also illustrate (for the lawyer) a desirable side-effect of the use of these ‘when you say …’ questions, which is the fact that, by formulating the question in this way, it potentially allows the lawyer the opportunity to add a further segment, a ‘do you mean …’ or ‘would that be …’ coda. The following extract shows how the ‘when you say …’ question allows the lawyer effectively to answer his own query, and, moreover, do it more effectively than the witness was able to: 1 2 3→ 4 5 6→ 7 8 9→ 10 11 →

Q You shot the aerobics segment of this video in one day. A Correct. Q And when you say one day, you don’t mean just in eight hours, correct? A Correct. Q It actually took you what? 15 hours, 16 hours to shoot this video? A I don’t know the exact time, but it was pretty high. Yeah, it was right up in that area. Q And Mr. Simpson was present at the beginning of the video? A Yes. Q And he was present at the end; is that correct?


12 13 → 14 15 16 → 17 18 → 19 → 20 21 22 23 → 24 25

A Yes, he was. Q Okay. And you described for us already some of his limitations, correct? A Correct. Q And when you saw Mr. Simpson, you recognized those limitations, right? You recognized the fact that he had some limitations, right? A When I saw him – Q Okay. Well, when you saw him on the 27th or 26th rather. A 25th, the day of the shooting? Q Okay. A Right. Sure. I knew of his limitations by that point. Q And you were concerned that he might not be able to make it through the video? A Right. (Witness cross-examination, 19 July 1995)

The lawyer’s response to his own question of ‘15 hours, 16 hours to shoot this video’ (lines 3/6) makes up for the witness’s apparent memory lapse or knowledge gap, an unhelpful ‘I don’t know the exact time, but it was pretty high. Yeah, it was right up in that area’ response (lines 7–8). This demonstrates that the witness is not the ‘primary knower’ (Berry 1981) but the joint knower of the information; the initial query is therefore clearly identifiable as a display question. This type of exchange, which from the point of view of information distribution seems counter-intuitive, is possible only because the lawyer already knows the ‘correct’ answer, even if the witness has forgotten or is uncertain. This extract also illustrates the extent to which the lawyer’s initial contribution enables him to subsequently narrate an entire story segment, with the witness merely providing confirmatory Y/N responses. Through a sequence of Y/N questions, connected by the additive cohesive device ‘and’, the lawyer manages to tell the story himself without the witness making a single contribution. When the witness does attempt to make a more substantial narrative contribution (in line 18 – ‘when I saw him …’) the lawyer interrupts and takes back the floor. In addition to illustrating the extent to which the lawyer rather than the witness is often the source of the evidence (even in direct examination), this extract shows how the lawyer is able to pick up the tempo of testimony, by proceeding rapidly through non-critical evidence which is nevertheless foundational to a forthcoming contribution.


Slips in witness performance, such as that demonstrated by the witness above, can be corrected in a slightly more interactive way than by the lawyer simply providing the required response himself. This is achieved by means of the corrective insert (or repair) sequence (non-corrective insert sequences in cross-examination will be dealt with in due course). Emergency repairs: damage limitation through insert sequences in direct examination The lawyer has relatively little control over the content of the response provided by his witness during examination. Below, I will discuss some of the ways in which lawyers attempt to compensate for this by indicating in the question what the content, form and duration of the response should be; however, a common strategy for post hoc remedial work on ‘defective’ testimony is the emergency repair insert sequence, which has a clarificatory function. The following example illustrates this strategy in operation during the direct examination phase of questioning: 1 Q OK, who were the five? 2 A That would have been Det Harper, Det Haro, Det Lefall, myself 3 and Det Rogers I believe is the fifth one, from West Los Angeles. 4 → Q Rogers or Roberts? 5 → A I’m sorry, Roberts. 6 Q Roberts is from West LA, and were there other nonpolice per7 sonnel also present? (Witness direct examination, 3 April 1995) The aim of this entire exchange is to establish the credibility of the witness’s memory, foundational to the forthcoming testimony, and so the lawyer builds up a steady picture of the relevant period remembered in great (perhaps rehearsed) detail by the police officer. When the officer stumbles over his lines, the lawyer inserts a repair sequence (lines 4–5), with the aim of damage limitation. In his next turn, the lawyer reiterates the ‘correct’ response – ‘Roberts is from West LA’ (line 6) – before continuing with the next question. Again, such a form of questioning is only possible because of the unusual information distribution between the ‘questioner’ and ‘answerer’. The same witness falters again quite soon after this initial error, which induces a further emergency repair sequence: 1 Q 2

And what is your best recollection, sir, of the time of this video shoot? what time was it being shot?


3→ 4 5→ 6→ 7→ 8 9→ 10 →

A Well, umm, it had to have been shot between 3.15 and 6.45, I’m sorry, 3.15 and 4.45. Q All right. In that time frame, is that right? A Yes, sir. Q Alright. You referred to a log which helps you verify that also, correct? A That’s correct sir. Q OK, 3.15 to 4.45. Now, on Friday, we mentioned ... (Witness direct examination, 3 April 1995)

The potential damage is such that the lawyer again feels the need to reiterate the ‘correct’ response in line 9, before moving on to the next question. Having said that the question is the basic currency of the witnessexamination phase, there is one final strategy which characterises parts of direct examination, specifically those where the lawyer feels reasonably confident about the evidence and the witness’s ability to produce it. This strategy involves the lawyer formulating his questions in such a way as to make them appear not as questions at all, but as friendly requests for information. I will conclude my discussion of direct examination talk with an analysis of this aspect. ‘Would you share with us . . .’: when is a question not a question? During direct examination, it is advantageous for the lawyer to appear less controlling than in cross-examination. By appearing to encourage and reassure the witness, the lawyer can gain credibility in the eyes of the jury by appearing benevolent and sympathetic, although in reality he may still be in control of the interaction. The inherent power accorded by the role of ‘lawyer’ is sufficient that there is no need for all questions to be formulated coercively. This apparently cooperative strategy gives the observer (the jury) the sense that witness and counsel are collaborating in building the story and that the whole process is a negotiated and negotiable event, when in fact, this is far from the truth. An example of this approach at work is the following example: Q

And I want to, if I can, get a clear picture of the number of times that you had occasion to get inside that particular vehicle. Are you with me on that? (Witness direct examination, 19 July 1995)


In this instance, the lawyer is attempting to appear supportive of his witness; he does this by seeming to negotiate with the witness about how the testimony should proceed. Given the gulf between the two participants in terms of power, it is highly unlikely that the lawyer is genuinely attempting to collaborate with his witness, and yet, irrespective of the witness’s response (in this case the implied acquiescence), it appears that the interaction between the two is relatively relaxed and as friendly as it is possible to be in the courtroom setting. If a witness can be portrayed as speaking freely and voluntarily, and to be ‘negotiating’ (in this case the content of) his turns, then the effect may well be the perception of more reliable and authentic testimony than that of a witness who appears coerced and constrained in their evidence. This impression is also reinforced through the use of metatalk, which appears to make the questioning process transparent, explicit and, therefore, credible. Q

I’m going to ask you to look at this next exhibit and describe for the ladies and gentlemen of the jury what is depicted in that photograph. (Witness direct examination, 19 July 1995)

In much the same way as a doctor tells a patient ‘I’m going to ask you to slip off your shirt’ or a teacher addresses the class with ‘I’d like you to turn to a partner and discuss possible solutions to the greenhouse effect’, defence attorney Cochran in particular tends to employ indirect directives such as ‘I’m going to ask you to look at ...’, which, on the surface, come across as a request rather than a command. Similarly, his frequent use of ‘Can you ...?’ complete with ‘just’, which serves to minimise his request, allows Cochran to produce implied directives which takes the form of apparently egalitarian requests, as in the following extract: Q

Can you just show us generally, and we can get a pointer for you, where did you park the Bronco vehicle? (Witness direct examination, 19 July 1995)

In all three settings – the doctor’s surgery, the classroom and the courtroom – cooperation and compliance are the preferred responses. Both these extracts serve as examples of the multifunctionality of form in relation to function in the courtroom; had a similarly formulated utterance ‘I’m going to ask you to ...’ been addressed to the judge, a range of responses, including rejection, would have been available to him. As it


is, the witness’s acquiescence is anticipated. The mapping of function and form thus appears highly dependent on the power dynamic at work between the participants in the courtroom setting. In this way, Cochran indicates that he excludes himself as a direct recipient of the witness’s testimony by portraying himself as relatively dispassionate and uninvolved with regard to his responses. He attempts to come across as benign and therefore unthreatening to both witness and jury. In other words, he puts himself forward as a form of conduit for the transmission of information between witness and jury, and implies that his involvement is merely facilitative. The verbs employed by Cochran (from the semantic fields of counselling and fine art, respectively) in questioning his ‘friendly’ witness in the following examples are similarly designed to imply collaboration and cooperation. In addition, he uses the inclusive ‘us’ and ‘for the ladies and gentlemen of the jury’ to diffuse the impression that the question has come from him, and that the response is intended for him: Q

Can you briefly share with us what those different numbers are? (Witness direct examination, 19 July 1995)

Q

If you can tell us – and you may have to step down. What I wanted to find out was, how did you peer inside the envelope? Since we don’t have the envelope here this morning is the problem. So if you can help us with that and paint a word picture for the jury as to how you peered inside the envelope, sir. (Witness direct examination, 6 March 1995)

The second question contains an especially imaginative variation on the hidden imperative ‘tell us ...’ and attempts a multiple effect, using as it does another hidden directive ‘Can you ...’, an apparently facesaving ‘if you can’, and an assurance of Cochran’s neutrality with a further reference to the jury. Cochran follows this question by further obliging the witness in open court to mime his actions, prefaced by similarly complex forms of ‘encouragement’. It is inconceivable that the witness should refuse the lawyer’s ‘suggestion’: Q

Why don’t you, if the court would allow, step down, using the seat there as the driver’s compartment, and if you can, demonstrate it for the jurors, show us how you stepped in, if you can. You may step down from the stand if you need to. (Witness direct examination, 19 July 1995)


The features described here, which appear in direct examination questioning, are noticeably absent from its cross-examination counterpart. Rather than appearing to encourage and facilitate the elicitation of testimony by the witness, cross-examination is characterised by a greater degree of control and constraint over the witness’s responses, without the luxury of positive image-building opportunities for the lawyer, or apparent ‘freedom’ for the witness. I will now describe and exemplify some of these cross-examination control strategies. Cross-examination questioning: deconstructing the narrative The cross-examining lawyer is concerned with retaining tight control over the speed at which testimony is elicited as well as the content and form of the evidence. The analysis that follows will focus predominantly on the linguistic characteristics of destructive types of cross-examination, where the existing narrative is attacked, rather than constructive narrative, where an alternative version is proposed. The first category of questions which I will analyse is the multiple question, where more than one interrogative is integrated into a single question form. Through the use of such questions, cross-examination lawyers are able to oblige witnesses to agree to propositions embedded within the question which they are either oblivious to, or which they are unable to unpack in order to deal with separately. Multiple Qs and embedding: when is a question more than a question? Cross-examination questions routinely contain multiple embeddings with a number of interdependent interrogative layers, a technique which may be observed in the following annotated question put to an expert witness which consists of no fewer than five separate propositional elements: 1 Q 2 3 4 5 6 7 8 A

And with respect to the Bronco [topic marker], if the blood had been observed on the lower portion of the driver’s door of the Bronco [1] and someone had thought that was significant from a forensic science standpoint [2], if you had been out on the crime, at the crime scene as a criminalist [3], would you have wanted to remove that evidence at the scene [4] as opposed to removing it at some later point [5]? Yes. (Witness cross-examination, 21 August 1995)


Despite this type of complexity, the witness is frequently expected to respond with a single, inclusive Y/N response, as in this instance, and is usually instructed by the judge to simply ‘answer the question’ if they attempt (on rare occasions) to unpack the components of the question to deal with them individually. Sometimes, the complexity of the question represents little more than an inconvenience which holds up progression of the testimony only momentarily, as in the following instance: 1→ Q 2 3 4 5 6 Mr Darden: 7 8 9 10 → The Court: 11 → The Witness: Mr Cochran: 12

And someplace sometime in 24 years you have worked in an area where you’ve had some friendly encounter with somebody in your particular beat are you, as a matter of procedure and your training did you at that time have occasion and were you required by your training to write that down? I would object to this question. It is compound and it is confusing and Mr Cochran has become a witness. He is testifying. Overruled. Overruled. Do you understand the question? I think so. Thank you. Try to answer, please, sir. (Witness cross-examination, 31 January 1995)

Despite the objection (in lines 7–9), where the prosecutor complains that the defence lawyer has effectively taken on the role of the witness, the complex, multiply-embedded question in lines 1–6 is allowed by the judge. This line of questioning continues despite the fact that the witness gives the less than reassuring ‘I think so’ in response to the comprehension check question (lines 10 and 11 respectively). In this example, at least on the surface, there seems to be little substantive damage done by the complexity of the question. However, in addition to creating a processing challenge for the witness, this strategy does allow lawyers to insert potentially incriminating assertions within what may appear to be a relatively innocuous question. The example below illustrates this potential. Whilst questioning a police officer in order to ascertain the precise number of occasions on which he had been called to the Simpson house, the prosecution lawyer succeeds in making the assertion – which up to this point had been hotly contested – that Simpson and his wife had ‘been in a fight’ (lines 10–11). The formulation of the final question as a confirmatory Y/N serves to shift the witness’s attention away from the


potentially damaging admission that the couple had been fighting. The officer responds straightforwardly, as directed, to the Y/N question, and the assertion goes unchallenged: 1 2 3 4 5→ 6 7 8→ 9 10 11 12 →

Q Detective Edwards, let me see if I understand that last answer. Mr Simpson told you that the police had been out eight times before for the same kind of call? He told you that? A What he said was that – Q I’m asking the question. A They had been out there for the same similar type call, yeah, been out here before for this and you never did anything before. Q Mr Simpson told you – listen to my question, if you may. Did Mr Simpson tell you that the police had been out eight times before on calls involving the situation where he and his wife had been in a fight? He told you that? A Yes. (Witness cross-examination, 31 January 1995)

In the end the witness concedes, and responds with a compliant ‘yes’ (in line 12) and the inherent ambiguity of the phrase is left unexplored. In addition to these types of question complexities, it is also possible for cross-examination lawyers to provide, within the question, a projected indication of what the response should contain, both in terms of the extent and content of the response. The next section will begin with an exploration of cross-examination lawyers’ strategies for defining response boundaries. Defining response boundaries The first testimony-constraining strategy involves the clear demarcation of response boundaries within the initial elicitation, a technique illustrated below: 1 Q You can tell us that you had a conversation with them after 2 you first saw Mr Fuhrman? 3 A Yes. 4 → Q Without saying what was said, as a result of that conversation, 5 when you next saw Mr Fuhrman in their office, what did you do? 6 A I went inside the Marine recruiting center and I introduced 7 myself and I just began speaking to all of the men. (Witness direct examination, 5 September 1995)


In this example, the witness is asked to comment on her meeting with the allegedly racist police officer who investigated the Simpson case, but her response is constrained by the use of ‘without saying what was said’ (line 4). The jury are thus told about her actions, but are effectively prevented from hearing about the potentially significant content of the conversation, where Detective Fuhrman is alleged to have made racist comments. In addition to the initial limitation of response content, the lawyer is also able, thanks to the non-reciprocal turn-taking allocation of the lawyer–witness dyad, to interrupt the witness in the middle of her response, to provide a reminder of the boundaries set up in the initial question: 1→ 2 3 4 5 6 7 8 9→ 10 → 11 → 12 13

Q After Andrea came out, and without telling us what she said, did you have any conversation with her about what had transpired while you stepped out of Hennessey’s and she was still inside at Fuhrman’s table? A Yes. Q Okay. A I just asked what – actually I didn’t really even ask what was said. She just said, ‘oh, God’. Q Don’t tell us what she said. A All right. Q My only question is did she tell you something about the conversation? A Yes, she did. (Witness direct examination, 5 September 1995)

In line 9, the witness is reminded that the initial restriction of ‘without telling us what she said’ still applies to her testimony. In line 11, the lawyer restates the question, with a clear indication of the boundaries of the required response ‘my only question is …’. This strategy is extremely effective for the lawyer, since the response is condensed from her initial diffuse narrative into a small but perfectly formed Y/N response. Constraining response form Lawyers are permitted not only to control witnesses in terms of the content of the responses, but also to indicate prescriptively the linguistic form that the response should take. The witness in the following example is instructed in a pseudo quiz-style question to respond very


specifically in terms of an ‘epithet known to the world that denotes black people and begins which “N”’: 1 2 3 4→ 5 6 7 8 9 10 11 12 13 →

Q Being very careful with your answer. Did he, in describing the gangs that he worked with, describe any particular race? A Yes. Q Did he use an epithet well-known to the world that denotes black people and begins with ‘N’? A Yes. … Q Later in the conversation did he make another reference to ‘N’ people? A Yes, he did. Q Can you tell us what he said? A [no audible response.] Q You may use the ‘N’ word, if you wish. (Witness direct examination, 5 September 1995)

The (African-American) defence lawyer is attempting to achieve an important communicative purpose in his question about the LAPD officer’s remarks. He deliberately dissociates himself from the use of what became known in the trial as ‘the “N” word’ (referring to the racial slur ‘nigger’), to avoid the danger of alienating members of the jury.1 Witness self-monitoring Of course, the ideal scenario for the lawyer is one where the lawyer is able to instil in the witness the need to control their own testimony, without the lawyer’s intervention. In the following example, the witness manages to restrain herself mid-transgression (line 9), following a reminder from the lawyer in line 7 – ‘Don’t tell us what anybody said’ of his original boundary marker ‘without going into anything that she said …’ (line 3): 1 Q Did you see any police officers that day? 2 A I didn’t. I wasn’t seeing anything except – 3 → Q Without going into anything that she said, did you learn any 4 thing from Miss Hannak later with reference to police officers? 5 A Well, I actually learned when I started to come out from 6 under the Demerol, my other roommate came in and – well – 7 → Q Don’t tell us what anybody said.


8 → A It is just personal – I don’t have to go into that, but anyway, she mentioned – oh, I can’t say what she said. 9 10 → Q Okay. A I became aware that Karel had met two police officers that 11 had come in for other business in the hospital at that point. 12 (Witness direct examination, 5 September 1995) A problem case Despite the verbal gymnastics performed by most witnesses when faced with response constraints of the type discussed so far, not all witnesses are able to rise to the challenge, which may be glossed (somewhat trivially) as akin to the party game of ‘describe the object on the card without using the word itself’. Witnesses who are asked to ‘perform’ in this abstract and communicatively unnatural manner are sometimes unable to comply with the demands made of them, and instead tie themselves in explanatory knots, as illustrated by the next example. Here another witness who claims to have heard Officer Fuhrman make racist comments is cross-examined by defence attorney Bailey: 1→ 2 3 4 5 6→ 7 8 9 10 11

Q

Can you tell us, Miss Singer, what you mean when you say ‘the manner in which it was used,’ without going into any text? Ms Clark: Your Honor, same objection. The Court: Overruled. Miss Singer: There are words that we can speak that don’t – are not followed by – they are meaningless words. I can say a specific word and it doesn’t hurt anybody because I don’t mean it. When he says the things, he says it is bolstered by – Ms Clark: Your Honor, objection. Non-responsive. (Witness direct examination, 5 September 1995)

Singer is unable to negotiate the restrictions placed on her by the instruction ‘without going into any text’ and is reduced to an incoherent stream of false starts and reformulations. This results in an objection by prosecutor Clark that the witness is non-responsive, in other words, has not answered the question adequately. The objection is granted by the judge and the witness is subsequently reprimanded. In addition to prospectively controlling the witness response at the level of the ‘I’ move, there are also many ways in which lawyers are


able to retrospectively evaluate the responses provided by the witness, in order to gain a rhetorical advantage. One of these strategies is the use of insert sequences, which have already been discussed in the context of direct examination. As we saw above, inserts in direct examination testimony serve to repair and limit damage to witness credibility, in cross-examination questioning, they are used to reinforce damaging admissions made by witnesses through enforced repetition. Insert sequences as damage reinforcement in cross-examination There are numerous sequences during cross-examinations in the Simpson data which appear to be complete, both from an ideational and a textual perspective, but which are subsequently extended by the insertion of what appears to be a clarificatory insert sequence, as in the following example: 1 2 3 4 5 6 7→ 8 9→ 10

Q But when you first discovered it [the tape] during the first week of March, who in the robbery/homicide division did you talk to about this. A Nobody. Q You didn’t tell anybody at first? A No. Q Alright and when was the first time you told somebody in robbery/homicide? A It was either – it would have had to be either March 22nd or the 23rd. ... (Witness direct examination, 31 March 1995)

There is certainly little chance of the first response (a simple ‘nobody’, in line 4) being misunderstood or misinterpreted by the jury, and so the only reasonable explanation is that the lawyer is asking the witness to repeat his response for another (rhetorical) purpose, namely to emphasise its importance as a damaging admission. In this instance, the two-week delay in notifying colleagues that the tape had been located was a significant admission, in so far as it indicated a degree of forgetfulness and disorganisation and hinted at LAPD incompetence, a vital component of the defence’s investigation counter-narrative. The formulation of the initial question in a Wh- form – ‘Who … did you talk to about this?’ (lines 2–3) carries the presupposition and the implication that he should have told somebody, making the admission that he told ‘nobody’ all the more damaging. The lawyer’s follow-up


question – ‘You didn’t tell anyone at first?’ – was also delivered with a fall-rise intonational contour (r+) expressing surprise and with the suitable expression on the face of the lawyer, to reinforce the effect. In this example, the aim of the examiner seems to be that of obliging the witness to reiterate a damaging admission. This has the advantage of reinforcing and compounding the error of judgement in the minds of the jury, as simple repetition is an effective way of ensuring the statement (and its implications) are fully processed. A further strategy with respect to cross-examination witness insert sequences operates at the level of topic coherence. The lawyer is able to divert the attention of the witness by inserting into a hitherto coherent sequence of questions a ‘rogue’ question which seems out of sync with the discourse progression thus far: 1 2 3→ 4 5 6 7 8 9 10

Q And did you ever get inside it [the vehicle]? A No, sir. Q By the way, do you carry, in the course of your work as a tow truck driver, do you have one of these things called a slim jim? A Yes I do. Q: And with regard to that slim jim you could open that vehicle real quickly, couldn’t you? A Yes I could. Q How long would it take you to use your slim jim to open a vehicle like that Bronco? (Witness cross-examination, 8 May 1995)

The lawyer casually pursues the hypothetical situation and is rewarded for his patience by causing the witness to make the potentially damaging concession that he – an LAPD employee – at least theoretically, had both the means and the window of opportunity to open the locked vehicle and potentially tamper with crucial blood evidence inside: 1 → Q How long would it take? A Couple minutes if I had to open it. 2 3 → Q If you wanted to open it, couple minutes? A Yeah. 4 (Witness cross-examination, 8 May 1995) Finally, Cochran adds the merest suggestion of motive to the equation, asking the witness the hypothetical ‘if you wanted to … how long would it take?’ question. By using this kind of conditional construction,


the defence attorney is attempting to introduce at least the possibility of ‘reasonable doubt’ as to the integrity of the witness. One of the most interesting aspects of the ‘slim jim’ example above is the use of the marker ‘by the way’ (in line 3). Cross-examination in the Simpson trial data features this string frequently (with more than 400 occurrences). Although it is used in direct (and sometimes cross-) examination in its more typical usage, as a way of introducing an issue omitted from earlier questioning or as a supplementary question, its function in cross-examination seems more strategic. In the majority of instances, the marker ‘by the way’ seems to operate as a means of appearing to minimise an aspect which is actually of great significance. An example will illustrate this function: Q Did you contemplate in any way that the crime scene would 1 be crawling with news media the minute the discovery was 2 made that the victim was Mr. Simpson’s wife, if it were? 3 A I didn’t think about that on the way in, no. 4 5 → Q Now, when you arrived at the police station, you and Detective Phillips – and by the way, who got there first, if you remember? 6 A I don’t, sir. 7 Q When you arrived at the police station, what did you first do? 8 (Witness cross-examination, 13 March 1995) In this fairly typical example, the question relating to who arrived first at the crime scene (in line 5) is introduced almost as an incidental query which attracts little attention compared to the preceding, and more overt ‘topic shift’ marker ‘now’. The issue of who arrived first turns out to be crucial however, since it establishes whether Detective Fuhrman (the allegedly racist LAPD officer) had the time to plant the incriminating evidence, a key feature of the defence’s ‘rush to judgement’ narrative. However, by introducing it as a ‘by the way’ topic interjection within a sequence of unrelated questions, the witness perhaps does not fully realise its importance. Because a number of instances of this ‘by the way’ type of question occur when the crossexamining lawyer appears to be looking away from the witness, perhaps pacing the courtroom or shuffling papers, its significance is further downplayed. A final way in which cross-examination lawyers are able to oblige witnesses to repeat incriminating statements is by using a summarising Y/N question, which forces the witness to repeat a damaging admission, as in the following example of an echo question:


1 Q 2 3 4 A 5 → Q 6 → A

And how far away were they from you at the time that you went inside, when you left the vehicle to go inside Parker Center? It was about 15 yards. 15 yards away? Yes. (Witness cross-examination, 8 May 1995)

Such echo questions are common in other power-asymmetric contexts, such as in the classroom (Sinclair and Coulthard 1975), where the teacher uses them to simultaneously check comprehension in the teacher–pupil dyad and reinforce the ‘correct’ answer for the benefit of the wider ‘audience’, in this instance, the remaining class members. Many of these instances of echo questions, or more developed summary questions, are prefaced by the discourse marker ‘so’. I will end the chapter by exploring this phenomenon in more detail. The ‘so’ summariser in cross-examination ‘So’ summarisers are a lawyer-preferential linguistic resource (occasionally also used by expert witnesses – see chapter 6) and represent a powerful ‘extra’ feedback turn after the ideational completion of the Q-A pair or a sequence of pairs. The use of third-turn strategies such as these summary sentences represents a similar phenomenon to that of ‘formulating’ in news interviews (Garfinkel and Sacks 1970; Heritage and Watson 1980), which involves ‘summarising, glossing or developing the gist of an informant’s earlier statements’ (Heritage 1985: 100). Such summarisers are also routinely provided by the teacher in classroom interaction and by doctors in the GP surgery, indicative of their power-asymmetric characteristics. Discussing the use of formulating utterances in the context of the news interview, Heritage argues that this type of talk is more directly addressed to the ‘overhearing audience’ than are the majority of questions and answers that precede it. This would certainly appear to be true in the courtroom context, since in the majority of cases, including the examples presented below from the Simpson trial, there is no clarificatory advantage to be gained at the local question(er)-answer(er) level. None of the responses provided in the build-up to the summariser is ambiguous or equivocal, and therefore in need of more explicit explanation; the only justification which makes sense is one where the evaluative summariser is used with a strategic motivation, for the purposes of communicating with the jury. As Heritage (1985: 104) notes:


formulations advance the prior report by finding a point in the prior utterance and thus shifting its focus, redeveloping its gist, making something explicit that was previously implicit in the prior utterance, or by making inferences about its presuppositions or implications. As the following data extracts illustrate, all these effects and others are produced in the courtroom context. Such formulations are of particular value in cross-examination since they are inferentially elaborative, isolating certain elements of prior utterances and explicitly outlining their relatedness to each other, even if this causality may not have been present in the initial utterance. Because the summariser typically takes the form of a restrictive Y/N question, the potential for the witness to contradict the proposition is severely limited. Before exploring their use in cross-examination, however, it is interesting to consider briefly how summarisers are employed by direct examination lawyers. The following extract from direct examination illustrates the use of the ‘so’-type summariser to underline the credibility of the witness: 1 2 3 4 5 6 7 8 9 10 11 12 13 14 → 15 16 17 18 → 19 20

Q All right. With respect to your first crime scene, did you actually pick up any evidence at that crime scene? A Yes, under supervision. Q And was there any biological evidence that was involved in that first crime scene? A There was a lot of biological evidence. Q Can you give us just a guesstimate as to how many stains? A [no audible response.] Q I mean, are we talking about less than a dozen or more than a dozen? A More than a dozen. Q Did you pick up some of those stains yourself? A Yes, I did. Q Now, when you processed that first crime scene, did you get any feedbacks in terms of how you had done? A We – the people that were processing the scene were given a commendation for the scene. Q So this was your first crime scene and you received a commendation for it? A Right. (Witness direct examination, 20 April 1995)


Here, the basic foundational work is accomplished in lines 1–13, where the witness outlines her experience of crime scene evidence collection. From these initial overtures, relating to general issues and not specific to the Simpson case, it is not entirely clear where the lawyer is heading. The ‘now’ of line 14 marks a discourse boundary, reorienting the witness examination towards the rhetorical point of the questioning which the lawyer is attempting to make, which is to establish the credibility of the witness as a competent worker (in the context of defence claims that crime scene evidence was contaminated by incompetent forensic scientists). The ‘so’ summariser in lines 18–19 functions as an explicit indication of the implicit logical inference, namely that if someone receives a commendation for their first job, this constitutes confirmation of their competence. ‘So’ summarisers in direct examination such as that in the example above function as a way of reinforcing the cumulatively constructed message in a final lawyer turn, referred to by Heritage (1985: 106) as a ‘cooperative recycle’. In cross-examination, the orientation of the ‘so’ summariser is also to emphasise the force of the previous sequence, but rather than allowing the witness to confirm something favourable, as in direct examination, the aim in cross-examination is to oblige the witness to concede and reiterate in an explicit form something damaging. In this example from cross-examination, the lawyer pursues a repetitive and destructive line of questioning, culminating in a damning summary sentence: 1 2 3 4 5 6 7→ 8 9 10

A Q A Q

You won’t find her on that log, no sir. Why won’t we? Good question I don’t know. Well was there any other log that she signed in on when she came there? A No sir, not that I’m aware of. Q So you have no reports which tell you exactly what time she got there, so you have to give us only your independent recollection, is that correct? A That’s correct, yes sir. (Witness direct examination, 3 April 1995)

By the end of a punishing sequence of questions, the witness concedes defeat and produces an unhedged, emphatic admission that: A

The entire time when she arrived, spent and left, is just an approximation on my part. (Witness direct examination, 3 April 1995)


Because of the damaging nature of the admission that no accurate records were kept of the comings and goings at the crime scene, and since this constituted a major factor in the defence claim that evidence was tampered with at the scene, it is important for Cochran to end unambiguously, thereby preventing the witness from contradicting the carefully laid groundwork for the final admission. In order to ensure this, he employs one of the most controlling Y/N question types, the statement + tag, which ideationally sets out the ‘facts’ and subsequently invites the witness to respond, in this case in the affirmative. Because the witness is interactionally constrained and is restricted to answering only the question put before him, and because of the weight of evidence provided by the preceding exhaustive reiteration of the same point, Cochran easily gains his acquiescence. The following extract provides a further graphic illustration of the potential rhetorical force of the ‘so’ summariser; here one of the crossexamination lawyers is questioning the LAPD scenes-of-crime officer about a plastic shovel found in Simpson’s vehicle, regarded as highly significant by officers investigating the murders, until it turned out to be a snow shovel which came as standard issue with every Ford Bronco. Cross-examiner F. Lee Bailey is able to formulate a damning ‘so’ summariser, in the very first exchange of Detective Fuhrman’s six gruelling days of cross-examination. The use of verbs such as ‘enlightened’ (line 3) and the derisory intonation adopted by Bailey contribute still further to the sense of incredulity which characterised Bailey’s cross-examination, leaving the witness humiliated: 1 2 3 4 5 6 7 8 9→ 10 11

Q Good morning, Detective Fuhrman. A Good morning, Mr Bailey. Q Could you tell us when it was that you were enlightened as to the fact that the plastic you saw in Mr Simpson’s Bronco comes with the car, when you learned that? A Yes. I believe it was Saturday. Q Saturday. A Yes. Q So that after nine months of investigation, you discovered on Saturday that this important piece of evidence was perfectly innocuous; is that right? (Witness cross-examination, 13 March 1995)

The same officer was later questioned about his alleged racist attitudes towards African-Americans – evidence, for the defence, of motivation


for the alleged racially motivated planting of evidence. In this instance, Bailey uses a prospective ‘so’ summariser, not only to commit the witness to something already stated by him, but in an attempt to provide a damaging backdrop to forthcoming testimony by another witness: 1 2 3 4 5 6 7 8 9 10 11 12 → 13 14 15

Q I want you to assume that perhaps at some time, since 1985 or 6, you addressed a member of the African American race as a nigger. Is it possible that you have forgotten that act on your part? A No, it is not possible. Q Are you therefore saying that you have not used that word in the past ten years, Detective Fuhrman? A Yes, that is what I’m saying. Q And you say under oath that you have not addressed any black person as a nigger or spoken about black people as niggers in the past ten years, Detective Fuhrman? A That’s what I’m saying, sir. Q So anyone who comes to this court and quotes you as using that word in dealing with African Americans would be a liar, would they not, Detective Fuhrman? A Yes, they would. (Witness cross-examination, 15 March 1995)

Having given the witness the potential face-saving defence of a lack of recall of events 11–12 years previously (line 3), Lee Bailey encourages the witness, on two separate occasions, to make the unambiguous statement ‘under oath’ (line 8) that it is ‘not possible’ (line 4) that he ever used the epithet nigger ‘in the past ten years’ (lines 8–10). Bailey then follows up this one-two with the knockout blow in lines 12–14, since the defence have a number of witnesses in the wings who will subsequently testify to just that scenario. In addition to the potential rhetorical force of the ‘so’ summariser, this form of linguistic domination also has turn-taking implications, since it contains elements of the I(nitiate) R(esponse) F(ollow up) exchange structure found in other powerful–powerless dyads, such as teacher–pupil interaction, where the ‘professional’ initiates the exchange by posing a question, the relatively powerless participant (the pupil) is obliged to respond, and this is then followed up by some form of evaluative feedback, such as the teacher’s ‘yes, that’s right’. In the legal setting, the effect is a similar one, in that it serves to reinforce the dominance of the lawyer; the exchange is not complete until he


has confirmed, acknowledged and evaluated the response, as in the following example: Q 1 2 A 3 Q 4 5 A 6 7 8→ Q 9 10 → A

And by that time, if you recall, had we started picking the jury in this case? I really don’t know sir. All right. If it was in October, you were aware of the proceedings that took place here, were you? I’m aware of the proceedings, yes, sir, but as to the chronology, no sir. All right. So you don’t know whether it was during pretrial or we had started picking a jury at that point. That’s correct, sir. (Witness direct examination, 31 March 1995)

Here, despite the fact that Cochran indicates to the witness that this is a genuine request for recall (‘if you recall’ – line 1) thereby at least giving him the option of not remembering, he insists on pursuing the point until the witness has repeated the same response three times. It is not, however, until Cochran has himself reiterated the response (lines 8–9) that the topic shifts and another issue is explored. This chapter has illustrated some of the ways in which lawyers, operating in both direct and cross-examination modes, are able to control and constrain the testimony elicited from witnesses on the stand. Not all witnesses are equally easy to control, however. In particular, the category of ‘expert witness’ is acknowledged by lawyers as one of the most difficult to handle. Chapter 6 addresses the language of the expert witness, focusing in detail on the negotiation of power, knowledge and status which takes place during witness examination between the lawyer, the expert and, by proxy, the jury.

6 Mind the Gap: Negotiating Power, Knowledge and Status in Expert Witness Testimony

Introduction The typical criminal trial involves a range of testimony from a variety of individuals, lay witnesses, police officers and experts. This chapter focuses on the role of one specific type of witness – the expert – and analyses the particular set of interactional dynamics and the relative distribution of knowledge and expertise which characterise expert witness testimony. These phenomena will be discussed in the context of and exemplified by experts in the Simpson trial. The expert witness and his testimony play an increasingly important role in both civil and criminal trials. Experts are routinely called by both prosecution and defence to present evidence on a wide range of forensic issues, from psychological behavioural profiling of offenders, through to fingerprint analysis and complex DNA testimony and even, on occasion, forensic linguistic evidence on issues such as disputed authorship. Professionals from virtually any field can be called as expert witnesses; a glance at a UK-based register of experts1 reveals a diversity encompassing domains as esoteric as insect excrement analysis and the assessment of faulty hairdressing procedures. As I have shown, many of the interactional and discursive frameworks of the criminal trial are fundamentally constructed in such a way as to promote the role of the law and the lawyer at the expense of all other trial participants and processes, including the expert witness. On the lawyer’s territory, it is the law which constitutes the overriding, dominant discourse and, as Renoe (1996: 155) has noted, ‘experts who are “expert” and have authority, can fail to retain it once they become enmeshed in the locally managed interactions of the courtroom’. 156

Expert Witness Testimony 157

The analysis of expert witnesses presented in this chapter will begin with an examination of the interactional and informational characteristics of expert testimony, with a specific focus on the ways in which expert evidence differs from that of lay witnesses.

Expert vs. lay witness testimony: interactional and informational differences Jackson (1995: 419) notes that expert witnesses benefit from a number of interactional advantages over their lay counterparts. These include fewer interruptions and less overlapping speech; less use of confirmation-seeking questions (and hence more information-seeking questions); and longer narrative spans. Since research carried out by O’Barr (1982), Conley and O’Barr (1998) and others shows that narrative speech appears to be more persuasive with jurors than fragmented testimony, it seems that expert testimony is intrinsically more likely to be accepted by jurors than the lay witness equivalent. Testimony from the experts in the Simpson case demonstrates a number of these preferential tendencies in the way in which lay and expert witnesses are questioned. These strategies go some way towards neutralising the power asymmetry between lawyer and witness during direct examination, by according the expert witness a greater degree of freedom in their responses. This means that although the lawyer retains fundamental control over topic choice and change, turn length and allocation, the expert witness is at least given the opportunity to respond to questions more fully than simply providing Y/N confirmations. I will now explore the occurrence and effectiveness of these strategies in the Simpson trial data, beginning with the expert witness’s access to floor-holding narrative. Expert witness narratives In terms of turn length (measured in number of words per response), the expert witness seems far better placed than the lay witness. The figures for two sample lay and expert witnesses, whose testimony amounted to 20,000 words, demonstrate the tendencies shown in Figure 5 which indicates that the expert witness is given far greater leeway in his responses in terms of turn length than his lay witness counterpart. The difference appears to lie at the top end of the scale rather than at the bottom, with a maximum response length for the lay witness of 52 words; in contrast, the expert witness is permitted to


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produce far lengthier contributions, up to a maximum of 433 words in one instance of direct examination testimony. This is at least partly explained by the need for expert witnesses to ‘amplify’ their responses, ‘requiring more examples, more explanation and ultimately, a higher word count’ (Stygall 2001). However, in general, such high figures are exceptional; for both witness types, the majority of responses are grouped at the lower end of the scale and are limited to a few words, leaving the lawyer firmly in interactional control. Although the majority of responses from both lay and expert witness types are between one and three words long (accounting for straightforward ‘yes’ and ‘no’ responses as well as variations such as ‘yes it is’, ‘no he didn’t’, and so on), the expert is allowed greater freedom to expand on answers, to give examples and to explain and develop important points. This proves to be the case in both direct and cross-examination, although, as might be expected, cross-examination questioning is more controlling than direct, in terms of its response-restricting character. Figure 6 illustrates this difference. In qualitative terms, a representative picture of the expert’s narrative testimony style is illustrated in the following extract: Q 1 A 2 3 4 → Mr Goldberg:

Now, what is your basis for that opinion? The basis of the opinion – my opinion that it fell below a minimum standard – Well, I’m going to object. Calls for a narrative.


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5 → The Court: 6 → The Witness: 7 8 9 10 11 12 13 14 15 16

Overruled. You can answer the question. The outcome of the evidence, the things that occurred to the evidence that caused it to lose some of its individuality, some of the items that were contaminated at the evidence [sic] in the sense, for instance, there was something placed over a body at that evidence – at that crime scene, which was a mistake in the sense of the choice of whatever it was, not a mistake necessar ily to over a body if it is in public view, and there is some question of – of just humanistic aspect of covering up the remains of somebody. (Witness direct examination, 21 August 1995)

This fairly typical example of narrative-style testimony from an expert elicits a response of almost 100 words. The expert does not always have quite as much control over the form of his response, however, nor as much explicit assistance from the judge in permitting a narrative form (line 5).


In the next extract, the witness’s request for permission to narrativise (in line 4) is rejected first by the judge (in line 5) and then by the lawyer who asked the original question (line 6). The judge at first produces an open question – ‘What is the basis of your testimony?’ – which he presumably realises is tantamount to inviting a narrative response. Then he modifies the question into a more restrictive Y/N form (lines 7–8) which reduces the witness to a single-word affirmative confirmation in line 9: 1 2 3 4 5 6 7 8 9 10

Q

→ → → → →

Well, is your opinion based on your understanding of what the reason was that that was not collected? A Can I answer that in a narrative form? The Court: No. Mr Blasier: No. The Court: What is the basis of your testimony? Was it the testimony that you heard? The Witness: Yes. The Court: All right. Proceed. (Witness direct examination, 21 August 1995)

In another data extract from an expert witness examination, the witness’s attempts to control the interaction leads to an objection which is subsequently sustained by the judge: 1 2→ 3 4 5 6 7 8 9 10 11 12 13 14 15 → 16 17

The Court: We are over at sidebar. Mr Cochran: Your Honor, when we were here before – I asked to come first. Your Honor, when we were here before, I asked your Honor to admonish Detective Lange. And the jury – if you watch the jury, they’re not impressed with this. He keeps volunteering answers. This is an experienced witness. And I asked you before to admonish him to stop answering ques tions that quickly. This is some kind of a routine they’ve adopted. I think it’s unfair. He’s done that three or four times today. It’s not right, your Honor. I would ask you to admonish him. The Court: I think the answer was yes, which hardly is volunteering information. Mr Cochran: But, your Honor, there was an objection. And this is an experienced witness. He’s volunteering – because he knows not to answer until there’s a ruling. He’s


18 19 20 21

been an officer 28 years. He knows not to answer until you have a chance to rule. The Court: I’ll instruct him. Mr Cochran: Thank you, your Honor. (Witness direct examination, 7 March 1995)

This objection leads to a reprimand from the judge, in the presence of the jury, a face-losing and potentially credibility damaging act for the witness: 1 → The Court: 2 3 4 The Witness: 5 The Court: 6 Q 7

All right. Detective Lange, when you hear one of the parties making an objection, would you please wait to answer the question until I’ve had a chance to rule on the objection? Yes, your Honor. Miss Clark. All right, sir. (Judge Ito, 7 March 1995)

In addition to being allowed to hold the floor for longer periods, it also appears to be more acceptable for the expert witness to interrupt the lawyer without punitive intervention from the judge more frequently than is the case for lay witnesses. I will now explore the way in which interruptions by experts are handled in comparison to floorstealing attempts by lay witnesses. Witness-initiated interruptions: lay vs. expert witnesses This differential management of witness-initiated interruptions is illustrated by the following example. Here, it is the lawyer who is at something of an interactional disadvantage, managing an average contribution of only nine words per turn, in contrast to the witness’s average response length of 39 words. Moreover, the witness interrupts the lawyer’s questions on a number of occasions (lines 11 and 16). Perhaps even more significant is the fact that both lawyer and judge tolerate this apparent transgression of lawyer–witness questioning dynamics with neither objection nor reprimand: 1 2 3 4 5

Q Could you give me just a real rough list of some of the law enforcement agencies that you work for. A Well, we work for many of the police departments in the sur rounding counties, for the district attorney’s office, for cases that they bring to us in the surrounding counties. We occa-


6 7 8 9 10 11 → 12 13 14 15 16 → 17 18 19 20 21

Q A

Q A Q A

sionally work with the police department and the courts in the city of Philadelphia, too. We are scientists, so we assist there. Well, either the courts themselves or sometimes the defense attorneys. You know, it makes no difference. Do you work with – We also do work for police departments at times in New Jersey, in as far away – well, we have done work for the Los Angeles police department at one point or we may have done some more recently that I don’t know of. Do you work – So we do it for all over the country. Do you do work for any foreign police agencies? Yes. Occasionally we did some work for the medical exam iner and the prosecutor in Brazil in one of the countries. Puerto Rico of course, which is part of the United States, we have done work there. (Witness direct examination, 24 July 1995)

A parallel stretch of data taken from a lay witness’s attempts at turn self-selection has a more punitive tone and produces very different consequences for the witness: 1 2 3 4 5 6 7 8→ 9 10 → 11 12 13 → 14 15 → 16 17 18 → 19

Q

A

Q A Q A Q A Q A The Court: Ms Clark: The Court:

Was there any occasion when you saw him in private? What I mean by that is alone in a room where there was no one else around? There have been times, say, like I remember we was in Florida and I saw him in the – in the – in the bar area, hotel bar area. Okay. Again that is a public area, yeah, too – Yeah, yeah, right. There was a bartender – Over to the side, yes. Okay. What I mean is alone in a room where there was no one else? No. Never happened? No, never. Excuse me. I’m sorry. Mr Bingham, if you would you, would you allow Miss Clark to finish asking you the question before


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you start to answer, because the court reporter is having a hard time because you are both trying to talk at the same time. The Witness: I shall. The Court: Okay. You will get out of here a lot quicker if we do it that way. The Witness: Thank you. The Court: Miss Clark. (Witness cross-examination, 13 July 1995)

In this extract, overlapping contributions by the lawyer and witness (in lines 8, 10, 13, and 15, respectively) result in a sharp reprimand from the judge (lines 18–25). Judge Ito is careful to signal to the witness that although both lawyer and witness are jointly responsible for producing the simultaneous speech, it is the witness who must concede by default – ‘Mr Bingham … allow Miss Clark to finishing asking you the question before you start to answer’ (lines 18–20). Expert attempts to topic shift A second area where expert witnesses seem to be slightly better placed than lay witnesses is in their attempts to challenge lawyers on the content of their questions, both at the general level of topic and at the level of micro-questions within that topic. Expert witnesses appear to be more successful at re-orienting talk towards their own agendas than lay witnesses who attempt a similar task. It should be pointed out, however, that these remain minor and reasonably infrequent ‘victories’ on the part of expert witnesses when viewed in the context of the overall control over testimony elicitation demonstrated by the lawyers and judge; nevertheless, the following extract does represent a witness ‘success story’ in terms of regaining or retaining some degree of control: Q My question is, has any remedial action been 1 taken with respect to Dennis Fung’s failure to note 2 on the property reports the quantity of swatches 3 collected through each of these bloodstains? 4 The issue is whether – well, he has two options. He 5→ A can either – so I want to paraphrase something before I 6 answer your question. 7 8 → Mr Neufeld: Well, I would ask, your Honor, that you ask the witness to please respond to the question, which 9 was, was any remedial action taken. 10


11 → 12 → 13 14 15 16 17 18 → 19 20 21 22

The Court: Answer the question, please. The Witness: I can’t answer it yes or no because he doesn’t have to count the swatches. Q That’s your position? A Depending on how he does it. So – Q Your position is, he doesn’t have to count the swatches? A No. Not – you’re misstating what I’m saying. There are two ways to book bloodstains. You can either count the swatches or you can say ‘a red stain collected on swatches’ or on cloth and then you wouldn’t count them ... (Witness direct examination, 16 August 1995)

In line 5 of the extract, the witness tries to postpone (or perhaps avoid entirely) answering the lawyer’s question relating to the issue of remedial action; his strategy consists of a direct (and declarative) statement of intent to ‘paraphrase something’ prior to addressing the question. The lawyer responds with an objection, enlisting the judge’s support in obliging the witness to respond (lines 8–10). However, the witness’s response to the judge’s unambiguous and unhedged directive ‘answer the question, please’ is a face-threatening denial – ‘I can’t answer it yes or no because he doesn’t have to count the swatches’ (lines 12–13). The witness continues with a challenge to the lawyer’s next question in line 18, and goes on to produce a protracted floor-holding response which is interrupted by neither judge nor lawyer. To keep these relatively minor ‘successes’ in perspective, it should be noted that not all such attempts have as positive an outcome for the expert witness; such laxness and relaxation of the interactional rules remains, crucially, at the discretion of the lawyer and judge. As the following example illustrates, the outcome lies ultimately in the hands of the judge: 1 Q 2 3 4 → The Witness: 5 6 → The Court: 7 → The Witness:

Based on your observations of the Bronco, the times you’ve looked at it, can you see those two circled areas if the door is closed? Let me comment about this photograph first, if I may, because I can’t – No. You have to answer the question. Okay. (Witness direct examination, 21 August 1995)


It is presumably in the lawyer’s interest to know when to reprimand and when it is better to allow the witness some degree of interactional freedom and to choose judiciously between the two. If the witness’s misdemeanour relates to evidence of little or no substantive value (or damage) to the overall case, it may be better for the lawyer to let it go unchecked and unchallenged from time to time; in terms of scoring points in the lawyer’s relationship with the jury, this means that the lawyer is more likely to come across as allowing the witness to present their evidence in their own way, at least to some extent, rather than pedantically pursuing each minor point. In the worst-case scenario, lawyers who abuse expert witnesses are likely to be badly regarded by the jury – the ultimate sanction in the trial by jury courtroom. Sales (1977: 112) warns expert witnesses of the potential ‘tactical use of emotions and personal attacks that lawyers take for granted’ and advises experts to desensitise themselves to the ‘nasty treatment they will experience on the witness stand’ (p. 113). He does, however, reassure the witness that juries do not take kindly to such behaviour and that repeated attacks are likely to evoke sympathy for the witness, reminding the witness that this level of hostility is likely to occur only as a result of effective testimony and as such, should be regarded as a sign of victory rather than defeat for the expert. Training manuals, in their guidance to novice expert witnesses, underline the fact that the witness can still make an impact on the stand and gain an advantage in court through manipulation of the style of presentation of their evidence, even though they may be tightly constrained in other respects. Gee and Mason (1990: 119) advise experts that ‘within the confines of the adversarial system, how a witness presents his evidence can be important and injustice may be done if the right evidence is presented in the wrong way’, demonstrating an insight into the ‘trial as performance’ dimension of the adversarial system. Brodsky’s (1982: 273) advice also emphasises the incorporation of theatrical gestures into expert testimony, as much for effect as in a genuine attempt to buy thinking time: Take time to think. The staccato, machine-gun pace of some attorneys during cross-examination tends to lead some witnesses to give very quick, insufficiently thought-out answers. Pause, cock your head, look up into the distance for a moment, make it clear you are giving the question serious thought, and then answer.


In formulating responses, experts are warned against simply providing single-word affirmative or negative answers; the implication in many texts is that a straightforwardly quantitative advantage can be gained by holding the floor for as long as possible. Hence, Hall and Smith (1997: 91) advise, ‘instead of constantly repeating the answer “yes” to every question … vary the response, e.g. “that’s correct”, “this is so” etc.’. Brodsky’s claim is that ‘this reply empowers the witness more than the simple “yes” reply’ (1999: 10). Similarly, in the case of multiple questions, the ‘attentive witness’ is counselled to ‘note the two questions by observing “you have asked me two questions”’ before dealing with each separately (although as we saw in the previous chapter, this ideal may, in reality, be difficult to achieve). Along the similar quantitative line of ‘more is more’, Brodsky (1999: 93) concludes that the expert witness should always try to have the last word if possible: Always get the last word, adding ‘that is correct’ after her ‘indeeds’. Alertness for turning around the semantic flow is what gave Dr X the chance to get into a continuing dialogue and to make a difference on the stand … When the attorney comments on one’s testimony, having the ‘last word’ can empower the witness and reduce a sense of helplessness. The conflict between the expert witness and the lawyer stems to a great extent from the fact that both are professionals and ‘experts’ within their own domains. However, in the trial setting, both lawyer and expert are required to interact, both collaboratively in direct examination and competitively in cross-examination, where clashes between egos and expertise are common. I will now move on to discuss the layering of expertise which takes place in court when an expert takes the stand.

Lawyer–expert witness talk: multiple layers of expertise In terms of the relative knowledge distribution of its participants, the courtroom represents a complex interactional setting. Linell (1998: 143), in a generic discussion of institutional talk, identifies three levels of discourse and knowledge in communicative events involving various types of ‘professional’. He distinguishes between intraprofessional discourse, consisting of interaction within specific professions; interprofessional discourse, which involves talk between individuals representing different professions;


and finally, professional–lay discourse, which accounts for interaction occurring when professionals communicate with lay people. The work of the adversarial courtroom can be usefully considered along these axes of knowledge and power, with all three of these dyad types present at various stages of the trial, as Table 16 illustrates. Table 16 is organised hierarchically, representing a progressive decrease in social and professional proximity between participants. On a locally dyadic level, talk occurring between the legal professionals – lawyer–lawyer and lawyer–judge talk, respectively – appears to demonstrate the smallest distance in terms of knowledge differential. Not only is the official status of these participants identical or very similar, but they also belong to the same legal discourse community, and therefore share a common knowledge of the language and behaviours normatively associated with it. This includes the jargon of the field as well as the interactional conventions which their roles embody. Intraprofessional discourse, where the likelihood of frame conflicts (Goffman 1981; Tannen 1993) between interactants is minimised, on the grounds that the protocols, procedures and discourse conventions of the field are shared, represents, in theory, the least problematic type of dyad in terms of its potential for miscommunication (Aronsson 1991: 239). At the opposite end of the spectrum lies professional–lay discourse. This type of interaction includes talk where the lawyer addresses jurors directly, as in the opening and closing arguments, or where the lawyer examines or cross-examines a lay witness in open court (talk of the type explored in the previous chapter). In both these instances, the potential for miscommunication is significantly increased, since the disparity in knowledge, experience and status is greater between the participants. Phillips (2003) provides a detailed discussion of ‘lawyer’s language: how and why legal language is different [from its lay counterpart]’, discussing the potential for communicative difficulty created Table 16 Intra-professional, inter-professional and professional – lay interaction in the adversarial criminal trial Interactional Dyad

Discourse Type

Trial Phase Exemplification

Lawyer–judge talk Lawyer–lawyer talk Lawyer–expert talk Lawyer–witness talk Lawyer–jury talk

Intra-professional Intra-professional Inter-professional Professional–lay Professional–lay

Sidebar conference/objections Objection sequences/sidebars Expert witness examination Witness examination Opening/closing arguments


by lawyer’s language which, for the layperson, frequently proves ‘not only alien but alienating’ (p. 30). The lay juror and the lay witness are unlikely to be experienced in the interactional and legal conventions of the courtroom; in both cases, any knowledge and experience they do possess will be eclipsed by that of the lawyer, for whom such talk is probably second nature and has been acquired over years of experience and training. The witness is typically naïve about the process in which they are involved, not only because appearing in court is a relatively rare occurrence, but also because lay witnesses are called and then excused from the courtroom following their evidence and are not exposed to the trial events which surround and contextualise their testimony. This form of judicial ‘divide-and-rule’ mentality governs the entire trial by jury process; trials are punctuated by ‘off-the-record’ lawyer–judge interactions and discussions which take place out of earshot of the jury, meaning that the judge and the lawyers are the only participants present throughout the trial. Each individual witness therefore is only one small piece in the jigsaw which makes up the trial and never has the opportunity to see more than their localised role in it. Interestingly, perhaps as an acknowledgement of the expert’s relative independence and neutrality compared to the lay witness, the expert is normally permitted to attend the whole trial, both preceding and following their turn on the stand although few choose to do so. The expert witness occupies a unique position, situated between the legal professionals and the lay jurors, indeed this duality of role is encapsulated in the very term ‘expert witness’. Outside the courtroom setting, the expert shares, or may even exceed, the professional status of the lawyer in terms of knowledge and social standing; however, out of this familiar environment, and placed in the witness box, the expert is subject to the rule and role constraints of the courtroom. This chapter explores some of the linguistic consequences of this clash of professional worlds in the courtroom, illustrated with expert witness data from the Simpson trial. The first section attempts to answer three fundamental questions relating to the expert as witness: first, what is an expert witness, second, what is the expert’s role in the trial and finally, who defines and polices the notion of ‘expertness’, in other words, on what basis is the expert’s expertise admitted into court? What makes an expert expert: defining ‘expertness’ in court The courts have clear guidelines as to what constitutes expertise and what qualifies as admissible expert evidence. Although the precise


wording of these criteria varies from one jurisdiction to another, they are typically drawn up with reference to the respective levels of knowledge held by the various participants in the courtroom, most crucially the jury. One of two sets of criteria governing the admissibility of expert evidence is typically applied, depending upon the particular jurisdiction. The first, and older of the two, is the Frye test (Frye v. United States 293 F1013 (DC Cir 1923)), which outlines four conditions. These were in essence supplanted by the 1975 Federal Rules of Evidence, here cited in Greene et al. (1985: 210): 1. the subject matter must be beyond the common understanding of the average juror or must assist the juror in understanding the evidence; 2. the expert must be sufficiently qualified, so that his or her opinion or inference will aid the jury; 3. the evidence about which the expert testifies must be scientifically reliable and generally accepted in the scientific community; and 4. the probative value of the evidence must outweigh its prejudicial effect. A more lenient interpretation of expert witness criteria is provided by Rule 702 of the Federal Rules of Evidence, which requires only that: 1. the expert be qualified through skill, knowledge or experience; and 2. the expert be able to help the trier of fact understand the evidence or determine a fact in issue. These sample criteria, although not the most recent, are a useful starting point in so far as they serve to underline the relativity of the expert’s knowledge; for the court, the expert is predominantly an expert because they possess ‘skill, knowledge or experience’ not held by the lay jury. What function does the expert have in the trial? Given these qualifying criteria, the role of the expert witness is intended to be essentially facilitative, in so far as his responsibility in court is to assist the jury in their deliberations by supplementing the existing expertise of the other participants with some type of specialist knowledge, in other words: the duty of expert witnesses is to furnish the judge or jury with the necessary scientific criteria for testing the accuracy of their conclu-


sions so as to enable the judge or jury to form their own independent judgement by the application of these criteria to the facts provided in evidence (Lord Cooper in Davis v. Edinburgh Magistrates (1953), in Curzon 1986: 211) The testimony of an expert witness is therefore judged inadmissible where ‘the court is as capable of forming an opinion as is the expert witness’ (Curzon 1986: 211). A further, more recent, amendment to the rules surrounding the admissibility of expert evidence resulted from the 1993 Daubert Ruling (Daubert v. Merrell Dow Pharmaceuticals Inc. 113 S Ct 2786 (1993)), which has become known as the Daubert Standard. The judge ruled that, for the first time, trial judges were to play a more active role in assessing the validity of expert evidence as well as the credibility of the expert. In the post-Daubert era, judges are therefore required to make a preliminary assessment of the scientific validity of expert evidence in determining its admissibility in court, further evidencing the primacy of the law over the concerns of other institutions such as the scientific community. It is significant that this initial decision regarding the legitimacy of the expert and determining their access to the courtroom is placed in the hands of a legal professional – the judge – rather than a professional from the relevant field, not only because it serves as an indication of the influence of the law on the professions in the trial domain, but also because it is symbolic of the systematic disempowerment of the expert which is characteristic of the expert witness’s appearance in court. This is despite the facilitative motivation behind expert evidence which renders the expert’s expertise necessary and legitimises their participation in the trial. Allied to this is the fact that, ultimately, it is the (by definition) nonexpert juror who has the final and binding decision as to the credibility of the witness and their evidence. As Ross (1997: 254) points out: the jurors are really the experts. They have the final judicial decision and they can choose with impunity and without need for justification to accept or reject the ‘expert’ testimony of any witness in favour of common-sense. The right, indeed the requirement, for jurors to evaluate experts with a view to accepting the testimony of some and rejecting that of others, is


encapsulated in a portion of the initial jury instructions as delivered by Judge Ito to the Simpson jurors. The jurors were instructed that: in determining the weight to be given an opinion expressed by any witness, you should consider his or her credibility … You are not required to accept such opinion, but should give it the weight, if any, to which you find it to be entitled . . . You are not bound to accept an expert opinion as conclusive, but should give to it the weight to which you find it to be entitled. You may disregard any such opinion if you find it to be unreasonable. In effect, what takes place when an ‘expert’, however defined, takes the stand amounts to a double layering of professional expertise. First, the expert has an externally validated and self-contained expertise which is tapped into by the prosecution or defence, indeed this knowledge legitimises their role in the trial; however, this knowledge and expertise must undergo interrogation by the legal discourse community. Thus, the expert witness is only able to testify within the strict limits of the courtroom setting (in terms of interaction) and with due respect for the law (in terms of the rules of evidence). As Goodwin and Goodwin (1997: 296) point out, the result is a complex dialogic framework involving the embedding of one discourse type – that of the expert’s respective domain of interest – within another – that of the legal process. From a Foucauldian perspective, the testimony of an expert witness in court is an illustration of the way in which locally determined discursive practices serve to construct what kinds of talk can and cannot be heard, and who is qualified to present an authoritative version of the ‘truth’. The integration of the parallel discourse worlds of science and law in the courtroom results in a blending of voices, producing a heteroglossic mixture of professional concerns and conventions, in Bakhtinian terms. Finally, in the adversarial system, this knowledge is then subjected to the scrutiny of a non-expert, non-legal form of adjudication, in the shape of the jury. The challenge of appearing as an expert is acknowledged as a potentially problematic and traumatic experience, and to this end, an entire industry of consultants, training courses and ‘how to’ manuals has grown up to advise experts on the best way to handle testifying in court. The majority of these manuals take a pessimistic tone, depicting the courtroom as essentially hostile and threatening, with titles such as ‘Coping on the Witness Stand’ (Sales 1977) and ‘The Mental Health


Professional on the Witness Stand: A Survival Guide’ (Brodsky 1982). Brodsky likens giving expert testimony to ‘hostilities with the enemy [with] fierce fighting’, drawing the analogy between courtroom crossexamination and Wonder Woman deflecting a barrage of assailant’s bullets with her bracelets! Brodsky’s latest manual, The Expert ‘Expert Witness’: More Maxims and Guidelines for Testifying in Court (1999: 8) has an air of resignation in its advice to experts to expect court appearances to be frustrating, since: [expert] witnesses are not able to correct false innuendoes and inferences … They should act responsively and reply honestly, and accept that being on the witness stand means that they cannot always say everything they wish. Such pre-emptive defeatism is a direct consequence and by-product of the adversarial system, which is based on the principles of opposition and dichotomy. Both lawyers and expert witnesses, in their respective training texts, attempt to persuade themselves (and presumably through such posturing, each other) that they are in a stronger position than the other when it comes to expert witness questioning in court. Advocacy educator Boon (1993: 124), for example, talks of the erroneous impression that the witness is in a position of superiority over the lawyer, arguing that although ‘an advocate cross-examining an expert may appear to be at a disadvantage because she is generally asking questions in the expert’s domain, not her own’, in reality, it is the lawyer who has a strategic territorial advantage. In direct contrast, Mildred (1982: 70) reassures potential expert witnesses that although the lawyer has the advantage in so far as she is ‘trained and experienced in questioning … the expert has the advantage in that the battle is conducted in the realm of his own knowledge and experience’. There is, however, a significant threat to the expert’s perceived field advantage. In an increasingly common strategy, Simpson’s defence team employed what Renoe (1996: 115) refers to as a ‘tagteam approach’ to lawyering, which involved using specialist lawyers to question (in this instance) the prosecution’s DNA experts. The use not only of an impressive array of expert witnesses, but also expert attorneys who question these witnesses results in a blending of professional voices, meaning that some of the boundaries between the legal and scientific worlds can become (and in the Simpson trial became) blurred.


In the next section, I will look at expert witness testimony during the direct examination phase of trial, where the expert and attorney must collaborate in a relationship of mutual dependency. Lawyer and expert must work together first to establish the credibility of the expert and then to defuse the jargon of the expert’s field in order to ensure that comprehensible testimony is transmitted to the members of the jury. I will begin my analysis with discussion of the notion of expert witness credibility, and its representation in court during direct examination. Establishing the expert as ‘expert’ for the jury: direct examination strategies In direct examination, the lawyer needs to acknowledge and display the expertise of the witness, since it is crucial for the lawyer to establish the credibility and validity of his expert and their evidence. The preliminary validation of the expert begins even before the expert is called to testify. The jury is primed for the arrival of the expert by the lawyer’s references to him in the opening statements. Not only is his forthcoming evidence presented as implicitly valuable and credible, but references to the expert himself are couched in the language of deference; thus the lawyer in opening argument may make references to the ‘forthcoming attraction’ or ‘the world-renowned scientist Dr Baden, who will talk to us about DNA evidence’ (Scheck, defence opening statement). In the following example from the defence opening, Cochran manages simultaneously to portray his own expert witness in a favourable light, and contrasts this with the corresponding lack of expert knowledge of the prosecution attorney, whom he rejects with a dismissive (and arguably sexist) reference to culinary skills: 1 2 3 4 5 6 7 8 9

One of our experts is named Dr Kary Mullis. Let me tell you who Dr Kary Mullis is. Dr Kary Mullis is a DNA expert. He is the man who invented PCR, polymerase chain reaction. He is the man who received the Nobel Peace [sic] Prize for this invention. And he will come in here and tell you about this evidence … And so when Miss Clark tells you yesterday that it is possible [sic] like cooking or doing something like that … she said she wasn’t an expert, and I agree now on that at least – she is an expert lawyer, but not in this area – the experts will say that is just not true. (Defence opening statement, 25 January 1995)


In the absence of postdoctoral researchers in biochemistry on the empanelled jury, identifying the expert as the inventor of PCR (in lines 2–3) is unlikely to be hugely valuable as a means of establishing credibility, except perhaps in the most abstract sense that inventors of ‘scientific’ things which achieve the status of an acronym are generally perceived to be intelligent. However, this particular witness has a double whammy of honours, since there are surely few more impressive references to externalised recognition of excellence and expertise than a Nobel Prize, even if Cochran does confuse his award categories, referring to it as the Nobel Peace Prize. It is not, however, realistic for the defence (even Simpson’s Dream Team of lawyers) to retain only the services of Nobel Prize winners; for the more lowly experts, defence attorney Cochran adopts a different approach to validating expert status: 1 2 3 4 5 6 7 8

There is an expert in the United States whose name is Dr Lenore Walker. She is by all accounts the No. 1 expert in America in the field of domestic violence. She has been called by some the mother of the battered women’s syndrome … We know that Mr Darden is not an expert in this area; he is a lawyer conveying the facts as he understood them, but he wasn’t there. Dr Lenore Walker, this No. 1 expert in America, perhaps in the world, in this concept, has seen and interviewed and tested Mr Simpson. (Defence opening statement, 25 January 1995)

In this extract from the opening statement, the lawyer employs a less specific validation of Walker’s expertness. He consistently refers to the witness as ‘the No. 1 expert in America’ (lines 2 and 6–7), even extending this to a suitably hedged ‘perhaps in the world’ (line 7). However this witness does not have the benefit of a prestigious, independently bestowed honour such as a Nobel Prize; the lawyer is therefore reduced to attributing to the witness such labels as ‘the mother of the battered women’s syndrome’ to unidentified sources such as ‘some’ (line 3) and the equally unspecific ‘by all accounts’ (line 2). The witness’s status as ‘Dr’ is, however, an externally validated measure of her status and is used in all references to her. As Jackson (1995) has noted, deferential references and address forms such as ‘Dr’, ‘Professor’, and so on lay the foundations for the expert and their testimony to be taken seriously. He concludes, ‘even before the witness has uttered a word, counsel has sent a powerful message to the court relating to competence’ (p. 417).


The prosecution worked hard in their rebuttal argument – just prior to the jury being sent out to consider their verdict – to persuade jurors that they should not attach too much significance to the credentials of defence experts: 1 2 3 4 5 6

I think I’m not alone in getting a little bit intimidated by experts, you know, they have ‘Doctor’ in front of their name and what do I know, but you shouldn’t be. You shouldn’t be. You are allowed to evaluate the opinion of a Doctor, and if it doesn’t make sense, you can say, ‘you don’t make sense, I don’t believe you’. It doesn’t matter if they have ‘Doctor’ or ‘PhD’ before or after their name. (Prosecution closing argument, 29 September 1995)

This extract includes an admission by this ‘non-expert’ lawyer that she was phased by some of the experts (lines 1–2); one of the worst posttrial criticisms of Clark by the jurors was that she lacked authority; comments like this can presumably have done her position no good at all. In a more colloquial version of Judge Ito’s formal jury instruction, to the same effect, Clark reminds the jury that assessment of the evidence should be based on common-sense principles: Q One last question in this line. Were you told in your training 1 that it is the job of a criminalist to be independent of the 2 police and to resist pressure to rush analysis that would com3 promise your work? 4 5 → A Again, that’s a common-sense question. You never want to rush your work or do anything at all that could compromise 6 the integrity of your work. 7 Q Was there any emphasis in your training that it was impor8 tant for a criminalist on occasion to resist pressure from police 9 to do work in a rush? 10 11 → A I think I just answered that. 12 → Q And what’s your – and your answer is, it’s just common sense, but you don’t recall anybody specifically stressing that? 13 (Witness cross-examination, 26 May 1995) Credentials and credibility: drawing on qualifications and professional affiliations in direct examination In attempting to legitimise the witness as an expert in his field, recourse is typically made in direct examination questioning to his academic standing, satisfying the ‘suitably qualified’ criterion of the


Federal Rules of Evidence discussed above. A great deal of importance is placed on the institutional legitimisation of knowledge; by referring to degrees and honours conferred by universities, research institutions and official organisations, both the lawyer and the witness are able to draw on a form of institutional ‘shorthand’. Much of this legitimacy must be taken on trust, since, as Jackson (1995: 416) states: by detailing academic qualifications, we have to incorporate faith that the court is telling us this person is an expert and relying on other institutional authorities – professional bodies, universities etc. For Goodwin and Goodwin (1997), the fact that the expert is able to draw on this wealth of respected institutional support in establishing his credibility means that his evidence is fundamentally more highly valued than that of the individual lay witness, since ‘expert witnesses ... are entitled to speak about events in the courtroom because of their membership in a relevant community of practitioners’ (p. 306). The fact that the expert acts as a designated representative of his own academic field, professional discipline or official organisation also explains the fact that he is permitted to include in evidence opinions formed and conclusions reached, whereas ‘the opinion of a lay witness based on what he has seen and heard is not admissible’ (Hall and Smith 1997: 92). The positive response of deference and admiration that this kind of official legitimisation is meant to engender relies on the jury’s respect for authority and official institutions; perhaps one of the most interesting aspects of the Simpson trial (and, indeed, the Rodney King trial which preceded it) was the way in which the case focused the jury’s attention on the status and legitimacy of several important US institutions, leading them in particular to question the integrity of the Los Angeles Police Department, accused by the defence of having racist officers and planting evidence at the crime scene. Once the witness has been sworn in, the dialogic process of credibilitybuilding typically begins with the lawyer asking a series of questions designed to demonstrate the extent of the expertise held by the witness, by reference to their academic qualifications, as in the following extract: Q Dr Cotton, who are you employed by? 1 A I’m employed by Cellmark Diagnostics in Germantown, 2 Maryland. 3 4 → Q As far as your formal education, do you have any higher level or upper level degrees? 5


6 A Yes, I do. 7 → Q Could you describe that, please? A I have a Master’s degree with a major in Biology and I have a 8 PhD with a major in Biochemistry and Molecular Biology. 9 (Witness direct examination, 8 May 1995) A similar strategy to this is employed to situate the expert within their professional context. In this case, rather than focus on the prestige of the institution and the calibre of the expert as a student, the emphasis is placed on the expert’s years of experience in the field as well as their familiarity with similar cases, drawing where possible on membership of established professional bodies. This is not only important for establishing the credibility of a single expert, it is also intended to allow the jury to make comparisons between experts from the two sides. Jurors in the Simpson case were guided by Judge Ito in his initial jury instructions to use the qualifications of the expert as an important means of deciding the respective validity of conflicting evidence by prosecution and defence experts. Ito stated: In resolving any conflict that may exist in the testimony of expert witnesses, you must weigh the opinion of one expert against that of another. In doing this, you should consider the relative qualifications and credibility of the expert witnesses, as well as the reasons for each opinion and the facts and other matters upon which it was based. In this respect, Cotton was a dream witness, with a string of prestige affiliations: 1→ 2 3 4→ 5 6 7 8→ 9 10 11

Q As far as your position as a laboratory director, how long have you been in that role? A About two years. Q This jury has heard testimony previously about an organisation known as the American Academy of Forensic Sciences, are you a member of that group? A Yes I am. Q Are you a member of any other organisations or societies? A I’m a member of the American Society of Cell Biology, The American Society of Human Genetics and the American Association of Blood Bank … (Witness direct examination, 8 May 1995)


The innocuous, ostensibly referential question in line 8 (‘Are you a member of any other organisations or societies?’) is recognised by the witness as an opportunity to display her extensive professional affiliations, in the process producing an extended narrative response to a formally Y/N question. For lawyers seeking to establish the credibility of the expert, both academic endeavour and celebrity (or notoriety) are powerful weapons. Renoe (1996) argues that the combination in court of the two great institutions of the scientific academy and the law are in many ways complementary, since the adversarial trial system is inherently structured to ‘enable fact and subsequent interpretation to be manipulated within certain, predetermined confines which exploit a general faith in science and self-regulating bodies’ (p. 120). In addition to allowing the witness to display their credibility by reference to these external authorities in direct examination, the lawyer must always be mindful of the fact that the evidence elicited is destined for the non-expert jury. The questioning lawyer must therefore negotiate the delicate balance between encouraging the expert to display their expertise, and eliciting testimony which is incomprehensible for its primary audience. One linguistic symbol of expertness is the use of jargon, the specialised language of the expert’s field. The next section will explore the use and abuse of jargon in expert witness testimony and the strategies adopted by direct examination lawyers to maintain the delicate balance between competence and incomprehensibility. Lexical representations of ‘expertness’: blinding them with science Brodsky (1999: 127), in his guide for prospective expert witnesses, warns that their tolerance level for jargon and that of the jury may well differ, reminding experts of the difference between the illocutionary force of their contributions and the potential perlocutionary effect on the jury: we [experts] often believe that we are persuasive, lucid and coherent when we are not … our language and vocabulary usage, the stereotyped perceptions of professionals and experts, an excessive attention by jurors to minor statements or behaviors are just part of what lead to impressions very different from those we infer. Storey-White (1997) suggests that expert witnesses are faced with a particular problem with respect to comprehensibility. Unlike lay wit-


nesses, who give their evidence in their own words and reflect their own experience (for example, in eyewitness or character testimony), the expert must, both to validate their status as an ‘expert’ and to convey adequately the concepts of their field, use a range of impersonal, jargonistic and potentially inaccessible terms and concepts in giving their evidence. As Storey-White observes, ‘police, forensic and other professional witnesses’ … “own words” are likely to be largely incomprehensible to the defendant, jury, and, unless they have done their homework, counsel as well’ (p. 281). In terms of the ownership of knowledge, Renoe (1996: 115) notes that since experts do not testify about the commonplace, but rather the specialised, this can be seen to confer on them ‘privileged access to certain “facts”’. The problem faced by the lawyer eliciting expert evidence is how to steer a course which will: tread the fine line between sounding as if one knows what one is talking about (i.e. is a reputable and respected forensic scientist) – an image which can be destroyed if one’s language is too informal – and retaining the confidence of a jury which distrusts ‘experts’, while at the same time not confusing them or boring them so much that they will lose track of what one is saying. (Storey-White 1997: 284) Having maximised and heightened the status of the expert during the initial phase of examination, the lawyer’s next job is to elicit the relevant testimony and manage the technical language which invariably (and perhaps inevitably) accompanies it. To do this, the lawyer must not only put the questions and steer the overall trajectory of the particular witness’s evidence, but also needs to act as a form of intermediary between the expert and the jury, anticipating the gaps in knowledge and terminology which may render the testimony unintelligible to the jury, and guiding the witness to plug those gaps with appropriate definitions, explanations and exemplifications, as and when required. Despite calls for jargon-free testimony, the discipline of forensic science is sufficiently complex and technological that there are, and must be, specific terms describing particular procedures and techniques which are localised and which tend to become abbreviated, due to their frequency of use, by those who work in the field. In the courtroom context, it is important for this type of terminology to be expanded and/or explained for the benefit of the lay jury, who are likely to be unfamiliar with the specialised lexis of the field.


Stone (1995) considers this to be of crucial importance in both direct examination, to facilitate the comprehension of testimony and in cross-examination, since ‘once the mystique and fog of terminology are removed, ordinary facts may be revealed which a jury can assess on a common-sense basis, with less reliance on the expert’ (p. 212). The juror is in something of a double bind in attempting to understand expert evidence. This is because, as has been discussed above, the embedding of the expert within the legal discourse community essentially amounts to a double dose of institutional talk for the lay juror: that of the expert’s domain, transposed into the legal arena, which observers from Mellinkoff (1963) to Tiersma (1999) have shown to be a minefield in terms of potential comprehensibility difficulties. The juror therefore must attempt to handle both the jargon associated with the expert’s subject area and the legal jargon which surrounds its elicitation. In direct examination, it is in the lawyer’s interest to aid jurors’ comprehension of both the legalese and the expertese. Control over legal terminology lies solely in the hands of the lawyer; however, the next section will focus on the collaborative attempts of lawyers and experts to minimise the miscomprehension and incomprehension of expert evidence. Managing jargon in expert witness testimony There are two principal types of jargon which need to be explained to the jury. First, bona fide specialist terms which fall outside the lexical range commonly understood by ‘the public’. The following pair of extracts provides examples of this type of jargon (indicated in bold) and illustrates lawyer requests for definition (highlighted in italics: Q Would that stab wound, nevertheless, have caused some 1 bleeding? 2 → A Yes, it would. It is a highly vascular area of the neck. 3 4 → Q When you say ‘highly vascular,’ what does that mean in lay – A The term – has got a lot of branches from the arteries and a lot 5 of venous channels, and a wound to this area of the neck, 6 which is one and one-half to two inches deep would cause 7 significant bleeding. 8 (Witness direct examination, 7 June 1995) The overlapping turns in lines 4 and 5 in this example are indicative of the witness’s anticipation of the lawyer’s request for explanation:


1 → A And there is some movement, because one wound is not as deep as the other, but still it would signify some partial 2 immobilisation, at least because given the localised area of all 3 these four stab wounds on that area. 4 5 → Q And immobilisation is a long word to mean in essence what? A Prevent movement of the person by holding them or holding 6 them against a wall or just holding them tight so that you 7 have some control over them that they cannot exert the same 8 degree of movement as you would expect in a person who is 9 not so compromised. 10 (Witness direct examination, 7 June 1995) Both these examples incorporate in their lawyer-initiated requests for definition an overt signal that the definition should involve some degree of simplification, whether conceptual or linguistic. Thus, in line 4, in the first example, the lawyer requests a ‘lay’ explanation, and in line 5, in the second example, he asks for an ‘in essence’ definition. The second category of jargon concerns familiar words used with unfamiliar meanings or collocations in the specific context of use. This second category of difficulty involves misunderstanding, and is equally as problematic as non-understanding, since a juror who believes that they understand is potentially as dangerous (or even more dangerous) than one who knows that they do not. The following example illustrates a request for clarification of this type of terminology – the technical meaning of the apparently transparent ‘respond negatively’: 1 A Another type of negative control is an extraction blank. And 2 this is a sample that’s taken through the full extraction 3 process. And that’s to demonstrate whether there’s any conta4 minant in your reagents. And so that also should respond 5 negatively. 6 → Q When you say ‘respond negatively,’ could you explain to the jury 7 what you mean by that? 8 → A Yes. By responding negatively, meaning no results are 9 obtained. And you’ll see with some of the D1S80 gels – 10 you’ll see when I show the D1S80 gels that when you run 11 the sample, if no bands are visible, then that’s responding 12 negatively. (Witness direct examination, 7 June 1995)


Whatever the source of potential comprehension difficulty, the expert’s testimony must undergo a process of ‘recontextualisation’ (Linell, 1998: 144), similar to Goffman’s (1974) notion of ‘reframing’. This process of recontextualisation or reframing typically incorporates some degree of textual modification, of one of four potential types: • simplification • condensation • elaboration • refocusing (Bernstein 1990, cited in Linell 1998: 145) and involves the relocation of aspects of a particular discourse type from one context to another. These elements may include ‘linguistic expressions, concepts and propositions, “facts”, arguments and lines of argumentation … assessments, values and ideologies, knowledge and theoretical constructs’ (Linell 1998: 145). In the courtroom setting, the testimony elicited from the expert witness must first pass through the legal filter of the lawyer and the court, and pass into the consciousness of the lay jury who assess its credibility. For the purposes of the court trial, the first two of Bernstein’s four categories would seem to be the most relevant; they both involve the process of transposition in terms of the quality of information (through simplification) and the quantity of input (through condensation). This pair of strategies is exemplified in the examples above, first by the ‘lay’ definition request (signalling simplification) and the ‘in essence’ request, which incorporates a sense of condensation. Both these processes are necessary to facilitate the comprehension of complex expert evidence by the lay jury. In linguistic terms, the expert designing his contributions with the jury in mind is instructed to avoid jargon wherever possible, and where it is not, to append a lay explanation, as in the following pair of examples (bold typeface indicates the potentially problematic jargon, with the explanation again reproduced in italics): there was a comminuted fracture, that is the bone was broken into several fragments. and in this particular case, you’ll see on some of the gels, it’s an [sic] 1831, meaning there’s two bands that are present. (Witness direct examination, 23 May 1995)


One consequence of the amount of time and attention devoted by direct examination lawyers to enabling their witnesses to demonstrate and validate their expertise, and ensuring that the jury keeps up with the concomitant jargon, is that it represents a potential face threat to the lawyer’s own status. Expert testimony is therefore the site of a great deal of face work by lawyers as they attend to their own need to sustain credibility in the company of an acknowledged and validated ‘expert’. The expert, above all other ‘external’ interlopers, represents the greatest potential threat to the lawyer’s position and is recognised as the most difficult type of witness for the lawyer to deal with in crossexamination (Hyam 1990). The next section will analyse the linguistic realisations of attempts by lawyers to temper and mitigate the expertness of their witnesses with the aim of displaying their own expertise, during the cross-examination phase of trial.

The lawyer as quasi-expert: knowing the field (and showing it) The lawyer, through pre-trial preparation and research, becomes an honorary associate member of the particular discourse community, sometimes acquiring a great degree of familiarity with the terms and issues relevant to the case. Indeed, one of Simpson’s key defence attorneys, Barry Scheck, has forged a hugely successful career specialising in DNA evidence cross-examination and is widely acknowledged as an expert in the field himself. Lawyers are encouraged to acquire these skills so as to be better able to negotiate the demands of cross-examining expert witnesses, as Mildred (1982: 70) points out, ‘it is necessary for the cross-examiner himself to have a complete working knowledge of the expert’s subject as well as the facts of the case’. One more recent manual, which trains medical experts to testify in court, reminds would-be witnesses that ‘it should never be forgotten that, although one is a professional, and perhaps an expert, one is in the presence of other professionals’ (Gee and Mason 1990: 113). Expert questions, expert answers This blending of professional roles and voices can, on occasion, lead to debates between lawyers and experts over complex and detailed issues, which bear all the hallmarks of intra-professional talk, despite their fundamental inter-professional orientation. This level of expertise enabled Scheck to conduct devastating cross-examinations of the prosecution’s DNA experts in the Simpson trial. In the first extract repro-


duced below, Scheck challenges the competence of the witness by questioning his apparent ignorance of the term ‘external blind proficiency test’: Q Now, have you never taken in your laboratory an external 1 blind proficiency test, could you? 2 3 → A Okay. Could you please define that? Q Okay. You don’t – you’ve never heard the term ‘external 4 blind proficiency test’? 5 6 → A Yes, but I want to know if we’re on the same wavelength. Q All right. How would you define an external blind proficiency 7 test? 8 (Witness cross-examination. 26 May 1995) When the witness responds to the lawyer’s question by requesting a definition of the term (line 3), the lawyer interprets his request as a sign of ignorance, responding with mock incredulity, ‘You don’t – you’ve never heard the term?’ (line 4). The witness attempts to repair the damage by protesting ‘Yes, but I want to know if we’re on the same wavelength’ (line 6). Sensing a victory in the credibility stakes, Scheck pursues the point, repeating and exploring the newly uncovered apparent gap in the witness’s knowledge on a further four occasions in quick succession: Q Then what’s your – what is your definition of an open exter1 nal proficiency test? 2 A Open external. I don’t know what that means. 3 4 → Q Never heard that expression? A No, I haven’t. 5 Q Have you ever heard anyone define an open external 6 proficiency test as a test where the samples are submitted 7 from an external source, but the analysts at the laboratory 8 know that it’s a test? 9 A That’s what I just described, isn’t it? They’re – it’s done by an 10 outside source and they don’t know the results. Isn’t that 11 what I said? 12 Q That’s how you define an external blind test, right? 13 A Right. 14 Q Wouldn’t an external blind proficiency test be on where the 15 samples are submitted by an external source, but the labora16 tory doesn’t know it’s a test, they think it’s a real case? 17


18 19 20 21 → 22 23 24 → 25 26 27

A Q A Q

I understand that to be a double blind. That’s how you define double blind? Yes. All right. You’ve never heard anybody refer to such a test as an external blind? Q External blind is the way I just explained it. Q Right. And you’ve never heard anybody – you’ve never heard of an – an open external test? That definition you’ve never heard of? A No. (Witness cross-examination, 26 May 1995)

Scheck also takes the opportunity to display his own knowledge of the field in lines 15–17, offering the witness (an experienced criminalist with the LAPD) a suggested definition. In terms of demonstrating relative levels of expertise, questions such as this also communicate a subtle message to both the witness (as a warning) and the jury (as a reassurance) that the lawyer is sufficiently knowledgeable about the domain of testimony that he is able to interpret its value correctly, effectively keeping up with the expert. Scheck seizes on this apparent crack in the expert’s armour and launches a more wide-ranging attack on the witness’s credibility. He tries to suggest that the expert is out of touch with his field (and by implication that he – the lawyer – is up to date) by asking a series of questions relating to the witness’s academic reading habits: 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16

→ → → →

Q Mr. Yamauchi, have you ever read the report of the National Research Council entitled ‘DNA technology in forensic science’? A Yes I have. I’m familiar with that. Q Have you read it cover to cover? A Maybe not cover to cover. Q Have you studied it? A Well, certain areas I’ve read numerous times. Q Are you familiar with the section of the National Research Council report at page 88 concerning laboratory error rates? A I’m really not familiar with this area because generally speaking, that was supposed to be or have to do with the RFLP testing. Q So you didn’t read that section of the NRC report because you think that the section on laboratory error rates only concerned RFLP testing?


17 → A No, I’ve read this, but I’m not - like I haven’t studied it. (Witness, cross-examination, 26 May 1995) The face threat to the witness conveyed in this extract is considerable. Although the witness starts well, confirming that he is ‘familiar with’ the NRC report (line 4), he later concedes that he has neither ‘read it cover to cover’ nor ‘studied it’ (lines 6 and 8, respectively), conditions which are implicitly signalled by the lawyer as essential. When Scheck then asks about a specific page of the report, he succeeds in eliciting the potentially damaging admission that the witness is ‘really not familiar with this area’ (line 11). In lines 14–16, the lawyer presents a summary of this admission, complete with ‘so’ summariser, which the witness duly confirms. The lawyer continues by running through a number of journals followed by questions such as ‘do you read that regularly?’ In each case the witness responds with some variation of ‘no, not on a regular basis’. The witness further damages his credibility by conceding that he has not read the report of the California Association of Crime Lab Directors; his response that: A

Something like that sounds familiar. I’d like to see that though if you have a copy. (Witness cross-examination, 26 May 1995)

plays directly into the hands of the lawyer, who is thereby portrayed as the ‘expert’ who clearly does have a copy of the relevant report, and moreover, has read it recently and in some depth. Even an experienced lawyer, however, can occasionally lose sight of his ‘real’ addressee – the jury – and their communicative needs. In the following example, Scheck is so keen to show that he is familiar with the expert’s field that he overstates his case, in terms of both the structural complexity of the question and its content. When the opposing lawyer objects, even Scheck has to concede that his question was ‘unintelligible’ (in line 23): 1 Q 2 3 4 A 5 Q 6

And what bacteria does when it begins to form in let’s say a wet stain in a plastic bag is, it will begin – the bacteria will begin to eat away at the DNA? It will begin to degrade it. Yes. The term ‘degrade.’ Could you tell the jury what the term ‘degrade’ means?


7 8 9 10 11 12 13 14 15 16 → 17 18 19 20 21 22 → 23 → 24 → 25 → 26 → 27 28 29 30 31

A

‘Degrade’ in that sense means that the genetic protein or DNA is broken down by the – by the bacteria. Q Is it sort of a situation like if you put – like milk being spoiled, when it’s left out for a long time, the bacteria begins to form within it? Would that be an analogy that you think would be appropriate, souring milk? A I – it’s a rough analogy. Q Okay. And would you not agree, sir, that when biological material such as wet bloodstains begin to degrade through bacterial contamination, that there is greater danger of cross-contaminating those degraded samples than if the samples had not been degraded? Mr Goldberg: Unintelligible, your Honor. Mr Scheck: Let me rephrase that because it is unintelligible. The Court: Sustained. Mr Scheck: Sustained and self-censured. The Court: Yes. Sustained. I was just reading it myself here. Q Let me start it this way. Let us assume that we started with a – one of these red swatches such as you took from the Bundy crime scene and the sample was not degraded. You with me? A Got you. (Witness cross-examination, 11 April 1995)

Even the judge admits to having trouble following this type of question, confessing that ‘I was just reading it myself here’ (line 26), referring to his electronic transcript on his laptop computer. When Scheck reinitiates his questioning, adopting a more measured step-wise version of the question (‘Let me start it this way …’, line 27), he even pauses to check that the expert is keeping up (‘You with me?’), in line 30. The expert provides a reassuring ‘Got you’ (in line 31) and the sequence continues. A further way in which it is possible for the lawyer to demonstrate his knowledge of the field is by developing the ideational content of the expert’s testimony in an initiation move, restricting the witness to providing positively evaluative feedback. Only the more confident lawyers are able to adopt such a strategy, as in the following example:


1 → A Now, if you think of the chromosome as the packaging of the 2 DNA, if you unwind the DNA from the chromosome for each 3 one, you would have a very long thread. And the best analogy 4 that I can give to you is that it’s not very different from 5 having a spool of thread … But if you unwind the DNA from 6 the chromosome for each one, you would have a very long 7 thread … 8 → Q Now in terms of this concept of chromosomes, if DNA were a book, would a chromosome be something like a chapter to a 9 book? 10 11 → A Yeah, that’s good. (Witness direct examination, 8 May 1995) Here, the lawyer interrupts the witness’s metaphorical explanation of DNA structure (in lines 3–6), and rather than asking a narrativeseeking question or simply allowing the witness to continue her explanation, Scheck instead makes a suggestion of his own (lines 8–10), asking the witness for Y/N confirmation, which the expert duly provides in line 11, along with a complimentary ‘that’s good’. Although the data show an overwhelming tendency towards the lawyer’s establishment of a strong and knowledgeable position vis-à-vis the expert, there are a number of occasions when the expert strikes back and challenges the lawyer on his familiarity with the expert’s field. An example of such a (rare) moment is presented below: 1 Q 2 3 4 A

Were you told in your training that it’s more important to be careful and reliable when doing DNA typing than to rush and make mistakes? I think that takes common sense. Anybody can see that. (Witness cross-examination, 26 May 1995)

When the same witness is asked a follow-up question about procedures in his job, he reacts by dismissing it as another naïve ‘common-sense’ question (line 5 below): 1 2 3 4 5 → 6 7

Q One last question in this line. Were you told in your training that it is the job of a criminalist to be independent of the police and to resist pressure to rush analysis that would compromise your work? A Again, that’s a common-sense question. You never want to rush your work or do anything at all that could compromise the integrity of your work.


8 Q Was there any emphasis in your training that it was impor9 tant for a criminalist on occasion to resist pressure from police 10 to do work in a rush? 11 → A I think I just answered that. 12 → Q And what’s your – and your answer is, it’s just common sense, 13 but you don’t recall anybody specifically stressing that? (Witness cross-examination, 26 May 1995) When the lawyer attempts to put the question again, presumably to elicit a response without the face-threatening evaluative component, the witness responds by pointing out that he ‘just answered that’ (line 11). Such behaviour clearly represents an overt challenge to the authority of the lawyer and, furthermore, subverts a key questioning technique in cross-examination, namely the re-elicitation of potentially damaging testimony through repetition or reformulation of the original question. The lawyer’s equilibrium is disturbed by this transgression, and she momentarily – and somewhat uncharacteristically – becomes hesitant, producing a false start (‘and what’s your – and your answer is …’ in line 12) before recovering her balance. It is interesting to note that the majority of questions (11 of the next 12) which immediately follow this problematic exchange take the form of highly controlling Y/N questions, as if the lawyer is attempting to reassure herself of precisely who is in charge.

The lawyer as quasi-expert: knowing the jargon (and using it) In addition to substantive illustrations of lawyer–expert proximity based on the scientific facts themselves, there are also many occasions in the Simpson trial expert testimony where the lawyer is keen to show that they too are fully au fait with the jargon of the expert’s specialist area even, as in this case, the colloquial version (lines 4–5): 1 Q In other words, you got enough to determine these were 2 latent prints; is that correct? 3 A Yes. 4 → Q But you have not been able to, as they say in the parlance, make 5 → those prints to any particular person; is that correct? (Witness direct examination, 17 August 1995)


In the following extract (also discussed in chapter 4), the crossexamining lawyer even goes so far as to usurp the role of the expert in providing the spelling of a specialist term for the court reporter, despite the fact that video footage of this segment indicates that the question was intended for and directed to the expert rather than the lawyer: 1 2 3 4 5 6 7 8→ 9 10 → 11 → 12

The Witness: Oh, now you’re talking a different thing. Now, what you’re referring to is stoichiometric effect where if you have a minor component, that it’s possible – depending on how much of that minor component is present, it’s possible not to see the other contribution. But that would be at very low levels of DNA. The Court: All right. Would you spell stoichiometric for the reporter? The Witness: S-t-o – I believe I need to write it down. Mr Blasier: S-t-o-c-h-i-o-m-e-t-r-i-c. I think. The Court: We’ll accept that. (Witness cross-examination, 23 May 1995)

It is a measure of the lawyer’s authority in this situation that there are no objections from anyone at the blatant ‘steal’ by the lawyer when the witness falters even momentarily (in line 10), pausing to check the spelling of the term by writing it down. The lawyer intervenes and immediately spells the word without hesitation, simultaneously managing to enhance his own credibility (by correctly spelling a clearly ‘difficult’ word, even for the expert) and at the same time, portraying the witness as less competent by comparison. The final indignity for the witness comes when the judge ignores the lawyer’s post hoc hedge, ‘I think’ (line 11) and unquestioningly accepts the lawyer’s attempt without verifying it with the expert. Although it can hardly be argued that this was a defining moment in the trial, it does serve as an illustration of the small-scale subversions by the lawyer of the expert’s ‘expertise’ which, cumulatively and in combination, may subtly undermine the status of this type of witness. The next example shows just how far the specialist lawyer can become entrenched into the discourse community of the expert. Here, the lawyer’s attempt at ‘translating’ the witness’s previous series of jargonistic responses could hardly be said to constitute the ‘lay definition’ he claims to be providing:


1 A 2 3 4 5 6→ Q 7 8 9 10 11 A 12

As I told you, the – there could have been the – this sharp force penetrating injury could have superimposed that cut so you won’t be able to see where this injury ends. The other possibility is that this particular wound was continued as a sharp force penetrating injury. Let’s start with your first hypothetical and I want to, in essence, as a lay definition of what you have been saying, would it be accurate to say that this second superficial incise wound could have continued into the area where in photo graph G-40 we actually see this next sharp force injury that you are talking about? Yes. (Witness direct examination, 9 June 1995)

The witness clearly understands this (marginal) reformulation from the lawyer; however, it is not clear to what extent the lawyer’s ‘facilitative’ rephrasing would improve the jury’s chances of comprehension. It is interesting to note that this lawyer too uses the same signals of simplification – ‘as a lay definition’ (line 7), and condensation – ‘in essence’ (lines 6–7), as the (different) lawyer above. The lawyer’s knowledge of the jargon, and his desire to demonstrate this knowledge, sometimes results in an exchange such as the following, where the lawyer first uses the expert’s jargon and subsequently asks for a definition of the term. From a discourse sequencing perspective, this is clearly incoherent; however, it is an extremely common strategy in the Simpson (and other trial) data: 1 → Q All right. Now, did you receive some training in the handling 2 of items concerning hair and trace that may be on those 3 items? 4 A Yes, I have. 5 → Q Now, when I say hair and trace, tell us what that means. 6 → A Hair, the obvious, different hair. Trace, you’ve got soil debris. 7 You also have carpet fibers. Anything, minute items that 8 might have been dropped from various items. (Witness direct examination, 26 June 1995) The lawyer first uses the forensic term ‘hair and trace’ in her initial question (line 2). The witness, a forensic scientist, assimilates the term without difficulty and responds affirmatively. The second question (in line 5) surprises the witness and, in terms of logical coherence, seems


somewhat out of sequence with the ‘expected’ discourse progression; one might have predicted a follow-up question in line 5 dealing with the nature or extent of the training received by the expert, alluded to in the initial foundational question. Somewhat puzzled by the definitional request, the expert responds with a bemused, but desperately cooperative, ‘hair, the obvious, different hair’ (line 6) and ‘anything’ (line 7). The pragmatic subtext of this initial section of the response is confusion on the part of the witness that the lawyer should need to ask the meaning of a term, which the lawyer clearly already understands through her usage of the term in the original question. A second example of this phenomenon is shown below: 1 → 2 3 → 4 5 6 7

Q A Q A

And those are you say laboratory prepared stains. Yes. Could you tell us what that means? Well, what that generally means is that somebody takes a fresh blood sample, puts it on something like a clean cotton swatch material and then just lets it sit at ambient conditions and usually indoors. (Witness direct examination, 31 May 1995)

One potential explanation for discourse sequencing of this type lies in the fact that the question is designed to serve a rhetorical as much as a referential purpose, functioning as a display question for the jury. Thus, in addition to simply eliciting the ideational response, the lawyer is simultaneously demonstrating her own familiarity with the work of the forensic scientist and attempting to convey this knowledge to the jury members, who are, almost certainly, less aware. In the first example above, as we saw, the witness failed to grasp the subtlety of this multiplicity of audience, with the resulting confusion. Many of the witness training manuals attempt to raise experts’ awareness of the jury as audience, warning against the ‘temptation of engaging in a one-to-one relationship and conversation with either the direct-examining or cross-examining attorney’ (Brodsky 1982: 272) and instructing instead that ‘although it is the lawyer who is asking the questions, it is the jury, judge, sheriff or magistrate who need to know the answers’ (Gee and Mason 1990: 109). Experts are thus instructed to employ what Hall and Smith (1997: 69) refer to as ‘The ‘Wimbledon’ rule’: ‘As at a tennis match, when your head swivels from side to side as the rally continues, so face counsel when he is addressing you and then turn your head and reply to the tribunal’.


Lawyers sometimes carry out even more explicit face work to distance themselves from potentially threatening questions which endanger their status vis-à-vis the expert. By signalling overtly that the response is intended not as a truly lawyer-initiated query, but rather as questioning by proxy on behalf of the silent juror-recipient, the lawyer is able to avoid potential confusions such as that exemplified above. This type of explicit signposting occurs in the questioning of both lay witnesses and experts, but seems to be more common when lawyers are dealing with experts, perhaps because of the need to remind experts to step outside of the expert witness-expert lawyer dyad and tailor their responses to the level of the non-expert juror. The following pair of examples illustrates two variations of the basic strategy of explicit signalling: 1 → Q 2 3 A 4 5 → Q 6 → A 7 8

And sometimes at the bottom of those bands there is some thing that are called plasmids? Yes. I – I think those may be plasmids, although I’m not sure those are plasmids. Why don’t you tell the jury what a plasmid is. Yes. A plasmid is a relatively small piece of circular DNA that is usually found inside a bacterium. It is separate from the bacterial DNA, but it goes along for the ride with the bacterium. (Witness cross-examination, 18 May 1995)

Q The cross-hybridisation, when you were reading from the user 1 guide there was something in there that I think needs to be 2 clarified. I believe the exact words were that this cross3 hybridisation occurs more with the subtyping probes? 4 A Yes, that’s correct. 5 6 → Q Could you tell the jury, just so they understand what that means, what are the subtyping probes that were used in this case? 7 A Well, the sub – subtyping probes, there are four nominal 8 alleles, and this is the 1 allele, the 2 allele, the 3 allele and the 9 4 allele and then there are also subtypes and that is the 1.1 10 and the 1.3 and the 1.2, but the 1.2 has to be inferred because 11 there is not a specific probe for that 1.2. So it is more 12 common to see the cross-hybridisation occurring with 13 samples of the subtype … 14 (Witness direct examination, 24 May 1995)


In this second example, the lawyer makes an explicit us–them distinction in his request for a definition – ‘could you tell the jury, just so they understand’ (line 6), thereby underlining that his alliance is closer to the expert than to the juror in terms of expert knowledge; the expert’s explanation, incomprehensible to this reader, however, surely serves only to exacerbate the potential for comprehension difficulty, introducing yet more terminology which, in turn, needs to be defined. In both these extracts, the lawyer manages to preserve and even enhance his own knowledge status by indicating explicitly that he is only asking the question because the jury might not know (and needs to know) the details of the particular technique and piece of documentation, respectively. This type of explicit signal to the witness to orient their response to the jury serves the double function of reminding the witness to frame their response with the juror-recipient in mind, as well as allowing the lawyer to withdraw from the explanatory exchange. A final extract illustrates the three phenomena described in this section – a post hoc definition request, explicitly signalled as for the benefit of the jury, and following the lawyer’s display of knowledge of the field and the jargon term – in a single example: 1 2 3 4 5 6 7 8 9

Q

A Q A

And one of the problems that an analyst has with this system is, sometimes these dots light up faintly and it is difficult to tell whether the dot represents a real allele in the mixture or it is what is I guess in your business called an artifact? Yes. That’s one of the limitations of the system. And could you tell the jury what an artifact is? An artifact would be, for example, if you are seeing some signal at one of these dots that’s very weak, but it’s not really part of the actual type … (Witness cross-examination, 22 May 1995)

Judging the experts: contrasting legal and lay opinions of expert testimony in the Simpson trial The prosecution in the Simpson case were highly critical of the theatricality demonstrated by some of the defence experts, referring to one as ‘an affable, charming man [who] had expert witnessing down to a science (so to speak) ... He sat on the stand as if he owned it ... For his performance, Baden was paid $100,000’ (Clark 1997: 431-2). Clark was equally disparaging of Dr Henry Lee, whom she described as ‘the vaunted superstar of the defence’s line-up … one of the country’s most revered – and


charismatic – criminalists’ (p. 433). Even five years on from the trial, prosecutor Darden, in a Larry King Live interview (12 June 2000) was still bitter about the defence’s financial capabilities in relation to their own – the cost of putting together Simpson’s ‘Dream Team’ has been estimated at around ten million dollars, with a significant proportion of the money spent on experts such as Baden and Lee as well as equally expert lawyers such as Barry Scheck and Johnnie Cochran. In the same interview, Darden also makes the point that some experts were attracted by the calibre of the lawyers as well as the high profile nature of the case, a case of star lawyers attracting star experts. In Darden’s words: I think they [the defence] had more than just resources. I think they had their reputations. And I think it takes a Cochran and a Bailey to attract a guy like Henry Lee and cause him to come out of Connecticut and serve on the defence team. In order to try to minimise the impact of ‘star’ expert witnesses such as Lee, cross-examining lawyers are instructed to question this type of witness, even when there are no substantive grounds for doing so, as Stone (1995: 214) advises: Even where no substantial challenge of expert evidence is made, it is often a good tactic to ask just one or two questions to prevent the evidence from appearing beyond criticism and so that jurors should not be overawed by the expert. In the Simpson trial, the strategy of calling such ‘famous’ experts by the defence did seem to bear persuasive fruit. In post-trial interviews, jurors appeared to have been convinced by Lee’s testimony pertaining to the collection of evidence at the crime scene. It seems, however, that this effect was achieved as much by the image constructed by the defence of Lee as an expert, in the ways described in this chapter, as by the actual testimony itself – a case of testimony style triumphing over evidential substance. In post-trial writings, jury foreperson Cooley (Cooley et al. 1995: 117) expressed the following view, which was echoed by several of her fellow jurors: He was a very impressive gentleman. Highly intelligent, worldrenowned. I had a lot of respect for Dr Lee. There’s just something about his approach that makes you respect him. And maybe it’s


because of his professional background ... He was a very impressive witness. (my emphasis) It is interesting, and perhaps significant, that Cooley should choose to equate these particular aspects of Lee’s image with his status as an impressive witness, since together they represent the two areas of attention for the direct examination lawyer in constructing an initial state of credibility for the expert witness, as discussed above. However, what emerges above all from the post-trial journals, memoirs and interviews with the O.J. jurors is the difficulty of achieving an effective balance between credibility and comprehensibility. Many of the comments from jurors seem to bear out Jackson’s (1995) observation that being too easy to understand might lose the witness credibility and prejudice the impact of the testimony just as much as being incomprehensible. Jackson concludes that ‘a modicum of unintelligibility may actually be helpful, as communicating the fact that the witness does know more than the juror, thus as confirming expert status’ (p. 419). This certainly seems to have been the case in the Simpson trial. Many of the jurors felt that the experts had been patronising to them in their conceptual and linguistic oversimplification of the evidence, and that they stereotyped the intelligence level of the jury based on racial and socio-economic grounds, confirming prosecutor Darden’s pre-trial concerns following jury selection. As one juror put it: Of all witnesses, Robin Cotton was excellent. The lady knows her job. She’s highly professional. But … she lost us, and I say us because I believe that everybody felt the same way. She talked down and when you talk down to people, you tend to lose them. They feel that, well, she thinks you don’t understand anyway, so why should I spend a lot of time and effort listening to what she says? (First juror in Cooley et al. 1995: 114) A second juror backed up this view, stating that she felt that the expert: talked down to us because she felt that the mentality of the jury was not at her level ... When I got out, I kept hearing more and more people saying there was only one graduate on the jury and so forth, and that indicates to me that they felt everyone else was illiterate ... The boredom came in when people treated you as if you were a kindergartner [sic] or first grader. I realise that if you have a PhD and


you’re talking to someone who does not have training in the world of serology or forensic science, you might assume they’re not going to understand some of the basics. Of course, you’re not going to understand the total details of that field, but you don’t have to. (Second juror, ibid.: 114–15) This juror goes on to express her frustration at the interactional constraints of the courtroom which meant that she was unable to signal comprehension to the witness; instead she was obliged to sit through more than a week of testimony by this particular witness, becoming increasingly exasperated. As she recalls: Unfortunately, there’s no way to let people know that you got you got it. You can’t just raise your hand and say ‘Dr Cotton, I understand what you’re talking about. Move on.’ (ibid.: 115) Both these jurors seem to confirm the greater importance of the style in which evidence is presented over the substantive evidence itself. The first witness states that although ‘the lady knows her job’ and was ‘highly professional’, she had lost the jurors’ attention as well as their respect, ironically not because of the information communicated – the complexities of the evidence or the opacity of the jargon, both of which are the obsessive preoccupations of direct examination lawyers – but rather because of over-zealous attempts at simplification. In other words, these jurors (and several others) felt that the ideational content of the testimony was given too much priority and that the interpersonal aspects of expert testimony such as face-saving, politeness, audience design and accommodation had been sacrificed. This resulted in many jurors effectively ‘tuning out’ of the protracted expert testimony. There may also be a speculative and tentative case for arguing that gender may play a role in this respect; the jurors who complained of the neglect of the more interpersonal aspects of expert testimony delivery were all female, perhaps a reflection of Tannen’s (1996) observation of a female tendency towards more interpersonally-oriented ‘rapport’ talk in contrast to a male preference for referential ‘report’ talk. Putting aside the issues of race and celebrity, the views expressed by these jurors may go some of the way to explaining the extraordinarily short deliberation period of fewer than four hours. It may also go some way to explaining the ‘not guilty’ verdict, since the majority of the prosecution case was constructed around the DNA evidence, which,


they claimed, incontestably demonstrated Simpson’s guilt. As lead prosecutor Clark (1997: 396) stated: one in 57 billion people had that DNA type. There are only 5 billion people on the planet. Odds like this are called ‘identification’. It’s probably the closest thing you can get to a perfect match. It was in the face of such seemingly overwhelming odds that the jury found Simpson not guilty. One final observation on the dynamics of expert evidence in the Simpson case is relevant at this point. Jury foreperson Cooley’s comments on the DNA testimony express an enduring impression that it was the lawyer rather than the expert who had rendered the evidence comprehensible, presumably in his portion of the defence closing argument: On the whole, I did not find the DNA too complicated to grasp because Scheck took the time to explain it … Now, granted, we may not be experts in the field because we never studied DNA … You don’t really have to be a chemist or a scientist to be oriented to the front part of something … I see us not being so naive on those points. (Cooley et al. 1995: 118) What is highly significant in this interview extract is the fact that Cooley attributes the comprehensibility of the complex DNA evidence to the lawyer rather than as a result of the efforts of the expert witnesses who actually testified. This final example perhaps serves to illustrate the extent to which it is the lawyer who is considered responsible for constructing the narrative which is ultimately presented to the jury, even in the case of complex expert witness testimony, which one might have assumed would remain the preserve of the expert. This chapter, and chapter 5, have focused on the dialogic phase of the trial, exploring some of the linguistic properties of the direct and cross-examination questioning of expert and lay witnesses. In chapter 7, I move into the final segment of the evidential phase and analyse the closing arguments of prosecution and defence, the final monologic addresses delivered to the jury prior to their crucial deliberations. As with the analysis of the opening arguments, I will again focus on a lexical dimension of the data, in this instance the use of strategic metaphorical choice, as a means of conceptualising both the individuals in the crime/investigation narratives and the adversarial trial-byjury process itself.

7 ‘If It Doesn’t Fit, You Must Acquit’: Reframing the Story through Metaphorical Choice in the Closing Arguments

Introduction In chapter 3, I addressed the prospective conceptualisation of trial participants through prescriptive lexicalisation in the opening statement phase of the trial. Following the elicitation of testimony from all the witnesses, human and physical, lawyers from both sides have a further, and final, opportunity to present a persuasive summary of the evidence in the closing argument, before the jury retire to consider its verdict.

The closing argument Advocates and academics underline the importance of the closing argument to the process of convincing juries and convicting the accused. Bugliosi (1996: 194), commenting on the Simpson case, states for example: I’ve always considered final summation the most important part of the trial for the lawyer. It’s the climax of the case, where the lawyer has his last and best opportunity to convince the jury of the rightness of his cause. The closing argument is not only significant because of the recency effect involved, it is also important because closings have an undeniably theatrical quality, indeed a number of books consisting of nothing but closing arguments have been published, with titles such as Greatest Closing Arguments in Modern Law (Lief et al. 1998). Alvord (1998), in a review of this collection, waxed lyrical about their entertainment 199


value, claiming that ‘the arguments read like passionate poems deftly crafted to challenge the mind and satisfy the soul’. Walter’s (1988) study, which reports lawyers’ and jurors’ perceptions of this aspect of the trial, is similarly admiring in its depiction of the rhetorical skill involved in closing a case. In closing arguments, however, there is certainly a fine line between an impressive dramatic performance and a cynical display of histrionics, and the closing arguments in the Simpson criminal trial, particularly that of the defence, were highly contentious affairs. Some commentators, including the attorney who represented the Goldman family in the later (successful) civil action against Simpson, felt that the defence team had crossed a line and were ‘clever lawyers skilfully pulling the wool over the eyes of a misguided jury’ (Petrocelli 1998: 21). As he had done with the opening arguments, Judge Ito applied a ‘two lawyer’ rule, which meant that the ‘big guns’ of each respective side – Clark and Darden for the prosecution, Cochran and Scheck for the defence – had the opportunity to present the final argumentative summaries to the jury. In their attempts to persuade the jury, both sides made extensive use of metaphorical representations as a powerful means of guiding (or as Petrocelli claims, of misguiding) the jury. Metaphor can to some extent be regarded as a fairly sophisticated form of lexicalisation, since both its use (by the speaker) and its processing (by the hearer) imply a further level of cognitive abstraction beyond that required for more literal lexicalisations. Moreover, the use of metaphor in courtroom argumentation represents not just a single, isolated lexical choice; but also involves the systematic and sustained construction of a framework within which to view the trial participants and processes. Hence, describing Simpson as a ‘wife-beater’ is a literal representation, whereas referring to him as a ‘ticking time bomb’, as this chapter will discuss, encapsulates many additional dimensions of reference and connotation. The potential strategic value of metaphor in the courtroom setting will now be discussed.

Metaphor in the courtroom Many of the most commonly accepted definitions of metaphor, including those of Lakoff and Johnson (1980) and Goatly (1997) emphasise the innocuous explanatory function of metaphorical constructs:

Metaphorical Choice in the Closing Arguments 201

a metaphor is ... a unit of discourse [which] is used to refer unconventionally to an object, process or concept, or colligates in an unconventional way ... understood on the basis of similarity, matching or analogy. (Goatly 1997: 8) However, there is an allied dimension which this type of definition does not take into account. Metaphor also has a coercive rhetorical aspect which may be fully exploited in the power-asymmetric environment of the courtroom. Despite the relative wealth of research into both courtroom argumentation and the use of metaphor in casual conversation, surprisingly little attention has been paid to the role of metaphor in courtroom interaction. Metaphorical constructs serve to create a powerful conceptual and ideological framework for the jury, and in this way lawyers are able to influence the perception of both witnesses and their evidence. The use of alternative representations permits a coercive reconstruction of ‘reality’ in the crime story, in terms which may activate powerful schemata in the minds of the jury, thereby achieving a good degree of fit in terms of narrative typification. Bugliosi (1996: 199) underlines the coercive value of metaphorical imagery in the closing argument: I do not agree that it is difficult to hold a jury’s attention for more than an hour or so. In fact, it is not difficult to keep their attention for one, two, or even three days if the lawyer can deliver a powerful, exciting summation that is sprinkled with example, metaphor and humour. Not only is such a linguistic strategy valuable in framing the crime story, in other words the acts and actors which constitute the story in the trial (Jackson 1995), but it is equally possible to orient jurors towards a particular view of the trial process itself – the story of the trial. Each of these two possibilities will be discussed in turn, however, I will begin by providing an overview of the use of metaphor by prosecution and defence attorneys in the two closing arguments. Metaphor in the Simpson courtroom Both the prosecution and defence closing arguments were highly charged metaphorically, although the defence summation contained nearly three times as many incidences of metaphor as its prosecution counterpart (219 vs. 71). If the respective length of each closing argument is taken into consideration, these figures translate into an average


of one metaphorical reference every 5.2 minutes for the defence, compared with one every 10.1 minutes for the prosecution, in other words metaphor was almost twice as frequent in the defence closing (although as this chapter will show, the respective distribution of these references was very different in the two closings). These totals were calculated according to the incidence of individual lexical items from particular fields in non-literal usage. In order to represent the degree of metaphoricity employed, which ranged from a single word to fully developed and extended metaphorical sequences, instances where more than one lexical item from the field occurred were calculated accordingly. Thus, the single lexical item ‘battle’, unmodified and unevaluated, was counted as one incidence, whereas a sequence such as the following: ‘if the fuse is running short…’ (Cochran, defence closing argument), which includes nominal and verbal items of a metaphorical nature, was considered to represent two instances. Some of these references represented clear lexical fields, such as ‘war’ (for example, ‘battle’, ‘dogfight’ and ‘weapon’) or ‘sport’ (including elements such as ‘race’, and ‘passing the baton’). Others belonged to less specific lexical groups – references to ‘smoke and mirrors’ and ‘makebelieve fantasy’ – which I grouped into a category called ‘magic/fantasy’. Finally, there were also several cases when a single metaphor constituted the sole member of a lexical group, for example a ‘search for justice’. The results from the analysis of the prosecution and defence closing arguments are summarised in Tables 17 and 18. It is clear that several of the metaphorical representations shown in Tables 17 and 18 are simply reiterations of classic courtroom metaphors; indeed, this intuitive feeling is supported by an extensive survey of a range of advocacy texts, which revealed a preponderance of ‘war’, ‘sport’ and ‘theatre’ metaphors, representing attorneys as warriors, athletes or actors, respectively. By extension, the texts employing the ‘war’ metaphor tended to see the adversarial courtroom as a battlefield with opposing sides fighting to win the elusive prize of victory, or more heroically as ‘fighters struggling to accomplish justice ... where the trial is a fight and the maiming is done with words’ (Spence 1989: 43). Instances of the sporting metaphor represented the trial process as a high-profile football game, borrowing lexical items from the sphere of warfare to describe its activities; thus, the courtroom is transformed into a sports field rather than a battlefield, with the participants depicted as competitive athletes attempting to gain supremacy over the


opposing team and win a famous victory. It is interesting to note that the press chose a sporting metaphor to refer to Simpson’s set of defence attorneys as the ‘Dream Team’, echoing the name given to the 1992 US Olympic basketball team. A small number of metaphors in the closing arguments fell into this category, with sport represented as ‘pseudo-war’, in effect a double layering of metaphorical constructs, with references to ‘winning’ and ‘losing’, ‘victory’ and ‘defeat’, ‘sides’ and ‘battles’ implying elements of both ‘sport’ and ‘war’. Significantly, the prosecution did not employ a single sporting metaphor in their closing argument; perhaps to have done so would have reinforced Simpson’s status as a national sporting hero in the eyes of the jury, thus conflicting with the persona of a double murderer, which they were striving to construct. The most common metaphor of all in advocacy texts, however, is that of the courtroom as ‘theatre’, complete with attorneys and witnesses as actors and the jury as audience. Evans (1993: 33) even Table 17

Metaphors in the prosecution closing argument

Lexical Field

Frequency

Example

Jigsaw puzzle

31 (43.7%)

Bomb

21 (29.6%)

Magic/fantasy

10 (14.1%)

Journey

4 (5.6%)

Messenger

2 (2.8%)

Search for truth/justice

2 (2.8%)

War

1 (1.4%)

that, ladies and gentlemen, is one piece of evidence that proves the Defendant’s guilt, opportunity, one piece of the puzzle and when that fuse starts burning, ladies and gentlemen, and it starts getting shorter and shorter, sets him off or is it smoke and mirrors? Is it all just smoke to cloud everything, cloud all the issues, distract you? well, they are all questions and issues that were raised as a distraction. They were roads raised, roads created by the Defendant to lead you away from the core truth ... but these roads, ladies and gentlemen, are false roads because they lead to a dead end I am just a messenger and I think you get the message and you get the message straight out of his mouth a trial is supposed to be a search for the truth and sometimes the truth is uncovered or revealed at the end of a long road the defence is going to call these people, whoa, this is going to be some dog fight

Total

71

204 Table 18

Metaphors in the defence closing argument

Lexical Field

Total

Example

War

30 (13.7%)

Messenger

29 (13.2%)

Sport

28 (12.8%)

Bomb

21 (9.6%)

Journey

20 (9.1%)

Geographical features

19 (8.7%)

Jigsaw puzzle

17 (7.8%)

Magic/fantasy

17 (7.8%)

Search for truth/justice

16 (7.3%)

Drama

10 (4.5%)

Disease

8 (3.7%)

Common thread/chain

4 (1.8%)

on his fourth trip here we discovered a letter that he had sent to the prosecution. This man had become a soldier in the prosecution’s army so these are the lies of the co-lead detective in this case. If you cannot trust the messenger, you can’t trust the message that they’re trying to give you the prosecution was first running with it. We then took the baton and we started running with it. We have run almost up to the jury box and soon we are going to pass the baton to you I’m sure he got tired and petered out because this fuse he kept talking about kept going out. It never blew up, never exploded I apologise to you for the length that this journey has taken. But, you know, when you’re seeking justice, there are no shortcuts people tell you about mountains of evidence and oceans of evidence, their oceans soon become little streams, their mountains become molehills when you buy a puzzle, on the outside of the box there is a picture so you know what the puzzle looks like when it is finished. Well, in this case, the prosecution took a photograph or picture of O.J. Simpson first, then they took the pieces apart and then he goes into this kind of make-believe fantasy world where he is going to try to tell you on June 12th he is going to conjure up this rage it is nice to have vivid imaginations, but here in this courtroom we are searching for truth on this journey for justice that is how silly what they are talking about in this case as he tries to play out this drama I say it is corroboration that something is wrong, something is terribly wrong with the most important pieces of evidence in this case. It is a cancer that is infecting the heart of this case if you are in a search for truth, you look and see if there’s a common thread of truth that runs throughout these witnesses

TOTAL

219


goes as far as to claim that advocacy is chosen for the very reasons that would-be attorneys have a latent ambition to tread the boards: you wouldn’t want to be an advocate if there wasn’t something of an actor inside you ... by aiming for the courtroom, you have chosen to go on the professional stage, as surely as if you’d tried to make it in the West End or on television ... There’s part of you that’s stage-struck, if you can’t reach into yourself and find the actor, move over to some other kind of lawyering. The recasting of the courtroom as a stage is deeply rooted in the classical rhetorical tradition, providing a dramatic setting for great orators with the jury and public gallery as the audience, which in the Simpson trial was supplemented by millions of television viewers. These three metaphors (the trial as ‘war’, ‘sport’ and ‘theatre’, respectively) were present in both prosecution and defence closing arguments; however, the combined total for all three accounted for a mere 1.4 per cent in the prosecution closing, but a massive 31 per cent in the defence argument. The prosecution closing was dominated by two metaphors: the ‘time bomb’ as the prosecution’s conceptualisation of Simpson himself, accounting for almost one third (29.6 per cent) of their total, and the ‘jigsaw puzzle’, representing almost half (43.7 per cent). A detailed exploration of these two metaphorical choices, representing the participants in the crime/investigation narratives on the one hand, and the trial process itself on the other, will be the focus of the remainder of this chapter. I will begin with an analysis of the metaphor of the defendant as a time bomb.

Coercion and the time bomb The potential coercive force of the bomb metaphor is undeniable, although it is of course also possible for a badly constructed bomb to explode in the face of the bomb-maker. Throughout the prosecution summation, Simpson was repeatedly referred to as a ticking time bomb, whose violent ‘explosion’ on the night of the murders was as inevitable as that of a time bomb which remains undiscovered. Toobin (1996: 419), commenting on the trial, evaluated prosecutor Darden’s use of the ‘burning fuse’ analogy as ‘the perfect metaphor for the Simpson marriage’. He summarises Darden’s line of argumentation:


it is because he hit her in the past. And because he slapped her and threw her out of the house and kicked her and punched her and grabbed her around the neck ... and it’s because he used a baseball bat to break the windshield of her Mercedes back in 1985. And it’s because he kicked her door down in 1993 ... It’s because of a letter he wrote her ... June the 6th, talking about the IRS. It’s because he stalked her. Darden then took each of these domestic violence incidents and in chronological order and punctuated them with the phrase ‘And the fuse is burning’. In portraying Simpson as a time bomb, Darden displays a skilled usage of ‘hiding’ and ‘highlighting’ (Lakoff and Johnson 1980). These phenomena acknowledge the fact that ‘in allowing us to focus on one aspect of a concept ... a metaphorical construct can keep us from focusing on other aspects of the concept that are inconsistent with that metaphor’ (Lakoff and Johnson 1980: 10). In his portion of the prosecution closing argument, Darden uses numerous incidents, including the 911 call made by Nicole to the police and photographs of her injuries, to reinforce the idea of a slow but inevitable build-up to the murders, in the manner of a fuse burning on a bomb. He further heightens the tension by switching to a dramatic use of the present tense: the fuse is getting shorter, the fuse is getting shorter, and there is about to be an explosion, he is about to lose control, and he is about to lose control like he did on those earlier occasions. And sure he didn’t kill her on those earlier occasions in October of ’93 or in 1989. But that was then and back then the fuse was a lot longer. But now the fuse is way short and it is awfully short. (Prosecution closing argument, 26 September 1995) In addition to this inevitability factor, the bomb schema also incorporates an innate sense of fear and danger. Darden was keen to exploit this characteristic too, by drawing a parallel between the fear that people have of bombs and the escalating fear Nicole had of Simpson. Recounting the incident where Simpson is alleged to have broken the windshield of her car with a baseball bat, Darden concludes: how do we evaluate this, when a man takes a baseball bat to his wife’s car and beats the ‘F’ out of it? If nothing else, it sends a message to her. It instils fear, wouldn’t you agree? And would you


agree it suggests to her that this can happen to you, then maybe you’ll be next? That fuse is burning. It’s burning in 1985 … the fuse is lit. It’s burning, but it’s a slow burn. (Prosecution closing argument, 26 September 1995) For the prosecution, then, the ‘Simpson as time bomb’ metaphorical construct was a powerful attempt to bring home to the jury the idea of Simpson as an unpredictable, dangerous and out of control wife-beater, and, ultimately, murderer. The defence response: defusing the time bomb Since the defence closing argument follows that of the prosecution, the defence had two strategic choices in their response to the representation of Simpson as a time bomb. They could either choose to ignore the prosecution’s construct of Simpson as a time bomb and formulate a different metaphorical context – a different frame for the crime story – within which to represent their argument; or they could take up the prosecution’s metaphorical choice and subvert it for their own purposes, in a similar way to Mark Antony, who picks up and subverts Brutus’ references to ‘honour’ and Caesar’s ‘ambition’ in his funeral oration: When that the poor have cried, Caesar hath wept; Ambition should be made of sterner stuff. Yet Brutus says he was ambitious; And Brutus is an honourable man (Julius Caesar, III.ii.91) For their purposes, the defence team chose to pick up the ‘time bomb’ metaphor, although their emphasis was very different from that of the prosecution. Almost 10 per cent of the defence metaphors concern the bomb, however their usage is without exception reactive and negative, denying the validity of the metaphor, referring to it as ‘a specious theory’ and ‘speculation’ (Cochran, defence closing argument). Thus, Cochran attempts to defuse the bomb, by emphasising – in Lakoff and Johnson’s terms, by ‘highlighting’ – those metaphorical aspects of the bomb which Darden had attempted to ‘hide’ (Lakoff and Johnson 1980): you notice how at the end he kind of petered out of steam there, and I’m sure he got tired and he petered out because this fuse he


kept talking about kept going out. It never blew up, never exploded. There was no triggering mechanism. (Defence closing argument, 27 September 1995) Cochran concludes with a typically uncompromising attack on prosecutor Darden: so we get all the way back past May into June and there is no trigger, there is no fuse, there is nothing going on. The only fuse, the only trigger is in Mr Darden’s mind. (Defence closing argument, 28 September 1995) In addition to representing the acts and actors in the crime story in these terms, the closing arguments also gave both sides the opportunity to reconceptualise the trial itself and its constituent processes. This was particularly important for the prosecution with the pressure of the burden of proof on them; the remainder of this chapter will deal with the prosecution construct of the trial as a jigsaw puzzle and the defence response to it.

Reframing the ‘story of the trial’: the trial as jigsaw puzzle metaphor Even more dominant for the prosecution than the construct of Simpson as a ticking (and eventually exploding) bomb was the metaphor of the trial as a jigsaw puzzle, which accounted for almost half of their total number of metaphors (43.7 per cent). The prosecution closing argument involved the completion of a computerised jigsaw puzzle. As lead prosecutor Clark summarised each piece of evidence – the blood, the glove, the knitted cap, and so on – another piece of the puzzle was inserted on the screen. When the final piece moved into position, the image revealed to the jury was the face of the defendant, a facsimile of Simpson’s post-arrest mug shot. This metaphor was not only used to conceptualise the trial for the jury, but also as a structuring device creating both cohesion and intertextuality between the two summations. This structuring function is clearly visible if the distribution of the puzzle metaphor in the two arguments is compared, as shown in Figure 7. As Figure 7 demonstrates, for the prosecution, the puzzle metaphor is to be found predominantly in the first half of the closing argument, creating a conceptual framework into which all of the evidence – the


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Figure 7 Distribution of the puzzle and bomb metaphors in the prosecution summation

‘pieces’ – are fitted. The first level is visual, with the computer-generated puzzle pieces progressively making up a final image of Simpson’s face; the second level verbal, with prosecutor Clark constructing a highly cohesive argument. As each piece of evidence and witness is summarised, Clark applies the coda ‘and another piece of the puzzle’ or a variation of it, concluding her initial summation, as the image of Simpson gradually appears on the computer screen: and this important evidence completes the picture of the Defendant’s guilt as it explains the motive for these murders and shows you what led this Defendant to be sitting here in this courtroom today. (Prosecution closing argument, 26 September 1995) Following the completion of the image, the puzzle metaphor is not repeated and plays no further role in the prosecution closing; instead, Darden follows up with his discussion of domestic violence, and the time bomb metaphor makes its first appearance. The metaphorical references are therefore clearly divided between Clark, with her image of the trial as a jigsaw puzzle, and Darden, who subsequently concentrates on the representation of Simpson as a time bomb in the latter half of the closing.


The defence strategy contrasts sharply with that of the prosecution, as can be seen in Figure 8. In the defence closing, the metaphors are predominantly handled by Cochran, with Scheck’s presentation of the scientific evidence (pages 76-114 of this data extract) almost entirely free of metaphor. The defence’s use of the time bomb metaphor is more evenly distributed than that of the prosecution, but consists of progressive rebuttals of the construct as relevant to the case. The defence also pick up the puzzle metaphor from the prosecution closing and subvert it to fit their own argument. They use it in a very different way. Rather than construct a careful argument around the infrastructure of the jigsaw, the defence summation relies much more on the dramatic impact of the metaphor, with Cochran preferring to save these references for the final stages of the closing. This is clearly a most theatrical strategy, in keeping with much of the defence’s conduct throughout the trial. Cochran manages to pack all 14 puzzle references into a short space of time towards the end of the summation, having made no reference to puzzles or pieces for over a day and a half. The defence strategy consists of deconstructing the picture presented by the prosecution, by taking each piece of their argument and

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Figure 8 Distribution of the puzzle and bomb metaphors in the defence summation


challenging it, and includes giving the jury a series of 15 questions to consider, each dealing with aspects of the pieces of the prosecution puzzle. Cochran told the jury: 1 2 3 4 5 6 7 8

There may be 1000 such questions in a case like this which could be put to her, but we intend no such exercise. I do think, after careful deliberation, that it might be fair to suggest fifteen questions, just fifteen questions which literally hang in the air in this courtroom at this moment. And as the time approaches for you to decide this case, for us to hand the baton to you, I offer these questions now as a most important challenge to the prosecution, the prosecution which claims that it has met its burden in this case. (Defence closing argument, 28 September 1995)

Cochran added somewhat facetiously: 1 When I’m concluded, for Miss Clark’s convenience, should she 2 decide to deal with these very troublesome questions, I’m going to 3 leave her a written list of these questions here when I conclude. (Defence closing argument, 28 September 1995) He went on to list the 15 questions, which related to the defence’s alternative crime and investigation narratives presented in the opening statements; a random sample of three of the questions is presented below: No. 1.

Why, there on the monitor, did the blood show up on the sock almost two months after a careful search for evidence?

No. 8.

Why did Deputy District Attorney Hank Goldberg, in a desperate effort to cover up for the missing 1.5 milliliters of Mr. Simpson’s blood, secretly go out to the home of police nurse Thano Peratis without notice to the defense and get him to contradict his previous sworn testimony at both the grand jury and the preliminary hearing?

No. 11. Why, following a bitter struggle allegedly with Mr Goldman, were there no bruises or marks on O.J. Simpson’s body? And you will have those photographs back in the jury room. (Defence closing argument, 28 September 1995)


Having discussed the quantity and relative distribution of puzzle metaphors in the two arguments, it is now useful to analyse the congruence of the puzzle metaphor as it relates to the courtroom. The jigsaw as a metaphor for the courtroom A sample dictionary definition of the terms ‘puzzle’ and ‘jigsaw puzzle’ reveals two principal characteristics: 1. PUZZLE a) a person or thing that is hard to understand or does not seem to have an explanation; b) a question, game or toy that you need skill or careful thought to answer correctly or put together properly. 2. JIGSAW PUZZLE a game, especially for children, using a picture on cardboard or wood that has been cut up into odd shapes. You have to make the picture again by putting the pieces together correctly again. (Collins COBUILD English Dictionary 1995) Both the sub-definitions of 1. acknowledge the fact that a puzzle has two defining elements; first, it is essentially a problem (or person) which is perplexing and difficult to understand; furthermore, the nature of the problem (or person) is such that its solution is problematic and requires intellectual exertion. This is clearly true of the criminal case, to the extent that the apparently disparate worlds of the criminal investigation and the puzzle occupy overlapping lexical fields: both may be ‘solved’ by putting the ‘pieces’ (whether physical pieces or pieces of evidence) into place; indeed criminal investigation is often referred to as the ‘piecing together’ of, for instance, the final movements of the victim to form a coherent picture of a crime; and the forensic psychologist forms a ‘picture’ of the perpetrator according to his interpretation of the clues at the scene of a crime. It is interesting to note that The Cambridge International Dictionary of English uses corpus-derived examples with a forensic theme, to demonstrate the usage of the two terms ‘puzzle’ and ‘jigsaw puzzle’: 1. PUZZLE: The police are trying to solve the puzzle of who sent them the letter.


2. JIGSAW PUZZLE: The police are trying to piece together the jigsaw of how the dead man spent his last hours. (Cambridge International Dictionary of English 1995) The only element of the COBUILD dictionary definition (1). which does not survive the transition from a puzzle to a crime is the sense of it as a ‘game’, which is an element which may be legitimately attached to a jigsaw, but not to a criminal investigation, particularly in a case of double homicide. This is a point Cochran, Simpson’s lead defence attorney, signals during his closing argument, in the form of a rebuke to the prosecution when he accuses them of minimising the seriousness of the case by framing it in terms of a jigsaw puzzle: and so that little example, a jigsaw puzzle, was clever, but really it trivializes a man’s fight for his freedom, who has always said that he was innocent from day one. (Defence closing argument, 28 September 1995) By taking the metaphor out of its context and objectifying it, a process which Halliday refers to as ‘dressing up as a noun’, Cochran is able to define it as a rhetorical device and thereby modify and evaluate it. Halliday (1985: 75) asserts that the nominalised form allows the user to ‘exploit the full potential of the language for mapping any transitivity structure … on to any desired message structure’; for Cochran, the objectification of the jigsaw puzzle provides him with the opportunity to emphasise what is in this case a negative aspect of the term, the sense of the jigsaw puzzle as a trivial game. As far as definition (2). is concerned, the idea of the jigsaw as an abstract representation of some aspect of the real world, removed in time and space from that reality, is certainly true of the criminal and judicial investigation. Both Clark and Cochran acknowledge the relative distance, both temporal and physical, between themselves and the events at the crime scene, and the representational nature of the trial, as was shown in chapter 2: understand this, ladies and gentlemen; that none of us in this courtroom were out at 875 Bundy on June 12th 1994, after 10.30 or 10.45 in the evening, so that everything we say to you is our best effort to piece together what took place in this case. (Defence closing argument, 27 September 1995)


short of a videotape, we very rarely know exactly how any crime occurred ... We have to look to the physical evidence and we have to use our common sense and our reason to make reasonable inferences to determine what happened to the best of our ability. (Prosecution closing argument, 26 September 1995) The second element carried by definition 2. is the fact that the jigsaw consists of an image where the ‘picture’ has been divided into its constituent parts, or ‘pieces’ to be reassembled. This concept has clear parallels with the criminal investigation and criminal trial processes. Detectives are charged with the collection and screening of large number of pieces of evidence, including forensic and other evidence, witness statements and suspect interrogation, which must be grouped and assembled to form a representation of events – a crime story – which is both factually accurate and intuitively plausible ‘beyond reasonable doubt’. The coercive force of the puzzle metaphor The representation of the trial process as the completion of a jigsaw puzzle is particularly appropriate as a choice for the prosecution. Its strength lies primarily in the fact that a murder trial essentially attempts to correctly identify the perpetrator, in other words, to create a convincing image (or picture) of the killer. In this sense, the prosecution strategy of a computerised jigsaw, with each part of Simpson’s face signifying a piece of evidence, is somewhat analogous to the construction of the prosecution’s case, a basically constructive process with evidence contributing cumulatively to a credible story for the jury. This is certainly true of the prosecution in the Simpson trial; their case consisted of a combination of forensic, eyewitness and circumstantial evidence which, they claimed, together constituted enough pieces of the puzzle to be able to construct a coherent picture of events. The defence counter-claim is that some pieces are from the wrong puzzle, others are missing and those that exist have been wrongly assembled to create a misleading picture. The value of inferencing for the prosecution – filling in the gaps Of course, neither the prosecution nor the defence have all of the pieces relating to the case, but they claim to have enough pieces to allow the creation of a clear picture, beyond a reasonable doubt. The prosecution argument is that it is not necessary to have all of the


pieces in order to understand what happened, since some of the facts of the case are clearly peripheral or less vital to the case than others: let’s talk about the physical evidence ... we already have the evidence to show you that the Defendant did commit these murders, without even really getting into the physical evidence. (Prosecution closing argument, 26 September 1995) Prosecutor Clark further states that a majority of pieces is all that is necessary (despite the fact that the computerised image constructed by the prosecution of Simpson’s face was itself complete), since commonsense inferences can be made about other events and circumstances. Similarly, in a jigsaw, having a roof and windows would usually mean the activation of an in-built ‘house’ schema to fill in the gaps, without it being necessary to have all of the relevant pieces. Clark asserts that such a schema-driven fill-in process can be applied to the evidence in the case: Ron Goldman left Mezzaluna at approximately 9:50. That is approximate time. It could have been a few minutes later. So we know that sometime before 10:00 he left. We know he changed his clothes, okay? But the direct thing we know is that sometime before 10:00 he left. We know he changed clothes because he was wearing something different when he was found. We know how long it takes for him to get home, because we have a witness telling us that, but what we don’t know exactly is what time he left his house. (Prosecution closing argument, 26 September 1995) In this data extract, the underlined sections are equivalent to pieces that the prosecution possess. As far as the italicised sections are concerned, where the prosecution do not have the relevant pieces, Clark suggests the gap-fill of logical inferencing: We have to make an inference from the evidence that we know about as to when he got to Bundy. Now you can draw an inference that is reasonable or you can draw an inference that is unreasonable. What we are required to do here and what I must do is draw inferences, excuse me, that are reasonable. Based on what we know, when he left the Mezzaluna, changing clothes, freshening up ... I think it is reasonable to infer that he took ten minutes or so to do that ... (Prosecution closing argument, 26 September 1995)


This concept of inference also applies to the piecing together of events and actions into logically satisfying units, so as to create a crime story which is both coherent and complete, which, as we saw in chapter 2, are both important criteria in securing a conviction (Hastie and Pennington 1996). An example of this feature from the data is the following, where the logical connection is temporal in nature: simple common sense tells you that the thumping, the glove and the defendant’s appearance on the driveway almost immediately thereafter are all part of one set of events, all connected in time and space. You don’t need science to tell you that; you need reason and logic. (Prosecution closing argument, 26 September 1995) The main picture or pieces of the border? The prosecution further employ the concept of essential and peripheral pieces when Clark talks about the fact that the LAPD were unable to find the murder weapon. Although this is clearly a gap in the crime story – a missing piece of the puzzle – she argues that the lack of a murder weapon is a peripheral rather than a central piece, and should therefore be disregarded. At the outset of the closing argument she tells the jury: Of who murdered Ron Goldman and Nicole Brown, some evidence has been presented to you that really is not relevant to answer the core question. And it is up to you, the jury, to weed out the distractions, weed out the side shows and determine what evidence is it that really helps me answer this question ... Because the side issues may be very interesting, they present very important issues, very serious issues, but issues that really do not relate to who committed these murders (Prosecution closing argument, 26 September 1995) These missing pieces are subsequently equated with pieces of the sky in a jigsaw puzzle, as pieces that provide additional information, but are not crucial for overall comprehension: In order to get the picture, to know what a jigsaw puzzle is depicting, if you’re missing a couple of pieces of the sky, you still have the picture. You know, for example, it shows a house and, you know, and a dog and a kid in the yard and that sort of thing, you can see the picture. You miss a couple of pieces of the sky sometimes, you do lose those pieces, no big deal. You’ve got the picture ... you’ve got all the neces-


sary pieces of the puzzle ... There are certain things we are not required to prove. I am going to get into that later. But those are like pieces of the sky, you don’t need them. It would be nice, but you don’t need them. (Prosecution closing argument, 26 September 1995) Defence contentions – reasonable doubt vs. the burden of proof The defence argument, by contrast, concentrates more on the destruction of the physical and circumstantial evidence. It is sufficient for them merely to create ‘reasonable doubt’ in the minds of the jury; they do not have to provide an alternative for the puzzle image. In the terminology of the jigsaw puzzle, the concept of ‘reasonable doubt’ relates to the final image created by the synthesis of the pieces, the cumulative effect. Since the onus is on the prosecution to produce the necessary pieces – the ‘burden of proof’ – all that the defence effectively have to show is that the pieces could theoretically combine to form a picture of the accused, but it is equally possible for them to display an (unidentified) person or persons if rearranged in a different order. The defence are not obliged to provide an alternative to arguments which embellish the prosecution case, the ‘pieces of the sky’ referred to by Clark, but if the central arguments or evidence are flawed, if the key pieces are missing or misplaced in the puzzle, then the jury are instructed to acquit the accused – hence the memorable slogan of the trial, referring partly to the infamous glove and also applied on many occasions to the prosecution evidence: ‘If it doesn’t fit, you must acquit’ (Cochran, defence closing argument). Moreover, the fact that the burden of proof is on the prosecution means that if a single piece of evidence has two equally possible interpretations, then the jury are instructed to take the defence alternative; that is, according to the rules of evidence, if a particular puzzle piece would conceivably fit into more than once space or if the puzzle piece is two-sided, with two possible images, then the slot or the side suggested by the defence should be taken. Cochran quotes from expert witness testimony to illustrate this point: I can’t exclude the possibility that the EPA B might have been from Nicole Brown Simpson ... That is again a maybe, and a maybe doesn’t cut it in a criminal case. And when you have two reasonable conflicting inferences, you’ve got to go with the one consistent with innocence. (Defence closing argument, 28 September 1995)


The defence subversion of the puzzle metaphor The essence of the defence is that since (according to them) Simpson is being framed by the LAPD, it is hardly surprising that all the prosecution’s evidence appears to add up to Simpson as the perpetrator, given that they claim the prosecution worked backwards from the idea of Simpson as guilty and collected (or fabricated) evidence to reinforce this view: when you buy a puzzle, on the outside of the box of the puzzle, there is a picture, so you know what the puzzle looks like when it is finished. Well, in this case, the prosecution took a photograph or picture of O.J. Simpson first, then they took the pieces apart. If they really wanted to talk about reasonable doubt, you don’t jump to conclusions at the beginning (Defence closing argument, 28 September 1995) The defence further maintain that the reason some of the prosecution’s evidence does not fit their argument is that they are trying to fit the wrong pieces into the puzzle, that is an irrelevant witness or a tainted forensic sample, or else they may be attempting to form the wrong picture entirely. There is also the possibility that they are fabricating a piece to fit a space, either because that piece is missing or because it doesn’t exist at all. There are numerous examples of these claims, that the prosecution are, in effect, constructing an incorrect picture of Simpson as the murderer, by trying to make pieces fit into a space where they do not belong. Such examples include the following: we called a leading witness who came in and passed that on for you. You could see on the overlays there. They cannot explain that. They could have called witnesses. They didn’t. We called the witness to prove beyond any doubt that those gloves don’t shrink. The gloves didn’t fit Mr Simpson because he is not the killer. (Defence closing argument, 27 September 1995) The fact that a particular piece may appear to be the right size and shape to fit in a given space does not necessarily mean that it belongs there; some jigsaw puzzles consist of pieces belonging to a limited number of patterns, so there is, in theory, a large number of different pieces which fit into a given slot. However, the image printed on the piece is decisive in determining whether it actually belongs in that space. Thus, when Clark recounts the testimony of a key eyewitness,


there is considerable room for manoeuvre in the witness’s description to implicate any of a range of individuals who may fit the bill. This point is not lost on the witness, who is unwilling to state unequivocally that it was Simpson that he saw: now Allan told you that the man who he saw enter the house appeared to be the same size as the defendant and about the same height and weight. He would not stretch even one iota to draw the obvious conclusion that the man he saw walking up the driveway was the defendant. Of course it was. (Prosecution closing argument, 26 September 1995) The presentation of complex and lengthy evidence over the nine months was certainly made more comprehensible for the long-suffering jurors through the use of metaphor, but the use of metaphor in the main part of the trial was limited to an occasional usage. It was during the closing arguments that both prosecution and defence chose to use a full repertoire of metaphorical constructs. Other ‘powerful’ participants in asymmetric, persuasive groups in fields such as politics and advertising, have long acknowledged the value of the metaphor in reframing reality and in persuading an audience, and the lawyers in this case certainly used this potent rhetorical technique to attempt to persuade jurors of the guilt or innocence of the accused. In the final analysis, the Simpson criminal jury chose to reject the prosecution’s ultimate puzzle configuration, that is the image of Simpson as the perpetrator. This may have been for any number of reasons, perhaps because of the influence of the so-called ‘race-card’ played by the defence, or the fact that the jury found it impossible to convict such a famous American sporting celebrity, or simply due to ‘reasonable doubt’ over the evidence. Whatever the reasons, the jury preferred to accept the defence formulation that the puzzle had not been completed satisfactorily, a puzzle whose pieces consisted of allegations of racist police officers, planted and contaminated evidence and sloppy investigative procedures. With the presentation of the evidence and the final arguments from both sides complete, the trial could now move on to the crucial deliberation phase. This study will conclude with an analysis of the jury deliberation process in the Simpson case, drawing on post-trial memoirs, diaries and interviews with the Simpson jurors.

8 Judging the Jury: the Deliberation, the Verdict and the Aftermath

Introduction After four days of impassioned closing arguments by both sides, the Simpson jurors were sent out to consider the case. This book, like the trial, will conclude with the deliberation process and verdict. For the researcher of language and the law, the jury room is a secret world, where access is almost universally barred, both during deliberation itself and post-verdict, when a gagging order is often imposed on jurors. In the British judicial system, Dyer (2000) talks of an ‘impenetrable veil of secrecy’ which hangs over the jury room, with Section 8 of the Contempt of Court Act imposing a blanket ban on jurors discussing ‘statements made, opinions expressed, arguments advanced or votes cast’ during the deliberation process. California law too prohibits access to the jury’s deliberations; however, although it is not possible to gain direct access to the Simpson jury room, the researcher does have access to some of the jurors’ posttrial thoughts and opinions, at least in this instance. Judge Ito formally released the Simpson jurors from their ‘vow of silence’ by means of a performative speech at the end of the trial, which included a fatherly word of advice about what kind of reception they could expect in the ‘outside’ world after their nine-month period of sequestration: Whether you wish to cooperate with the news media is, of course, entirely up to you. However, I must warn you to expect the worst as far as that is concerned … Ladies and gentlemen of the jury, I am now going to excuse you from further service on this case. As you know, this does absolve you from your vows of silence. (Judge Ito, 2 October 1995) 220

The Deliberation, the Verdict and the Aftermath 221

The resulting interviews, journals and books produced by jurors about their experiences during the trial and deliberation provide a fascinating ‘insider’ perspective on the Simpson trial process. Although ‘self-report’ data such as those provided by the Simpson jurors must always be treated with caution, the existence of so much posttrial feedback from so many of the jurors in the Simpson case allows us to build up a relatively comprehensive and rounded account of what took place in the jury room; as such, it represents an excellent opportunity to study the deliberation process based on this ‘insider’ data. In addition to analysing the jurors’ self-observations, this chapter will also include the contributions of lawyers, psychologists and linguists, all of whom have attempted to explain the sensational notguilty verdict. Finally, I will conclude with a brief discussion of some of the implications of the Simpson trial, and its verdict, for the criminal trial by jury system in general. However, I will begin with an analysis of the deliberation process itself, and a brief exploration of juror decision-making processes.

The deliberation process: emotion vs. logic Judge Ito’s directed the jury in his jury instructions that their verdict was to be based on a dispassionate assessment of the evidence: 1 2 3 4 5 6 7

You must not be influenced by pity for a defendant or by prejudice against him. You must not be biased against the defendant because he has been arrested for this offense … You must not be influenced by mere sentiment, conjecture, sympathy, passion, prejudice, public opinion or public feeling. Both the prosecution and the defendant have a right to expect that you will conscientiously consider and weigh the evidence, apply the law and reach a just verdict regardless of the circumstances. (Final jury instructions, 22 September 1995)

Faced with such unambiguous guidance, the jury were apparently faced with the difficult task of stripping away the layers of emotion and rhetoric on the surface of the testimony and the summations they had heard – the respective narrative formulations of the murders – and searching for the essential crime story beneath, the process of deconstruction discussed in chapter 2. Despite Ito’s direction, many jurors reported post-trial that they had been swayed by affective rather than purely logical means of persuasion. Knox (1995: 261–2), for example, wrote:


Let me tell you firsthand about the impact of the Dream Team. When you’re sitting in that jury box and they’re arguing their case right at you, Man, what a show! Talk about power and charisma. You don’t nod off when Johnnie Cochran and F. Lee Bailey … take the floor. Believe me, when the Dream Team talked, the O.J. jury listened. The same juror also praised the storytelling abilities of the two lawyers, stating that, ‘what both lawyers have in common is their ability to give you a story, an interesting narrative wrapped around their facts’ (ibid.: 264). Knox, himself an African-American, makes the interesting point that this aspect may have made the defence narratives particularly appealing to the (majority of) African-Americans who made up the jury, with their strong cultural tradition of storytelling. He concludes that, although he thought the prosecution had a better case in terms of the facts, ‘they never knew how to present it. They just couldn’t keep it sharp and simple’ (ibid.: 264). Such opinions appear to support the view of researchers such as McCabe and Purves (1974: 72), who state: although the machinery of the law seems to aim at total, dispassionate objectivity, yet the final verdict arises from an informal, very human group situation … trials pretend to get the facts, but these are always muddied by the human elements. Heffer (2002), drawing on the work on Jerome Bruner, also discusses the difficulties jurors face in negotiating these two modes of reasoning, referred to by Bruner as ‘paradigmatic’ (dealing with the Law) and ‘narrative’ (dealing with the ‘real world’), respectively (Bruner 1986, 1990). Heffer’s conclusion is that this clash of modes creates a tension which may result in a unbalanced verdict, where jurors disregard elements of the crime story which do not fit into their narrative version of events developed over the course of the trial, and give undue weight to others. The Simpson trial, as Hastie and Pennington (1996: 959) point out, was the site of an unusually large number of what they term ‘prejudice triggers’, many of which centred on Simpson’s race, as Table 19 shows. Hastie and Pennington’s research, which depicts verdicts as ‘reflexive reactions’ evoked by the presence of these ‘triggers’ in the evidence, echoes the view of veteran judge Frank (1949: 131), who claimed that ‘Mr Prejudice’ and ‘Miss Sympathy’ are the ‘names of witnesses whose testimony is never recorded, but must nevertheless be reckoned with in trials by jury’. As we have seen, the role played by linguistic, and particularly lexical, choices in creating prejudicial advantage within the testimony is significant.

The Deliberation, the Verdict and the Aftermath 223 Table 19

‘Prejudice triggers’ in the Simpson trial

‘Prejudice Trigger’

Implied Verdict

Simpson was an African-American who beat his white wife

Conviction

Simpson was an African-American who sold out to ‘white moneyed society’ and lived in a ‘white world’, had married a white woman, etc.

Conviction

Simpson was an African-American who overcame his disadvantaged background to succeed in a racist society

Acquittal

Nicole Brown Simpson had led a wanton and immoral life LAPD was an elitist, racist organisation

Acquittal Acquittal

(Created after Hastie and Pennington 1996: 959)

Judging the prosecution and defence narratives: ‘if it doesn’t fit, you must acquit’ The defence’s reference to the prosecution’s ill-fitting glove represents a highly appropriate metaphor for the jury deliberation process. In many of the post-trial writings and interviews, the jurors spoke of the individual and collective process of narrative typification (Jackson 1995: 419) which went on in the jury room, whereby they attempted to ‘make sense’ of the evidence. Through a process of trying the various stories on for size, the jurors attempted to reach a consensus on the most acceptable ‘fit’ of story, given the evidence presented. Discussing the deliberation process, Rubin-Jackson (in Cooley et al. 1995: 99) referred to the way in which she reconstructed the crime story within the jury room, in an attempt to evaluate its narrative plausibility. Significantly, she discusses this ‘re-enactment’ in the historic present tense, simulating a powerful sense of deictic proximity to the crime events. Her portrayal of one of the officer’s versions of the investigation story is reproduced below: 1 2 3 4

you go into the house and you spotted blood prior to going into the house. So you scaled the wall and now you get into the backyard and get Arnelle to let you into the house. No one ever goes upstairs. No one ever searches the house … It doesn’t make sense.

This extract illustrates the two primary uses of the historic present tense; first, Rubin-Jackson is able to transport herself, by linguistic means, to the time and place of the crime and its investigation (in lines 1 and 2). Then, by evaluating the officer’s actions as a potential ‘habitual action’ – the second use of the tense – the juror is able to measure


the typicality and by implication the plausibility of the officer’s behaviour against a media-created schema of what police officers are meant to do at crime scenes (lines 3–4). Rubin-Jackson’s conclusion is that ‘it doesn’t make sense’ (line 4). This approach to placing oneself within the narrative by a process of temporal transposition is a more subtle, and a more linguistic, strategy than in a case reported by Hans and Vidmar (1986: 99) where the jury physically re-enacted a shooting by role-play in the jury room, in order to assess the credibility of the evidence and the plausibility of the story. Hastie et al. (1983: 195) claim that the ‘logical’ order of verdict decision-making is subverted when individualistic and internalised story schemata motivate the deliberation process. The process by which evidence informs the construction of the story, which in turn determines the verdict, is shown in the following sequence: Presentation of Evidence

→

Story Development

→

Choice of Verdict

Hastie et al. (1983) contend that this classic sequence is, in a majority of cases, transformed into a more reciprocal process. Thus, a predetermined choice of verdict, inspired by affective motivational forces, may influence both the comprehension and the recall of evidence, with a corresponding story likely to be constructed which justifies the preferred verdict. Stories will modify the impact of evidence and the evidence may greatly constrain the choice of verdict. In this context, jury foreperson Cooley’s (1995) comment ‘I was sick when I saw they [the gloves] didn’t fit because I just thought for sure they were going to fit’ (p. 125) reveals an underlying and prefabricated narrative framework into which the evidence was placed and was found to be (for her) a poor fit. There appears to be further evidence of this process taking place in the Simpson jury with respect to the testimony of Allan Park, Simpson’s driver, which was crucial to the prosecution’s case. He testified that he had rung Simpson’s doorbell repeatedly on the night of the murders, but had received no reply. He claimed he later saw someone resembling O.J. Simpson dart into the house and, a few minutes later, Simpson had opened the door, claiming to have been asleep. However, Park also stated that Simpson’s white Bronco was not in the driveway when, in fact, it was. This observational lapse was cited by several Simpson acquitters as evidence of Park’s unreliability as a witness.


One of the jurors who thought Simpson was guilty, however, spoke of a compensatory strategy, whereby she applied the hypothetical inferencing principle (as suggested by Clark in the prosecution closing argument) to fill the incoherent gap, creating a scenario which enabled the evidence to still make sense, despite the apparent anomalies: I don’t care what anyone says but I thought that Allan Park was honest in his testimony. He was excited about picking up O.J. Simpson. That was his main thing, as was getting him to the airport on time. The question came up about him seeing the Bronco parked on Rockingham. I thought that if he was not looking for a car – because basically all he was looking for was a better way to enter into the property – then he would not have seen it. (Cooley et al. 1995: 110) Ultimately, for many of the jurors, it wasn’t simply the fact that that the gloves didn’t fit, but that Simpson himself didn’t fit the mould of a killer, which seems to have contributed to his acquittal. As I discussed in chapter 3, the prosecution seem to have successfully portrayed Simpson as a wife-beater; although jury members were shocked and surprised to discover that Simpson was guilty of domestic abuse, they were given fairly incontrovertible evidence, in the form of Simpson’s ‘no contest’ conviction in the 1980s for violence against his (then) wife Nicole. The image of Simpson as a double murderer, however, was more difficult for the jurors to assimilate. Goldberg (1996: 352) one of the prosecution attorneys, cites a post-verdict interview with one male juror who asked: ‘How could a man with everything commit murder?’ In the final analysis, the jury, en masse, chose to believe a combination of the two defence investigation narratives (outlined in chapter 2), depicting LAPD Detectives Fuhrman and Vannatter in a ‘rush to judgement’ involving planted evidence and a subverted investigation. In addition, the defence seem to have managed to convince the jury that the collection of evidence and the analysis procedures followed in the LAPD laboratory were sloppy and had led to contamination of the physical evidence – the ‘bungling investigators’ story. These two narrative versions focused on the investigation rather than the crime itself, and were able independently to undermine central parts of the prosecution story and explain away much of prosecution evidence, without incriminating Simpson. This was the strategy Clark criticised in her closing argument (and discussed earlier) of ‘smoke and


mirrors, just smoke to cloud everything, cloud all the issues, distract you’. (Clark, prosecution closing argument, 26 September 1995).

The verdict After less than four hours’ deliberation, the jury indicated that they had reached a verdict. In the best tradition of extending the suspense as far as possible, however, the judge postponed the delivery of the verdict, adjourning the court until the following morning. He explained that several lawyers were absent from the courtroom, apparently caught out by the speed of the verdict: 1 2 3 4 5 6

Ladies and gentlemen, we are missing, as you can tell, several of the attorneys. Predominantly we are missing Miss Clark and Mr. Cochran. And I indicated to the attorneys that I would give them a reasonable opportunity to be here for the announcement of the verdict and I have indicated to them that I will accept the verdict from you tomorrow morning at ten o’clock.

At 10 am the next morning, the verdict was finally announced. In accordance with California law, the verdict was read aloud by the clerk to the court: The Court: The Clerk:

Mr Simpson, would you please stand and face the jury. Mrs Robertson. Superior Court of California, County of Los Angeles. In the matter of People of the State of California versus Orenthal James Simpson, case number BA097211. We, the jury, in the above-entitled action, find the defendant, Orenthal James Simpson, not guilty of the crime of murder in violation of Penal Code section 187(a), a felony, upon Nicole Brown Simpson, a human being, as charged in Count I of the information…

It is interesting to note that even in their hour of adjudicatory glory, the jurors still did not have an opportunity to contribute orally to the proceedings. Rather, the verdict was delivered by the clerk, speaking on behalf of the jury foreperson. A similar not guilty verdict followed on Count II, relating to the murder of Ron Goldman. Simpson was thus acquitted on both counts of first degree murder.


Following the verdicts, each juror was asked individually to confirm their verdict, producing a single affirmative response, their only verbal contribution in open court during the entire trial: 1 2 3 4

The Clerk: Juror No. 1: The Clerk: Juror No. 2:

Juror No. 1, as to count I, is this your verdict? Yes. Juror No. 2, as to count I, is this your verdict? Yes …

After the verdict Observers were taken by surprise by two aspects of the Simpson verdict. First, the length of the deliberation period was judged to have been indecently short, considering the amount and the complexity of the evidence to be evaluated. The Daily Telegraph had predicted a far lengthier period of deliberation, as their headline ‘Experts expect fourweek wait for O.J. verdict’ (2 October 1995) which appeared the day before the verdict, attests. Second, in addition to the speed of the deliberations, the ‘not guilty’ verdict itself was also unexpected, with the Italian daily La Republicca describing Simpson’s acquittal as ‘a twist worthy of an Oscar’, continuing the cinematic metaphor with the claim that the trial had ‘wrongfooted everyone who had tried to guess the ending before the credits rolled’; The British tabloid The Sun declared the verdict ‘the biggest surprise in legal history’, as ‘The Juice’ (O.J.’s nickname since his footballing days) was ‘set loose’. Following the verdict, all that remained to be done was for both defendant and jury to be released from their respective periods of incarceration. This was achieved by means of a final pair of performative speech acts from the judge. The Simpson jurors, after a record 266 days of sequestration, were released from jury duty with the following utterance: 1 2 3 4 5

Ladies and gentlemen of the jury, I am now going to excuse you from further service on this case. As you know, this does absolve you from your vow of silence. You may take with you your juror notebooks as you have requested and I will be chatting with you shortly. All right. Thank you very much. And I’ll see you all later.

Finally, Simpson himself was freed after 474 days in jail, bringing the criminal trial to an end:


1 The Court: 2 3

All right. The defendant having been acquitted of both charges, he is ordered transported to an appropriate sheriff’s facility and released forthwith. We’ll stand in recess.

The Guardian newspaper claimed that the acquittal had left ‘American justice in tatters’, with the LA Times stating that there were harsh lessons to be learned from the ‘message’ sent by the jurors to the criminal justice system (Tarlow 1995: B9).

A few implications for trial by jury in the aftermath of the Simpson case Simpson’s acquittal was widely attributed to the emotive influence of a cluster of factors – race, wealth and celebrity – all of which had preoccupied the Simpson trial lawyers at the time of jury selection. Montalbano (1995: A1), writing in the LA Times on the day after the verdict, included the following soundbites from ‘trial watchers’ which reflected the views of many observers: ‘I suspect he was found not guilty because he is such a well-loved celebrity.’ ‘A man with money and fame hires the best lawyers and wins, even though he is guilty.’ ‘The decision was influenced by the fact that O.J. is Afro-American … The white people were afraid of stirring up black riots.’ Judge Hiller Zobel (who later presided over another high-profile case – the trial of the British nanny, Louise Woodward) was also scathing of the Simpson verdict, describing the trial by jury system as tantamount to ‘asking the ignorant to use the incomprehensible to decide the unknowable’ (cited in Grove 1998: 205). Opinion is divided on the value and future of the trial by jury system; however, an increasing number of lawyers and legal academics are coming to believe that it may not always represent the best way of delivering justice. Even supporters of the jury trial acknowledge that ‘nothing is so good about the jury system as it stands that it cannot be improved and human rights better protected’ (The Independent, August 2000). Baldwin and McConville (1979: 1) argue that the jury system involves: twelve individuals often with no prior contact with the courts, who are chosen at random to listen to evidence (sometimes of a highly


technical nature) and to decide upon matters affecting the reputation and the liberty of those charged with criminal offences. They are given no training for this task, they deliberate in secret, they return a verdict without giving reasons, and they are responsible to their own conscience but to no one else. Reforming trial by jury In the UK, the forthcoming Criminal Justice Bill (discussed in Burrell and Verkaik 2002), currently subject to considerable scrutiny and debate, proposes a number of reforms to the trial by jury system. These measures include the removal of the automatic right to trial by jury for defendants and the introduction of guidelines meaning that judges will be given new powers to sit alone in ‘serious and complex fraud’ cases where the use of ‘professional jurors’ (see below) is not deemed appropriate. In the European context, Article 6 of European Convention on Human Rights (ECHR), which came into effect in October 2000, has provoked an ongoing debate about the adjudications made by juries, and the right of the victims of crime to have access to the reasoning behind acquittals (Travis 2002). One suggestion currently being considered is that juries should be required to provide explanations and justifications for their verdicts. This proposal, reported by Verkaik (2000), consists of a ‘structured list of questions’ agreed in advance by lawyers and the judge, to be completed, in writing, by the jury foreperson; an alternative, less popular amongst the judiciary, is for the judge to ‘sit in’ with the jury, acting as a legal adviser, a system already in operation in France and Belgium. Commenting on these proposals, The Independent editorial of 25 August 2000 cites the O.J. Simpson case as a positive force for change in the US, claiming that ‘it was healthy for the American public to know that the jury in the O.J. Simpson case thought he was guilty and acquitted him because they disliked the LAPD’. One of the most comprehensive recent studies on jury reform was completed in November 1999 by the New Zealand Law Commission, involving 312 jurors in 48 criminal trials. The Commission’s recommendations included greater guidance for the jury foreperson, more assistance through the use of visual aids and additional help for jurors in cases involving multiple defendants. In addition, the researchers have called for jurors to have more opportunities to ask the judge questions during the trial and have advocated the provision of a written summary of the judge’s summing up on the law for jurors during deliberation as a means of improving juror comprehension of legal principles and terminology.


The ‘professionalisation’ of trial participants A further development in trial by jury concerns the movement of the lay participants in the trial process towards ever greater ‘professionalisation’, reflecting a trend also taking place in many other institutional settings, where official accreditation and qualification are becoming compulsory in, for example, schools, universities and the police force. Within the judicial system, this trend is evidenced by decisions such as the Daubert (1993) ruling (discussed in chapter 6), which have placed greater controls on the admissibility of expert witnesses and their evidence. In addition, in the UK, there is currently an ongoing challenge to the right of the defendant to a jury trial per se, led by the Home Secretary, as well as a proposal to end the 600-year-old system of lay magistracy, in favour of hearings by ‘professional’ magistrates. In the government’s forthcoming Criminal Justice Bill, a number of restrictions are proposed on the right to a jury trial in complex fraud cases where it is suggested that ‘professional’ jurors rather than laypeople should hear the evidence. There are also some signs of such a process taking place in the US, at least in part due to cases like Simpson’s. There are increasing calls for ‘professional jurors’ who would be ‘trained to listen objectively and would be schooled with the kinds of decision-making skills necessary to function effectively within an adversarial context’ (Schmalleger 1996: 366). Professional jurors, it is argued, would be better equipped to cut through the discursively constructed rhetoric of trial lawyers than their lay counterparts. The impact of this process of professionalisation on the linguistic strategies employed by all participants in court is likely to be of increasing interest to both lawyer-linguists and forensic linguists alike. It seems that the next few years are likely to be a time of great change for the trial by jury process. It is to be hoped, on both an analytical and a consultative level, that the forensic linguist will have a important role to play in these and other developments in the criminal justice system, so many of which have significant linguistic, as well as legal consequences. *

Coda: O.J. Simpson and the civil trial Despite the fact that the criminal trial of O.J. Simpson trial resulted in an acquittal, the story was not yet over. In terms of narrative resolution, there was a yawning gap left by Simpson’s acquittal. In the LA Times,


Buchanan (1995: B9) portrayed the case as an unfinished story; drawing parallels between the trial and a literary narrative, she wrote: Had the O.J. Simpson case been fiction, when he was holding himself hostage with a gun to his head during the slow-speed freeway chase, he would have been trying to escape in order to find the real killer and exonerate himself. But this is real life in America, where justice is rare and the jury system does not work … in real life, in journalism, murders go unsolved, some missing people stay lost forever, and killers often beat the system. Unresolved murders are unfinished stories. In this instance, however, the story of the ‘trial of the century’ was to have a fascinating coda. The US criminal justice system incorporates the ‘double jeopardy’ rule, which states that an individual cannot normally be tried twice for the same crime. However, it is possible for a private prosecution to be taken out within the civil system. On 12 June 1995, the family of Nicole Brown Simpson filed a civil suit against Simpson, claiming monetary damages for the death of their daughter. Ron Goldman’s family filed a similar suit. From the point of view of Buchanan’s ‘unfinished story’, the civil trial represented an opportunity for a rare second chance to resolve the whodunit mystery. The civil case presented an intriguing situation: the same basic story was to be told by both prosecution and defence, although by different lawyers, using the same cast of crime and investigation story characters and the same forensic exhibits. In Cotterill (2002), I explore aspects of the intertextuality created by this parallelism. From an interactional perspective, the basic dynamics of the civil trial were similar to those of criminal proceedings, although, critically, Simpson could be (and was) obliged by the prosecution to take the stand and testify in his own defence. In addition, the different legal framework of the civil trial system meant that the respective prosecution and defence stories were put to the scrutiny of a new set of jurors in a trial with a new set of rules. In particular, the criteria for what, in legal terms, could be accepted by the jury as a ‘reasonable’ degree of narrative coherence was significantly lower. Rather than fulfilling an exacting burden of proof, the prosecution were required to show only that Simpson was ‘more likely than not’ to have committed the crimes, by means of a ‘preponderance of evidence’; correspondingly, the judgement could be a major-


ity verdict of 9:3 rather than (in the Simpson criminal trial) a unanimous one. Moreover, the jury were asked to judge on financial compensation rather than a custodial sentence. In this trial, Simpson was judged ‘liable’ for the deaths of Nicole Brown Simpson and Ron Goldman, and was ordered to pay $33.5 million in compensatory damages.

Notes Chapter 1 1. Here and throughout the book, I will use the ‘generic-he’ pronoun. This is principally because the majority of those involved in the legal process, statistically speaking, are male. 2. The Simpson defence team were dubbed the ‘Dream Team’ by the American press, a name originally given to the all-conquering US basketball team at the 1992 Barcelona Olympics.

Chapter 2 1. Ryunosuke Akutagawa, Rashomon and Other Stories, trans. Takashi Kojima (Charles Tuttle Co., 1952).

Chapter 3 1. Data drawn from the CobuildDirect corpus created by University of Birmingham.

COBUILD

at the

Chapter 5 1. In fact, the lawyer here had earlier attempted (unsuccessfully) to have the word ‘nigger’ banned from the courtroom altogether, so as ‘not to inflame the predominantly black jury’ (Rice 1997: 42).

Chapter 6 1. http://www.greatbritain.co.uk/experts/expert.shtml.

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240 References People v. Orenthal James Simpson (1995) Trial transcripts available at: http://www.law.umkc.edu/faculty/projects/trials/Simpson/walraven.html#transcripts Petrocelli, D. (1998) Triumph of Justice: The Final Judgment on the Simpson Saga. New York: Crown Publishers. Philips, S. U. (1987) ‘The social organisation of questions and answers in courtroom discourse’, in L. Kedar (ed.), Power through Discourse. Norwood, NJ: Ablex, 83–113. Philips, S. U. (1998) Ideology in the Language of Judges: How Judges Practice Law, Politics, and Courtroom Control. Oxford: Oxford University Press. Presumed Innocent (1990) Director: Alan J. Pakula; Screenplay: Frank Pierson, Alan J. Pakula; Novel: Scott Turrow. Warner Bros. Ptacek, J. (1999) Battered Women in the Courtroom. Boston: Northeastern University Press. Pyszczynski, T., Greenberg, J., Mack, D. and Wrightsman, L. S. (1981) ‘Opening statements in a jury trial: the effect of promising more than the evidence can show’, Journal of Applied Social Psychology, 11: 434–44. Rantala, M. L. (1996) O.J. Unmasked: The Trial, the Truth and the Media. Chicago: Catfeet Press. Renoe, C. E. (1996) ‘Seeing is believing: expert testimony and the construction of interpretative authority in an American trial’, International Journal for the Semiotics of Law, Vol. IX, 26: 115–37. Rice, E. Jr (1997) The O.J. Simpson Trial. San Diego, CA: Lucent Books. Ross, A. (1997) ‘If the genes fit, how do you acquit?’, in T. Morrison and C. Brodsky Lacour (eds), Birth of a Nation’hood: Gaze, Script and Spectacle in the O.J. Simpson Case. New York: Pantheon Books, 241–72. Sales, B. (ed.) (1977) Psychology in the Legal Process. New York: Spectrum. Sarangi, S. and Coulthard, M. (eds) (2000) Discourse and Social Life. London: Longman. Scheppele, K. L. (1989) ‘Telling stories’, Michigan Law Review, 87(8): 2073–98. Schiffrin, D. (1994) Approaches to Discourse. Oxford: Blackwell. Schmalleger, F. (1996) Trial of the Century: People of the State of California vs. Orenthal James Simpson. London: Prentice-Hall. Schuetz, J. (1999a) ‘Telelitigation and its challenges to trial discourse’, in J. Schuetz and L. S. Lilley (eds), The O.J. Simpson Trials: Rhetoric, Media and the Law. Carbondale, IL: Southern Illinois University Press, 1–18. Schuetz, J. (1999b) ‘Final summation: narratives in contrast’ in J. Schuetz and L. S. Lilley (eds), The O.J. Simpson Trials: Rhetoric, Media and the Law. Carbondale, IL: Southern Illinois University Press, 100–21. Schuetz, J. and Lilley, L. S. (eds) (1999) The O.J. Simpson Trials: Rhetoric, Media and the Law. Carbondale, IL: Southern Illinois University Press. Searle, J. (1969) Speech Acts. Cambridge: Cambridge University Press. Shakespeare, W. (1963) Julius Caesar, eds W. and B. Rosen. London: Signet. Shuy, R. (1986) ‘Some linguistic contributions to a criminal court case’. in S. Fisher and A. Todd (eds), Advances in Discourse Processes Volume XIX: Discourse and Institutional Authority: Medicine, Education and Law. Norwood, NJ: Ablex, 234–51. Sinclair, J. McH. (1987) Looking up: An Account of the COBUILD Project in Lexical Computing. London: Oxford University Press. Sinclair, J. McH. (1991) Corpus, Concordance, Collocation. London: Oxford University Press.

References 241 Sinclair, J. McH. and Coulthard, R. M. (1975) Towards an Analysis of Discourse: The English Used by Teachers and Pupils. Oxford: Oxford University Press. Solan, L. (1993) The Language of Judges. Chicago: Chicago University Press. Spence, G. (1989) With Justice for None. New York: Times Books. Stenström, A.-B. (1994) An Introduction to Spoken Interaction. London: Longman. Stern, H. J. (1993) Trying Cases to Win: Cross-Examination. Aspen: Aspen Publishers. Stone, M. (1995) Cross-Examination in Criminal Trials, 2nd edition. London: Butterworths. Storey-White, K. (1997) ‘KISSing the Jury: the advantages and limitations of the “keep it simple” principle in the presentation of expert evidence to courts and juries’, Forensic Linguistics 4(2): 280–7. Stubbs, M. (1995a) ‘Collocations and semantic profiles: on the cause of the trouble with quantitative methods’, Functions of Language, 2(1): 1–33. Stubbs, M. (1995b) ‘Corpus evidence for norms of lexical collocation’, in G. Cook and B. Seidlhofer (eds), Principle and Practice in Applied Linguistics. London: Oxford University Press, 245–56. Stygall, G. (1994) Trial Language: Differential Discourse Processing and Discourse Formations. Amsterdam: John Benjamins. Stygall, G (2001) ‘A different class of witnesses: experts in the courtroom’, Discourse Studies, 3(1): 327–49. Tannen, D. (1993) Framing in Discourse. Oxford: Oxford University Press. Tannen, D. (1996) Talking From 9 to 5. London: Virago. Tarlow, B. (1995) ‘Perspectives on the Simpson verdicts: issues that overshadow guilt or innocence: the jury has spoken; now we must address troubling problems of the “message” and “messenger”’, LA Times, 4 October, B9. Taslitz, A. E. (1999) Rape and the Culture of the Courtroom. New York: New York University Press. Tiersma, P. (1999) Legal Language. Chicago: Chicago University Press. Toobin, J. (1996) The Run of His Life: The People vs. O.J. Simpson. New York: Touchstone. Toolan, M. J. (1988) Narrative: A Critical Linguistic Introduction. London: Routledge. Toolan, M. J. (ed.) (2002) Critical Discourse Analysis: Critical Concepts in Linguistics. London: Routledge. Travis, A. (2002) ‘Victims now priority of justice system’, The Guardian, 14 November. Verkaik, R. (2000) ‘New law will force juries to give reasons for verdicts’, The Independent, 22 August, A1. Vinson, D. (1985) ‘How to persuade jurors’, American Bar Association Journal, Vol. 71: 36–51. Wagenaar, W., van Koppen, P. and Crombag, H. (1993) Anchored Narratives: The Psychology of Criminal Evidence. Hemel Hempstead: Harvester Wheatsheaf. Walker, A. G. (1987) ‘Linguistic manipulation, power and the legal setting’, in L. Kedar (ed.), Power through Discourse. Norwood, NJ: Ablex Publishing, 57–83. Walker, L. E. (1979) The Battered Woman. New York: Harper and Row. Walraven, J. (1997) The Best of the O.J. Sidebars – O.J. Simpson web-site: http://www.law.umkc.edu/faculty/projects/trials/Simpson/walraven.html# transcripts

242 References Walter, B. (1988) The Jury Summation as Speech Genre. Amsterdam: John Benjamins. Watson, R. (1997) ‘The presentation of victim and motive in discourse: the case of police interrogation and interviews’, in M. Travers and J. F. Manzo (eds), Law in Action: Ethnomethodological and Conversation Analytic Approaches to Law. Aldershot: Darmouth Publishing, 77–99. Webster, T. M., King, H. N. and Kassin, S. M. (1991) ‘Voices from an empty chair: the missing witness inference and the jury’, Law and Human Behavior, 15, 31–43. Wellman, F. L. (1998) The Art of Cross-Examination, 4th edition. New York: Dorset Press. Wodak, R. (1985) ‘The interaction between judge and defendant’, in T. A. van Dijk (ed.), Handbook of Discourse Analysis – Vol. 4: Discourse Analysis in Society. London: Academic Press, 181–91. Woodbury, H. (1984) ‘The strategic use of questions in court’, Semiotica, 48(3/4): 197–228. Young, W., Cameron, N. and Tinsley, Y. (1999) Juries in Criminal Trials: A Discussion Paper. Preliminary Paper 37, November, Wellington: New Zealand Law Commission.

Other O.J. Simpson texts consulted Arenella, P. (1995) ‘The Fuhrman files’, in In Pursuit of Justice – The People vs Orenthal James Simpson. Los Angeles: LA Times, 47–53. Barak, G. (1996a) Representing O.J.: Murder, Criminal Justice and Mass Culture. New York: Harrow and Heston. Barak, G. (1996b) ‘Media, discourse and the O.J. Simpson trial: an ethnographic portrait’, in G Barak (ed.), Representing O.J.: Murder, Criminal Justice and Mass Culture. New York: Harrow and Heston, 104–22. Bosco, J. (1996) A Problem of Evidence: How the Prosecution Freed O.J. Simpson. New York: William Morrow and Co. Burnett, A. (1999) ‘Jury decision-making processes in the O.J. Simpson criminal and civil trials’, in J. Schuetz and L. S. Lilley (eds), The O.J. Simpson Trials: Rhetoric, Media and the Law. Carbondale, IL: Southern Illinois University Press, 122–38. Chancer, L. S. (1996) ‘O.J. Simpson and the trial of the century? Uncovering paradoxes in media coverage’, in G. Barak (ed.), Representing O.J.: Murder, Criminal Justice and Mass Culture. New York: Harrow and Heston, 78–103. Dershowitz, A. M. (1996) Reasonable Doubts: The Criminal Justice System and the O.J. Simpson Case. New York: Touchstone. Ducille, A . (1997) ‘The unbearable darkness of being: “fresh” thoughts on race, sex and the Simpsons’, in T. Morrison and C. B. Lacour (eds), Birth of a Nation’hood: Gaze, Script and Spectacle in the O.J. Simpson Case. New York: Random House, 293–339. Fuhrman, M. (1997) Murder In Brentwood. New York: Zebra Books. Furno-Lamude, D. (1999) ‘The media spectacle and the O.J. Simpson case’, in J. Schuetz and L. S. Lilley (eds), The O.J. Simpson Trials: Rhetoric, Media and the Law. Carbondale, IL: Southern Illinois University Press, 19–35.

References 243 Ganer, P. M. (1999) ‘The credibility of O.J. Simpson: “If the shoes fits …”’, in J. Schuetz and L. S. Lilley (eds), The O.J. Simpson Trials: Rhetoric, Media and the Law. Carbondale, IL: Southern Illinois University Press, 78–99. Higginbotham, A. L. Jr, François, A. B. and Yueh, L. Y. (1997) ‘The O.J. trial: who was improperly playing the “race card”?’, in T. Morrison and C. B. Lacour (eds), Birth of a Nation’hood: Gaze, Script and Spectacle in the O.J. Simpson Case. New York: Random House, 31–56. Lange, T. and Vannater, P. (1997) Evidence Dismissed: The Inside Story of the Police Investigation of O.J. Simpson. New York: Pocket Books. LA Times (1995a) In Pursuit of Justice: The People vs. Orenthal James Simpson. Los Angeles, CA: LA Times. Schiller, L. and Willwerth, J. (1996) American Tragedy: The Uncensored Story of the Simpson Defense. New York: Avon Books. Simpson, O. J. (1995) I Want To Tell You. Boston: Little, Brown. Spence, G. (1997) O.J. – The Last Word: The Death of Justice. New York: St Martin’s Press. Uelman, G. F. (1996) Lessons from the Trial: The People vs. O.J. Simpson. Kansas City: Andrews and McMeel.

Official Simpson trial web–sites http://www.courttv.com/casefiles/Simpson http://www.cnn.com/US/OJ/index.html

Cases cited Scotland: Lord Cooper in Davis v. Edinburgh Magistrates (1953). United States: Daubert v. Merrell Dow Pharmaceuticals Inc. 113 S Ct 2786 (1993). Frye v. United States 293 F1013 (DC Cir 1923).

Index adversarial system, 9 audience design, 12–13

peremptory challenge vs challenge for cause, 12 and persuasion, 32–3, 35–6, 37–8, 59–62, 88–9 role in the trial, 117–22, 170–1 and voir dire, 13 jury instructions, 63, 94–5

burden of proof, 10, 26, 217 closing arguments, 56–8, 101–2, 199–219 connotation, 67 conversational analysis, 4 corpus linguistics, 65–90 court reporting, 113–17 courtroom interaction, 91–125 cross-examination, 5, 43–4, 126–55, 128–9, 141–55

Labovian narrative structure, 23–5 lawyers(’) interaction with witnesses, 102–6, 122–25 language of, 101–6 monologue, 101–2 questioning of expert witnesses, 166–94

Daubert Standard, 170 direct examination, 5, 43–4, 129–41 domestic violence, 15–16, 65–90

metaphor, 70, 199–219 micro-narratives, 49–59

expert witnesses, 5–6, 156–98 and jargon, 178–83, 189–92

narrative typification, 6, 29, 32–3, 61

forensic evidence, 50–1

objections, 39, 95–7 O. J. (Simpson, Orenthal James), arrest of, for murder, 1 civil trial of, 230–2 criminal trial of, the case for the prosecution, 28–30 criminal trial of, the case for the defence, 30–5 criminal trial of, the verdict, 226–8 jurors’ attitudes towards, 14–15, 21, 88–9 and history of domestic violence, 65–90 opening statements, 23–4, 33, 62–4, 65–90, 101–2, 173–5 police interview with, 1

inferential reasoning, 26–7, 29, 214–17 interruptions, 161–3 judge–defendant discourse, 7 judges(’) dialogue, 95–6 the language, of, 7, 8, 45–7 monologue, 94–5 jurors(’) as audience, 117–22 attitudes to expert witnesses, 194–8 and courtroom dynamics, 106 and the deliberation process, 220–8 and the jury selection process, 11–18

prejudice triggers, 62, 222–3 press reporting, 112–3, 227 public gallery, 107–8

244

Index 245 questions defining response boundaries in, 143–7 direct and cross-examination, 126–55 as display talk, 122–5 expert vs lay witnesses, 156–98 information-seeking vs information checking, 132–3 in lawyer–witness talk, 5–6, 102–6 multiple, during crossexamination, 141–3 yes-no vs wh-, 5, 127 race and the jury selection process, 12, 16–17, 18 in the O. J. Simpson criminal trial, 62 rape trials, 4 reasonable doubt, 10, 27–8, 217

Scottish law, 10–11 semantic prosody, 65–90 sidebars, 46, 97–101 storytelling, 19–64, 222 systemic functional linguistics, 7–8 temporal manipulation, 40–9 testimony styles expert vs lay, 157–64 narrative vs fragmented, 6 rule vs role-oriented, 8 topic coherence, 148 topic shift, 163–5 trial by jury, 228–30 trial transcripts, 113–17 TV audience, 108–112 voice of the victim, 49, 50–8 witnesses, 50 interaction with lawyers, 102–6, 122–5

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