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This study examined ‘The Use of Questions as Control Strategy in Legal Discourse’. The study examines cross-examinations using two pragmatic theories: Speech acts and face theory, and adopts Holmes (1992, 1995) classification of questions into antagonistic, response-restricting, facilitative /supportive and critical questions in the analysis of data. The primary source of data collection was through select legal documents, texts, and court proceedings (containing cross-examinations). The secondary sources include text books from library, the Internet, journals and articles. Also, the study adopts both a qualitative and quantitative approach in the analysis of data. The analysis revealed that lawyers use more of antagonistic, supportive/ facilitative and response-restricting questions during cross-examinations which were more of negative face than positive face. It was also found that, indeed, an utterance contains three acts – locution, illocution and perlocutionary – acts and that utterances can perform more than one action or communicative intent. The study concluded that questions serve as effective tool for examiners to control the testimonies, confessions or reactions of the witnesses or accused under cross-examination but fail to elicit truth since in most cases, the examined is already pressurized by antagonisms and orders. Thus, it is recommended that the institution of law should enforce a bill that will protect the interests of the persons under cross-examinations such that positive politeness and negative politeness strategies will be equivalent.
1.1 Background to the Study
Language can be used to perform different categories of speech acts. Speech acts are verbal happenings in the world. In uttering a speech act, one performs an acting that (at least intentionally) brings about a change in the existing state of affairs (hence the label, performative utterances, that originally was attached to speech acts). Consequently, every speech act occurs in an environment known as context of use. Context is central to pragmatics because it is when an utterance is located within its context of use that we can possibly determine the function, effect and meaning of that utterance (Haung, 2007). The context of this study, therefore, is legal discourse where various speech acts, specifically, the use of questions, conduce into damaging the face want of the hearer.
Accordingly, people use language to accomplish certain kinds of acts (i.e. speech acts) which is distinct from other acts like ‘physical act’ (drinking a glass of water), or ‘mental acts’ (like thinking about drinking a glass of water). Speech acts include; asking to drink a glass of water, promising to drink a glass of water, threatening to drink a glass of water, ordering to drink a glass of water and so on (Malamud, 2007). With this in mind, legal discourse provides a platform for acts which could be referred to as ‘legal acts’ that function mainly, according to Holmes (1992, 1995), in the category of response-restricting questions, supportive or facilitative questions, critical questions and antagonistic questions; and according to Danet and Kermish (1978) cited in Fiorito (2007), as declarative questions, tag questions, and projection questions.
Furthermore, legal discourse provides two important types of speech acts: Making a statement and performing a legal act. Statements are made by way of descriptive sentences, such as ‘The sun is hot’ or ‘Defendant stole the bag from the car’ (Lorenzo 2006). However, when analysing speech act theory from the point of view of legal discourse, it is best to start by noting the important role that speech act plays in the law. In a sense, laws themselves may be seen as speech acts (i.e. as types of commands or authorizations). For instance, in contract law, problems related to contract formation often give rise to questions whether utterances are speech acts or particular types: whether a certain statement is an offer or that utterance is acceptance (Gibbons, 2008).
However, speech acts theory is not the whole of pragmatics, but has proved useful for classifying utterances (i.e. questions) because of its seemingly universal application. Consequently, speech acts theorists are interested in legal discourse for several reasons, the most important being the fact that it helps to explain how the law uses language. Also, legal language gives room for a large number of speech acts, most of which fall under the category of performatives; that is, ‘utterances which constitutes performing an action’ (Udofot, 1998, p.100).
In addition, the present study pays attention to face management theory, investigating the predominant face acts employed during cross-examination sessions in legal discourse. The common notion of the theory holds that when people interact, they wittingly or unwittingly consider certain variables that help them determine the form their speech will take. These variables are called ‘face’ and it is defined as ‘the public self-image that every member wants to claim for himself’ (Haung, 2007, p.116). With this view, two types of face are identified viz. positive and negative face. While positive face represents an individual’s desire to be accepted and liked by others also, negative face refers to an individual’s right to freedom of action and his or her need not to be imposed on by others. In addition, the satisfying of positive face is referred to as positive politeness while negative face is called negative politeness (Brown and Levinson, 1987).
On the whole, this study is geared towards investigating the speech act utterances especially questions, as well as the face threatening acts that occur in legal discourse. It will therefore include politeness and impoliteness phenomenon to determine how language (in this case questions) is deployed strategically, constraining the hearer to a position of ‘losing face’.
1.2 Statement of the Problem
Although studies in the area of legal discourse have grown exponentially in recent years and the importance of analysing legal language crudely resides in the fact that ‘law is such an important and influential institution’, and ‘it is packed with language problems’ (Gibbons 2006, p.255) not many researches have investigated the nature of language problems inherent in legal discourse, particularly cross-examination sessions.
In response to the above, this study seeks to examine the persisting face-damaging utterances employed by lawyers in the disguise of cross-examinations in courtroom discourse; how the discursive strategies of lawyers’ cross-examination pressure and coerce the examined into testifying what they did not intend to and as a result damaging their self image. In other words, this study provides insight into the inherent lawyer-language related problem of cross-examination by revealing the type of questions that mostly affect the addressee’s face, and, against this backdrop, the research suggests that cross-examiners should opt for more polite question types as a means of solving this problem.
1.3 Aims and Objectives of Study
The aims and objectives of this research include, but not limited to:
- examine the question types (speech acts) adopted by examiners during cross-examinations in legal discourse;
- identify the recurrent face strategy deployed by examiners in legal discourse;
- justify the suitability of questions as effective tool for eliciting truth in legal discourse; and
- proffer solutions to the linguistic problems encountered by the examined in legal discourse.
1.4 Research Questions
The following research questions are formulated to guide this study:
- What type of speech acts (i.e. questions) are adopted by examiners in legal discourse?
- Do examiners employ face strategies in legal discourse?
- Do questions serve as effective tools for eliciting truth?
- What are the linguistic problems encountered by the examined in legal discourse?
1.5 Significance of the Study
The significance of this study lies in its revealing tendencies through the examination of the linguistic problems faced by examiners and the examined in courtroom discourse. The result that this research would yield may likely serve as an effective tool in the hands of forensic linguists since it raises issues on law and language use. This is anchored on the fact that the way language is used in legal discourse is different from other contexts. Therefore, this research contributes significantly to scholarship by serving as a reliable source to further scholarly researches on legal discourse. Additionally, those who may wish to work using the perspective of speech act and face theory are likely beneficiaries of this study.
1.6 Research Methodology
For the purpose of this study, selected legal documents, texts, and some court proceedings (containing relevant courtroom utterances or cross-examination questions) constitute the primary source of data from which analysis using the frame work of speech act and face theory is carried out. The secondary sources include text books from library, journals and articles, the Internet, as well as personal interviews of some legal practitioners.
In the analysis, attention is on aspects of the research presentation and discussion of data collected in the course of the study. There are numerous cross-examination questions gathered in the course of this research from which a sample of (20), in two different trials, have been selected for this study. The data will be analyzed by categorizing the questions into Text One, Text Two respectively. The analysis shows the type of questions and control strategies used by lawyers in cross-examination. Also, a summary of frequencies and degree of occurrences of the questions and the face work are tabulated. All this show how lawyers use different strategic questions to control the witness under cross-examination. Consequently, the study adopts both a quantitative and qualitative approach in the analysis of data. Therefore the questions are presented in tables and classified according to Holmes Janet’s (1992, 1995) view of type of questions. This eclectic approach became necessary because various types of questions were found during cross-examinations. Locutions, illocutions and perlocutions as well as face work are also presented in tabular forms.
1.7 Theoretical Framework
The theoretical framework for this study is built around two pragmatic theories: Speech acts theory and face theory. On the one hand, this research concentrates on Searle’s illocutionary acts and adopts his five (5) classification of illocutionary speech acts set up in 1975. It will be used in Chapter Three for the analysis of data. They are as follows:
· Representatives: The main purpose of these acts is to ‘commit the speaker (in varying degrees) to some things, being the case, to the truth of the proposition’ (Searle 1975, p.354). The degrees of commitment vary from weak cases such as hypothesizing to strong cases such as solemnly swearing. Examples include testifying, swearing, asserting, claiming and stating.
· Directives: They are seen as attempts ‘by the speaker to get the hearer to do something’ (Searle 1975, p.355). In these cases likewise, the degree of attempt may vary from weak cases such as suggesting something be done. Other examples are requesting, praying, permitting, advising, commanding, influencing, urging, etc. Questions are also defined as directives because in Searle’s view, they constitute ‘attempts to get the hearer to perform a speech act’ (Searle 1975, p.356).
· Commissives: Speech acts that ‘commit a speaker (again in varying degrees) to some future course of action’ (Searle 1975, p.356). The degrees of commitment vary from undertaking to do a certain action to, for instance, solemnly swearing to do it. Typical legal examples of this category are represented by documents found in private law, such as contracts and agreements, and wills. Similarly, guarantees, pledges, and promises of different kinds fall within the category.
· Expressives: Speech acts that ‘express a psychological state in the speaker regarding a state of affairs that the expressive refers to or presupposes. Expressives neither represent (as representatives do) nor coerce (as commisives do) reality; they take it for granted and the truth of the proposition is presupposed’ (Searle, p.357). Typical expressives are thanking, congratulating, welcoming, deploring, but the category comprises a wide range of acts, from forgiving to blaming, from absolving to condemning. However, texts may be related to different speech acts and, for instance, a constitutional preamble may include commisives as well as expressives (Galdia, 2009). &n
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