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Review of  Language and the Law: Law and The Language of Indentity by Matoesian


Reviewer: Judith P. Dick
Book Title: Language and the Law: Law and The Language of Indentity by Matoesian
Book Author: Gregory M. Matoesian
Publisher:
Linguistic Field(s): Forensic Linguistics
Book Announcement: 13.137

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Review:

Matoesian, Gregory M. (2001) Law and the Language of Identity: Discourse
in the William Kennedy Smith Rape Trial. Oxford University Press
paperback ISBN 0-19-512330-1, ix+267pp, $32.00.

Judith P. Dick, Software Mechanics, Object-Oriented Consultants
Nepean ON, Canada.

I PURPOSE AND CONTENTS
***********************

PURPOSE
********

Matoesian wants to demonstrate that language use affects the
administration of justice, especially in rape cases. He has analyzed
excerpts from the 1991 trial of William Kennedy Smith. "My main
objective is the sociocultural organization of discursive practice", he
says. In his view, the legal system does not determine facts
objectively, or deal only with hard evidence. Trial process is a matter
of winning or losing, in which language use is pivotal. The party,
whose language entails cultural values, supported by the system, wins.

Trials constitute "black box linguistic territory". (p. 227) His
analysis of courtroom discourse shows implications about underlying
social values. He investigates the participants interaction and its
affect on meaning and understanding.

The language of identity, the title problem, denotes the negotiation of
sociolegal identities of participants, using Goffman's "footing"
concept. The clearest example occurs in Chapter 6. The Defendant, a
medical student, intermittently assumed the identity of a medical
expert.

Matoesian wants public policy making to change. He contends that rape
shield legislation is circumvented through clever language use. He
demonstrates the microanalysis of language in action, and integrates it
with the macroanalysis of earlier work on social domination and the
ideology of power. He claims originality for his analysis of the use of
poetic devices after Tiersma in persuading the legal audience.

CONTENTS
********

Preface
=======

The author limits his discussion to discursive practice and the
presuppositions underlying it, cultural (patriarchal ideology), legal
(trial practice techniques) and linguistic (beliefs about inconsistency,
context and direct speech). He discusses trial practice reform, media
coverage and gender issues only peripherally.

Introduction
============

The author contrasts his analysis with media coverage of the trial,
attempting to show how culture is constructed, deconstructed and
negotiated orally.

Legal process legitimates evidence as objective when the legal audience
agrees. In the Smith trial, the narrative of a sexual assault failed to
convince that consent was not given.

Chapter 1 Overview of the William Kennedy Smith Trial
=====================================================

In Matoesian's view, the analysis of issues is not significant.

Of course, it is impossible to isolate any one or
even several factors empirically as most important
to the outcome of the case (with all due respect to
Roy Black). (p. 238 note, 17, reference p. 31.)

A non-technical overview of the case, and the strategies of both sides,
sets the stage. It involved a pick-up in a West Palm Beach nightclub.
The Complainant, Patricia Bowman, was there with Ann Mercer. The
Defendant, William Kennedy Smith, was there with his uncle Senator
Edward Kennedy, and the Senator's son, Patrick. The Complainant drove
Smith home. Conversation and some personal interaction ensued. Sexual
intercourse occurred near the Kennedy house. The Complainant called
Mercer from the Kennedy kitchen, saying she had been raped and her shoes
were missing. Mercer arrived at the house and went with Smith to find
Bowman's shoes. Both Bowman and Mercer made police statements; both
gave testimony. There was a misstatement, ultimately defeated, that
Bowman had seen Senator Kennedy watching the alleged rape. Smith was
acquitted in a jury trial.

The author interviewed the defense attorney, Roy Black. He asked to
interview the prosecutor, Moira Lasch, but she refused. Black meant to
show sex was consensual, and to establish Bowman's, motive for the
complaint. He alleged that she resented Smith's lack of further
interest, regretted the liaison, and confused the event with past
abusive experiences. He attacked the credibility, motives, and moral
character of both women.

A motion to enter Bowman's sexual history into evidence was denied.
Black, revealed elements from the police statements to prove motive.
Bowman was a single parent, and said to resent men. The author following
Black dismissed questions about Smith's sexual history.

Interestingly, Matoesian says that courts credit only evidence from
witnesses, overlooking lawyers' contributions. His analysis of
interactive discourse ought to show how counsel affects the
interpretation of evidence.

PART I Repetition in the Patriarchal Order
==========================================

Chapter 2 Rhythms of Domination and the Gender of Inconsistency
===============================================================

Matoesian's theory of the social ideology underlying date rape trials
hinges on a "patriarchal logic of sexual rationale". The courts compare
women's behavior negatively with a stereotype of male behavior
characterized by interest in sexual accomplishment. The author apposes a
female stereotype that includes asexual social interests. The genders
are similarly interested in sexual liaisons, but behave differently from
each other. In line with a major cultural trend, the courts are having
difficulty resolving the tensions between sameness and differences.

When a woman victim tells, of a social engagement that ended in rape,
juries compare her behavior with their male stereotype. Counsel uses
differences to make her behavior appear inconsistent. Black showed
inconsistencies in testimony, using repetition, parallelism, comparison,
and listing. The alleged victim's behavior seems illogical by
comparison with social expectations.

Bowman expressed friendship toward and interest in Smith, and interest
in the Kennedy house. She appeared to be inconsistent in her attitude
from meeting Smith, engaging his interest, and rejecting him. Evidence
of sexual interest is elicited to persuade a jury to decide there was
consent.

Black listed inconsistencies sequentially, in declarative syntax,
enforcing with repetition. Comparisons highlighted with parallelism
became glaring and raised doubts. The rhythm of the discourse and the
use of heightened sound for emphasis influenced the audience.

The author claims, Black "created" inconsistencies, from insignificant
differences, making them appear illogical within the context of the
patriarchal rationale. Bowman called Mercer, not the police or
relatives, and fussed about her missing shoes. The Complainant's,
experience is said to have been "disqualified" through the attorney's
use of language to contrast and enforce expectations contrary to her
actions.

Chapter 3 Poetics of Space, Direction, and Movement
===================================================

Matoesian contends that recognizing trial techniques does not show how
counsel manipulates testimony. He analyzes Mercer's cross-examination,
introduces "resumptive repetition" and notes the use of tense
variations, and sociolegal manipulation.

Black organized the cross-examination around her walk with Smith through
the Kennedy house. Counsel began with forty-four narrow questions,
allowing the witness no freedom to elaborate. The initial question
determined the context. Closely bounded verbal actions segmented
Mercer's testimony. "Resumptive repetition" organized the discourse.
Resumptive repetition {[resumptive phrase] + [relative clause]} is
recursive and has variants. After the witness responded positively to a
question, Black repeated the final phrase as the initial constituent of
the next, ellipted question. He expanded, modified or elaborated on the
previous question, using the relative clause within a turn or between
sequences. He established a rhythm, sustained and built it until the
climax. Grammar, semantic structures and rhythm suited the sequential
interaction. Repetitive patterns added emphasis.

In the relative clause of each question, he identified Smith as
"rapist". He repeated "rapist" eleven times; covertly presupposing that
no woman would accompany one. The repetition hits like a hammer,
building to a crescendo. The climax occurred when we learned that
Mercer told Smith she was sorry to have met him under such
circumstances, in effect, apologizing for her friend, the Complainant!

Black bore down indicating something was missing. He dramatically
recontextualized the discourse in the past tense. The witness hedged,
appearing evasive, then proposed her own puzzle about the omission.
She admitted the utterance, declining the literal interpretation. He
waved away her explanation. She had to admit a casual statement, now
significantly against her interest. The examiner controlled the
discourse; Mercer failed to redirect it, and was discredited. As the
author claims, there is more going on here than an interesting variation
in question types.

Part II Intertexuality
=======================

CHAPTER 4 Intertextuality, Reported Speech and Affect
=====================================================

Matoesian seeks to show that the legal system relies on an unexplicated
theory of intertextuality. He examines linguistic and prosodic cues to
determine the recontextualization of reports and shifts. He interprets
metapragmatics--the signals the language used sends about itself.

He begins with a review of Bakhtin and Goffman then analyzes the
Complainant's direct examination. Bowman, unlike Mercer, used language
skillfully, deflecting, slowing and redirecting questions. She
negotiated shifts easily in complex interchanges, and continuously
raised the emotional level. The immediacy of the reported speech used
in context is involving. Her delays, sobs and expressed desperation
affected hearers in the retelling. She heightened the emotional impact,
repeatedly, by suspending her answers.

However, her delays in answering hard questions worked against her. She
lost credibility when she failed, after performing several repairs, to
tell how far the couple was from the house, when sex occurred. The
Prosecutor switched topic directly, asking what Smith said during the
alleged rape. Bowman again contextualized her response with a sniffle,
delayed and reported her OWN words without answering the question.
Recontextualization entails reevaluation. Conversation from the current
contexts occasionally "leaked" into reported speeches.

Chapter 5 Production Media and Intertextual Authority in Reported Speech
========================================================================

Replay enables counsel to construct meaning, placing utterances among
speech events at will. Recipient footings are said to relate to the
covert exposition of forms of discursive power. Matoesian shows the
hierarchical organization of reported excerpts. Contexts are layered.
Interleaved sources combine. The story is cobbled together "seamlessly"
resulting in "intertextual transparency". The audience fails to see
distinctions of time, place and identity. The report of the alleged
attack, recontextualized in the present, was played in front of the
accused attacker. The audience, now in the scene, experienced it
directly as a "new first time", while counsel sat back.

Black used recordings of the police statements to confront Bowman with
inconsistencies in testimony made after she had been prepared by counsel
for cross-examination. He selected only segments where the Complainant
spoke dispassionately, to contrast with her tearful responses in court.

A conversation between Mercer and Senator Kennedy, was recontextualized
to show anti-Kennedy sentiment. The content was trivial, but became
significant as a record of Mercer's verbal inaccuracy.

PART III The Construction and Deconstruction of Expert Identity
===============================================================

Chapter 6 The Grammaticalization of Participant Roles in the
============================================================
Constitution of Expert Identity
===============================

Smith successfully negotiated his cross-examination by alternating
identities. He was a medical student and spoke as an expert. Shifting
to expert identity to deflect accusations, when the Prosecutor
countered, he would shift back to Defendant, negotiating contextually
the best defensive position. He would first deny an accusation, then
question the evidence. Sequential, stylistic, and grammatical elements
interacted to establish his expert identity.

Lasch left Smith room to maneuver when she used general "wh-" questions.
She asked him to account for Bowman's injuries, implying he alone could
be responsible. Smith limited the scope with a partitive evidential,
"when she was with me", then challenged the medical evidence
technically. Lasch mistakenly called him "doctor" and corrected
herself. He responded, unassumingly, that he was not there as a doctor,
shifting identity. He attacked the opinion of Bowman's doctor using
other authorities. He listed opinions of others before his own, putting
himself highest.

Smith dominated the discourse, and continually drew attention away from
the assault. At the end, causality remained undetermined. The Defendant
had re-interpreted medical evidence about injuries he allegedly caused.

Chapter 7 Construing Age Identity in Expert Testimony
=====================================================

Dr. Good, the defense witness on sexual dysfunction, lost his expert
identity because of his age. While focus was on his qualifications,
Lasch attacking covertly. She spoke as if to an incompetent person
keeping his longevity in the foreground using repetition, prosodic cues,
and interruptions. The doctor "co-constructed" his identity change by
describing his experience. He had to, but then was aged, not expert.

PART IV Language and Legal Change
==================================

Chapter 8 The Microdynamics of Legal Change
===========================================

The author expands on the social theory of Chapter 2, and integrates the
ideas from previous chapters. The language used in discourse covertly
attaches social ideology; poetic devices enhance its persuasive power.
Social ideologies dominate the fact-finding process. Microlinguistic
analysis shows the real values operating. Matoesian admits that many
more and varied examples are necessary to make his case. Nevertheless,
he states his conclusions strongly.

The author discusses the history of rape shield legislation. The reality
of language use must be understood before policy can be changed. Rape
cases are not, in his view, the same as other criminal actions in spite
of adversarial procedures. Only in a rape case is the Complainant's
history offered in evidence to help the Defendant, because of the
consent issue.

II EVALUATION
*************

The work shows how a community understands language used in context, by
attaching common meanings. This is good news for anyone interested in
how meaning is understood or what persuades a hearer. The discourse
organization reveals the underlying ideological structure.
Microlinguistic analysis focused on participant interaction displays the
connections. Underlying social values are inferred. The analyst's
interpretation, however, involves judgment of social indexes, icons,
entailments, stereotypes, and templates. As the author admits, analysis
of more and varied cases is needed.

One of the most difficult problems in computerized work with case
reports is correctly identifying the reporting levels. Matoesian
explicates the hierarchy of reporting, evaluating the inserts in the
embedded contexts in a useful and enlightening manner. He clearly lays
bare the action within the discourse. However, he does not attempt to
relate the meaning he uncovers to legal reasoning regarding the issues,
nor does he discuss the rules of evidence in any depth. Explication of
the persuasive effect of rhetorical devices might in future be
integrated with an analysis of the rhetorical reasoning within counsels
arguments. His insight about the contribution of counsel to elicited
testimony contributes to the prospect of better conflict resolution.

Matoesian is skeptical about trial process.

From quite a different interpretation based on the law
in practice or action, however, our adversarial system
is not necessarily about truth and falsity but about
winning and losing, and that depends on which side
best wields language as an instrument of persuasion,
of domination." (p. 30)

His analysis is based on a single case, and a single interview and
therefore somewhat skewed. Although the excerpts appear to come from a
trial transcript, I could not find a citation or reasons for the choice
of excerpts. For example, although Senator Kennedy's testimony was
regarded as persuasive, there is no excerpt analyzed. One often wishes
to see the opposing perspective. The rape shield law did protect Bowman
from the revelation of her life style and early abuse. Also, the
prosecution must have had pretrial information, if only from pleadings
or other pretrial documentation.

Matoesian has cobbled together previously published articles, not
altogether seamlessly, and added material. Trial excerpts are repeated
and definitions come late. One might do well to read the last chapter
with the early chapters to get full exposition of the theory before
reading details of the analysis. An index and an extensive
sociolinguistic bibliography are included.

The prose is lush and flowing, but not easily accessible. He writes as
if with a palette knife leaving dense swaths of description.
Occasionally one wishes for the elegance of brush strokes. The purchase
of a packet of periods might not be amiss. An example sentence follows.

From the linguistic side, although reported speech
indeed reveals how grammatical forms project onto
extralinguistic reality in an ideological drive of
reference, such projection may exist--in real-time,
on-line dynamics of sequential interaction--within a
broader discursive-sequential matrix in which participants
themselves explicitly define and negotiate intertextual
links and types of links to accomplish practical
interactional tasks. (p. 131)

The analysis of the interactions between grammatical prosody and the
discursive style, marking the turns, resumptions and returns in the
discourse, are most interesting to anyone attempting to present an oral
argument.

ABOUT THE REVIEWER
Judith P. Dick had more than ten years experience as a legal
researcher before entering an interdisciplinary doctoral program,
which included linguistics. Her research focused on the conceptual
retrieval of contract case law. Judy is currently in Ottawa,
working for an object-oriented consulting firm, Software
Mechanics, on full text R & D. Her interests include ontologies,
knowledge representation, legal arguments, and semantic analysis.


 
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