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Review of  Questions and Answers in the English Courtroom (1640–1760)


Reviewer: M. Catherine Gruber
Book Title: Questions and Answers in the English Courtroom (1640–1760)
Book Author: Dawn Archer
Publisher: John Benjamins
Linguistic Field(s): Discourse Analysis
Subject Language(s): English
Book Announcement: 17.394

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Date: Tue, 31 Jan 2006 14:24:06 -0600 (CST)
From: Katie Gruber <mcgruber@uchicago.edu>
Subject: Questions and Answers in the English Courtroom (1640-1760)

AUTHOR: Archer, Dawn
TITLE: Questions and Answers in the English Courtroom (1640-1760)
SUBTITLE: A sociopragmatic analysis
SERIES: Pragmatics & Beyond New Series 135
PUBLISHER: John Benjamins
YEAR: 2005

Mary C. Gruber, doctoral candidate, Department of Linguistics,
University of Chicago

OVERVIEW

Archer employs a discourse analytic approach that blends socio-
pragmatic analysis and corpus methodology for her study of questions
and answers in the Early Modern English (EModE) courtroom. Her
study responds to the following questions: what kinds of questions do
different courtroom actors ask in the EModE courtroom and to what
extent do these patterns change between 1640 and 1760? What
kinds of answers do different questions posed by different actors
receive, and how does the contextual position of a question pattern
with the kinds of answers that are received? Given that judges,
prosecutors, defendants (and, in the later years covered by the
corpus, defense attorneys) could all ask questions in this time period,
Archer is especially interested in the connections between speaker
role, the types of questions asked, and the answers that were
received.

Methodology
The data for this study constitute a subsection of the Corpus of
English Dialogues (CED) which was compiled by Merja Kytö and
Jonathan Culpeper and includes 6 text types from the period 1560-
1760. The sociopragmatic corpus (SPC) is an annotated subsection
of the CED consisting of 2 text types – drama and trial proceedings –
from the years 1640-1760. The present study focuses on the 16 trial
proceedings of the SPC. This corpus consists of 121,189 words. The
120 years covered by the SPC trial proceedings are further broken
down into 3 periods (Period 3 (1640-1679), Period 4 (1680-1719),
and Period 5 (1720-1760)), which correspond with the same
subperiods used by the CED. The 16 trials are evenly distributed
across the 3 periods, with 6 trials occurring in Period 3, and 5 each in
Periods 4 and 5. The SPC was annotated by Culpeper and Archer
with sociopragmatic information: for every utterance, the speaker and
addressee(s) were labeled as to their age, status, gender, and role.
Four specific roles were identified: activity role (e.g., defendant),
kinship role (e.g., father), social role (e.g., servant) and dramatic role
(e.g., villain).

In the current study, Archer introduces her system of additional
annotation for the 16 trial proceedings. She annotated the questions
and answers in the SPC trial proceedings on the basis of
their 'interactional intent', their 'force' and, for questions only,
their '(grammatical) form'. Archer's decision to code the data
according to these categories is explained in Chapter 2, where she
reviews studies of questions and answers from the perspective of
semantics, pragmatics, speech act theory, conversation analysis and
discourse analysis and explains her decision to largely follow
Stenström (1984)'s program which blends principles of conversation
analysis with the Birmingham approach to discourse analysis.

The category of 'Interactional intent' relates to the position an
utterance occupies in the discourse and it reflects what the speaker
intends to accomplish in structural or interactional terms at a particular
point in the discourse (120). Examples include: INITIATION (which
includes eliciting devices such as questions, requests, and
requirements), RESPONSE (which includes answers, replies,
acceptances, and refusals), and FOLLOW UP (which includes
comments, feedback), and combinations of the above categories (e.g.,
FOLLOW UP-INITIATION, RESPONSE-INITIATION). By identifying
utterances in this way, Archer hopes to differentiate between a turn at
talk and what the speaker actually does with that turn. In this way,
she can account for those utterances in which the speaker does more
than one thing in the same turn.

A question or answer's 'force' coding assesses the illocutionary force
of the utterance. Here Archer draws upon traditional speech act
theory, but takes steps to compensate for the ways in which it has
been criticized. For example, she addresses speech act theory's
traditional inability to recognize that utterances can be ambiguous with
regard to force and that the same utterance can have more than one
illocutionary force by adding specific codes which mark the presence
of multiple and/or indeterminate forces. Archer also heads off
concerns that her use of speech act labels reflects her assumption
that these categories existed as real language functions in the years
1640-1760 (128). Rather, she argues, these particular categories
have been reconstructed on the basis of the data and have been
corroborated with other sources to ensure their contextual/historical
relevance. Examples of 'force' codes include: COUNSEL (e.g.,
caution, warn), QUESTION (e.g., ask (about), inquire (into),
interrogate), REQUEST (e.g., beg, beseech, desire), and INFORM
(e.g., affirm, assert, claim, deny).

As mentioned above, the 'form' field applies only to prototypical
questions: ''those utterances whose linguistic structure is that of the
interrogative, and which are heard by the hearer/addressee as
requesting some kind of verbal and/or non-verbal response'' (130).
Archer codes question forms in two ways: 1) by identifying the
grammatical question type (e.g., WH-interrogative, negative-WH, polar-
interrogative, tag question, and rhetorical question); and 2) by coding
the actual form in the text (e.g., WHAT, WHERE, HOW MANY, etc.).
In this way, Archer seeks to be able link patterns of question use with
particular speakers, with particular positions in the texts, and with
types of answers received.

Contextualization
Archer frames her study in a discussion of the context of the
courtroom—both modern and EModE—and the different ways that this
particular context constrains the language of courtroom actors. She
begins by describing the ideology of the adversarial system currently
in practice in England and Wales, noting that ''truth is assumed to
emerge from direct confrontation'' (Lakoff 1989: 123) and that
coercive questioning is a natural consequence of this system. Other
types of speaker constraints come from specific word choices in
questions (cf. Loftus and Palmer (1974)), lawyers' use of a continuum
of coercive question-types, and by the opportunity (or lack thereof) to
provide more than a fragmented answer in response to questions (83-
84). Archer then shifts to ways in which courtroom practices in the
EModE period differed from those of today. First, the playlist of
courtroom actors, and as a result, these actors' roles, changed
significantly between 1640 and 1760. In 1640, while it was not
uncommon for prosecutors to represent the Crown in treason cases,
defendants had no representation in court (85-91). According to
Beattie (1986) it wasn't until 1696 that defendants received counsel
for treason cases and the 1730s until defense counsel (and
prosecution counsel) were extended to more ordinary criminal cases.
As a result, in the early portion of the SPC defendants questioned
witnesses and other courtroom actors. Once defense and
prosecution counsel became standard actors in court proceedings,
the role of the judge underwent a change as well.

Archer also reviews studies of forms and functions of questions in the
EModE period based on the language of dramas, particularly
Wikberg's (1975) Shakespearean language study. Here Archer
discusses the patterning of do-periphrasis, wh-question forms, and
the functions of modal verbs which differed from the patterns of
Modern English. She also makes reference to earlier work (Archer
2002) on the patterns of questions and answers in transcripts of the
Salem witch trials (99-103).

Findings
Two major findings of this study are:
1. The change in courtroom actors (i.e., the appearance of counsel for
defendants) led to a change in the courtroom actors' questioning
behavior during the time period studied: defendants, who conducted
their own defense in Period 3 (1640-1679), asked fewer questions
with the appearance of counsel during Period 4 (1680-1719). (A
number of defendants continued to ask at least some questions of
their own, however, even with the presence of counsel.) As counsel
for both sides began asking information-seeking questions during
Periods 4 and 5 (1680-1760), judges posed fewer questions to
defendants and witnesses and the questions they did ask tended to
be clarification-seeking rather than information-seeking. The
questions posed by counsel (for both sides) in Periods 4 and 5 tended
to progress from open-ended to increasingly more controlling. Thus,
Archer's study documents the emergence of one of the hallmarks of
the adversarial system that exists today in England, Wales, and the
U.S.

2. While studies of modern-day courtroom practices view questioners
as occupying inherently controlling positions in the discourse, Archer
observes that EModE courtroom procedures in which defendants
could question witnesses and other courtroom actors present a
unique opportunity to test the limits of questioner-as-controller
hypotheses. Archer finds that the questions posed by defendants
received different kinds of answers than those posed by other (more
powerful) courtroom actors. Thus, ''… although [defendants] had
a 'legitimate' right to request a response, they lacked the 'coercive
power' to shape responses in the courtroom. Consequently, they often
struggled/failed to procure the relevant information/ clarification/
confirmation/ action to secure their freedom.'' (2) Archer also
addresses the general issue of the conductivity of questions. She
concludes that ''the conducive force (or 'restrictiveness') of question-
types is not just dependent on the real or apparent dominance of the
speakers, but on (i) the specific questioning function of the
interrogative (e.g. clarification-seeking as opposed to information-
seeking), (ii) the questioner's goal[s], and (iii) the interrogative's
positioning in the questioning sequence.'' (157-158) As to the last
point, for example, Archer found that both polar interrogatives and wh-
interrogatives posed at the beginning of questioning sequences
tended to receive longer responses than the same questions that
occurred mid-sequence.

EVALUATION

By choosing a period in which courtroom actors and roles underwent
significant changes, Archer chooses a rich site for analysis and is able
to contribute not only to the fields of historical pragmatics and
sociolinguistics, but also to historical studies of the EModE courtroom.
Her attention to the micro-practices of questioning by judges and
especially attorneys capture what appear to be the earliest stages of
the aggressive courtroom cross-examination strategies common to
adversarial systems of today.

In her discussion of the context of EModE courtrooms and the lack of
representation for defendants, Archer cites Hawkins' (1721)
justification for this imbalance:
[I]t requires no manner of Skill to make a plain and honest Defence,
which in Cases of this Kind is always the best; the Simplicity and
Innocence, artless and ingenuous Behaviour of one whose
Conscience acquits him, having something in it more moving and
convincing than the highest Eloquence of Person speaking in a cause
not their own. (1721: 400)

This window into language ideologies of the EModE court has
interesting echoes in the more recent (1961) language of the United
States Supreme Court with regard to the right of allocution. (The right
of allocution gives defendants the right to address the court before
sentence is imposed; it is required in federal court and is standard
practice in over half of all American jurisdictions (McGautha v.
California (1971)). In Green v. U.S (1961), the Court writes: ''The
most persuasive counsel may not be able to speak for a defendant as
the defendant might, with halting eloquence, speak for himself.''
These examples suggest that this ideology regarding what constitutes
effective and/or persuasive defendant courtroom language has
particular staying power. Even more interesting, however, is the
mismatch between ideology and practice which appears to endure as
well. As Archer observes, defendants didn't fare so well in the EModE
courtroom. She writes: ''it seems to have been an exceptional
prisoner indeed who asked probing questions or who spoke effectively
to the jury on his/her own behalf.'' (89) When we jump ahead over
250 years to U.S. courtrooms, the question of whether defendants
speak effectively on their own behalf still stands (cf. Natapoff 2005).
The defendant allocutions which I am analyzing for my dissertation are
filled with false starts and hesitations, but whether these
constitute ''halting eloquence'' is unclear: O'Barr (1982), for example,
showed that hesitations, along with other indexes of powerless
speech, correlate with perceptions of the speaker as less trustworthy
and less intelligent. Even if a judge were moved by a defendant's
illocution, however, the federal sentencing guidelines, which are still
treated as authoritative (though no longer mandatory according to
U.S. v. Booker (2005)), give judges little leeway to exercise their
discretion (cf. Stith and Cabranes 1998).

Archer's historical pragmatic corpus study bears interesting fruit. Part
of the challenge of conducting a study like this stems from the
condition of working with a limited number of texts. This inevitably
leads to low raw numbers in many of the features that are compared.
In addition, some of the figures to be compared consist of a relatively
sizable number of tokens that were produced by only a few
defendants (e.g., 7 of the 10 'requires' in Table 27 were produced by
Charles I (277)), or came from a single trial (i.e., the court martial of
Captain Ambrose (264)). Archer has taken this problem as an
invitation for further research and refers to a forthcoming chapter in
which she addresses this issue. For readers of this book, however, it
might have been more helpful to position the discussion of some
figures' atypicality earlier in the book. At a few points the numbers
and language of the charts don't match that of the corresponding
discussion (203, 224), and some additional glossing of the sailing
jargon that pervades the examples from the Ambrose trial would also
have been helpful. Constraints on space seem to have prohibited the
reproduction of the full trial transcripts. The interesting examples
excerpted in Questions and Answers in the English Courtroom may
very well inspire readers to seek out the complete transcripts
themselves.

REFERENCES

Archer, Dawn. (forthcoming) ''Developing a more detailed picture of
the Early Modern English courtroom: Data and methodological issues
facing historical pragmatics''. In Methods of Historical Pragmatics.
Recovering speaker meaning and reader inference, edited by S.M.
Fitzmaurice & I. Taavitsainen. Topics in English Linguistics Series.
Berlin and New York: Mouton de Gruyter.

Archer, Dawn. 2002. ''Can innocent people be guilty?'' A
sociopragmatic analysis of examination transcripts from the Salem
Witchcraft Trials''. Journal of Historical Pragmatics 3, 1: 1-30.

Beattie, John. 1986. Crime and the Courts in England 1660-1800.
Oxford: Clarendon Press.

Green v. U.S., 365 U.S. 301 (1961).

Hawkins, William. 1721. A Treatise of the Pleas of the Crown: or a
system of the principal matters, relating to that subject, digested under
their proper heads. Vol. II. London: J. Walthoe, Jr.

Lakoff, Robin. 1989. Talking Power: The Politics of Language. USA:
Basic Books.

Loftus, Elizabeth and J. C. Palmer. 1974. ''Reconstruction of
automobile destruction: an example of the interaction between
language and memory.'' Journal of Learning and Verbal Behavior 13:
585-589.

McGautha v. California, 402 U.S. 183 (1971).

Natapoff, Alexandra. 2005. ''Speechless: The silencing of criminal
defendants.'' New York University Law Review 80: 1449-1504.

O'Barr, William M. 1982. Linguistic Evidence. Language, Power, and
Strategy in the Courtroom. San Diego: Academic Press, Inc.

Stenström, Anna-Britta. 1988. ''Questioning in conversation.''
Questions and Questioning, edited by M. Meyer, Grundlagen Der
Kommunikation Bibliothek Sausabe, Foundations of Communication
Library Edition. Berlin/New York: De Gruyter.

Stith, Kate and José Cabranes. 1998. Fear of Judging. Sentencing
Guidelines in the Federal Courts. Chicago: The University of Chicago
Press.

U.S. v. Booker, 125 S. Ct. 738 (2005).

Wikberg, Kay. 1975. Yes-No Questions and Answers in
Shakespeare's Plays: A Study in Text Linguistics. Åbo: Åbo Akademi.
 
ABOUT THE REVIEWER:
ABOUT THE REVIEWER


Mary C. Gruber is a doctoral candidate in the Department of
Linguistics at the University of Chicago. Her dissertation examines the
apology narratives of 50 defendants at their sentencing hearings. In
addition to naturally occurring apologies, she is interested in affective
meaning more broadly and in context effects on language. She hopes
to go on the job market next year.