LINGUIST List 32.3275

Tue Oct 19 2021

Review: Discourse Analysis; Sociolinguistics: Matoesian, Gilbert (2021)

Editor for this issue: Jeremy Coburn <jecoburnlinguistlist.org>



Date: 06-Sep-2021
From: Ana-Maria Jerca <ana1993my.yorku.ca>
Subject: Multimodal Conduct in the Law
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Book announced at https://linguistlist.org/issues/32/32-1445.html

AUTHOR: Gregory Matoesian
AUTHOR: Kristin Enola Gilbert
TITLE: Multimodal Conduct in the Law
SUBTITLE: Language, Gesture and Materiality in Legal Interaction
SERIES TITLE: Studies in Interactional Sociolinguistics 32
PUBLISHER: Cambridge University Press
YEAR: 2021

REVIEWER: Ana-Maria Jerca, York University

SUMMARY

“Multimodal Conduct in the Law” by Gregory Matoesian and Kristin Enola Gilbert is the 32nd addition to the series “Studies in Interactional Sociolinguistics”, founded by John Gumperz and published by Cambridge University Press. The 243-page book expands on Matoesian’s previous research on discourse from the William Kennedy Smith rape trial (e.g., Matoesian 1997; 2001), but this time, multimodal conduct is at the forefront of the analysis. Multimodal conduct, for the authors, refers to “gesture, gaze, posture, movement, and materiality” (p. 2), materiality being the use of physical objects. The central tenet of the book is that multimodal conduct works in concert with naturally occurring speech and so, they must be studied together for a complete picture of social interaction both in the courtroom and beyond. Indeed, the kind of thorough analysis of communication in the courtroom provided in the book would have been impossible to conduct had the authors looked at words alone.

The book is organized into three parts made up of 10 chapters. Chapter 1 introduces the basics of multimodal conduct, while Part I (Chapters 2, 3, and 4) analyzes communication practices that shape and reflect courtroom identity (e.g., victim, questioner, expert witness). Part II (Chapters 5, 6, and 7) looks at the role multimodal conduct in “the prescriptive culture of trial advocacy” (p. 4), or how legal actors use multimodal conduct to effectively achieve the parts of cross-examination, as advised in law manuals and textbooks. Finally, Part III (Chapters 8, 9, and 10) explores rhythmic hand gestures and materiality in the DA’s closing arguments. Part III is followed by references and an index. A more detailed summary of the book follows below.

Chapter 1 – Multimodal Conduct: What is it?

Building on the idea that law is more than “just words” (p. 1), the first chapter explains the importance of studying multimodal conduct in the courtroom. The authors provide an overview of various scholars’ work on gesture, gaze, and posture, but suggest that these different aspects of multimodality should be studied together because they are interrelated phenomena. For the study of legal discourse, the authors explore the consequences of omitting gesture and gaze from trial transcripts, namely that doing so can give false impressions to future readers, including appellate judges, should the case advance through the legal system. Lastly, the writers introduce the trial that will form the basis for their study and discuss the affordances and drawbacks of using audio-visual data. They promise to explore, in the rest of the book, how speech combined with “a multimodal fusillade of gesture, gaze, and materiality [create] dense clusters of poetic harmony that work together to weave an overall picture of legal reality” (p. 21).

Chapter 2 – Co-constructing Expert Identity

This chapter begins by explaining the role of expert testimony in the courtroom and the foundational task of constructing an expert’s identity as such. The authors seek to explain how “attorneys and experts make, challenge, and negotiate claims to expertise in and through the law in multimodal conduct” (p. 28). Expert testimony from physician Dr. Raphael Good was relied upon in the trial to examine the complainant’s narrative of precisely how her rape occurred. Instead of attacking the expert’s previous testimony, the prosecuting attorney (PA) tries to undermine his suitability as an expert witness. This chapter analyzes how the PA and expert negotiate the topic of his academic conflicts and thus, his suitability as an expert witness using not only repetition, error correction, information packaging, and one-upmanship, but also prosody, gesture, and gaze. These are all examined concurrently, as they occur simultaneously and are interdependent.

Chapter 3 – The Transformation of Evidence into Precedent

Chapter 3 focuses on the multimodal strategies deployed by the PA to invoke precedent in the trial, specifically, to introduce prior testimony by other complainants against the accused as evidence to strengthen her case against him. However, to do so, she must establish that this evidence demonstrates the defendant had a ‘modus operandi’, or a pattern of criminality. Analyzing the PA’s multimodal conduct, especially what the authors term her “inter(intra)textual repetition” (p. 61), as well as her strategic use of arm movements and material artifacts, the authors show how the PA attempts to establish a coherent narrative of the defendant’s criminal pattern. The authors also explain why this attempt was unsuccessful: since it was made within the context of the patriarchal logic of sexual rationality (see Matoesian 2001), the PA had to first bleach her argument of any topics that could have any sexual interpretation, and secondly, do so in absolute terms that could be seen as too blatantly attempting to win the case at the expense of the truth (see Komter 2000).

Chapter 4 – Negotiating Intertextuality

Whereas the previous chapter examined multimodal conduct and intertextuality within the narrative building of a single speaker, this chapter looks at “the intertextual interplay of multimodal conduct between an attorney and a witness in cross-examination” (p. 82), focusing on a witness’ attempt to recontextualize an inconsistency in her prior testimony (one that was crucial to the interpretation of evidence in the case). Rather than being a passive answerer under the defense’s control during cross-examination, the witness in this chapter, a friend of the complainant who was with her the night of the rape, takes control of the formal participation (Goffman, 1981) and pre-allocated turn-taking rules of the courtroom by mobilizing gaze, gestures, and facial expressions to explain the inconsistency in her prior statement. The authors analyze her use of these multimodal communication strategies in tandem with the discursive behaviour of the defense attorney (DA) and the judge. They also examine the delicate balance between them, intertextuality, and participant role departures during this excerpt of testimony, showing “that witnesses in court, even in cross-examination are not as powerless as researchers often claim” (p. 86).

Chapter 5 – Motives and Accusations

Chapter 5 looks at how the victim in the trial deploys gesture (specifically finger-pointing and beats for “accusatory moral stance” (p. 114)), gaze, postural orientation, and narrative during her re-direct examination to invalidate the DA previous accusations that she had “unseemly motives” (p. 116) for accusing the defendant of raping her. Using these multimodal resources, she shifts the discussion from the (sexist) claims about her state of mind ascribed to her by the DA (i.e., that she was hurt by the accused’s rejection of a romantic relationship with her and wanted revenge) towards the accused’s behaviour (both past and future). In doing so, she also constructs and projects both gender and legal identities that support her legally relevant (i.e., impersonal) motives for pursuing the case against the defendant. Like the previous chapter, this shows another instance of witness resistance on the stand.

Chapter 6 – Nailing Down an Answer

As the title suggests, this chapter addresses “nailing down an answer”, a legal strategy of control whereby attorneys secure unequivocal admissions from an evasive witness by covering the same ground with the witness repeatedly until they get the answer they are looking for. The authors revisit the same participants from Chapter 4, this time looking at how the DA employs a coercive and multimodal maneuver to overcome the resistance of the evasive witness (p. 125). Whether the witness was really being evasive or whether she was simply construed as such by the DA is also examined in the chapter. The topic at hand is that the witness, Ann Mercer, sold her story to a tabloid television show for $40,000, even though she was initially offered much more money for it by other networks. The DA seeks to establish that Mercer accepted less money because the complainant had asked her to wait to sell the story until the charges against the accused were filed, assuming that would make the accusations seem more legitimate and the defendant more convictable. The DA’s argument serves to cast doubt on the legitimacy the victim’s accusations by suggesting that it was all a plot against the defendant. Multimodal conduct – i.e., head shakes, gaze variation, and eyebrow flashing – “intensifies the semantic content of the speakers’ utterances” (p. 135) while still respecting the turn-taking rules of the courtroom. And, as in Chapter 3, finger beats mark points of emphasis. Against the analytic background of linguistic ideologies (e.g., Silverstein 1993; Woolard, 1998) and participation, this chapter examines how “speakers and witnesses negotiate strategies of control, blame, and resistance through the multimodal coordination of self and other’s utterances” (p. 135).

Chapter 7 – Exhibits, Tapes, and Inconsistency

Discussing the same participants from Chapters 4 and 6, this chapter focuses on the DA’s establishment of inconsistency in Ann Mercer’s testimony to create doubt in the minds of the jury not just about her credibility, but hopefully about the validity of the victim’s accusations of the defendant as well. The inconsistency here revolves around precisely who carried an urn that was taken from the accused’s house the night of the rape. During her cross-examination, Mercer states her boyfriend carried it, but the DA plays a recording of a previous police interview where she states she didn’t see her boyfriend carrying anything that night. What would otherwise be a minor mystery is strategically exploited by the DA thanks to multimodal conduct. First, he laboriously transports the urn – a material object – to the witness stand, establishing and creating suspense regarding its relevance. Leaving it there for the remainder of the testimony, he mobilizes gaze: anyone who looks at the witness inevitably sees the urn and is reminded of the troubling inconsistency in her testimony. Thus, speech and material objects (the urn and the police tape) mutually elaborate one another and co-construct inconsistency. Crucially for the theme of the book, this ingenious move by the DA would be absent from an analysis that looked only at speech.

Chapter 8 - Material Mediated Gestures

The focus of this chapter is the DA’s persuasive multimodal conduct during his closing arguments. This understudied part of courtroom trials represents his “final chance to convince the jury that his account is more “complete, coherent, and plausible” than the prosecution’s (p. 181). At this point in his closing statements, doing so involves leaving the jury with two ideas: the first is that bruises on the victim’s body, which were photographed after the alleged assault, are too old to be caused by the defendant when he allegedly tackled her to the ground. The second is the motivations he ascribed to the victim for accusing the defendant of rape (discussed in Chapter 5). In detail, the authors examine the persuasive effects of the DA’s repetitive parallelisms and mobilization of epistemic stance markings, as well as inclusive and exclusive pronouns. These features of spoken language are combined with an analysis of his use of gaze, hand gestures, and the incorporation and movement of material objects (i.e., photographs and transcripts) into his gestures, highlighting their cumulative role in his “persuasive oratory” (p. 182).

Chapter 9 – Rhythmic Gestures and Semanticity

This chapter elaborates on the previous discussion of the DA’s attempt to convince the jury that the victim’s accusations against the defendant were baseless partly because of a lack of physical evidence on her body, i.e., bruises. Here, the authors focus on the DA’s hand gestures – namely, beats, finger movements, and fist hitting. These gestures co-occur with the syntactic parallelism in his closing arguments to explain “how and why [physical] evidence of the sexual assault should be found on [the victim’s] body” (p. 213). The authors explain how the hand gestures not only mark out speech rhythms but also “convey imagistic content” at the same time (p. 213) by “visualizing the intensity, shape, and consequence” (p. 226) of what would have happened had the victim hit the ground with the defendant on top of her as she described in her testimony. The DA’s coordination of “language, gesture, and motion instructs jurors that the evidence of rape must be embodied” (p. 226), and, since his previous claims have argued that it isn’t, he thereby implies that the jurors should acquit his client.

Chapter 10 – Conclusion

The conclusion summarizes the salient points of the book and “explore[s] the relationship between law and multimodal conduct along more theoretical lines” (p. 228). The authors remind the reader that winning a trial comes down to skillful manipulation of multimodal conduct to engage and persuade the jury, since “gesture, gaze, and materiality function as part of the message, often signaling meanings that are not available from words” (p. 228). The authors then expand on their analysis of the DA’s finger beats from Chapter 9, this time focusing on how they help him establish the importance of a different inconsistency in the victim’s testimony: the absence of residue on her clothes from the alleged tackle by the defendant. This illustrative example wraps up the book by displaying the direct effects of multimodal conduct onto the law, leaving the reader with the notion that neglecting to include multimodal conduct in analysis of courtroom discourse is overlooking the law in action.

EVALUATION

Overall, this book makes a strong contribution to scholarship on courtroom discourse and multimodality alike. Particularly meaningful is the novel approach of analyzing courtroom talk as a combination of speech and multimodality. While multimodality has been noticeably absent from studies on language and law, and, conversely, the courtroom setting has been absent from studies on multimodality (p. 1), this book brings together both communication method and setting in a compelling way. It also provides new insights into the William Kennedy Smith trial and does not require or assume that the reader has engaged with Matoesian’s previous scholarship on the case.

It must also be mentioned that the authors succeeded enormously at the daunting task of representing audio-visual data in the form of text. Each short excerpt of courtroom interaction includes the words spoken by the participants as well as descriptions of the gestures they used, changes in pitch or volume or speed, and any interaction the speakers make with a physical object. Using modified Jeffersonian conventions, the authors transcribe the intricate data in a way that is easy to read and understand, and often include images that illustrate specific points in the interaction. The trial data is provided to the reader – and brought to life – in a very clear and effective way, perhaps creating new conventions for conversation transcription.

An extremely detailed and thorough linguistic analysis follows each excerpt of courtroom data. Not only does this illustrate the authors’ points efficaciously, but it also offers readers (more specifically, students and researchers) insight on the many different communicative resources that are at play in the courtroom and that may be further explored or studied. That said, the book requires some basic understanding of syntax and discourse analysis (particularly terminology from conversation analysis), so instructors who assign this book as part of their course may wish to provide their students with some theoretical background for their reading. It should also be noted that each individual chapter of the book could function as one assigned reading for a class, as the theoretical frameworks that play central roles in the book are revisited and reviewed in all the chapters where they are relevant for the analysis and every chapter also includes an explanation of the direct effects of the multimodal conduct analyzed on the trial itself.

If there is ever a revision of this book, perhaps for a second edition, a few amendments might be in order. For one, it may be advisable to revisit the organization of the book, as the current topical categories for Parts I-III are not mutually exclusive. There is, for example, discussion of courtroom identity (the topic of Part I) in Parts II and III, a discussion of material objects (the topic of Part III) in Part I, and a discussion of the prescriptive culture of trial advocacy (the topic of Part II) in Part III. It may also confuse readers that the conclusion includes an analysis of new data rather than this analysis being included in Part III and the conclusion standing on its own like the introduction does. Perhaps a better approach would be to organize the book according to either the specific aspects of multimodality being analyzed (e.g., hand gestures, materiality), the specific participants of the trial whose conduct is being analyzed (e.g., the PA, the DA, the witnesses), or by the chronological order of the data excerpts as they occurred in the trial, with the introduction and conclusion chapters falling outside of the dividing categories. Additionally, if the book is revised, it may be worth addressing the topic of the COVID-19 pandemic’s influence over trials and audio-visual data in the conclusion. Presumably, “online court” will heavily limit participants’ ability to make use of many aspects of multimodal conduct analyzed in the book, particularly materiality. It would be interesting to find out what the authors think this means for the future of the study of multimodal conduct in the legal system.

Secondly, the authors could do more to advocate for easier access to courtroom data or at least reflexively acknowledge that their investigation was made possible thanks to their access to a video recording of the trial. The authors do acknowledge that their analysis would not have been possible without looking at audio-visual data, but this doesn’t highlight that access to this kind of data is rare, not a norm. Outside of the USA (where this trial took place and was filmed for a television program), even access to courtroom transcripts is difficult at times, not to mention expensive if the researcher was not or is not allowed to be present during the proceedings and must then pay for an authorized transcription. So, in order to advance the study of language in the legal sphere, recognized names in the field could do more to facilitate data acquisition for junior scholars or scholars in general, beginning with advocacy for it. Advocacy for access to legal data in general would lead to a more global understanding of language in the legal context; much of the North American scholarship in language and law focuses on the US particularly because of the ease of access to courtroom data, at least compared to other countries like Canada.

Thirdly, from a legal standpoint, it may be helpful to justify for the readers why the complainant in the trial, Patricia Bowman, is referred to as the “victim” in the book when the authors make clear that Smith was acquitted of her rape – partly thanks to the DA’s convincing multimodal oratory as analyzed by the authors (see, for example, p. 21-22). Normally, terms like “victim” and “perpetrator” are reserved for post-conviction, while “complainant” and “accused”, respectively, in addition to hedges such as “allegedly”, are used to refer to the people and events in the criminal case during the trial and/or after acquittal.

Finally, there are a few editing issues that readers should be aware of, mainly pertaining to typos and typesetting.

In general, however, this book compellingly re-examines what we mean when we talk about “language and law” and effectively debunks the myth that law is only about words. It provides a fascinating steppingstone for future work in courtroom discourse.

REFERENCES

Goffman, E. (1981). Forms of Talk. University of Philadelphia Press.

Komter, M. (2000). The power of legal language: the significance of small activities for large problems. Semiotica, 131(3-4), 415–428.

Matoesian, G. M. (2001). Law and the Language of Identity: Discourse in the William Kennedy Smith Rape Trial. Oxford University Press.

Silverstein, M. (1993). Metapragmatic discourse and metapragmatic function. In J. Lucy (ed.), Reflexive language: Reported speech and metapragmatics (pp. 33-58). Cambridge University Press.

Woolard, K. (1998). Introduction: Language ideology as a field of inquiry. In B. Schieffelin, K. Woolard, and P. Kroskrity (eds.) Language ideologies (pp. 3-47). Oxford University Press.


ABOUT THE REVIEWER

Ana-Maria Jerca is a PhD candidate in Linguistics at York University in Canada. She is also the co-founder and editor of the department's student e-journal, Working papers in Applied Linguistics and Linguistics at York (WALLY). Ana-Maria's main research interest is discourse analysis in the legal sphere. Her dissertation focuses on discursive practices within criminal trials dealing with gender and sexual violence in the Anglo-American (common law) system as well as the International Criminal Court in The Hague, Netherlands. She has published on this and other topics (like the semiotics of kneeling during the national anthem prior to American football games).



Page Updated: 19-Oct-2021