AUTHOR: Eades, Diana
TITLE: Courtroom Talk and Neocolonial Control
SERIES: Language, Power and Social Process [LPSP] 22
PUBLISHER: Mouton de Gruyter
YEAR: 2008
M. Catherine Gruber, Adjunct Faculty, DePaul University
SUMMARY
This book offers a close analysis of a committal hearing (which determines
whether a case will go to trial) that took place in February 1995 in Brisbane,
Australia. The event resulting in the hearing took place in May 1994, when three
Aboriginal boys (''David,'' ''Albert,'' and ''Barry'') aged 12, 13, and 14, charged
with no crime, were removed from a mall by six (armed) policemen, who drove them
14 km out of town and left them in an industrial wasteland in Pinkenba, a suburb
of Brisbane. A suit was brought against the policemen by the Criminal Justice
Commission and the three boys served as witnesses for the prosecution, who tried
to persuade the magistrate that the police had unlawfully deprived the boys of
their liberty. The attorneys for the police argued that the boys had voluntarily
given up their liberty and it was this side that won. When the case was
appealed, the review judge made the same finding one year later and asserted
that the evidence provided by the boys had been presented ''in unequivocal terms''
(p. 284).
Eades asks how could it be that a case involving such clear offenses against
three boys could have been determined so overwhelmingly in favor of the police.
She thus takes up the call issued by Conley and O’Barr (1998) to analyze the
mechanisms through which the criminal justice system fails to deliver justice.
In addressing this question she provides a micro analysis of the talk during the
hearing, but additionally situates this event against a backdrop of ethnographic
information about Aboriginal social practices and speech patterns as well as a
history of Aboriginal interactions with the police and other legal institutions.
Eades argues that this case should be viewed as a microcosm of the struggle for
control between the police and the Aboriginal community and that more broadly it
reflects neocolonial domination over Aboriginal people. In seeking to identify
the ''processes and inferences that transform micro-events into macro-structures''
(Cicourel 1981: 67), Eades employs a critical sociolinguistics approach for this
project.
Part I of the book is entitled, ''Aboriginal participation in the criminal
justice system.'' Here Eades introduces the issues she will be taking up in this
book. On the topic of Aboriginal participation in the criminal justice system we
learn that there is dramatic over-participation. Eades cites the observation by
Findlay et al. (2005) that Australian Aborigines are ''twenty times more likely
to come into contact with the criminal justice system than non-Aboriginal
people''; further, ''the overall national imprisonment rate for Indigenous people
is eleven times the rate for non-Indigenous people, while for juveniles that
figure goes up to twenty times'' (p. 6). Eades frames her critical
sociolinguistics approach in terms of the work of other sociolinguistic scholars
who have attended to the micro-workings of talk-in-action in legal settings,
giving particular attention to the work of Greg Matoesian and Susan Ehrlich in
Chapter 2. She then turns to the broader issues of societal and institutional
struggles of Aboriginal people in Australia and particularly in the southeast
Queensland area where the events in focus take place. She sketches the conflicts
that have pervaded the interactions between Aboriginal people and the modes of
response to repeated injustices that have been developed by and for Aboriginal
people over time.
In Part II, Eades examines linguistic and interactional features of the hearing
that pervaded the cross-examinations of all three boys. Chapter 4 examines
features of Aboriginal English communicative style that differ from the
communicative style of European-descended Australians. Three features receive
special attention due to their relevance to this case: ''gratuitous concurrence,''
silence, and eye contact. Eades observes that ''gratuitous concurrence'' is
''widely regarded as a pervasive problem in interviews of Aboriginal Australians''
(p. 92). Further, children (of all races) have also been observed to change a
''no'' response to ''yes'' when questioned repeatedly about something. Putting
together the factors of Aboriginal person + child in addition to the aggressive
questioning styles of the defense attorneys, Eades observes, only increases the
likelihood that gratuitous concurrence was at work in many of the ''Ye,'' ''Yes,''
and ''Yeh'' answers produced by the three boys during cross-examination. The next
factor, silence, refers to the patterns of use and interpretation of silence
among Aboriginal Australian communities.
Where the presence of silence is often understood as indicating a problem of
some kind in European-descended Australian communities, in Aboriginal
communities speakers are much more comfortable with silence and -- important for
the context of this case -- frequently employ silence before providing
information. These differing systems of rules regarding silence clashed in the
context of the courtroom, where pauses by the boys often resulted in chastising
and further opportunity for the defense attorneys to malign their characters.
Aboriginal Australians also tend to avoid direct eye contact; among
European-descended Australians, however, avoidance of eye contact is understood
as indexing evasion or dishonesty. On several occasions Defense Counsel 1 [DC1]
made use of times in which Albert did not meet his gaze to shout at him and
suggest that Albert was telling lies. One might be willing to attribute some of
these clashes to ignorance on the part of the defense attorneys if the
Queensland Police Union had not hired two of the most experienced barristers in
the state (p. 84) and if Eades' own 1992 handbook for lawyers which specifically
addresses these issues (Aboriginal English and the Law: Communicating with
Aboriginal English Speaking Clients: A Handbook for Legal Practitioners) weren’t
positioned prominently on the Bar Table of the defense attorneys.
In Chapter 5, Eades examines linguistic features of the hearings that do not
relate in specific ways to Aboriginal English, such as the use of ''big words''
and lexical jargon by the attorneys and magistrate, as well as lexical
perversion: the practice of perverting a witness’s account by substituting words
that are similar, but lacking in important connotations. Eades notes that ''the
likely effect of 'big words' is to further contribute to the alienation and
intimidation experienced by the boys in the formidable atmosphere of [the]
courtroom'' (p. 121). The practice of lexical perversion appeared to have even
greater consequences, for not only did these changes go unremarked upon, but the
magistrate himself quoted some of the changed terms as part of the facts of this
case in his opinion. Examples discussed include the defense attorneys' changing
the policemen's words of ''jump in the car'' to ''hop in the car'' and changing the
boys' ''wandering around'' that night to ''prowling.''
As Eades observes, for the police to argue that the boys gave up their liberty
voluntarily, the boys had to know that they had the right to not get into the
police car when they were commanded to do so. (Another example of lexical
perversion can be found in the DCs' change of ''told'' as in ''they told us to get
in'' to ''ask'' as in ''they asked you to get in.'') To convince the magistrate (and
the public) of their point, the DCs constructed the boys' identities as
criminals and liars. Thus, the logic went, because all three of them had had
previous encounters with the police and the courts, they had to have been aware
of their right to not comply with the directive of the police.
Part III describes the many means through which the DCs accomplish this identity
construction (or perhaps 'deconstruction' is more apt). Examples include overt
linguistic mechanisms such as presuppositions in pseudo-declarative questions,
WH-questions, and directives; culturally specific presuppositions in
interpreting courtroom talk, such as the meaning of silence in the boys'
answers; entextualization, in which a curse produced by Albert in another
context is reproduced and reinterpreted during the hearing; the lawyers'
affective stance; and the lawyers' terms of address for the boys – for example,
14-year-old Barry is addressed as Mr. Coley by DC1. One chapter is devoted to
the identity construction of each boy. Although many of the DC techniques
overlapped among the boys, there were a few noteworthy differences.
Part IV presents the book's conclusions. Chapter 10 examines the end of the
hearing, including the closing addresses by the attorneys and the magistrate's
decision as well as various responses to the ruling. These responses include the
ways in which the hearing was reported in the press, the request for judicial
review by Aboriginal Legal Services, the ruling of the review in favor of the
police, and follow up responses by the Criminal Justice Commission and the
police. In response to the Pinkenba case, the Criminal Justice Commission
undertook a comprehensive research project on the topic of the lack of
protections available for Aboriginal people appearing in court. The resulting
report recommended important changes to the Evidence Act which were adopted in
2003.
Chapter 11 looks at the impact of the Pinkenba case on the policing of
Aboriginal Queenslanders. On the topic of police sanctions for abusing
Aboriginal people, Eades reports that no police officer has been convicted of
abuse of an Aboriginal person since [that] case (p. 291). In spite of that
statistic, there have been some areas of improvement: for example, in one
district Aboriginal community members have worked with police and Neighborhood
Watch to organize a camp for young people that has resulted in a decrease in
crime and complaints in the community. Aborginal people have also gained more
participation in sentencing decisions regarding cases that are handled in the
lower courts. In one landmark case in 2004, an Aboriginal man died in a police
cell from injuries he received from police and the coroner ruled that a police
officer ''may have been involved in a criminal offense in relation to an
Aboriginal death in custody'' (p. 303). The case went to trial and the officer
was found not guilty, however.
Chapter 12 ties the pieces of the book together and examines the power of
courtroom talk in the Aboriginal struggle against neocolonialism. Section 3
presents a helpful summary of assumptions about talk in courtroom examinations
that is written for readers with no background in sociolinguistics. Eades
concludes by observing that although some of the changes that have been
implemented since the Pinkenba case ''provide some possibility of reducing the
worst aggression of cross-examination, and of protecting child witnesses to some
extent'', the changes have not had an effect on the underlying assumptions of
courtroom talk. Her conclusion is similar to Matoesian's (1993) observation
about the dubious protection provided by rape shield laws. Thus, Eades writes,
until courtroom rules of evidence and concomitant language practices change, she
doubts whether Aboriginal people can expect justice in cases of police abuse.
EVALUATION
This is an excellent book. In its thoroughness in exploring the micro-events of
the committal hearing against the backdrop of the social and historical events
within which it is situated, it makes valuable contributions to numerous fields:
sociolinguistics, forensic linguistics, discourse analysis, and pragmatics, to
name a few. It is equally strong in presenting the micro-details of the hearing
and in making the macro-case that this hearing reflects the neocolonial control
of the police over Aboriginal people in Queensland. It is also written with an
eye towards lay readers who want to understand how the Pinkenba case could have
resulted the way it did. As it shines a bright light on the injustice meted out
to three Aboriginal boys in Australia, it spurs readers to think about the ways
in which their own systems of justice are failing those whom they serve.
I find very little to criticize here. I did wonder, however, if more might be
going on in Extract 37 (page 187) where David (the youngest of the three boys)
was being cross-examined by DC1. On Day 1 (p33-34) of the hearing, DC1 says,
''The night that you say you were taken to Pinkenba- you were walking around the
streets of Brisbane on that night?'' [David replies with quietly spoken ''yeh.'']
''And the early morning (1.6) weren’t you? [After a pause David gives another
quiet ''yeh''.] ''Was that common for you to do that?” David’s answer to this
question was ''No.'' DC1 then reminds David that there are cameras that capture
photos of people walking around the streets and challenges David’s answer of
''No'', re-asks the question, ''Was it common for you to walk around the streets?''
and after a 4.1 second pause, repeats, ''It was, wasn’t it?'', then a 3.3 second
pause and a shouted, ''Wasn’t it?'' After all of this David finally says ''Yes.'' In
response to David’s ''yes,'' DC1 shouts, ''Well why did you lie to me? (4.9) Why
did you lie?'' David then says, ''I didn’t know what you meant'' and DC1 refuses to
accept this as a reasonable response, saying, ''You did so my boy you DID.'' In
analyzing David's response, Eades suggests that David's agreement (with ''Yes'')
is an example of gratuitous concurrence. She also proposes that it is possible
that David ''might not understand what is meant by the decontextualised
expression 'common for you to do that'...'' (p. 187). Another explanation Eades
offers is that the inconsistency between his answer of ''no'' to the first
question of whether it was common for him to do that and his later ''yes'' is
partly caused by confusion (p. 187-8). It appeared to me that another reason
could explain the discrepancy: the ambiguity of the referent of the 'that's in
DC1's question: ''Was that common for you to do that?'' At first, DC1 asks if
David was walking around the streets of Brisbane on a particular night and David
assents. Then DC1 adds more information: ''And the early morning, weren't you?''
David assents here as well. DC1's next utterance: ''Was that common for you to do
that?'' would appear to pick up the most recent time referent -- the early
morning. David's ''no'' could merely indicate that he did not commonly walk around
the streets of Brisbane in the early morning. When DC1 repeats his question,
however, he removes all references to time -- night or early morning -- and asks
if it was common for David to ''walk around the streets'' and treats David's
possibly legitimate differentiation between two distinct time referents as a lie.
Eades' discussion of the language ideologies surrounding the talk of the hearing
in Chapter 12 is fascinating. This book is so thorough that it seems rude to ask
for more. Books do have page limits! One area I would be interested in learning
more about is case law history as it pertains to treatment of Aboriginal people
in Queensland/Australia. My own work (Gruber 2008) has found U.S. case law and
legal handbooks to be a valuable source for understanding the ways in which
language ideologies surrounding certain legal practices can mask the ways in
which these practices fail to deliver what they promise. I imagine that similar
insights can be found in these kinds of texts in Queensland/Australia.
Throughout the text, Eades cites extracts of the hearing that she presented and
discussed in other places. If the running headers on each page reflected their
chapter numbers (and possibly section numbers as well), it would ease the task
of looking up an earlier extract.
REFERENCES
Cicourel, Aaron V. 1981. Notes on the integration of micro- and macro-levels of
analysis. In Knorr-Cetina, Karin D. and Aaron V. Cicourel (eds.), _Advances in
Social Theory and Methodology: Toward an Integration of Micro- and
Macro-Sociologies_. Boston: Routledge and Kegan Paul, 51-80.
Conley, John M. and William M. O'Barr. 1998. _Just Words: Law, Language and
Power._ Chicago: University of Chicago Press.
Findlay, Mark, Stephen Odgers and Stanley Yeo. 2005. _Australian Criminal
Justice._ 3rd ed. (1st ed. 1994). Oxford: Oxford University Press.
Gruber, M. Catherine. 2008. Contextual constraints on defendants' apologies at
sentencing. _Studies in Law, Politics, and Society_, 45: 47-74.
Matoesian, Greg. 1993. _Reproducing Rape. Domination through Talk in the
Courtroom._ Chicago: University of Chicago Press.
ABOUT THE REVIEWER
M. Catherine Gruber received her PhD in linguistics from the University of
Chicago in 2007. Her dissertation examined the apologies produced by defendants
during sentencing hearings in U.S. District Courts. She is currently teaching
Discourse Analysis at DePaul University. Her interests include expressive speech
acts, narratives, and forensic linguistics.
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