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Eades, Diana --- "Telling and Retelling Your Story in Court: Questions, Assumptions and Intercultural Implications" [2008] CICrimJust 26; (2008) 20(2) Current Issues in Criminal Justice 209

[†] This article is based on a talk I first presented at the annual conference of the Australasian Institute of Judicial Administration in October 2007. Since then, I have drawn on this talk for presentations to the Migration and Refugee Review Tribunals Annual Members conference, the Queensland Magistrates Annual conference, and the Law School at the University of New England. I am grateful to audiences at these talks for questions and comments. I also acknowledge Michael Cooke, Justice Peter Gray, Jeff Siegel, and two anonymous reviewers who made valuable comments on the draft. All remaining errors are my responsibility.

[∗] Diana Eades (PhD) is Research Fellow in Linguistics at the University of New England. Address for correspondence: School of Behavioural, Cognitive and Social Sciences, University of New England, Armidale, NSW 2351. Email: Diana.Eades@une.edu.au.

[1] Another important factor which enabled Daphne to tell her own story in court was the linguistic assistance provided by an interpreter. The court allowed Daphne to use her first language as required, and although she gave most of her evidence in English, she switched to her first language for complex matters such as her mental state at the time of the stabbing (see Cooke 1996).

[2] Yes/No-questions are those which can be answered by either Yes or No (although they are not restricted to these answers), e.g. Was Aunty Mabel at the house? WH-questions are those that ask who, where what, how and why, e.g. Who was at the house? Where was Aunty Mabel? How did that happen?

[3] A reviewer has questioned whether re-examination by the witness’s lawyer can provide opportunities to ‘rectify interferences with the witness’s own story which have occurred in cross-examination’. However, my observations and studies (e.g. Eades 2008) suggest that such a safeguard can only address some of these ‘interferences’, and cannot address the major problems caused by the structuring of stories through questions which occur in both examination-in-chief and cross-examination.

[4] Note that in this section we are considering recontextualisation of a story by its original teller. But stories can be recontextualised by another storyteller, as when lawyers in cross-examination present in their assertions and questions a different version of the witness’s story. We will see an example of this in the Section entitled ‘Beyond Culture’ below.

[5] Tiersma (2006:10) recommends that this example of a triple-negative legalese statement be revised to ‘People often forget things or they may honestly believe that something happened even though it turns out later that they were wrong’.

[6] For example Loftus (1979:77-78) reports an experiment in which subjects were asked questions about a car accident they had seen on film. Asked to estimate how fast the cars were going, those who were asked ‘… when they smashed into each other’ gave higher estimates of speed than those were were asked ‘… when they hit each other’.

[7] For four rather different approaches see Gray (2007), Heerey (2000), McClellan (2006) and McKillop (2002).

[8] See Hale (2004:96-104) for a study of interpreted courtroom talk in which she shows how interpreters’ omissions of pauses and hesitations from witnesses’ Spanish testimony result in a rather different speaking style. Hale (2004:144-157) also conducted an experimental study, which combined pauses and hesitations with other features of witnesses’ speech which are not relevant to this article, such as grammatical errors and problems of pronunication. This experimental study found that such seemingly small aspects of the speech style of testimony can have a significant effect on the ways in which witnesses are evaluated (consistent with earlier American work by Conley & O’Barr and colleagues, e.g. Conley et al 1978; and Berk-Seligson 1990).

[9] It is beyond the scope of this article and my expertise to consider Torres Strait Islander cultures.

[10] Justice Mildren used this power in R v Kenny Charlie 28 September 1995, unreported (see CJC 1996:51-52).

[11] Some similarities can be noted with the use of silence in Native American societies (Basso 1970; Philips 1976).

[12] Other examples are found in Cooke 1995b.

[13] I use standard sociolinguistic transcription conventions:

underlining indicates utterance emphasis

• - indicates a pause within a turn of less than 0.5 of a second

• a number in parentheses indicates the length of a pause in seconds e.g. (3.2)

• a square bracket [ indicates both the start of overlapping talk and the utterance which is overlapped

DC = defence counsel. The names David and Barry are pseudonyms.

[14] The relevant definitions from the Macquarie Dictionary of Australian English give walk as ‘1) to go or travel on foot at a moderate pace’, and wander as ‘1) to ramble without any certain course or object on view, roam, rove, or stray; 2) to go aimlessly or casually’.

[15] Elsewhere (Eades 2006, 2008) I have discussed this strategy in more depth, using the term ‘lexical perversion’ to describe the substitution of words and phrases such as this, where this substitution distorts (or perverts) the way in which a person reports their own experiences.

[16] ‘Yolngu’ refers to Aboriginal people and culture in Northeast Arnhem Land.

[17] Another area which may prove fruitful for future research would involve extending the work by Malcolm and his colleagues (e.g. Malcolm & Rochecouste 2000; Malcolm & Sharifian 2002) on the stories which Aboriginal children tell in varieties of English about their own experiences (i.e. first person narratives). These stories involve a small number of recurring schemas, of which the most frequent involves travel. The cyclical nature of the stories contrasts with the widespread linear nature of Anglo stories.

[18] I am indebted to Justice Peter Gray (pers comm 19 September 2007) for this information.