J. Maxwell Atkinson

Examination: a Comparison of the Turn-taking Organisations for Conversation and Examination

It was noted in the last chapter that a number of sociological investigations of interaction in courts have made considerable use of the readily apparent differences between the kind of talk which occurs in courts and that which characterises ordinary conversation. The contrast between the two has been used to support the argument that certain conventions can be identified as central to conversation, which constitute ‘appropriate rules of behaviour’ — rules which court-room procedures violate (Emerson, 1969, p. 202). In so far as court procedures facilitate such techniques as not allowing witnesses to tell their stories in their own words, denying witnesses their usual rights to avoid discussing sensitive and possibly discrediting matters, and generally controlling the information on which a court’s decision is to be made, those procedures offend against the proprieties associated with normal interaction. On the other hand, the same contrast between talk in conversation and that in court-room interaction has been used by those who argue that the way in which talk is organised in courts is an important factor in ensuring the (reasonable) safety of the decisions of courts, by aiding the collection of relevant and impartial evidence and the assessment of its validity.1 Thus through a variety of inferences and criticisms concerning the management of cases in courts, we find common reliance on the distinctiveness of the character of the talk which occurs in court settings.

Opening a Hearing: Sequencing and the Accomplishment of Shared Attentiveness to Court Proceedings

Two of the most noticeable features of interaction in courts which have recurrently attracted the attention of sociological observers, are first the way in which unspoken activities (such as standing up and sitting down) appear to be closely co-ordinated with spoken activities, and second the fact that speaking rights seem to be subjected to special restrictions which do not hold across all social settings. But, while such observations have provided important contrastive materials for the elaboration of complaints about court procedures and a variety of claims about the (mostly undesirable) effects they are supposed to have on some participants, little attention has been given to questions like whether and how their organisation might provide for the resolution or partial resolution of situated problems of the settings in which they are found. That unspoken activities, such as sitting down and standing up, seem to be somehow or other tied in with specific sequences in court hearings has presumably been regarded as too obvious to deserve serious consideration as a topic for analysis in its own right. Accordingly, as was elaborated in Chapter 1, both that ‘somehow or other’ and the obvious recognisability (to members) of similarities and differences between the way such activities are organised in courts, as compared with other settings, have been taken for granted and used as resources in the production of metaphorical and ironic accounts of court proceedings.

The Data Base and some Analytic Considerations

The exploratory character of the studies we have been able to do so far has been referred to at various points in the preceeding chapters, and it will by now be clear that it has only been possible to focus on a limited range of analytic concerns. Nevertheless, it is hoped that these will have served as an exemplification of the kind of research that may be entailed by adopting the approach outlined in Chapters 1 and 2, and to establish a case for pursuing such investigations further. In this chapter, however, we want to draw attention to some of the more obvious limitations of our studies, and to various ways in which future research (some of which is already under way) might improve on them, either by looking more closely at similar issues, or by investigating others which have yet to be considered. To this end we comment first on the data base and how it might be improved, before making some tentative suggestions about a number of technical problems to which further research might be addressed. These latter are, for the most part, additional to the issues considered in earlier chapters, and have been selected partly to illustrate how the availability of tape-recordings facilitates observations and analyses which could not be done with reference to the main data base used in the research to this point.

The Management of an Accusation

Part of the purpose of questioning in cross-examination may be to try to challenge or in various ways undermine a witness’s/defendant’s evidence, or to show that the interpretation which should be put on the evidence is different from that which was put on it by the opposing side. Still more injuriously, persons being cross-examined may be subject to questions which attempt to attribute some fault or blame to their action. This is, of course, particularly so with respect to the cross-examination of defendants, but also often applies when a counsel directs his questions to show that a witness’s action was such as to mitigate or perhaps even cancel the blame on the defendant’s part. That happens, for instance, in some cases of alleged rape, in which the questioning of the ‘victim’ can be designed to impugn her action by attempting to show that it was partly or wholly responsible for the defendant’s action.1 Whether, therefore, the person being cross-examined is a defendant or witness, a counsel’s questions in cross-examination may be designed among other things to dispute or challenge that person’s evidence, or to attribute some fault or blame to his/her action.

The Production of Justifications and Excuses by Witnesses in Cross-Examination

In the data extract discussed in the previous chapter, we saw that the witness sometimes gave qualified confirmations in response to the counsel’s questions (see for example, the answers in lines 14–15, 50 and 53–4 of extract 1, Chapter 4). It was noted that these qualified answers can indicate the witness’s anticipation that the questions are leading to a blame allocation. That is, he may recognise that the implication of the facts which he is being asked to confirm is to attribute blame to him for his action: his qualified answers can therefore attempt to avoid or mitigate that implication by at least withholding agreement to the items in the questions which appear to be relevant for the anticipated blame allocation. This chapter focuses specifically on witnesses’ recognition that questions are leading to blame allocations, though in the data to be discussed here that recognition is displayed not just in withholding agreement to some items in prior questions, but also in the production of justification/excuse components in answers.

Analysing Court Proceedings: Sociological and Ethnomethodological Approaches

In a recent sociological study of pre-trial procedures, it was noted that ‘in the revised sociology of law the procedures of the legal structure have been curiously ignored’ (McBarnet, 1976, p. 172). This remark would appear to be particularly apt in relation to court procedures which, with a few notable exceptions (e.g. Garfinkel, 1956; Linton, 1965; Emerson, 1969; Carlen, 1974, 1975, 1976a, 1976b), have received relatively little detailed attention from social scientists. To an extent this can be seen to be perfectly consistent with the fact that, in purely quantitative terms (amount of time involved, manpower, etc.), court proceedings comprise a very small and diminishing proportion of the total volume of legal activity that takes place in advanced industrial societies. And it is also consistent with the way in which sociology’s traditional concern with the problem of social order at the societal or macro- level of analysis implies a view of what goes on in courts as no more than one tiny element of the legal system, which in turn is only a part of the social structure as a whole.

Postscript: Notes on Practical Implications and Possibilities

A central theme in the emergence of ethnomethodology and conversational analysis has been that sociology has for too long allowed pressing social problems and the search for practical resolutions to them to dictate its subject matter and the terms of reference for its research programme.1 In this book we have accordingly attempted to remain as analytic in our approach as possible, so that to consider the question of practical implications, even as a brief postscript, may seem somewhat inconsistent with the position taken so far. Yet if it is the case that research of this sort is, as has been proposed, capable of yielding findings about the hitherto unexplicated but systematic ways in which social order is accomplished, it would be rather surprising were it to have no implications whatsoever for practical debates about practical problems and proposed solutions to them. And, notwithstanding the exploratory character of our work, an impatience to have some practical implications spelled out is frequently a feature of responses to it by sociologists, lawyers and others with an interest in socio-legal studies.2 While not wishing to deny that analyses done within the framework of those presented here have any practical implications or applications, we are reluctant at this stage3 to do much more than hint at what these might be and how they might differ from the sorts of implications that are more usually expected from sociological research.