Abstract
Underpinned by the assumption that social categorizations emerge from discursive practices performed within the interactional context, this study examines the discursive process in which an expert witness constructs and negotiates persuasive courtroom accounts. Using insights from the concept of ‘footing’ and the framework of stance and engagement, this study reveals the ways in which an expert witness calls upon a range of interactional devices to appropriate the desired footing and labeling category. The findings suggest that instead of asserting their dominance and expertise over the interlocutors, experts construct and negotiate their identity by aligning with other participants and establishing a relationship with them. All this is done within the broad constraints of courtroom discourse.
Introduction 1
Over the past four decades or so, the courtroom has been shown to be a site of linguistic control and manipulation. Several studies reveal that examiners strategically use questions to elicit and provide specific information that supports the goal of advocacy for their side, and to constrain defendants’ and witnesses’ discursive leeway that may produce the opposite effect (Cavalieri, 2009; Danet et al., 1980; Harris, 1984; McCaul, 2011; Matoesian, 1993, 1999, 2001; Walker, 1982, 1987; Woodbury, 1984).
A noteworthy exception is the expert witness. Experts have been claimed to belong to a different ‘class’, consisting of ‘elites’ (Stygall, 2001). Equipped with social status and educational or professional qualifications, they possess different discourse rights and speaking roles, including speaking turns that are, on average, some three times longer than those of ordinary witnesses (Cotterill, 2003: Chapter 6; Heffer, 2005), and the ability to give contrastive responses to attorney questions and to draw conclusions in such a way that transcend the normal boundaries restricting most other witnesses (Cotterill, 2003: Chapter 6; Curtis, 1996; Stygall, 2001).
However, such discursive privileges do not come uncontested: experts do struggle in the courtroom, and they may face interactional problems (Coulthard, 2005, 2010; Maley, 2000; Solan, 2010). Maley (2000: 250) observes that expert witnesses, particularly if they are new and inexperienced, tend to be quite unaware of the extent to which shaping and construction of evidence goes on . . . . All too often they emerge frustrated from the courtroom, believing that they have not been able to give their evidence in the way they would like and that their evidence has been twisted and/or disbelieved.
That is, experts are faced with how they can best explain the analysis and express derived opinions to an audience of legal and lay professionals, and how they can cope with the interactional norms of the courtroom.
This article revisits the issue of experts and their discourse. However, instead of viewing expertise as an objective fact about an individual, I examine how this institutional identity is constructed and negotiated, moment by moment, in and through discursive interaction between the prosecutor and an expert witness in cross-examination. Using insights from the concept of ‘footing’ (Goffman, 1981) and the framework of stance and engagement (Hyland, 2005, 2008), this study reveals the ways in which an expert witness calls upon a range of interactional devices to appropriate the desired social image and labeling category. Specifically, through stance-marking and interactional devices, experts appear to pursue their status by self-classification and category-bound activities. At the same time, however, they balance their strong claims and opinions against the convictions and expectations of other experts and participants, taking into account their likely objections, background knowledge, and processing needs. All this is done within the broad constraints of courtroom discourse.
For the purposes of this article, I choose to analyze The Trial of Alice Clifton (1987). Using an historical source allows me to reveal more explicitly how the adversarial nature of the courtroom, together with its socio-historical factors such as class and status, greatly contrives the need to struggle for a medical expert identity.
This article proceeds as follows. First, I provide some theoretical reflections on the issue of identity as an interactional activity, and discuss the concepts of footing, stance and engagement, as well as their roles in the construction of identity. Subsequently, I provide the socio-linguistic background of the case. Finally, I present the analysis and conclude with some implications of this study.
Identity and interaction
In discussing the issue of identity and interaction, an insightful starting point is Bucholtz and Hall (2005). In their attempt to synthesize diverse approaches to identity under a single model, identity is defined as ‘the social positioning of self and other’ (p. 586). The authors propose five tenets that underlie the concept of identity. First, identity is a socio-cultural rather than internal psychological phenomenon, and it is a discursive construct that emerges only through interaction. Second, identity encompasses not only macro-level categories (such as age, gender, and social class), but also local position, temporary specific stances, and participant roles (such as joke tellers, attentive listeners, and evaluators). These different levels of identity and different kinds of positions may occur simultaneously in a single interaction. Third, identities may be linguistically indexed through styles, social categories, implicatures, presuppositions, and linguistic structures. Fourth, identity is relationally constructed through overlapping aspects of the relationship between self and other. That is, identity emerges only in relation to other identities during interaction. Fifth, identities may be in part intentional, in part habitual and less than fully conscious, in part an outcome of interactional negotiation, in part a construct of others’ perceptions and representations, and in part an outcome of larger ideological processes and structures. This particular way of thinking about agency and autonomy in constructing identity allows us to consider the full complexity of social subjects situated within the larger power structures that constrain them.
Bucholtz and Hall’s (2005) above assumption entails that on a particular occasion individuals may take the initiative to avow specific identities they wish to assume for themselves, and at the same time they may also ascribe – intentionally or not – certain identities to the interlocutor. Additionally, they may choose various sub-identities that they want to be related to (e.g. a white, middle-class, middle-aged, male doctor), while assigning to the interlocutor similar or different identities, depending on how they want to shape such an interpersonal relationship. A similar view of identity is shared by Schelenker and Pontari (2000). According to them, individuals have concerns about identity characteristics that they wish to portray, and such concerns about self-presentation for perception by others may operate in foreground or background modes.
The above constructionist perspective of identity can be applied to professionals in the courtroom. In addition to conveying the content of the intended message, these individuals must also attend to their self-presentation. For lawyers and judges as well as expert witnesses, the courtroom is the site where their professionalism is displayed before colleagues, clients, and the public at large. Who they are to each other is not only a function of social facts and labels such as profession, rank, and class: it is also an outcome of the dynamics of the interaction itself (Adelswärd, 1988). Thus, within the discoursal constraints imposed by the courtroom, each participant is constantly engaged in exploiting available resources to claim positive social values for self, so as to counteract the ‘threats to face’ that are inherent in the adversarial nature of the proceedings and the hierarchical power structure of the court (Penman, 1990, 1991).
As a case in point, Shuy (2002: 68–69) faces identity-related dilemmas when serving as a forensic linguist in many civil and criminal cases. This involves the need to present himself as an expert who has deep knowledge of complex technical ideas, and at the same time, to maintain an objective, non-advocacy stance in a setting in which advocacy is the major form of presentation. A similar experience is discussed in detail in Lynch and Cole (2005). Having been rejected as an expert on fingerprint identification in a preliminary hearing, Cole discusses how he himself failed in the courtroom. The main problem relates to Cole’s failure to anticipate the consequences of the shift of judicial attention from fingerprint examiners’ claims to expert knowledge to his own. In other words, he could not negotiate a credible account of himself and his work in the language games of the court, despite true expertise and skill in the matter. In a similar way, Winiecki (2008) shows the ways in which membership categorizations may be used to construct a witness as an expert, or a problematic individual by the opposing party in the courtroom.
These studies point to the critical role of self-presentation in the courtroom. Experts cannot simply rely on their ascribed role and professional label; instead, expertise is to be claimed and negotiated. In this sense, it is essentially a discursive activity of aligning with other participants, mostly lay audience in a particular local context of utterance.
Other linguistic studies that have investigated aspects of courtroom expertise include Curtis (1996), Matoesian (1999), Scheffer (2010) and Stygall (2001). Curtis (1996) explores how contradictory accounts are evaluated as differentially valid by the jury. She compares the narratives constructed by two force experts, each representing a different side. It was found that the expert who applied both his own direct experience to the evidence and principles which originated from the work of the opposing expert was favorably perceived. While the focus of this study was on explaining the basis of the jury’s decision making in relation to different methods of storytelling, it points to the importance of establishing authority and self-positioning in the local context of the examination.
Matoesian (1999, 2001) observes how, in the cross-examination of a rape trial, the defendant, who was a medical student in his final year, shifted into and departed from an expert medical identity, as he was impeaching the witness’s technical account of how the victim could have sustained injuries during the rape incident. Such is a strategic method for deflecting blame and accounting for inconsistencies. However, this case is a peculiar one, and the subject does not count as an expert witness in the sense being discussed here for at least two reasons. First, the subject was not tendered as an expert in the eyes of the prosecution, the defense or the court, and his presence in the courtroom was not due to his expertise. Second, the subject was the defendant of the case. Unlike typical expert witnesses, who have a duty to be impartial and to testify from a particular viewpoint according to their specialized knowledge/skills, the subject had a vested interest in advocating a particular view only because such a view would favor his position as defendant.
Stygall (2001) identifies three major discursive ‘privileges’ (p. 329) the expert witness enjoys: the right to amplify, the right to contradict by using the contrastive ‘well’, and the right to draw conclusions using the professional ‘so’. The study further ascribes the discursive rights and speaking roles of experts to social status and power relations that exist in society. However, it does not consider how such privileges can be challenged and, hence, how they need to be sustained throughout the discourse. Moreover, as Stygall points out, such a list of features offers only ‘a partial map’ of the workings of elite discourses in the courtroom (p. 335).
Adopting the constructionist view of identity, Chaemsaithong (2011) examines the discursive rights and speaking roles of experts in the early Anglo-American courtroom. He finds that in the historical courtroom, experts had to perform extensive identity construction. Focusing on expansions of responses, the study reveals that the expert provided more information than was strictly requested by the question. In so doing, the expert not only satisfied the demands of the specific form and content of a question, but also used the occasion to structure or restructure the event he thought would be relevant and favorable to his claims.
Interestingly, diverging from the above literature where expert witnesses are seen as dominant and privileged figures, Scheffer (2010) argues that to be successful in the courtroom, the expert needs to perform ‘modest’ acts of sharing and borrowing knowledge. Such modest acts, which include acknowledging other sources of knowledge and experts, appealing to the jury’s common sense, do not undermine but substantiate the expert status. This is because such a dramaturgical act affords an expert membership in a complex ‘ecology of knowledge’ and democratic knowledge society, and is in harmony with the court’s immodest assertion of decidability.
Overall, the previous studies above do much to inform the current study, which seeks to build on the issue of experts and their identity construction in the courtroom. In line with these studies, identity is here conceptualized as being enacted in and constitutive of communication in order to negotiate and construct the kind of social image (in this case, the image of an expert) a witness wants to claim and wants others to recognize. However, this article also seeks to investigate experts’ voice further by focusing on the stance-indicating and interactional features of experts’ discourse to reveal and give a more comprehensive account of how experts position themselves in relation to other participants in the courtroom. This Bakhtinian notion of voice (i.e. voice types) as self-representation subsumes the traditional view of voice as authoritativeness (as seen in Stygall (2001) above), while allowing personal choice in how individuals express themselves within the boundaries of a discursive situation.
Footing, stance, and engagement
To account for the linguistic negotiation of our social and conversational identities during an interaction, Goffman (1981) proposes the concept of footing. Footing refers to ‘changes in alignment we take up to ourselves and others’ (p. 128), that is, the metapragmatic processes through which speakers/hearers position themselves relative to one another and to their utterances in the framing of experience. A shift in footing transforms our interpretive frame for the embedded action. To signal who they are and what they are doing at any given interactional moment, speakers may, in a given context, resort to linguistic markings such as style-shifting, the use of address terms, changes in tone and pitch, or shifts in social roles.
In particular, Goffman convincingly argues that the traditional descriptions of speaker/hearer are inadequate to capture the complexities of real-time interaction. As a result, he deconstructs interactional roles so as to capture the fluidities of talk and embeddings of different footings. For instance, the label of speaker is broken down into more finely grained categories, including the animator (who voices the utterance), the author (who composes the words), and the principal (who is responsible for the words). Likewise, the participant role of the listener is decomposed as well.
However, despite Goffman’s invaluable insights into identity in interaction, scholars have noted that it has remained somewhat unclear how to apply these insights systematically to the study of actual discourse (Irvine, 1996; Levinson, 1988; Wortham, 1994, 1996; Wortham and Locher, 1996). As Levinson (1988) and Wortham (1994, 1996) point out, Goffman was vague about the precise role language plays in speakers’ performance of particular footings. In particular, Levinson (1988) suggests that Goffman’s notion of footing and his proposed set of participant role categories should be integrated into a rigorous discussion of ‘who stands in which when’ (p. 221). This focus point is in line with Fairclough’s (1995) recommendation that discourse analysts ask the following questions: ‘What are the participants’ voices in the text?’, ‘How are they constructed?’, and ‘What relationships are set up between participants?’ (p. 203).
The above limitations can be addressed by insights from a wealth of linguistic studies on self-positioning and alignment. Broadly speaking, speakers can manage their identity work and interpersonal relationships in two main ways: stance-taking and interactional strategies. With respect to the former, the speaker can add personal or social attitudes towards the referential information being presented in the discourse. Stance, also known as evaluation, is the linguistic ‘overt expression of an author’s or speaker’s attitudes, feelings, judgements, or commitment concerning the message’ (Biber and Finegan, 1988: 1). For example, Drew (1992), Cotterill (2004), Eades (2006), and Kozin (2008) show that when examining witnesses, lawyers focus on lexical items with certain semantic properties and even dismiss witnesses’ own terms for describing the people and events involved in the case. These studies show lawyers’ pragmatic awareness of the semantic impact of their lexical choices and how they carefully choose ones that fit their argument. An important point to be noted is that the lexical items speakers pick not only point to or reference topics that are included in the discourse, but also control the characteristics of the object that are activated. That is, when a certain lexical item is selected, it places the referent in a certain category and activates all of the associations and understandings that such a word and that category have for the hearers (Aldridge and Luchjenbroers, 2007: 93). Thus, a lexical item is an evaluative tool and a reflection of the speaker’s understanding or mental representation of whatever is being referred to (Chilton, 2004: 50). Lexical resources capable of indicating stances include hedges, boosters, and attitude markers, amongst others (Hyland, 2005, 2008).
With respect to interactional strategies, successful speakers are able to relate to their interlocutors and acknowledge their presence by guiding them to the intended messages, anticipating and addressing their questions, and constructing a harmonious (or an antagonistic) relationship with them. For example, first-person plural pronouns have been found to be able to build a relationship between the speaker and the hearer because the pronouns can align them into one group or community that may or may not exist in the real world (Zupnik, 1994). Combining the speaker and hearer into a single entity creates a shared identity. This potentially makes the hearer feel a personal connection with the speaker, such as being on the same side and sharing the same ideas, experience, and needs. It can also bring the hearer into the speaker’s model of whatever is being discussed so that they can internalize it as their own (Zupnik, 1994). Such a strategy is essential for persuasive discourse. It means that by using ‘we’ to discuss a version of an event, the speaker hopes the hearers will not question its use and will accept that particular version of an event as if speaking on their behalf. Second-person pronouns have been found to make a discourse reader-oriented and personal by engaging or involving readers (Kuo, 2002; Thurlow and Jaworski, 2006). It can also direct a discourse towards hearers in order to attack, command, or express solidarity (Kuo, 2002). In a similar vein, Wortham (1996) presents a model for uncovering interactional patterns in conversation by focusing on personal pronouns and showing how participant deictics help discover the speaker’s footing. Other linguistic resources that can function interactively include directives, constructed dialogs and questions, personal asides, and discourse markers (Hyland, 2005, 2008; Tannen, 2007; Wortham, 2000).
Of particular relevance to the process of identity construction in the courtroom is the fact that the interactional dynamics of the courtroom are fundamentally more complex and multi-party in nature. Pascual (2002) characterizes the courtroom interactional pattern as ‘fictive’, as it is entirely conceptual in nature, even though it may emerge from the actual interaction of the here-and-now. There is an invisible channel of communication underlying the observable interaction between participants. For example, while the witness testimony phase appears to involve a factive type of dyadic interaction, the intended beneficiary is the jury and/or the judge, hence a fictive communicative channel. Moreover, Cotterill (2003) shows how members of the viewing public, who are legally and linguistically outside the trial process with no active role to play in the outcome of the trial, can affect the discourse of legal professionals. Similarly, Pascual (2002: 131–133) demonstrates that the division in a possible future appeal appears to have influence on attorneys’ verbal behavior. In this way, much of courtroom interaction can be viewed as ‘display talk’ for a third party (Goffman, 1981: 137).
In the case of expert witnesses, the interactive situation above can be even more complex. In addition to such non-specialized audiences as the jury, the judge, and the prosecutor, an expert may have to communicate to other experts in his or her own field (or allied fields), who can be present in the trial as the actual audience, in retrials of the same case, or in future trials of similar cases. A successful expert witness thus has to address these multiple audiences and meet their expectations. The expert faces the difficulty of achieving an effective balance between credibility and comprehensibility. Being too easy to understand may lose the witness credibility, and adversely affect the impact of testimony just as much as being incomprehensible. As Cotterill (2003) reveals in her analysis of comments from the O.J. Simpson jurors, many of them felt that the experts were patronizing to them in their conceptual and linguistic oversimplification of the evidence, and that they stereotyped the intelligence level of the jury.
An illuminating representation of the complexities of real-time interaction in the courtroom is carried out by Snedaker (1991). In this three-tier structure, the primary audience is the judge or jury, the secondary audience is composed of the media and those present in the courtroom, and the third tier is all reasonable people. This can be applied to the case of the expert witness, as it shows that experts do not only speak for the judge/jury, but also simultaneously anticipate responses and possible counterarguments from peers and lay audiences, take the voice of the opposite side, and defend their version of facts, so as to be perceived as persuasive and authoritative.
To summarize, the theoretical concepts of stance and interactional engagement are very useful as non-referential indexical devices to enact the footing of an expert in interaction. By integrating such concepts into the analysis, the present study attempts to further systematize Goffman’s discussion of footing for the exploration of identity negotiation and construction in courtroom interaction.
Clifton’s trial, expert identity, and the historical courtroom
The trial took place at the Court of Oyer and Terminer in Philadelphia in 1787, and Alice Clifton was accused of murdering her illegitimate child at birth. A 17-year-old African-American slave, in a household of a white family, Clifton was repeatedly raped by an older married man and became pregnant by him. According to the trial transcript, Clifton was promised fine clothes if she would do away with the baby. However, despite the suspicions and questioning of her owner, Clifton consistently denied the pregnancy, finally giving birth alone, and to worsen the situation, slitting her baby’s throat with a razor before hiding the body in a bin. The trial ended with Clifton’s being convicted by the jury for infanticide and concealment and the judge’s sentencing her to death, although later on the governor pardoned her. Gross (2006) argues that such a case presents a situation where laws and early legislation legally wrought the parameters that left Clifton no choice for freedom, except over the corpse of her illegitimate child.
What is interesting about the case is that the defendant insisted that she did not kill the baby and that the baby was stillborn (although it was not clear why, then, there was the need to slit the baby’s throat with a razor). Two doctors who had special knowledge of autopsy and obstetrics were brought in during the trial. After examining the body of the baby, they testified that the baby was stillborn as a result of the mother’s previous work-related injuries and, therefore, could not have been killed by the incision at the throat. Both experts cited the injuries, the small size of the child, and the lack of blood on the wound as evidence for Clifton’s postmortem laceration.
The prosecutor, aided by law that discriminated against mothers of illegitimate children, used the surrounding circumstances to his advantage, using as evidence Clifton’s intention to conceal the pregnancy and her lack of preparation to care for the baby after its birth. Under such a law, prosecutors did not have to prove that the accused woman murdered her baby; instead, the accused woman had to prove, through the testimony of at least one witness, that she did not. Such a law presumes guilt, not innocence (Jones, 2006: 72; Rowe, 1991). For this case, the pre-natal state of the baby was of major significance in the trial. If the baby was already dead, it would be consistent with Clifton’s claim that she had been injured during work and that she did not kill the baby. On the other hand, if it could be established to the jury that the baby was not stillborn, she would be guilty of the murder charge. The trial thus features the courtroom competition between science and law and allows us an opportunity to observe how expert witnesses present, defend, and interpret evidence using their special knowledge.
Set in the 18th century, this case study presents an excellent environment in which to explore the issue of identity for at least two reasons: the lower status of medical professionals before the end of the 19th century, and the adversarial nature of courtroom discourse. Unlike medical professionals in the present-day courtroom who ‘expect to be listened to’, ‘are social and educational peers of the attorneys and judges’, and ‘who are indeed listened to in their daily roles as professionals in their fields’ (Stygall, 2001: 334), medical professionals before the 19th century did not enjoy the same status. Larson (1984) argues that the reason for such a difference in terms of status is due to two factors. The first has to do with faith in science, which was not widespread and commonly held until the end of the 19th century. Second, the expansion of universities, together with the meritocratic educational system (i.e. the notion that legitimizes one’s mobility through education), ‘both assists and embodies the transcendent authority of science as a knowledge system’ (Larson, 1984: 53). Hall (1984) also finds evidence in support of Larson (1984), contending that medical professionals before the 19th century were perceived as having the same status as that of druggists, folk-practitioners, midwives, and outright quacks, all of whom could also provide healing to the sick (albeit through different methods). As can be expected, the public perception of physicians between 1760 and 1830, Hall (1984: 117) argues, was nothing other than that of ‘disinterested professionals’ who competed with each other in the same profession for business and money. Furthermore, the hostile nature of courtroom discourse made it even more difficult for medical professionals serving as witnesses. Linguistic coercion and hostility have been documented as salient features of historical courtroom discourse (see e.g. Archer, 2002, 2005, 2006; Doty and Hiltunen, 2002; Hiltunen and Peikola, 2007; Kahlas-Tarkka and Rissanen, 2007). It has been argued that in the historical courtroom, as in the present-day courtroom, witnesses were typically controlled by the type of question they received, couldn’t initiate topics on their own, and could only answer the questions posed. Thus, a focus on the hostile discursive environment of courtroom discourse illustrates and showcases more clearly the process of identity construction and negotiation.
Owing to the above factors, the expert witnesses in Clifton’s trial faced a dilemma, one that directly concerned their expert identity. Although it was very likely that they possessed knowledge and experience that they could use to form opinions on the case, they – unlike their modern-day peers – did not have the privilege of, and could not rely on, their social status and pre-given qualifications that came with experience or training, since, as discussed above, their social status before the 19th century was not positive, if not downright negative. Instead, it was crucial that they be involved in extensive discursive processes to negotiate their desired self-image, and to convey who they were, what they knew and were capable of doing, so that they could make themselves heard and their testimony accepted in the face of ongoing face threats and continuous attempts to discredit and undermine their position during cross-examination. In this way, Clifton’s trial allows us to observe the process of identity formation and negotiation in interaction through discourse.
Analysis
The whole cross-examination of Dr Foulke presented below is divided into different segments, based on the thematic structure of a group of turn sequences, for ease of discussion.
Establishing self
(1) Dr Foulke: I was called upon by the coroner and the inquest, to examine the dead body of a child supposed to be murdered. Before I got there, several persons on the inquest had examined and found the throat cut. The murder of the child was not longer with me a question, at least so far as the efforts of the mother had been able to affect it; and I left the coroner and jury to do their duty in an affair which appeared so clear and plain. But after they had left the room, I returned to examine the mother, and to explain to her, her dangerous situation; but I was induced to doubt the validity of my first opinion, when she informed me with respect to the time of conception, the time of delivery, the circumstances which prematurely brought on the birth of the child, and from the appearance of the child afterward; from all of which considerations I believe myself absolutely justifiable in declaring that the child must have been born dead: the delicacy necessary to be observed, will make me say as little as is possible on this occasion. With regard to the time of conception, it must have been about the latter end of the month of September.
In this initial phase of interaction, Dr Foulke, after having sworn in, is speaking in the voice of a narrator (Goffman, 1981: 152; Wortham, 2000), as he was presenting a narrative of how he reached the conclusion that the child was stillborn. In this voice, he started off by foregrounding himself with the first-person pronoun and the use of the passive voice, declaring that his expert opinion was of legal value in this particular case. In doing so, Dr Foulke established himself as a person who possessed formally recognized expertise, which other participants did not share. In essence, Dr Foulke was ‘giving off’ a favorable impression of himself in order to build a working consensus amongst the participants in terms of how they should accept his identity as an expert, hoping to prevent potential challenges and convey the socially constructed meaning of an expert. Goffman (1959: 24) makes a point in this connection: When a individual projects a definition of the situation and thereby makes an implicit or explicit claim to be a person of a particular kind, he automatically exerts a moral demand upon the others, obliging them to value and treat him in the manner that persons of this kind have a right to expect. He also implicitly forgoes all claims to be things he does not appear to be and hence forgoes the treatment that would be appropriate for such individuals.
The above impression management was performed concurrently with a careful delineation of the major steps of his diagnostic process, which suggests that the expert’s conclusion was not based on groundless conjectures.
Strategically, Dr Foulke balanced the use of hedges with the use of boosters. First, he not only attributed his first (wrong) hypothesis to the results of other parties’ examination, but also delimited the scope of his speculative responsibility to what Clifton did to the child’s throat (instead of whether the child was stillborn), a fact which was clear to the untrained eyes of the coroner and jury. This was achieved by means of the hedge ‘at least so far as . . .’. By indicating that he revisited and overturned such a hypothesis after he had had an opportunity to process all the pieces of evidence, including Clifton’s testimony and the examination of the body, Dr Foulke established a contrastive organization for the introduction of his conclusion, thereby underlining the validity of it. Such a conclusion about the condition of the child at birth and at the time of conception was then highlighted through adverbial and modal boosters: ‘I believe myself absolutely justifiable’, ‘must have been dead’, and ‘must have been about’. Essentially in this beginning step, Dr Foulke was communicating his faith in science – the belief that was still in its infancy but would soon become popular and upheld around the end of the 19th century, as discussed above. In particular, he was referring to the basic components of scientific inquiry: forming a hypothesis, examining observable and measurable evidence, and evaluating it using reliable and commonly accepted principles of reasoning, all of which skills came with his expertise.
Negotiating an expert identity
(2) Attorney general: How do you know that? Dr Foulke: The girl told me so. Attorney general: But you are not to repeat what she told you. Dr Foulke: Then, from the appearance of the child, I believe it to be only a six to seven month conception, which brings it to about that time. I keep the child for the purpose of examining it fully, and of showing it to Doctor Jones: the Honorable Court, and the Jury may see it also if the Court pleases; and by referring to it, they will be able to judge for themselves in some degree from its size. Attorney general: Does it not lessen by being kept in spirits? Dr Foulke: It does not grow bigger. Attorney general: But does it not lessen? Dr Foulke: Yes, something. Attorney general: Does it much or little? Dr Foulke: But little: when Doctor Jones saw it, it had not lessened, for I was obliged to extract it with forceps from the jar in which I put it. Sergeant: From all the circumstances you have mentioned, do you say you are justifiable in concluding that it was born dead? Dr Foulke: I do. Sergeant: Pray, when were you called in? Dr Foulke: About two hours after the child was born. Attorney general: But you then were not of the opinion that it was born dead? Dr Foulke: When I went, and saw, and heard that she had cut the child’s throat, I formed my opinion on that circumstance only, and I believe the Inquest did the same without enquiring whether it was likely to have been born dead or not. Court: You say from its size, that it was not a fully grown child: are not some children smaller than others? Dr Foulke: Clearly, Sir, this is not a child that ought to be produced by its mother, after nine months of gestation. Court: Do not children live who are born at seven months? Dr Foulke: Children have lived who were born at six months; but such examples are very rare, and seldom happen, and cannot affect the present question: they are like monsters – I don’t mean that they are deformed, but they are not perfect, and are extraordinary things, rarely to be met with, not one in a hundred – I have compared this child with several others which I have preserved (as I have them of almost every period of conception) and I find that it is not the child by two or three months, which ought to be released after nine months of gestation. Sergeant: Do you believe a dead child might bleed on having its throat cut? Dr Foulke: I do: the blood of children is much finer and more fluid than that of men. Such are the dispositions of nature, in accommodating the cause to the effect; the blood of infants circulate through innumerable subtile canals, which are more gross fluid would obstruct: but it is not only the throat of a child that would bleed on being cut after it was dead, but also of a man, or indeed of any animal. Attorney general: Did you discover any blood about the child, when you first saw it? Dr Foulke: I did a little, not more than is customary; for it is well known that more or less is always discharged by the mother on these occasions. This is a subject that delicacy and respect makes it difficult to speak of, but the Honorable Court will excuse me. Court: It is necessary to be explicit, and relate things as they are, so that you stand in need of no excuse. Sergeant: Did she say the child was born dead? Dr Foulke: Yes. Attorney general: You are not to say any thing she said, after the inquest has sat. Dr Foulke: I believe the gentlemen have related that they heard her say so. The reason why I did not, was, the woman was then in such a situation of body and mind, that humanity and every generous feeling for an unhappy creature forbid to add to her pain and care, and therefore made it expedient to leave the room: but afterward when the poignancy of her distress might be alleviated, I called and attended to her narration, which I am not, you say, to relate.
Following Dr Foulke’s opening, the attorney started by asking Dr Foulke to specify the means by which he obtained knowledge of the time of conception. However, his response was not admitted as evidence on the basis of hearsay. As a result, Dr Foulke shifted to an alternative answer. He did so in three steps. First, with the discourse marker ‘then’, he signaled his intention to make a fact salient and to regain the argumentative thread (González, 2004: 169). Next, he offered a hypothesis based on his examination of the child. Finally, using the body of the child he had preserved as a verifiable piece of evidence, he appealed to the common sense of the jury and the court.
In response, the attorney shifted the topic to the size of Clifton’s baby to check whether it became smaller as a result of being preserved, a process which could have transformed the evidence and distorted Dr Foulke’s judgment. In this case, the confirmation of the presupposition lodged in the question was expected, as a negatively oriented yes/no question was particularly hard to refute because it carried an assumption that an unexpected ‘no’ answer would be expounded upon (Harris, 1984: 16; Romero and Han, 2004). Clearly, here the attorney was attempting to invalidate Dr Foulke’s hypothesis. The fact that it became smaller would adversely affect Dr Foulke’s testimony and his identity as an expert witness in the eyes of the jurors, since his conclusion that the child was dead before the delivery was partly based on the observation that the size of the child was too small to have been born alive. As it turned out, the question had an effect upon Dr Foulke: he did not seem to want to admit such a fact, knowing well that the preservation did affect the size and that plainly admitting such a fact could be construed as discrepancy in his testimony. Instead, he offered an answer that, while still on the topic of size, was in the opposite direction: ‘It does not grow bigger’, thereby flouting the manner of maxim, as the answer was neither conspicuous nor clear. However, the attorney was relentless. Through the constrastive marker ‘but’, he indicated his disagreement with Dr Foulke’s response and reformulated his question in the negative yes/no form. As a result, Dr Foulke resorted to a hedge as he admitted: ‘Yes, something.’ Together with the hedge, he could insert an additional comment about the size, which in turn helped to lessen the degree of conflict (in comparison to a plain answer). Still not satisfied with such a vague answer, the attorney pursued the point in the third turn to specify the degree of change with his question, thereby forcing Dr Foulke to speak on the issue. Right after giving the required information, Dr Foulke seized the opportunity to justify why the change of size would not affect his opinion, which was formed before the change of size occurred, citing Dr Jones, the other expert in this trial, as his witness.
At this point, the sergeant joined in the examination, asking a straightforward question regarding Dr Foulke’s commitment to his opinion and the specific time of his first encounter with the case, to which Dr Foulke successfully responded with a firm conviction (‘I do’) and with requested information. However, the attorney saw this as an opportunity to undermine Dr Foulke’s testimony. He started with the discourse marker ‘but’ to signal that Dr Foulke’s commitment in the previous discourse segment should be cancelled. He then followed with a negated yes/no question (‘was not of the opinion’). In particular, the attorney implicitly constructed the argument that Dr Foulke’s judgment could not be trusted, suggesting that the expert wavered in this opinion. Interestingly, this was one of the points that Dr Foulke had already justified himself earlier on in his testimony. Realizing the attorney’s hostile move, Dr Foulke offered an extended response (instead of a positive or negative yes/no answer, which could have damaged his identity as an expert), contending that his opinion had been formed based on the sole piece of information about the incision on the throat, instead of a complete assessment of the situation. To further substantiate his argument, he went so far as to refer to the inquest and presupposed that they held the same belief. By appealing to such a possibility, he interacted with the interlocutors, and implicitly invited them to recognize his change of opinion as legitimate.
Subsequently, the court intervened. The yes/no question of whether some children were smaller than others contradicted Dr Foulke’s hypothesis that the child experienced premature death, formed on the basis of the size of the child. Hoping to show the jurors that the expert witness agreed with him, the examiner exploited the broad, generic nature of this yes/no question, which inescapably led to an affirmative answer, because there were always children who were smaller than others. Thus, if Dr Foulke had responded with the expected answer, his position on the issue would have been partly undermined. As a result, Dr Foulke flouted the maxim of relevance and responded instead with a reformulated version of his hypothesis, thereby re-affirming his stance on the issue.
However, Dr Foulke’s answer faced another question from the court. Using a negative grammatical yes/no question, the examiner expected that the expert agreed that there were healthy children who were born prematurely. Dr Foulke, realizing that those cases existed, needed to avoid direct admission of such a fact. As a result, he flouted the quantity maxim by offering more information than required in the question. Strategically, Dr Foulke not only resorted to boosters and attitude markers, such as ‘very rare’, ‘seldom happen’, ‘are not perfect’, ‘extraordinary things’, ‘rarely to be met with’, and ‘not one in a hundred’, but also provided code glosses, which helped explain and rephrase his claim (‘I don’t mean that …’). This reflects Dr Foulke’s intention to ensure that the interlocutors recover the intended meaning, necessary to understand his argument. Finally, Dr Foulke can be noticed to cite his expertise and experience in several other cases as support, and switched the topic from other children to Clifton’s children to claim that Clifton’s baby was born dead. This move was achieved by juxtaposing the deictic demonstrative ‘this’ with ‘several others’ in ‘I have compared this child with several others which I have preserved …’. In doing so, Dr Foulke gained partial control of the conversational floor and of the topic.
Dr Foulke further showcased his expertise when the sergeant inquired about the possibility of a child’s bleeding from a dead body. This time he attempted to reformulate scientific knowledge in layman’s terms, referring to the anatomical and physiological workings of children, humans, and animals. His conviction of the claim was presented as natural and logical by way of comparative adjectives such as ‘much finer’, ‘more fluid’, ‘innumerable subtile’, ‘more gross fluid’. Establishing physiological and anatomical differences between children and adults, he could invalidate the argument that the child was killed at birth.
The attorney then continued with a specific question about blood discharge. Based on Dr Foulke’s testimony in previous sections, it is not far-fetched to claim that the attorney must have already known the answer to the question, as Dr Foulke had declared that he did not examine the child carefully at first. The attorney did so for at least two purposes: to demonstrate to the jurors that the expert witness could not be taken seriously, and to construct a hypothesis that the baby was not stillborn. Dr Foulke first confirmed that he found some blood. However, through stance-indicating devices such as the attitude marker ‘customary’, the hedge ‘more or less’, and the booster ‘well known’, Dr Foulke appealed to a fact about childbirth, thereby implicitly justifying the reason as to why he did not suspect that the child had already died before Clifton cut its throat. At this point, Dr Foulke did not wish to go further into the issue, perhaps on moral and ethical grounds.
In response, the court insisted that Dr Foulke reveal all he knew about the case. The sergeant resumed by asking a question about Clifton’s testimony. Dr Foulke’s affirmative answer was faced with an objection from the attorney general. Such an objection could have damaged Dr Foulke’s credibility, as it would be construed that Dr Foulke’s testimony was not based on direct experience or personal knowledge of the fact, but on information provided by the accused. Thus, in response, Dr Foulke sought to undo the damaging effects. First, he cited the inquest’s knowledge of this particular aspect to imply that his previous answer was in line with what they knew, hence not entirely groundless. Interestingly, he prefaced such a response with the subjective expression ‘I believe’ to delimit the scope of commitment to personal opinion. This was an effective move on two counts. It not only serves as a clear indication that the following statement should be interpreted as a personal perspective, but it also leaves room for the interlocutors to disagree in case such a belief was false. Subsequently, he followed with an extended explanation as to why he did not perform an examination and interrogation as early as he should have done. In doing so, he utilized attitude markers to invoke shared values and reactions on humanitarian and compassionate grounds (including such lexical items as ‘humanity and every generous feeling for an unhappy creature’, ‘add to her pain and care’, ‘expedient to leave the room’, ‘poignancy of her distress’, and ‘alleviated’), thereby expressing his position and pulling the interlocutors into a conspiracy of agreement.
Providing expert information
Continuing on from above, the following series of questions, initiated by both the sergeant and the court, appear to center on the details of the post-examination as well as medical knowledge pertaining to what is now known as obstetric medicine, including the nature of a delivery, possible causes of miscarriage, characteristics of a stillbirth, and maternal/fetal physiology.
(3) Sergeant: Did she appear very feeble? Dr Foulke: She was setting up, but then it was necessary she should, as the room was much crowded, and the people pressing about her. When I had heard her relate the particulars of her situation, I went home, and made notes of it, from which I could explain my several reasons for concluding, that the child could not be born alive. Sergeant: Did you observe, Doctor, that the limbs of the child were not proportioned? Dr Foulke: Yes, the hands, arms, legs, and other inferior limbs were too small when compared with the others. There are too, many circumstances of evidence, which would confirm the justness of the conclusion drawn by Doctor Jones and myself, with respect to the child’s having been born dead: there are also other matters which I could mention, but form the delicacy and tenderness with which it is requisite to speak on this subject. Court: Our great object is information, and nothing should prevent our obtaining the fullest. Dr Foulke: Well, then, as this woman was delivered alone of a feeble and imperfect child, and as she informs me, she lay upon her back at the time of its birth, then had the child been alive, but come in the common or ordinary way into the world. You know that it is necessary that its eyes, its nose and mouth, in short its face, must have been towards the posterior parts of the mother, and in this situation of release – it is more than probable that the child might have been smothered in the birth; nay, it is a certainty, that it must have been smothered from the want of assistance to extricate it, and from its long continuance in that situation. Court: Did she seem to be affected by the loss of her child? Dr Foulke: She seemed to me to have lost herself much; she stroked, and looked at it, but I thought not with that maternal tenderness, which she should have discovered on such an occasion; she shed no tears for her loss, not that I esteem the shedding of tears an essential to constitute tenderness. She began to appear sorry, when I was about to take the infant from her. Court: Did she say why she cut its throat? Dr Foulke: Yes: she said that John Shaffer … was the father of it, and he had persuaded her to kill it; if she did, he would purchase her freedom, and that he was to marry a fine woman, and that if she did not do it, she should suffer immensely … and to encourage her, he said that it was not harm, and he had persuaded a milk-girl to do the like once before. I examined her to know the time of her conception, and she told me that it was sometime after her master went to live in Church-alley. […] for when I saw it, it was as is usual with children after their birth; but perhaps the rags, or things it had been wrapped up in, might have absorbed some, and given the appearance of wiping or washing …
The sergeant started with a question about Clifton’s condition at the time when Dr Foulke examined her. In addition to providing the requested information, Dr Foulke went so far as to extend his answer to cover his careful examination of the details of the case and to emphasize his claim about the child.
The sergeant then moved on to inquire about the size of the child. As in his previous reply, Dr Foulke stressed the unmistakable conclusion by referring to ‘many circumstances of evidence’ and to another expert in this case, Dr Jones, who was of the same opinion. To add to this, he also hinted at other supportive clues, although he refrained from revealing the details, perhaps due to moral or ethical standards he held. However, when prompted by the court to give all the details, Dr Foulke offered his expert opinion. This time he was at length to offer possible causes for the child’s death. In this case, he used the second-person epistemic expression ‘you know’ to interactively attribute understanding of the following proposition to the interlocutor, marking it as common knowledge (Fitzmaurice, 2004: 436). Then, Dr Foulke continued with the booster ‘it is more than probable’, just to retract it and offer a self-initiated/self-repaired turn with boosters that were coated with the highest degree of commitment: ‘it is a certainty’ and ‘it must have been’. In this way, Dr Foulke successfully stamps his personal authoritative voice onto his argument.
The last two questions in this segment, posed by the court, were designed to target Clifton’s (lack of) maternal instincts. If Dr Foulke revealed that Clifton was indifferent to her child’s death and that she wanted to kill the child, it could be used as evidence against her, and as a result she would be seen as guilty. In his long responses, Dr Foulke took on different roles. While primarily taking the role of a narrator, as he was relating to the court his first-hand knowledge of Clifton’s reactions and possible motives, he also switched to the voices of the characters in his story when representing their words. He also assumed the role of the interlocutor when presenting his own position on the issue. For example, Dr Foulke was careful to make it explicit that what he said should be regarded as personal opinion, which was conveyed through the first-person pronoun and its related forms, as in ‘She seemed to me’, ‘I thought not … which she should have’, and ‘not that I esteem’.
In addition, Dr Foulke used reported speech to quote Clifton’s and Shaffer’s words. This device framed the information in such a way that would allow him to interweave their words with his effectively. This strategy can be seen when he used attitude markers such as ‘suffer immensely’, ‘she unfortunately met with a fall’, and ‘she was in great agony’. Towards the end of his response, Dr Foulke managed to insert his hypothesis into his narration: ‘but the blood that discharged was very small, and there must have been some mistake about it being washed …’, and ‘there can be no doubt’. It was in these roles that Dr Foulke could communicate effectively his intended message.
Ending like an expert
(4) Court: You say you have the child yet; how is it preserved? Dr Foulke: In a glass jar, and I’ll send it, if you please, to the Jury. Court: Can’t it be brought to Court? Dr Foulke: Yes, Sir. Todd: If your Honors please, it can be sent to the jury-room. Court: If we please to see, why may we not? Dr Foulke: Well, Sir, I will send it.
In this final portion of the examination, Dr Foulke was asked about the body of the child, which he had preserved. In his answer, Dr Foulke indicated his willingness to pass it along to the jury, and when asked to bring it into the courtroom, he accepted it without question. This in turn conveyed the scientific ideology that his conclusion on the child’s death, derived from the examination of its body, could be readily verified, irrespective of the individual performing the examination. In this way, he enhanced the reliability of his testimony.
Discussion
The detailed analysis above reveals that while Dr Foulke already possessed the qualifications of a medical expert in real life, his expertise had to be enacted through verbal performance and achieved interactionally in the local context. It appears that in pursuing an expert role through stance markers and interactional strategies, the expert witness was engaged in following discursive activities.
Self-identification
In this case, the expert witness categorized himself as an expert, and in so doing, constructed and in some cases reinforced the status difference between him and the interlocutor. This may be done through explicit lexical items or expressions. For example, by stating ‘I was called upon by the Coroner and the Inquest’ at the very beginning of the trial, Dr Foulke could categorize himself as belonging to a group that had asymmetrical access to knowledge to make decisions about the case. In addition to explicit terms, Dr Foulke’s response confirming his status can be argued to fall within this group of activity, for instance, ‘I believe myself absolutely justifiable in declaring that the child must have been born dead’. Similarly, this method was used when he identified himself with another expert: ‘There are too, many circumstances of evidence, which would confirm the justness of the conclusion drawn by Doctor Jones and myself…’
Association with category-bound activities
According to Sacks (1992), some activities imply identities since they are associated with a particular category. Thus, speakers in interaction may make use of these category-bound activities to offer descriptions, make claims, and organize social relations and ‘other aspects of the micropolitics of everyday life’ (Baker, 2000: 99). For example, if the story read ‘The X cried. The Y picked it up’, we may infer that X was the baby and Y was the mother, since crying is associated with being a baby, and picking up is something that mothers do. Thus, by referring to category-bound activities during the trial, including particular ways of referring to something (i.e. the use of jargon), the witness can invoke and establish his status, thereby indexing an expert identity. For example, Dr Foulke made use of medical terms and explanations, such as ‘the blood of children is much finer and more fluid than that of men. Such are the dispositions of nature … the blood of infants circulates through innumerable subtile canals’, ‘you know that it is necessary that its eyes, its nose, and mouth, in short its face, must have been towards the posterior parts of the mother’, to name but a few. While the use of medical discourse is not limited to members of the medical field, these different elements, when used together in a particular context like this one, are indexical of a medical expert identity.
Explicit reference to personal experience and training
By referring to specific personal experience, the expert witness was able to establish the fact that he had been involved in and exposed to a particular matter and that he had gained wisdom as a result of subsequent reflection and interpretation of such a matter. Personal experience does not necessarily come with factual knowledge. It is usually gained through hands-on and accumulated experience. On occasion, Dr Foulke referred to first-hand knowledge. For example, his comment ‘I have compared this child with several others which I have preserved (as I have them of almost every period of conception)’ implies that the speaker possessed a prolonged and intense experience of the issue through first-hand knowledge. It is the experience of other cases that enabled Dr Foulke to recognize the current situation to which he was giving testimony.
Discursive management of interaction, raising relevant points or anticipating the reaction of the person addressed
While the examiners evidently dominated the position of asking questions and the expert witness had very limited opportunity to ask questions, it can also be seen that Dr Foulke attempted to show expertise through the management of the discursive situation. Dr Foulke anticipated the damaging effects of a question and attempted to pre-empt such effects, for example by flouting different types of conversational maxims.
Together, these four discursive activities helped the witness to construct and negotiate the desired identity. As the witness was creating himself as a member of the expert, he could categorize the interlocutor as non-expert.
Conclusion
This study has provided some interesting insights into power relations between experts and interrogators in the courtroom. In particular, I have examined the ways in which an expert witness strived to negotiate his identity in court and revealed how discursive rights and speaking roles came about and were sustained. In this way, I hope to have offered a more complete picture of the process of identity formation in this institutional setting. The expert witness is found to counteract power asymmetries by acknowledging the limits of his claims, forming an alliance with the interlocutors by stressing shared certainty, identifying with another expert to support his claims, appealing to the common sense of the interrogators, and aligning himself with discipline-oriented value positions.
While this study is based on one historical case, I believe that its merits can be extended to other cases involving expert witnesses. Being an expert, then as now, entails not only a categorical label obtained through socially approved training and experience, but also the ability to function and perform accordingly. Such an ability necessarily includes both the on-site (e.g. when treating patients or performing an autopsy) and off-site performance (when offering testimony in court). What this means is that professionals do not simply have expertise, but also have to communicate that expertise during an interaction in an acceptable manner. As demonstrated in the analysis, the expert was involved in moment-by-moment negotiation, so that he could present himself in a favorable light, thereby affirming his identity in an otherwise hostile interactional environment.