Abstract
In Polish vs. American Courtroom Discourse, Grażyna Bednarek compares the language used by legal professionals during the introduction of witness testimony in criminal trials in the European civil law and Anglo-American common law legal systems to demonstrate that the courtroom discourse in each reflects a fundamentally different method of pursuing truth and justice, ‘a phenomenon sui generis, a distinctive example of linguistic genre’ (p. 1). She draws her inspiration for this hypothesis about the linguistic distinctiveness of courtroom discourse in different legal systems from the Sapir-Whorf hypothesis, adopting Edward Sapir’s statement that ‘no two languages are ever sufficiently similar to be considered the same social reality’ as her epigraph and stating that Sapir’s conclusion is ‘especially vital’ for the book (pp. v, 13).
The book is composed of four chapters, beginning with an introduction to her objectives, methodology and selection of case studies in Chapter 1. Although the book primarily relies on discourse analysis methods, Bednarek also draws on legal theory, ethnography, linguistic anthropology and forensic linguistics (FL). She explains that the book seeks to validate the hypothesis that the courtroom discourse in different legal systems reflects distinctive linguistic genres by comparatively applying several methods of analysis to the discourse in two selected criminal cases: the 1995 murder trial of O. J. Simpson in California and a 2011–2012 Polish criminal trial for robbery and battery with extortion. Bednarek first applies an ethnographic approach to analyse the speech situation, speech event and speech acts in each trial and then applies conversation analysis (CA) to analyse the organization of turn-taking, the courtroom interactions, the social roles of the key participants and the types of questions used during witness examinations in each trial, before finally analysing the pragmatics of the courtroom discourse in each trial by examining the cooperativeness of the participants and the speech acts used.
The case studies of the two trials contained in Chapters 2 and 3 form the heart of the book, collectively comprising over two-thirds of its total length. In both chapters, Bednarek begins by situating the trials within the respective legal and court systems. In an adversarial common law criminal trial in the United States, Bednarek notes, the truth is believed to best emerge as a result of combat between the attorneys for the prosecution and defence, who lead and tightly control the inquiry through the use of evidentiary and procedural rules. This legal system is commonly described as placing faith in formal or procedural truth, in contrast to European civil law systems, which claim faith in substantive truth. Bednarek draws examples from the Simpson trial in Chapter 2 to demonstrate how attorneys strategically use questions to control the quality and quantity of testimony, particularly through the impeachment of witnesses during cross-examination, and how the judge’s role is limited to that of a referee ruling on evidentiary objections. In the Polish trial studied in Chapter 3, by contrast, witnesses were first afforded the opportunity to offer a free and unrestricted explanation or narrative before the questioning began – a practice largely prohibited in the United States, where attorneys are obliged to direct the testimony – and then the judge questioned the witnesses to elucidate unclear or troubling aspects of their testimony before the prosecution and defence attorneys were allowed to ask any questions.
According to Bednarek, the differences between the adversarial criminal trial and the inquisitorial model of Polish courts are also reflected in the diversity of types of questions asked of the witnesses during the trials. In a quantitative analysis of all of the question types in the two trials, she finds that during the Simpson trial, yes/no questions and wh-questions predominated during direct examinations of witnesses, but declarative questions predominated during cross-examinations, while only yes/no questions and wh-questions were asked during the Polish trial. The distinctive features of adversarial cross-examination are also reflected in Bednarek’s analysis of the pragmatics of speech during the trials, as she identifies various ways in which cross-examination revealed witnesses to be dishonest and uncooperative during the Simpson trial but less so in the Polish trial.
While Bednarek’s analysis of the courtroom discourse in these trials offers valuable contributions to our understanding of the distinctive linguistic features of adversarial and inquisitorial legal systems and suggests possibilities for further study, the conclusions she draws in Chapter 4 are considerably broader than her evidence supports and belie a preference for civil law legal systems. She concludes, for example, that the civil law’s faith that substantive truth actually leads to ‘objective truth’ discovered by an ‘impartial judge’ is supported by the fact that the civil law method of witness examination allows witnesses to disclose ‘all the information they know’ in the form of ‘narrative, that is elongated stories’, while the common law method prohibits the same practice (pp. 170–172). Despite the fact that she recognizes that witnesses are only generally allowed to testify in the form of ‘elongated stories’ in civil law systems, she concludes that ‘the search for the truth in Poland may not be compared to the process of telling a story’ as it is in the United States (p. 172). Similarly, despite finding less diversity of question types in her quantitative analysis of the Polish trial in her study, Bednarek concludes that American attorneys employ different question types during direct and cross-examination, while ‘Polish judges make use of any types of questions that may help them find the objective truth’ (p. 173). Bednarek seems to underestimate the extent to which adversarial criminal lawyers may facilitate witnesses revealing ‘all the information they know’ in common law legal systems, on the one hand, and the many ways in which narrative testimony may lead to less than objective truth, on the other. Her study would benefit from greater incorporation of the observations of legal theory and comparative law regarding such issues.
Despite these weaknesses, Polish vs. American Courtroom Discourse provides compelling evidence of the distinctiveness of the adversarial and inquisitorial models of witness examination. Bednarek stresses the importance of the study for the translational competence of courtroom interpreters in an increasingly global world in which transnational conflicts are ever present, and the importance of translational competence for a defendant’s right to a fair trial (pp. 3–5, 181), but the book also holds significance for scholars in discourse analysis, ethnography, linguistic anthropology, forensic linguistics and law.