Janet Cotterill-Language and Power in Court - A Linguistic Analysis of The O.J. Simpson Trial (2003) PDF

Language and Power
in Court
A Linguistic Analysis of the O.J. Simpson Trial
Janet Cotterill
Language and Power in Court
Also by Janet Cotterill
WORKING WITH DIALOGUE (editor with M. Coulthard and F. Rock)
LANGUAGE ACROSS BOUNDARIES (editor with I. Ife)
LANGUAGE IN THE LEGAL PROCESS (editor)
Language and Power in
Court
A Linguistic Analysis of the O.J. Simpson
Trial
Janet Cotterill
Lecturer in Language and Communication
Centre for Language and Communication Research
Cardiff University
© Janet Cotterill 2003
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Cotterill, Janet, 1968–
Language and power in court: a linguistic analysis of the O.J. Simpson
trial / Janet Cotterill.
p. cm.
Includes bibliographical references and index.
ISBN 0-333-96901-4 (cloth)
1. Simpson, O.J., 1947–Trials, litigation, etc. 2. Trials
(Murder)–California–Los Angeles. I. Title.
KF224.S485C68 2003
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Contents
Acknowledgements vi
List of Figures and Tables vii
Introduction – A Crime Chronology: The Murders of 1
Nicole Brown Simpson and Ron Goldman
1 Trial by Jury: Legal Frameworks and Linguistic 9
Consequences
2 Macro-, Micro- and Multiple Narratives: Storytelling 19
in Court
3 Framing Courtroom Narratives through Strategic 65
Lexicalisation: The Opening Statements
4 Interaction in the Criminal Trial: Participants and 91
Processes, Roles and Relationships
5 Direct and Cross-Examination: Questions and Answers 126
in Court
6 Mind the Gap: Negotiating Power, Knowledge and 156
Status in Expert Witness Testimony
7 ‘If it Doesn’t Fit, You Must Acquit’: Reframing the Story 199
through Metaphorical Choice in the Closing Arguments
8 Judging the Jury: The Deliberation, the Verdict and 220
the Aftermath
Notes 233
References 234
Index 244
v
Acknowledgements
Many people have contributed many different things to this book (and
its writer) in the course of its completion. They are, of course, too
numerous to mention individually, but I would particularly like to
thank the following.
I am grateful to the editorial staff at Palgrave Macmillan, whose
patience and perseverance are an example to us all; particular thanks
are due to Jill Lake and to all the editors, referees and conference-goers
who have read, commented on and listened to earlier versions of the
work presented here; they have provided challenging comments and
questions, and the book has benefited immeasurably from their
insights; my special thanks go to the members of the IAFL and the
Forensic Linguistics Group in Birmingham; it would be hard to
imagine more stimulating and supportive colleagues.
A version of chapter 3 was published in Discourse and Society 12(3),
2001, and of chapter 7 in Forensic Linguistics 5(2), 1998. They are
reprinted here in amended form with the kind permission of the pub-
lishers.
My thanks are due to my friends Chris Heffer and Frances Rock, Kim
Landers and Jo Alper, for their constant encouragement, and I would
also like to thank Marilyn Washbrook and Michael Hoey for their
unwavering support and friendship.
There are a number of people who above all deserve my thanks: my
family, Michaela and Erik, Jean and Doug, who have always been there
for me; and Malcolm Coulthard, the supervisor who helped me to
shape the ideas which form the basis of this book.
A final and special note of dedication is reserved for my late friend
and colleague Sonia Russell, whose friendship I miss very much.
vi
List of Tables and Figures
Tables
Table 1 Statistics for the original juror pool, pre-selection 17

Table 2 Jury statistics, post-selection 18
Table 3 Mapping Labovian narrative structures onto the 24
trial narrative
Table 4 Defence reconstruction of prosecution crime 28
elements in a hypothetical murder
Table 5 Generic crime elements and their corresponding 29
narrative strands in the Simpson trial
Table 6 Distribution of past, present and future events in trial 38
by jury talk
Table 7 Month-by-month breakdown of witnesses in the 41
Simpson trial
Table 8 Breakdown of defence witnesses – July to 42
September 1995
Table 9 Prosecution and defence witnesses relating to 44
Simpson’s Chicago trip
Table 10 Individual crime elements and associated forensic 50
evidence
Table 11 Collocate list for incident 81
Table 12 Collocate list for dispute 84
Table 13 Collocate list for domestic dispute 86
Table 14 Collocate list for discussion 87
Table 15 Collocate ‘picture’ of conversation 88
Table 16 Intra-professional, inter-professional and 167
professional–lay interaction in the adversarial
criminal trial
Table 17 Metaphors in the prosecution closing argument 203
Table 18 Metaphors in the defence closing argument 204
Table 19 ‘Prejudice triggers’ in the Simpson trial 223
Figures
Figure 1 The crime, the investigation and trial narratives 22

Figure 2 Maximal structure of witness examination 45
vii
viii List of Tables and Figures
Figure 3 Processes and participants in the criminal trial 94

Figure 4 Proportion of time (measured in days) spent on 127
each respective trial phase
Figure 5 Turn length in number of words per response 158
– lay vs. expert witnesses
Figure 6 Average number of words per response – lay vs. 159
expert witness, direct vs. cross-examination
Figure 7 Distribution of the puzzle and bomb metaphors 209
in the prosecution summation
Figure 8 Distribution of the puzzle and bomb metaphors 210
in the defence summation
Introduction – A Crime
Chronology: The Murders of Nicole
Brown Simpson and Ron Goldman
Late at night on 13 June 1994, a man discovered a blood-stained dog in

an agitated state on Bundy Drive, West Los Angeles, an affluent suburb
of the city. The dog led the man to 875 South Bundy, once the marital
home of ex-American footballer Orenthal James (O.J.) Simpson and
Nicole Brown Simpson, and now occupied by Nicole and their two
young children.
The bodies of two Caucasian adults, one male, one female, lay on
the walkway to the house. The female victim was Simpson’s ex-wife,
35-year-old Nicole Brown Simpson, murdered as she returned home
from dinner; the male, 25-year-old Ronald Lyle Goldman, was a waiter
at the restaurant where Nicole had spent the evening. Both victims
had been multiply stabbed in a brutal attack and left for dead outside
the Westside condominium, while the Simpsons’ two young children
slept upstairs.
Police officers discovered that O.J. Simpson had left town to attend a
Hertz convention in Chicago. On hearing of the murders, Simpson
returned immediately to Los Angeles, where he was questioned by
police officers for almost four hours before being released without
charge. Throughout the interview, Simpson maintained his innocence
and claimed to know nothing about the murders.
The day after Nicole’s funeral, 17 June 1994, police investigators
enforced a warrant for Simpson’s arrest on suspicion of having carried
out the double homicide. Simpson failed to surrender voluntarily and
became involved in a 60-mile slow-speed chase across southern
California, pursued by dozens of police cars, helicopters and news
crews. The vehicle, a white Bronco, was driven by a friend, with
Simpson reported to be suicidal and holding a gun to his head
throughout the pursuit. The chase ended peacefully when Simpson
1
2 Language and Power in Court
returned to his Rockingham mansion, where he finally surrendered

and was arrested.
On the evening of 17 June 1994, O.J. Simpson was formally charged
with two counts of first degree murder, a capital offence under
California law. On 8 July 1994, following a six-day preliminary
hearing, Judge Kennedy-Powell ruled that there was ‘ample evidence’
to bind Simpson over for trial. He made his first appearance before
Judge Lance Ito’s court on 22 July in an arraignment hearing; in
response to the two counts of murder, Simpson pleaded ‘absolutely,
100 per cent not guilty’.
O.J. Simpson was indicted on two counts of murder and the scene
was set for a real-life courtroom drama which came to be known as
‘The Trial of the Century’.
The People vs. Orenthal James Simpson
The ensuing criminal trial lasted nine months, involved 126 wit-
nesses and cost Los Angeles County an estimated $9 million. The
official court transcripts from the trial, amounting to 50,000 pages,
or 6.2 million words, of trial talk, form the basis of this analysis of
trial language.
In addition to the trial transcripts themselves, however, the Simpson
case generated a large range of related texts, most of which are not
normally available to the analyst. These include police interviews with
the suspect, transcripts of grand jury and preliminary hearings, and
pre-trial jury selection questionnaires. The trial itself was broadcast live
on US cable station CourtTV, allowing unprecedented audio-visual
access to the courtroom proceedings; more than 50 hours of this cover-
age were broadcast in the UK and were recorded for analysis. These
video-recorded data proved invaluable, since they permitted a more
three-dimensional analysis of the trial, providing non-verbal and
intonational insights. In addition, the recordings served as a means of
verifying the integrity and accuracy of the trial transcripts. Finally,
post-verdict, a number of jurors wrote and published trial memoirs,
and several members of the jury gave extended interviews to TV and
print journalists.
Together, this multi-modal and multi-perspectival set of resources
constitutes one of the most complete, publicly available records of
criminal trial proceedings to date. For the analyst of language and the
law, it represents a rich source of data, enabling a rare and privileged
glimpse into the extended legal process from crime scene to criminal
Introduction – A Crime Chronology 3
courtroom and beyond, into the usually secret world of the jury room.
Linguistic insights from each of these pre- and post-trial sources will be
incorporated, wherever appropriate, into the discussion of the trial
data, in order to provide a comprehensive and contextualised account
of the language of the courtroom.
Theoretical orientations and approaches
The approach to data analysis adopted in this book is deliberately

eclectic. In allowing the data to speak for itself, I have employed a
range of theoretical and methodological models and principles. In each
case, the choice of approach has been motivated by a data-driven
assessment of what type of analysis would best elucidate the particular
aspect of courtroom language under scrutiny.
Hence, for example, the analysis of the interactional dynamics of the
courtroom draws on work in interactional sociolinguistics (Hymes
1972) and participant roles and frameworks (Goffman 1981). The
chapter on opening statements applies methods from corpus linguistics
and focuses specifically on the notion of semantic prosody (Sinclair
1991; Louw 1993) in its discussion of monologic persuasion and coer-
cion, in an effort to gain an understanding of the potential rhetorical
force of a range of strategic lexical choices employed by prosecution
and defence. Similarly, research into the conflicting metaphorical con-
structs used during the closing argument phase of trial, presented in
chapter 7, builds on and is informed by insights from researchers such
as Lakoff and Johnson (1980) and, more recently, Goatly (1997), into
the use of metaphor as a rhetorical device.
Researching courtroom language
From a survey of the literature on courtroom language, it is possible to

identify four major areas where analytic attention has been focused: inter-
actional dynamics in the courtroom; the formal and functional properties
of questions and answers; styles of testimony and their influence on
juries, and finally, power and ideology in trial language. It should be
noted that the division of research into these four broad categories is
intended to give an indication only of the central emphasis of a given
study, since many of these studies include commentary on other themes.
I will now outline each of these areas in turn, and will discuss the
contribution made by the present analysis to our understanding of
each aspect, respectively.
Conversational analysis, ethnography and interactional dynamics

A number of academics, often with backgrounds in sociology, have
studied courtroom talk from the perspective of conversation analy-
sis. Atkinson and Drew (1979) carried out an early study into the
language of the UK courtroom, with a sociological and ethno-
methodological orientation; their primary aim was to examine the
sequential organisation of courtroom participants’ turns at talk.
Employing a conversational analytic methodology, they were able to
illustrate the essential asymmetry of spoken legal discourse, by refer-
ence to the turn-taking mechanisms of interaction in coroners’
courts and tribunal hearings.
Drew’s later work (1985, 1992) consolidated and developed these
initial insights and shifted the focus to the criminal courtroom. In
both these later papers, Drew uses cross-examination data to illustrate
the combative nature of courtroom interaction and analyses the way in
which lawyers exploit the specialised speech-exchange system of the
courtroom to challenge versions of events presented by witnesses. His
1992 paper, based on cross-examinations in rape cases, shows an
increasingly critical linguistic dimension to his work.
Matoesian (1993, 1997, 2001) also uses extracts from rape trials
and similarly adopts a conversational analytic approach to his data;
however, his work demonstrates a keener critical orientation than is
present in much of Drew’s analysis. In his 1993 study, Matoesian
focuses on the interactional characteristics of the rape trial and
argues that cross-examination questioning techniques (particularly)
serve as an exemplification of patriarchal domination in the court-
room. Matoesian’s later work (1997, 2001) uses data from the
Kennedy Smith rape trial and analyses how the repetition of
questions and question patterns progressively and systematically
serves to reorient the victim’s account of the crime in an attempt to
persuade the jury.
My own work on courtroom interaction builds on this more
recent research base and studies the dynamic complexities of the
lawyer–witness–jury triad. In so doing, I attempt to extend the focus of
analytic attention away from the locally dyadic lawyer–witness pair,
which has preoccupied much of the conversational analysis (CA) litera-
ture in this area, to consider some of the ways in which lawyer talk can
be seen as talk designed with the third-party juror addressee in mind. I
locate in the Simpson trial data some of the linguistic traces present in
lawyers’ questions, which illustrate this awareness of audience design
and conscious attempts at accommodation.
Lawyer–witness talk
Just as the majority of investigations into courtroom discourse have
focused on one particular pairing in the trial process – the lawyer–witness
dyad – they have also tended to concentrate on one particular utterance
type – the question-and-answer adjacency pair.
The literature is dominated by studies which look at lawyer ques-
tions from a formal perspective, often with a quantitative dimension,
comparing, for example, the use of open and closed questions in direct
and cross-examination; such work includes early studies by Danet and
Bogoch (1980) and Dunstan (1980), which both found significantly
more Yes/No (Y/N) interrogatives in cross-examination in comparison
with direct examination.
During the mid-1980s a series of papers appeared, which examined
both the formal and the functional properties of questions; researchers
such as Harris (1984), Woodbury (1984), Philips (1987), Walker (1987)
and, more recently, Maley and Fahey (1991) and Luchjenbroers (1997)
have all analysed the relative strategic value of Wh- vs. Y/N vs. disjunc-
tive lawyer questions in creating and maintaining the asymmetry of
the lawyer–witness pairing.
Chapter 5 extends this focus on lawyer questions to include not only
a discussion of lawyers’ manipulation of pre-emptive question forms
which attempt to set the boundaries for witness responses, but also
retrospective modifications of witness responses in the form of evalua-
tive ‘follow-up’ moves in the exchange (Sinclair and Coulthard 1975;
Coulthard and Brazil 1992).
Much of the existing work on lawyer–witness questioning has also
demonstrated a tendency towards treating witnesses as a homogeneous
group, with a preponderance of research into the testimony of charac-
ter and eyewitnesses. Thus, with the notable exceptions of Jackson
(1995) and Goodwin and Goodwin (1997), there has been relatively
little differentiation of the umbrella term ‘witness’, with scant atten-
tion paid to the significant differences in status and position of expert
and lay witnesses, and the different testimony styles of scientific expert
witnesses and pseudo/quasi-expert witnesses, such as police officers.
Moreover, where expert witnesses have been analysed (Storey-White
1997; Tiersma 1999), the focus has tended to be on the jargonistic
nature of expert testimony and the comprehensibility problems this
creates for the jury.
Chapter 6 attempts to redress this imbalance, by focusing not only
on the top-down transmission of expert jargon to the lay juror, but
also on the complex power and status relationship between the expert
witness and the lawyer. This work contributes to a currently small but
increasing body of work by researchers such as Maley (2000), Stygall
(2001) and Matoesian (2001) in this area.
Testimony styles and the narrativisation of courtroom accounts

In addition to a focus, both formal and functional, on questions, a
number of researchers have extended this work with a comparative
analysis of different styles of testimony, shifting the emphasis away
from the lawyer towards the witness and, ultimately, the jury.
O’Barr’s (1982) much-cited study (critiqued in Kerr-Thompson
2002) contrasted ‘narrative’ and ‘fragmented’ styles of testimony,
respectively, and analysed the effect of the two styles on juror percep-
tions of witness credibility. The study concluded that witnesses who
employed (or more accurately were permitted to employ) a narrative
style in their testimony were judged by jurors to be both more con-
vincing and more trustworthy than those whose evidence was pre-
sented in the form of brief question-and-answer sequences. Stygall’s
(1994) work also has a narrative focus and explores the way in which
lawyers consistently deny the plaintiff’s attempts to use narrative
sequences, systematically dismantling the testimony into non-
sequitur and non-sequential segments through the use of constraining
questioning strategies. Shuy (1986) provides a more content-oriented
account of topic initiation, change and recycling in the courtroom
and its role in the construction of ‘believable’ testimony.
The concept of narrative plausibility is central to Bennett and
Feldman’s (1981) study of narrative structure and coherence in witness
accounts, a theme echoed in Jackson’s (1995) research into narrative
typification, a cognitive process whereby the plausibility of a particular
narrative is assessed according to its matching potential with jurors’
internalised schemata. Much of the research in this area has been
conducted by cognitive psychologists and, though of great value to the
analyst of language and law, lacks a truly linguistic orientation.
The research presented here builds on Jackson’s notion of narrative
typification, but adopts a more lexically oriented approach to the
analysis of persuasive storytelling. Within the contextual framework of
the trial as the telling of multiple versions of reality, I will discuss the
ways in which courtroom stories have much in common with their
literary counterparts.
I also argue that the monologic opening and closing arguments play
a crucial role in framing the conflicting narratives constructed by the
prosecution and defence. Thus, with reference to the opening and
closing arguments of the Simpson trial, I consider the persuasive force

of a variety of lexicalisations and metaphorical representations of both
the crime and the trial process itself. Chapters 3 and 5, respectively,
address the way in which these powerfully evocative lexical choices
serve to frame the witnesses’ testimony, both prospectively and retro-
spectively, and how lawyers use such strategic linguistic choices in an
attempt to orient the jury towards their respective version of reality.
Power and ideology in courtroom language

In a sense, much, perhaps even the majority, of research into courtroom
discourse has some degree of critical orientation, although this may be
underplayed or be accessible only implicitly by reference to the assump-
tions and presuppositions of the analytical approach adopted.
In researching language within one of the most institutionalised of
settings – the criminal justice system – it is perhaps inevitable that a
great deal of the work detailed above has resulted in findings which
both identify and exemplify the role of language in the creation and
maintenance of institutionalised power and asymmetry.
In some cases, this was one of the original, overtly stated aims of the
study, in others, a side-effect of more descriptively motivated work.
However, researchers working on courtroom discourse are increasingly
incorporating an explicitly critical dimension into their work. This
trend is, of course, paralleled in other areas of discourse analysis in
institutional settings, such as the media, medicine, education and
politics. (See Fairclough 1989; Caldas-Coulthard and Coulthard 1996;
Sarangi and Coulthard 2000; Toolan 2002 for overviews of critical
discourse analytic work in these areas.)
As far as the legal domain is concerned, the most comprehensive and
contemporary summary of work to date with this critical orientation
may be found in Conley and O’Barr (1998). In the domain of the law,
much of the critical attention has been directed towards the power and
ideology of the Law (with a capital ‘L’), as expressed in the linguistic
strategies of the judge, both in trials by jury and in a legislative role, in
judicial opinions and statutory interpretations.
In the trial context, Wodak (1985) has looked at judge–defendant
discourse, arguing that the socio-economic variables of gender and
class appear to influence the outcomes of the defendant’s interactions
with the judge. Language as revealing of the ideologies inherent in
judicial discourse is also central to Harris’s (1989, 1994) research into
UK magistrate’s courts. She finds that judges are able to express their
ideological stance through a complex range of lexico-grammatical
mechanisms, including mood and modality choices (after Halliday

1985), non-reciprocal access to interactional strategies, and the strate-
gic and selective use of ideologically loaded lexical choices.
In the context of US judicial rulings, Solan (1993) has examined
apparent inconsistencies in Supreme Court appellate decisions, and
suggests that judges, whilst going to great lengths to appear ‘neutral’ in
their judgements, are in fact often guilty of concealing hidden agendas
and ideological positions which inform and, ultimately, bias their
decision-making processes.
A final group of researchers has also tackled the issue of ideology in
the language of judges, but from a social anthropological perspective,
most notably Conley and O’Barr (1990, 1998), and Philips (1998).
Philips’ discussion, like that of Solan (1993), centres on the extent to
which ideological positions may or may not be made explicit, but her
focus is on guilty pleas from criminal defendants rather than appellate
opinions. In this role too, Philips’ data appear to show judges as highly
politicised and ideological figures, whose orientation is belied by their
strategic use of language.
The earlier of Conley and O’Barr’s two studies explores the small
claims court setting and draws the distinction between rule- and rela-
tion-oriented litigant strategies. They identify no fewer than five differ-
ent judicial approaches to decision-making and conclude that the lack
of uniformity in judges’ rulings means that litigants may find their day
in court a frustrating and ultimately unsatisfying experience. Conley
and O’Barr’s recent contribution (1998) sets out to show how close lin-
guistic analysis of legal language can help to illuminate broader social
inequities; to this end, the book includes thought-provoking discus-
sions on, amongst other issues, patriarchy in the law (illustrated by
Matoesian’s 1993 and 2001 rape trial data), as well as cross-cultural per-
spectives on language and law in non-western societies.
In seeking to identify and exemplify the linguistic mechanisms of
control used by lawyers and judges in their interactions with witnesses
and jurors, this analysis too has a critical orientation. In the final
chapter, I draw data and insights from post-trial discussions and writ-
ings by the Simpson jurors, which provide an ‘insider’ indication of
the impact of some of these linguistic strategies on the jury’s decision-
making process.
Having summarised some of the major studies into courtroom lan-
guage, I will now embark on the presentation of my own contribution
to this body of research.
1
Trial by Jury: Legal Frameworks
and Linguistic Consequences
Power and persuasion: the role of language in adversarial

trial talk
The US criminal justice system is founded on the fundamental princi-

ple of trial by jury; indeed, the right to elect for trial before a jury of
one’s peers is enshrined in the Sixth Amendment to the US
Constitution. It has been calculated that every year in the United
States, approximately three million jurors serve in some 300,000 cases,
and that 85 per cent of the world’s jury trials take place in the United
States (Abraham 1998).
As the name suggests, the Anglo-American adversarial trial process is
based on the adjudication of conflicting and competing versions of
events presented by prosecution and defence. Crucially, the adversarial
system is not primarily concerned with establishing the true facts of the
case; rather, it involves attempts to persuade the jury that one
constructed version of reality is more plausible than another. Whereas
the inquisitorial system, used throughout much of the world, views the
evidence elicited from witnesses with an investigative and exploratory
eye, the adversarial approach prioritises argumentation and persuasion,
with its primary objective a dialectic and dialogic appraisal of the
evidence.
One of the inevitable consequences of this basic difference in orienta-
tion is that the adversarial system accords the ‘performance’ aspect of
the trial a far greater significance than it has in inquisitorial proceedings.
Since the orientation of the adversarial trial is inherently a persuasive,
even a coercive one, the style in which the evidence is presented in court
comes to be of vital importance, to the extent that some critics of the
adversarial system accuse trial lawyers of prioritising style of delivery
9
over substance of fact in their attempts to convince the jury. This was
certainly a criticism levelled at the Simpson trial, where the presence of
the television cameras was widely considered to have added a layer of
theatricality on top of the legal proceedings.
This does not invalidate the Simpson trial as a piece of authentic,
contemporary US criminal trial data; rather, it suggests the need for
a cautious approach to extrapolation and generalisation in discus-
sions of phenomena which, on occasion, are perhaps ‘writ large’ in
the Simpson data. For all its theatricality and histrionics, those
aspects of trial interaction identified and discussed here seem in
many respects to be characteristic of US criminal trials more gener-
ally, and have been present to a lesser or greater extent in all the US
data I have subsequently analysed for these features.
The ‘facts’ in an adversarial trial are not therefore simply allowed to
speak for themselves; rather, witnesses are called to appear on the
stand and are required to present their evidence in person, if need be
under subpoena. The overwhelming primacy of the oral over the
written in court also means that the verbal dexterity of the speaker
becomes a significant factor in the presentation of credible testimony.
For the trial lawyer, the challenge consists not only of eliciting the
appropriate evidence from the witness in a lucid and persuasive form,
but also of crafting these often temporally and logically disjointed ver-
sions of events into a coherent account. Thus, in a different but still
very real sense, the lawyer is as much ‘on trial’ as the client he1 repre-
sents. There is a belief, widespread among both lawyers and lay people,
that the outcome of a trial is determined as much by the rhetorical skill
of the trial lawyer as by the strength of the evidence.
Central to the adversarial process are the twin and interdependent
concepts of the burden of proof and reasonable doubt. Since the defen-
dant is basically assumed to be ‘innocent until proven guilty’, the onus
rests firmly on the prosecution to construct a case, through the elicita-
tion of evidence, which will adequately fulfil the burden of proof. The
essential question in adversarial procedure is thus ‘can the accused be
proven guilty, given the evidence available?’, resulting in the brief dis-
junctive choice of verdict: ‘guilty’ or ‘not guilty’. In Scottish Law, as
distinct from the Anglo-American system, the jury has a third choice of
verdict, ‘not proven’, reflecting the prosecution’s burden of proof.
Significantly, there is no requirement for the defence to put
forward an alternative explanation of the crime, nor is it necessary
for them to propose an alternative perpetrator; it is sufficient for the
defence to suggest that the prosecution’s formulation of events is
Trial by Jury 11
flawed, incomplete or implausible – in other words, to create reason-

able doubt in the minds of the jury.
The jury’s role in assessing the extent to which the burden of proof
has been satisfactorily fulfilled is crucial. A jury of twelve empanelled
lay people is given the onerous responsibility of determining the per-
suasiveness of the prosecution’s account, or the relative plausibility of
the two versions if the defence does decide to present an alternative
construction. They are instructed by the trial judge that they may
convict only if they are satisfied that the prosecution case has been
proven ‘beyond a reasonable doubt’; conversely, the jury is instructed
to acquit if they feel that this challenge has not been adequately met.
The trial by jury process, where this group of ‘neutral’ outsiders is
given the job of adjudicating between these conflicting versions of
reality, is predicated on and motivated by the very existence of these
competing narratives.
Given the magnitude and significance of the task, the selection of
constituent members of the jury panel is a serious business. I will now
analyse this selection process, drawing on data from this phase of the
Simpson trial in a discourse analysis of the questionnaire administered
to prospective jurors in the Simpson jury pool.
First, choose your audience: the jury selection process
The racial and, to a lesser extent, the gender composition of the jury is
widely considered to have been a critical factor securing the acquittal
of O.J. Simpson. With the jurors as the final arbiters in the case, the
jury selection process was of great significance to both sides. A brief
discussion of this process and its outcome is therefore in order.
Jury selection: an art or a science?

A great deal of attention in both law and social psychology has been
devoted to the issue of jury selection, to the extent that an entire disci-
pline and, indeed, an industry, has grown up around the decision-making
process. The basic principle behind the controversial ‘science’ of jury
selection is that, by establishing a range of criteria, relating to issues such
as socio-economic status, gender, ethnicity and other socio-cultural
factors, it is possible to predict the reasoning and behaviour of prospec-
tive jurors during the deliberation phase. Using a variety of statistical
measures, specifically correlational techniques, it is claimed that prob-
abilistic predictions can be made as to the likelihood of individual jurors
convicting or acquitting a particular defendant on a particular charge. In
a case with both race and gender issues at its core, the Simpson trial was
a prime candidate for extensive jury selection activity.
Juries are selected by means of the dual mechanisms of peremptory
challenge (where up to 20 per cent of the panel may be rejected without
cause) and challenges for cause (in cases where, through questionnaires
or subsequent voir dire questioning, a juror can be shown to be biased
in some respect). From an interactional and psychological perspective,
the primary aim of jury selection is to construct, as far as possible, a
panel of jurors who are attentive, receptive to argumentation and, for
both sides, sympathetic to the issues in the case.
However, the notion of jury selection as a scientific pursuit is prob-
lematic on several levels, not least on ethical grounds, but also because
it is based on the assumption that it is possible to model human
behaviour in a systematic and predictive sense. Hans and Vidmar
(1986), among others, are critical of the methods employed in attempt-
ing to detect bias in jurors, arguing that not only are the procedures
themselves flawed, but also the psychological assumptions underpin-
ning them are based on outdated and over-generalised models of
human behaviour. The constraints of space mean that a detailed exam-
ination of these fascinating issues is not possible; however, the reader
is directed to work by Kerr and Bray (1982), Hastie, Penrod and
Pennington (1983) and Lloyd-Bostock (1988).
Despite the controversy surrounding such methods, it is now com-
monplace, even expected, for lawyers to employ freelance consultants in
jury selection to assist in this process, particularly in determining the
significant issues in each case and the profile of the ‘ideal’ jury. The
Simpson defence team were no exception; they retained a nationally
renowned consultant who had previously advised on jury selection in
cases with other high-profile defendants, such as the William Kennedy
Smith rape trial. Interestingly, the equivalent prosecution consultant
was fired early on in the jury selection process, following a disagree-
ment over African-American women’s attitudes to spouse abuse; lead
prosecutor Clark claimed that they would be more likely to convict
Simpson, whereas the jury consultant’s view was that they would tend
towards an acquittal.
The jury selection process as audience design in action

It is possible to consider the jury selection process as a socially significant
form of audience design. Bell’s (1984) model, originally derived from a
study of radio station talk, views decisions of speaker style as essentially
responsive to the needs of the addressee. In casual conversational
Trial by Jury 13
contexts, such attempts to accommodate to other speakers are primarily

motivated by considerations of face (Goffman 1959), cooperation (Grice
1975) and politeness strategies (Brown and Levinson 1987); in the court-
room, however, these strategies have a more coercive motivation.
It is clearly a highly attractive proposition for lawyers to be able to
influence the configuration of a jury panel – to design the audience – in
such a way that they may be predisposed to respond favourably to
their particular arguments. The next section will focus on attempts by
both sides in the Simpson case to empanel just such a jury.
The jury selection process consists of two main stages. First, an initial
questionnaire is given to a group of randomly selected prospective
jurors, which aims to gauge their biases and prejudices. This is followed
by interviews (known as voir dire) conducted by prosecution and
defence attorneys, which allow the lawyers to pursue these issues
further and, where necessary, to challenge the impartiality of individ-
ual jurors on the basis of bias towards the defendant, personal involve-
ment with the case or prejudicial opinions about the issues concerned
(the ‘challenges with cause’, described above).
Unfortunately, the voir dire process was the only stage of the trial not
televised or transcribed in the Simpson case; therefore, no primary
source data are available on the Simpson voir dire, other than that
provided by the post-trial memoirs of the attorneys involved, which
will be referred to in due course. The focus of this analysis will there-
fore be based on the questionnaire distributed to prospective jurors in
the 1,000-strong juror pool.
From an analytic perspective, the questionnaire is of great interest in
two respects. First, it provides a fascinating insight into prospective
jurors’ attitudes towards three issues of crucial importance in the trial –
racism, domestic violence and Simpson’s celebrity status – which are
threads that will recur throughout this book. In addition to juror
perspectives, however, the content of the questionnaire also provides a
clear reflection of the priorities and preoccupations of both the prose-
cution and the defence attorneys prior to trial.
The Simpson juror questionnaire

The jury selection questionnaire in the Simpson case was a wide-
ranging survey of attitudes and opinions. It included 294 questions, was
over 80 pages long and covered a broad range of topics, including atti-
tudes towards race, religion and the media, as well as prospective jurors’
feelings about the defendant. This final aspect was of unusual
significance in the Simpson case, due to the defendant’s celebrity status.
One question encapsulates the nature and magnitude of the task facing
the prosecution in their attempts to select even a reasonably ‘neutral’
jury, let alone one which may have been sympathetic to their case:
• Will you hold the prosecution to a higher standard than is legally

required because the defendant is:
African-American? Yes? No?
Wealthy? Yes? No?
Famous? Yes? No?
The combination of Simpson’s ethnic origin, fame and wealth consti-

tuted a cumulative burden, which would come to haunt the prosecution
throughout the trial.
Attitudes to O.J.
Simpson’s celebrity status, both as a sporting icon in the 1970s and
1980s and subsequently as an actor, presented a number of problems
of characterisation for prosecution attorneys. In a typical trial, a picture
of the hitherto anonymous defendant is constructed from scratch for
the jury, largely on the basis of character witness testimony. In the
Simpson case, however, the prosecution were faced with the unenvi-
able task of first deconstructing the prevailing, and overwhelmingly
positive, image of Simpson before they could reconstruct him as a credi-
ble double murderer.
In an attempt to detect any prejudicial bias against or, more likely, in
favour of Simpson, a number of (prosecution-inspired) questions alluded
to the issue of Simpson’s celebrity, including the following:
• Have you ever seen O.J. Simpson as he appeared in movies such as

Roots or Naked Gun 221?
Yes? No?
If yes, describe your feelings towards O.J. Simpson based upon your
observations of him as an actor.
and:
• Did you see O.J. Simpson play football in college or as a professional

football player?
Yes? No?
If yes, describe the circumstances and your feelings towards O.J.
Simpson as a football player.
Trial by Jury 15
One question in particular explicitly foregrounded the kind of ‘logic’

which the prosecution felt could be damaging to their prospects of
securing a conviction and implies at least the potential, intriguing sug-
gestion that Simpson’s image as a successful ex-athlete may have seemed
irreconcilably incompatible with the image of a double murderer:
• Does the fact that O.J. Simpson excelled at football make it unlikely
in your mind that he could commit murder?
There is, perhaps, a subtle presupposition contained in this suggestive,

if not ‘leading’, question, which, complete with its negative polarity,
suggests that someone of Simpson’s status and celebrity would be
unlikely to have committed such a crime. Constructing (or reconstruct-
ing) the character of Simpson as a brutal murderer, as chapter 2 will
show, was a complex and problematic task for the prosecution, particu-
larly given that Simpson chose not to take the stand, leaving his pre-
trial status and image relatively intact. Many of the jurors were in awe
of him and his persona as they entered the courtroom for the first
time, recalling that, ‘I remember feeling almost shy about looking at
him directly … People talk of O.J.’s charisma. It hits like a hammer,
believe me’ (Knox 1995: 117).
A second juror shows the failure of the exhaustive questionnaire to
weed out all of Simpson’s admirers from the final dozen selected.
Kennedy (1995: 112) describes his first sight of Simpson:
There he was, across the room: O.J. … It’s said that O.J. Simpson has
charm. He does. That he has charisma. He certainly does. He has a
self-confidence that radiated about the room … This was the man
who had supposedly butchered two people? Could that be possible?
He was so affable, so poised, so likeable.
In addition to the issue of celebrity, prospective jurors were also

asked to comment on their attitudes to the two cornerstones of the
cases for and against Simpson: domestic violence, which was founda-
tional to the prosecution argument; and the relationship between the
Los Angeles Police Department (LAPD) and African-Americans, which
formed the basis of the defence case.
Domestic violence
A central feature of the prosecution case was the claim that Simpson
had submitted his wife to a sustained campaign of domestic violence
during their turbulent marriage. A number of the prosecution-oriented

questions attempted to link Simpson’s testosterone-charged career as
an American footballer with a tendency for violent conduct, particu-
larly towards women. The following trio of questions provides an early
indication of the prosecution’s thought processes:
• Do you believe people with professional lives that involve physical

confrontation or the use of violence are more susceptible to impos-
ing violent solutions in their personal lives? Please explain your
answer.
• Male professional athletes who participate in contact sports are
more aggressive in their personal lives than other people.
Strongly agree? Agree? No opinion? Disagree? Strongly disagree?
• Male professional athletes who participate in contact sports are
more aggressive towards women.
Strongly agree? Agree? No opinion? Disagree? Strongly disagree?
Once again, the polarity of these questions, which appeared without a

cross-referencing alternative, proposing, for example that:
• Male professional athletes who participate in contact sports are LESS

aggressive towards women.
meant that the prospective jurors were given a taster of the prosecution
contentions with respect to Simpson’s attitudes towards women.
Race relations
The third major theme that dominated the juror questionnaire was
that of race, specifically relations between the LAPD and African-
Americans. The foundation for this set of questions was the defence
claim that Simpson was the victim of racially prejudiced police officers
who had planted incriminating evidence at the crime scene.
From the defence perspective, one primary concern centred on
empanelling a jury which did not demonstrate racist attitudes towards
African-Americans. To this end, the questionnaire included a number
of questions, designed specifically to bring out tendencies towards
racist beliefs in the pool of jurors, such as the following:
• Is there any racial or ethnic group that you do not feel comfortable
being around?
Yes? No? If yes, please explain.
Trial by Jury 17
However, there are also claims that the defence went even further than
this in their attempts to select an O.J.-friendly jury. Simpson’s defence
attorney, Johnnie Cochran, a veteran civil rights campaigner, is said to
have stated that if he could persuade the judge to empanel ‘even one
black juror’, he was convinced he could secure the acquittal of his
client (Goldberg 1996). Tick-box questions such as:
• How big a problem do you think racial discrimination against

African-Americans is in Southern California?
A very serious problem? A somewhat serious problem?
Not too serious? Not at all serious?
Not a problem?
represented an attempt to gauge jurors’ perceptions of race and racism

in contemporary Californian society. Responses to questions such as
the one detailed above revealed a clear divide along racial lines.
Perhaps predictably, African-American respondents overwhelmingly
felt that racism represented a serious problem, whereas for white
prospective jurors, race and racial discrimination were not considered
to be major issues.
Selecting the Simpson jury – an early victory for the defence

In their attempts to construct an O.J.-friendly jury as an audience for
their version of the crime narrative, the defence seem to have scored
an early victory. The following statistics tell the story of how the origi-
nal jury pool was whittled down to a dozen jurors and eight alternates.
In total, almost 1,000 prospective jurors were screened during the
selection process for The People vs. Orenthal James Simpson. The demo-
graphic profile of this original group demonstrates the following ethnic
and gender split:
Table 1 Statistics for the original juror pool, pre-selection
Ethnic Origin Percentage Composition

White 37.9
African-American 28.1
Hispanic 17.0
Other groups
(incl. Native-Americans, 17.0
Filipinos, Japanese Americans)
Gender balance 50/50
Table 2 Jury statistics, post-selection
Ethnic Origin % Composition % Change from Original Juror

Post-selection Pool
White 12.5 – 25.4
African-American 66.7 + 38.6
Hispanic 16.7 – 0.3
Native American 4.1 – 12.9
Gender balance 66.7% female + 16.7
33.3% male – 16.7
Once the second stage of the jury selection process – the voir dire inter-
views between prospective jurors and attorneys – was completed, the
initial demographic profile had been transformed beyond all recogni-
tion. Eight out of twelve jurors who served at the beginning of the
Simpson trial were of African-American origin, with two-thirds of the
jurors women. The comparative statistics are summarised in Table 2.
It should be noted that this was not the final configuration of the
jury who voted in the Simpson trial. Taking into account those
jurors who left voluntarily or were dismissed during the trial, an
amazing 50 per cent of the original jury panel, the final statistics
reflect an even greater shift in the defence’s favour. By the time of
the deliberation phase, the jury was predominantly made up of
African-Americans (75 per cent) – from a racial point of view, a
dream jury for the Dream Team.2
Lead prosecutor Clark’s frustration with the racial configuration of
the final jury panel was undisguised; as she reflected despairingly in
her post-trial memoirs: ‘Why, on this of all cases, did we wind up with
the f***ing jury pool from Hell?’ (Clark 1997: 192).
With the defendant indicted and the jury empanelled, two of the
key participants in the trial were in place. The focus of attention could
now shift to the trial itself.
2
Macro-, Micro- and Multiple
Narratives: Storytelling in Court
The trial as storytelling
Linguists, lawyers and applied psychologists have all conceptualised

the jury trial as a process of storytelling (see, inter alia, Maley 1994;
Jackson 1995; Brooks and Gewirtz 1996; Hastie and Pennington 1996;
Bruner 2002). Simpson’s own lead attorney stressed the centrality of
‘the story’ to the criminal trial, claiming that, ‘whatever the commen-
tators say, a trial is not really a struggle between opposing lawyers but
between opposing stories’ (Cochran 1996: 236). Viewed in this light, a
trial may be seen to consist of two (or potentially more) competing
narratives, elicited from witnesses, structured by the prosecution and
defence, and submitted to the critical evaluation of the jury (Brooks
1996: 16).
This chapter will examine the metaphor of the trial as storytelling,
exploring some of the discursive and linguistic similarities and differ-
ences between ‘real world’ stories and their courtroom counterparts. It
will also analyse the effects of the constraints imposed by the law and
the legal process on the trial participants’ freedom to ‘tell their stories’
in court. The chapter concludes with a discussion of the significance of
storytelling to the final judicial phase of the trial, as well as the role
that narrative frameworks can play in orienting juries in their decision-
making task. Each stage will be exemplified by data from the Simpson
trial, including metatalk about the trial process by prosecution and
defence lawyers during opening and closing arguments, and extracts
from Judge Ito’s instructions to the jury.
Before embarking on an analysis of the data, it is useful to consider
first some of the prototypical properties of both stories and narratives,
and to discuss their relevance to the trial setting.
19
Stories and narratives
The Oxford English Dictionary defines the terms ‘story’ and ‘narrative’ in
the following way:
• Story
A narrative of real or (usu.) fictitious events, designed for the enter-
tainment of the hearer or reader.
• Narrative
An account of a series of events, facts, etc., given in order and with
the establishing of connections between them; a narration, a story.
Although the two terms are signalled as being in some respects synony-
mous (and indeed are often used interchangeably by non-linguists),
this pair of definitions is revealing of the fact that a story may in fact be
considered a component of a broader phenomenon, a narrative.
In this formulation, a story consists of the ‘events’ themselves,
whether real or fictitious, and operates predominantly at the ideational
level; a narrative, in contrast, encompasses not only these story ‘facts’,
but also the telling of the story, and includes the more interpersonal
aspects of the storyteller and audience. Toolan (1988: 5) underlines this
point: ‘narratives have to have a teller … narrative is language commu-
nication like any other, requiring a speaker and an addressee’.
A second important difference between the two definitions is the
fact that a narrative consists of a ‘series of events … given in order’
and in a connected sequence, emphasising its textual organisation. In
courtroom stories, it is at this level of narrative sequentiality and
consequentiality that the notion of the subjectivity of the narrative
voice becomes significant. There is potentially a number of different
ways in which the basic story elements can be combined to create a
narrative, depending on the defence or prosecution orientation and
motivation of the storyteller (lawyer). Much of this analysis is con-
cerned with the linguistic means by which the crime story is system-
atically and strategically transformed into two or more persuasive
crime narratives by lawyers and, through enforced participation, by
witnesses.
The process by which the connections between the story elements
are constructed – creating the ‘non-randomness’ of the narrative
sequence – inevitably involves a degree of subjective interpretation and
inference on the part of the storyteller or narrator. In a literary narra-
tive, as the definition above indicates, the subjectivity of the narrator is
Macro-, Micro- and Multiple Narratives 21
usually innocuous, since most fictional stories are designed and told
‘for the entertainment of the hearer or reader’. Stories told in a forensic
context, however, serve a more sombre and strategic purpose than
their fictional counterparts.
The stakes are far higher in court, because the consequences of an
unconvincing courtroom narrative may be dire for one or more of its
characters, particularly in jurisdictions with the death penalty, which
includes California. Interestingly, the prosecutors in the Simpson case
elected not to pursue the death penalty on the grounds that no jury,
however successfully empanelled, would be likely to sentence Simpson
to death by lethal injection. In contrast, a badly constructed or poorly
delivered fictional narrative leaves in its wake only a disappointed
reader or a dissatisfied viewer, with no real consequences for the
characters involved.
The traditional ‘and they all lived happily ever after’ ending
seldom if ever applies in court; in the criminal system, a conviction
typically leads to punishment and retribution; acquittal, conversely,
often leaves a frustrated victim and/or family. In addition, few lay
parties who participate in the trial storytelling process – from victim
to expert witness – emerge from the experience feeling that they
have had the opportunity to tell their story in their own way, due to
the constraints imposed upon them by the adversarial trial process
(see Luchjenbroers 1997; Taslitz 1999). An analysis of some of these
constraints and their linguistic realisations will be the focus of
chapter 5.
In addition to constraints on the manner of elicitation of the story,
the adversarial trial by jury system also imposes a series of controls on
the type and shape of the stories narrated in court.
Interwoven narratives: the crime, the investigation and

the trial
Stories presented in court – which make up the trial narrative – are in

fact an amalgam of two macro-level stories which converge and inter-
sect at the site of the trial. These component stories consist of the story
of the crime (covering what happened on the night of 14 June 1994,
between approximately 22.00 and 22.30) and the subsequent, longer-
running story of the investigation (spanning the period from the report-
ing of the crime up to and including the beginning of trial
proceedings). Jackson (1995: 97) groups these two macro-stories
together as the ‘story in the trial’.
The crime and investigative stories are highly interdependent; the

investigation after all only takes place in order to tell the crime story
more effectively, to fill in the blank spaces and to provide the narrative
detail and consequentiality of the crime events. In addition, some
(though not all) of the characters are shared between the two stories.
Thus, for example, assuming the true felon has been arrested and
charged, the perpetrator of the crime becomes the suspect (in the investi-
gation story) and, ultimately, takes on the role of defendant (in the sub-
sequent trial story). Similarly, the eyewitness to the crime is questioned
by the police as a witness, before taking the stand to give evidence in
the trial. Finally, the scene-of-crime officers, who play a significant
professional role in the investigation, may go on to be key prosecution
witnesses in the trial story. This chain of continuity and commonality
in both character and storyline is responsible for creating the point of
intersection of the two stories, and is represented in Figure 1.
The trial is the point of convergence of these two stories, and intro-
duces a further set of judicial participants – lawyers, judge and jury –
creating an additional narrative layer, which Jackson (1995: 97) terms
the ‘story of the trial’. This multiple layering is one reason for the com-
plexity of trial stories; as Maley (1994: 47) notes, trial narratives are
complex because they are usually a version ‘not only of the events that
have given rise to the legal proceedings in the first place, but as well a
narrative of the previous proceedings: charging, sentencing, arguments
in lower courts’ (see also Komter 2002). The interaction of these two
stories – the crime and the investigation – is therefore responsible for
the creation of a third story – that of the trial.
THE THE
CRIME THE INVESTIGATION
(perpetrator, TRIAL (police, experts,
victim, lawyers,
witnesses) witnesses)
Figure 1 The crime, the investigation and trial narratives

The crime and investigation stories are represented in Figure 1 as

overlapping segments, rather than as superimposed in their entirety,
reflecting the fact that the two stories do have distinct properties, in
terms of both their respective cast of characters and their differing nar-
rative purposes and perspectives. In addition, as this chapter will show,
only a small proportion of the crime story and the story of the investi-
gation is actually presented at trial, with some aspects highlighted and
others underplayed or glossed over completely.
The crime story essentially reports the broad events of the crime –
in the Simpson case, the deaths in suspicious circumstances of two
Caucasian adults (the essential ‘what happened’, or complicating
action in Labovian terms, without which, there is no story); in the
forensic context, this element is obligatory, since if there is no
detectable crime.
The investigation story, on the other hand, consists of establishing
the details of the crime story, the modus operandi of the crime, the
cause and time of death of the victims, and the forensic traces, which
may help to identify the perpetrator. In addition, the investigation
seeks to establish the corroborative circumstances of the crime – the
means, motive and opportunity.
This chapter will explore the different roles that elements from the
two stories play in the construction of the respective trial narratives,
and the different types of witnesses represented from each respective
story domain.
Trial by jury as narrative: some internal structural

considerations
At the level of macro-narrative, the trial by jury is, in many significant

respects, canonically constructed in terms of classic Labovian structure.
It offers an introduction and background information to the case
during opening statements, a presentation of the crime events in
witness examination, and a final evaluative summary in the closing
arguments. The trial then builds to a climax during the deliberation
process, concluding with a resolution in the form of a verdict and a
sentencing or release coda. This series of events is summarised in
Table 3, with Labov’s six narrative components mapped onto their
trial-by-jury counterparts.
The opening statements and closing arguments, which both
chronologically and (as the next chapter will show) ideologically
frame the witness examination phase of the trial, have greater
Table 3 Mapping Labovian narrative structures onto the trial narrative
Narrative Component Narrative Content Trial Equivalent

Abstract Summary of story Opening statements
Orientation Participants, time, place, etc. Opening statements
Complicating Action Story events, what happened Witness

(cross-)examination
Evaluation Point of story Closing arguments
Resolution What finally happened Verdict
Coda Closing the narrative Sentencing/Release
(After Labov 1972)
significance in the trial context than the classic abstract/orientation

does in non-courtroom stories. The purposive and persuasive nature
of the jury trial means that conflicting versions have to compete with
one another for the attention of a hyper-critical audience, the jury,
whose sole remit is to assess the relative quality of the stories pre-
sented to them. In this context, the initial (opening) and terminal
(closing) summaries of the narratives presented during the trial func-
tion not simply as a preview or aide-mémoire, respectively, but also
take on a coercive dimension.
Despite these functional differences, there is nevertheless a number
of parallels between the abstract and orientation stages of narrative
structure and the opening statements of the trial. The classic role of the
abstract is to summarise briefly the story about to be told; in very
much this spirit, five minutes into the prosecution opening, Darden
told the jury:
1 Now, we’re here today obviously to resolve an issue, to settle a ques-

2 tion … everybody wants to know, did O.J. Simpson really kill Nicole
3 Brown and Ronald Goldman. Well, finally, ladies and gentlemen, I
4 am here in front of you this morning to answer that question … The
5 answer to the question is yes. The evidence will show that the
6 answer to the question is yes, O.J. Simpson murdered Nicole Brown
7 and Ronald Goldman. We will expose in this trial the face of a

8 batterer, a wife beater, an abuser, a controller. You’ll see the face of
9 Ron, of Ron’s and Nicole’s murderer.
(Prosecution opening statement, 24 January 1995)
This brief extract from the two-day-long prosecution opening state-

ment demonstrates all three of the dimensions highlighted by Toolan
(1988: 154) as characteristic of the abstract: a global story summary, an
assertion of telling rights – ‘I am here before you this morning to
answer that question’ (in lines 3 and 4), and finally (in lines 6 and 7),
an advertisement for the forthcoming story, albeit a gruesome tale of
domestic violence and murder. In this promotional respect, the lawyer-
storyteller has a distinct advantage over the literary narrator, since the
trial lawyer at least has a captive, if critical, audience.
Perhaps the most significant difference between courtroom narra-
tives and literary narratives, in terms of their macro-level structure, is
the fact that stories told in court do not possess the same degree of lin-
earity as those described by Labov (although non-forensic narratives
do, of course, often demonstrate the properties of circularity and recy-
cling in their internal structuring). There is a number of important fea-
tures of courtroom storytelling which mean that the linear sequence is
disturbed by the demands of the adversarial legal process. This leads to
the creation of two simultaneous and conflicting narrative strands: the
prosecution and the defence.
The trial is, therefore, the telling not of a single story, but of a
number of alternative versions from a variety of (conflicting) perspec-
tives. The name often given to the jury in adversarial trial procedure,
that of the ‘factfinder’, is actually something of a misnomer, since the
jury are not asked to find the truth, but rather to adjudicate between
more and less plausible narrative accounts. In a trial, these constructed
narratives are both multiple and multi-perspectival, involving the pre-
sentation of many of the same crime ‘facts’ in the form of alternative
and competing narrative versions.
The concept of multiple perspective was superbly captured in the
Japanese collection of short stories Rashomon and Other Stories.1 ‘In a
Grove’ tells a seemingly straightforward tale of rape and murder.
However, there is no definitive and authoritative narrative voice; rather,
the story is told in the form of testimony given by seven people, includ-
ing the woodcutter who found the body, the mother of the female char-
acter and even the dead man himself, his story told with the help of a
medium, a novel way of bringing the victim’s voice into the narrative.
What emerges is that each version varies significantly from the previ-
ous one, indeed the only verifiable ‘fact’ is that there is the body of a
man, though even whether there are ‘suspicious circumstances’ indi-
cating that a crime has actually been committed is less than clear.
Apart from this, the other details, including the identity of the perpe-
trator as well as the specifics of means, motive and opportunity, are
open to speculation, and the reader is never presented with a definitive
version of what actually took place in the grove on that day. This
intriguing tale of narrative multiplicity illustrates the claim of Bennett
and Feldman (1981: 93) that, ‘in almost any trial, there is the uneasy
possibility that [no] case captures the subtle reality of the incident’.
The burden of proof means that the onus is on the prosecution to
create a persuasive narrative that will secure a conviction. The prosecu-
tion must try to account for as many of the contradictions and inco-
herencies in the story as possible, as well as filling in gaps in the story
with hypothetical narratives (Brooks 1996: 17).
The following example from the prosecution closing argument
(which will be revisited in chapter 7 in the guise of a discussion of the
closing arguments) illustrates such a gap-filling strategy. In this extract
from prosecutor Clark, the lack of eyewitness or other testimony relat-
ing to victim Ron Goldman’s movements on the night of the murders
is filled with hypothetical scenarios based on inferential reasoning:
Ron Goldman left Mezzaluna at approximately 9:50. That is approx-

imate time. It could have been a few minutes later. So we know that
sometime before 10:00 he left. We know he changed his clothes,
okay? But the direct thing we know is that sometime before 10:00
he left. We know he changed clothes because he was wearing some-
thing different when he was found. We know how long it takes for
him to get home, because we have a witness telling us that, but
what we don’t know exactly is what time he left his house.
(Prosecution closing argument, 26 September 1995)
Clark continues to build the hypothetical account, for which there is

little or no corroborative evidence:
We have to make an inference from the evidence that we know

about as to when he got to Bundy. Based on what we know, when
he left the Mezzaluna, changing clothes, freshening up, and I think
Stewart Tanner testified that he was – they had plans to meet at the
Baja Cantina, he was going to get cleaned up to go somewhere. I
think it is reasonable to infer that he took ten minutes or so to do

that change clothes, freshen up and then go over to Bundy.
In this way, the prosecution aim is to convince the jury that missing
witnesses do not represent a problem in the overall construction of the
crime narrative, since it is possible to fill in the gaps with common-
sense inferences.
According to the legal imperative of the burden of proof, the prose-
cution must satisfy the jury on several accounts. They must first estab-
lish beyond a reasonable doubt that an act actually occurred, in other
words, that there is a story to tell, and that the act is classifiable as a
crime, thereby legitimising the telling of the story in the judicial arena.
In addition, the prosecution need to present the defendant as the
perpetrator.
In contrast, the defence need only need show that the prosecution’s
version is flawed in some significant respect. The defence, in their cre-
ation of reasonable doubt, have a number of strategies open to them.
They may challenge threads of the prosecution story during cross-exam-
ination, highlighting inconsistencies or improbabilities in their
account; the defence may also attempt to redefine one or more of the
crime elements by suggesting alternatives, such as a different perpetra-
tor; or, most ambitiously, they may construct an entirely different story,
formulating a new narrative framework within which to interpret the
evidence (Bennett and Feldman 1981).
If the defence can successfully create a new context for incriminating
evidence, the jury may be persuaded to adopt this interpretation of
events and circumstances. Even when the most critical of the prosecu-
tion imperatives has been adequately established beyond a reasonable
doubt, namely, the identification of the perpetrator of the crime, the
defence may still challenge one of the other elements, for example, by
suggesting that one of the links in the ‘actor-purpose-act’ triad is defec-
tive and must be considered in an alternative context. A possible
defence in a hypothetical murder trial is shown in Table 4, below.
In this situation, the defence do not dispute the prosecution’s assertion
that the defendant is indeed the perpetrator of the crime in question;
however, the motivation behind the crime is reformulated in such a way
as to favour the defendant. This is one example of a way in which the
defence may attempt to reinterpret events and perhaps even persuade the
jury to view the perpetrator as a victim himself, as in a domestic violence
defence based on a theory of cumulative provocation.
Table 4 Defence reconstruction of prosecution crime elements in a

hypothetical murder
Element Prosecution Contention Defence Contention

Actor Positive identification of the Positive identification of the
defendant defendant
Purpose Malicious, premeditated intent Attempt to disarm the victim
leading to a charge of murder Victim killed in act of
self-defence
Act Defendant fatally wounded Defendant fatally wounded
the victim the victim
In terms of acts and actors, since the burden of proof rests with the
prosecution, there is in theory no need for the defence to create a
conflicting version of events which includes an alternative perpetrator
(although Wagenaar et al. 1993 found that doing so tends to increase
the chances of victory); it is sufficient for them to create reasonable
doubt that the defendant presently before the court is in fact the per-
petrator, in other words, that the defendant-perpetrator strand
represents a mismatch, a case of mistaken identity.
Prosecution and defence narratives in the Simpson trial
The case for the prosecution

To have the best chance of securing a conviction, the prosecution need
to present a single, linear, logical story. Hastie and Pennington (1996:
963) conjecture that one reason for Cochran’s rambling and unfocused
opening statement for the defence was that it represented a desire not
to commit themselves too early to a single crime narrative; with the
balance of reasonable doubt in their favour, there was no imperative
for the defence to do so.
In contrast, the prosecution did (and had to) commit themselves
from the start to a single version of events. The abstract of the crime
story presented in the prosecution opening statement consisted of a
clear and unambiguous picture of the six essential crime elements (see
Table 5 – the table should be read vertically, column by column).
For some of these crime elements, the prosecution had a number of
pieces of corroborative evidence; for example, the DNA evidence both
identified Simpson as a suspect (perpetrator) and placed him at the crime
scene (providing evidence of opportunity). In those areas where evidence
was less available, the prosecution were at pains to point out that the lack
Table 5 Generic crime elements and their corresponding narrative

strands in the Simpson trial
Crime Element Issue Prosecution Narrative

Perpetrator(s) (who?) Orenthal James Simpson
Crime(s) (did what?) murdered
Victim(s) (to whom?) His ex-wife Nicole and her friend
Ronald Goldman
Means (how?) by stabbing them both to death
Opportunity (where, when?) outside her home on South Bundy,
some time between 22.00 and 22.30
on 14 July 1994
Motive (and why?) because he (O.J. Simpson) was
possessive of his ex-wife and wanted
to punish her for leaving him
of some pieces of evidence did not necessarily mean that they had failed
to fulfil the burden of proof. To this effect, Prosecutor Clark counselled
the jury in her closing argument on the value of inferential reasoning:
1 Short of a videotape, we very rarely know exactly how any crime

2 occurred … And even if we had a videotape, ladies and gentlemen,
3 it wouldn’t show you everything, what happens before the tape
4 starts, what happens after the tape ends, and what if – of course a
5 camera only picks up what is in its lens. So if you saw, for example,
6 a videotape of this case that had Nicole, that was able to focus on
7 Nicole but not pick up Ron, and you saw the defendant killing
8 Nicole and slashing her throat and then he stepped out of range to
9 attack Ron, would you thereby conclude that he didn’t kill Ron?
10 No, of course not. Of course not.
The fact that the murder weapon was never found and that there were
no eyewitnesses left the prosecution with a number of sizeable gaps in
their construction of the crime story. It is conceivable for each witness
to believe that their particular version represents an accurate picture of
what took place, despite the fact that each one may possess only a
small part of the forensic puzzle. The principle of inferential reasoning,
whereby gaps are filled and connections established, is just as much a
part of the witness’s cognitive activity as it is for the juror, since both
are engaged in an attempt to make sense, literally, of the partial ‘facts’
in their possession.
A number of commentators on the Simpson trial felt that the prose-

cution paid a heavy price by being so specific in their opening gambit,
giving the defence a clear target to aim at in their counter-narrative.
The sequence of arguments also handed the defence a further potential
advantage in that prosecution always precedes defence.
To a certain extent, however, the prosecution had no choice but to
present a single, linear story, since ambiguity or multiplicity would
inevitably have created reasonable doubt. The defence, in contrast, had
a number of strategic options available to them in terms of presenting
an alternative narrative version of events.
The case for the defence

The fact that the murders occurred and that the victims were Nicole
Brown Simpson and Ron Goldman was beyond dispute. As prosecutor
Darden pointed out in his opening statement:
Ladies and gentlemen, I can guarantee you one thing in this trial,
there will be no dispute as to cause of death. No one will argue
about what the cause of death was for Ron Goldman and Nicole
Brown. The issue that will be raised is the time of death.
Additional forensic investigation confirmed that they had been mur-

dered at the Bundy location, in approximately the time-window
claimed by the prosecution and as a result of multiple stab wounds.
This meant that the elements of the crime itself, the victim(s) and the
means had been adequately accounted for, beyond a reasonable doubt.
This left the elements of perpetrator, motive and opportunity for the
defence to counter-attack in their narrative formulation of the crime.
Hastie and Pennington (1996: 966) identify four specific challenges
which the defence sought to present in order to subvert the prosecu-
tion version of these elements; a brief summary of the four counter-
narratives is presented below, with extracts from the defence opening
statement, as appropriate.
1. The ‘O.J. Simpson’ story

In this version of the crime story, Simpson was an innocent non-par-
ticipant in the murders, according to the defence; the murders took
place at a time and in a location which meant that it was impossible
for Simpson to have been the perpetrator. This counter-narrative
placed Simpson elsewhere at the time of the murders and challenged
the category of perpetrator on the grounds that Simpson would not

have had the opportunity to carry out the crimes. In Bennett and
Feldman’s (1981) terms, this approach falls under the heading of a
challenge to the prosecution narrative, since it proposes no alternative
perpetrator.
The following extract from Cochran’s defence opening statement
outlines the logic of this version of the crime story:
1 Now I want to turn our attention to something I alluded to the last

2 time. We call it the time line. One of the things that we expect to
3 show during the course of this trial is not only did Mr. Simpson not
4 commit these brutal murders, but he did not, would not, could not within
5 the time frame have committed these particular killings … Mr. Simpson
6 could not have done it, that this time line is such that there’s no
7 time for him to do it, no indication that he could have done this.
(Defence opening statement, 30 January 1995)
In this extract, it is interesting to note the use (in line 2) of the

prospective ‘one of the things we expect to show’, which reflects the
organic and developmental construction of the trial narrative.
By attacking the prosecution’s time line in this way, which, the
defence claimed, meant that Simpson did not have the necessary time
to have carried out the murders and still make his flight to Chicago,
the defence’s aim was to discredit the prosecution narrative on the
grounds of implausibility, an illustration of the technique of destructive
(as opposed to reconstructive) counter-argumentation (Stone 1995).
The second defence narrative had this more reconstructive orienta-
tion and proposed a potential (if unnamed) alternative perpetrator, as
well as an alternative intended victim.
2. The ‘real killers’ story

This counter-narrative portrayed Nicole Brown Simpson and Ron
Goldman as the victims of a (mistaken-identity) drug dealer-related
killing, caused by Nicole’s association with her friend Faye Resnick, an
admitted drug-user. The defence claimed that it was Resnick, and not
Brown Simpson, who was the intended victim. The ‘real killers’ narra-
tive, which involved the suggestion of an alternative perpetrator,
identified by type (‘a drug dealer’) rather than by name, was always
going to be a risky strategy for the defence, because of the number of
crime elements which they were required to reconstruct in order to
make it plausible. One of the disadvantages (from the defence point of
view) of a reconstructive narrative is that it requires the creation of an

entirely new crime story framework, and characters and circum-
stances to fit into it. Central to this reconstruction was not simply the
recasting of the perpetrator, but also the proposal of an alternative
victim. In addition, it involved the tarnishing of Nicole’s image, char-
acterising her as pursuing a ‘wild, irresponsible lifestyle involving
alcohol, drugs, partying, and sexual promiscuity’ (Gaines 1999). An
example from the defence opening illustrates the nature of this
complex narrative reconstruction:
1 Because they were friends, they would go out at night. These were
2 all of – the evidence will be these ladies would go out two, three,
3 four nights a week and stay out until five o’clock in the morning.
4 Nobody was controlling these women. There is a group of them and
5 you will hear about it, they go out dancing, they would do what-
6 ever they would do, and we know Faye Resnick was using drugs
7 during this period of time … I think you will hear from the evi-
8 dence that she is one of the people that called Miss Nicole Brown
9 Simpson on the night of June 12, perhaps after nine o’clock, that
10 particular night, from this drug treatment facility. We will be
11 talking about that and her role in this whole drama.
In the end, this particular storyline fizzled out, however, because

Resnick was never called to the stand; Judge Ito ruled her testimony
inadmissible on the grounds that the defence had insufficient support-
ing evidence, a further illustration of the organic nature of courtroom
narratives. By the time of the closing argument, the drug-dealer narra-
tive was nowhere to be seen, and Resnick was mentioned only briefly
in a single, innocuous reference to her staying temporarily with the
Simpsons as a house guest.
3. The ‘rush to judgement’ story

This version of events centred on the depiction of the LAPD as
responsible for framing Simpson. Motivated by anti-African-
American sentiment, the defence alleged that a racist investigative
officer, Detective Mark Fuhrman, had planted evidence at the crime
scene. This narrative construction challenged the integrity of the
evidence linking Simpson to the scene, most notably involving a
bloody glove allegedly found next to the bodies, and bloodstains
found on Simpson’s clothing and vehicle. Hastie and Pennington
(1996) claim that the background of beliefs and experience of the

Simpson jurors meant that it was relatively easy for this narrative to
be successful with the jury; portraying Fuhrman as guilty of planting
evidence, Hastie and Pennington contend, meant that the resulting
version was ‘a story more plausible to an African-American juror
[who, as we have seen, made up the majority] than to a white juror’
(p. 972).
The following extracts from the defence opening illustrate the two
strands of this third narrative – the ‘rush to judgement’ and Detective
Fuhrman’s involvement in the investigation:
1 The prosecution’s case, based upon what we heard and the evidence
2 will show, this case is about a rush to judgment, an obsession to win at
3 any cost and by any means necessary … they worked very hard on this
4 case because in their rush to judgment, they fixed on this one individual,
5 and that’s what they focused on we think the evidence will show
6 and that’s exactly what they did.
One of the interesting aspects of this ‘rush to judgement’ speech is the

attribution of this appraisal to ‘the evidence’ (in line 1), reflecting the
ban on overt argumentation in opening statements. On one occasion
during the prosecution opening when Clark omitted to signal that it
would be the evidence that would prove the case, Cochran lodged a
lengthy objection:
1 Judge Ito: We are at the sidebar.

2 Mr Cochran: We kind of have like a little agreement so I didn’t
3 want to object, but when she goes into things
4 about amniocentesis, she is testifying.
5 → Ms. Clark: That is what the evidence will show.
6 → Judge Ito: Well, you are speaking of it in terms of you are
7 telling them this.
8 → Mr Cochran: You told them that. You need to say witnesses will
9 tell you, the evidence will show that.
10 Ms. Clark: I forgot.
11 …
12 Mr Darden: Was that objection sustained?
13 Judge Ito: No, it is a caution. Be careful.
14 Ms. Clark: Yes.
15 (Prosecution opening statement, 24 January 1995)
The second strand of this particular defence narrative concerned

Detective Mark Fuhrman and allegations of his racist tendencies:
1 Detective Mark Fuhrman will play an integral part in this case for a
2 number of reasons … let me tell you why I think he will be a key
3 witness … after arriving at the scene Mr. Fuhrman did a number of
4 things. You saw him in one of the pictures last week where he was
5 pointing down at allegedly the glove and the cap that was under some
6 shrubbery, if you recall. That was a picture of Mr Fuhrman at that
7 point. You notice that he had – his shoes were not covered, that he
8 had walked in that location at that point without shoes being covered,
9 that he made a number of discoveries at that particular point.
In this extract, Detective Fuhrman is flagged as being ‘an integral part

of the case’ and a ‘key witness’ (lines 1 and 2–3, respectively).
4. The ‘bungling criminal investigators’ story

The final defence counter-narrative told of the mishandling of forensic
evidence at the crime scene by incompetent and inexperienced LAPD
criminalists and by other, external agencies, where laboratory samples
were alleged to have been cross-contaminated and misplaced. The fol-
lowing pair of extracts illustrates this version of events:
1 I mentioned before this crime scene and the number of people who were
2 allowed to walk through there, many with just their shoes on walking right
3 through the blood. Some had those little booties on. Some had gloves, some
4 didn’t have gloves. Picking up the evidence, this will become very rele-
5 vant, important to you as you hear from the experts about the conta-
6 mination aspect of this and what it means and how easy it is, a sneeze,
7 a touch, whatever for this evidence to become contaminated.
1 The important piece of information that we think the evidence will

2 show, however, is that all of this evidence collected, whether at
3 Bundy or Rockingham or wherever, went through the LAPD lab,
4 and we expect to introduce evidence that – from their own records –
5 that laboratory is a cesspool of contamination, not up to speed, not up to
6 standard. We think we can conclusively indicate that during the
7 course of the testimony in this case.
In terms of the crime and investigation stories, it is interesting to note

that of the four alternative defence accounts of what happened, the
first two versions (the ‘O.J. Simpson’ and the ‘Real Killers’ stories,
respectively) related to participants in the crime story, whereas the
third, dealing with the LAPD, and the fourth, relating to forensic scien-
tists, both foregrounded alleged mistakes in the police handling of the
case and so related to the story of the investigation, the second of the
narrative layers discussed above.
By attempting to refocus attention on the story of the investigation, it
was possible for the defence to deflect attention away from
O.J. Simpson himself and the crime story, concentrating instead on
flaws in the LAPD investigation. In her portion of the closing argu-
ment, prosecutor Clark was highly critical of this emphasis, referring to
it as ‘smoke and mirrors … all just smoke to cloud everything, cloud all
the issues, distract you’; Clark encouraged the jury to ‘open up the
windows and let the cool air blow out the smokescreen that has been
created by the defense’ (Clark, prosecution closing argument,
26 January 1995).
Both the prosecution and the defence narrative accounts of the
crime were subject to the constraints and controls imposed by the trial
by jury system on courtroom stories. The most fundamental restriction
on courtroom stories is the requirement that the narrative voice be
that of the witness, whose evidence is elicited by question-and-answer
sequences directed by lawyers for both sides.
Storytelling by proxy: the lawyer’s tale?
The stories told in court are not narrated by the ‘primary knower’
(Berry 1981), the witness, but rather are elicited by means of the
lawyer’s questions. The lawyer was not present at the crime scene and
so cannot feign an authentic awareness of the crime events; the
witness, who conversely, may have been present, cannot typically
claim to possess the same courtroom storytelling skills as the lawyer.
The result is a mutual dependency, where the parties need each other
in order to enable the story to be told effectively within the confines of
the trial framework.
The issue at stake for the lawyer is a trade-off between authenticity
and narrative competence. A number of researchers, including O’Barr
(1982) and Wagenaar et al. (1993), have found that coherent narrative
structure plays a greater role than authenticity of narrative voice in
determining whether or not evidence is accepted by juries. In other
words, it seems that jurors are more readily persuaded by a well-told

story than by one which is a) true or b) well supported; in this regard,
Bennett and Feldman (1981: 67) comment:
it is quite possible that adequately documented but poorly struc-

tured accounts will be rejected because they do not withstand
careful scrutiny within a story framework. Similarly, a well-
constructed story may sway judgements even when evidence is in
short supply.
The lawyer is a proactive participant in shaping the ideational content

of the story elicited. Toolan (1988: 252) acknowledges this active role
when he calls lawyers the ‘architects of two extended and partially
conflicting narratives’; just as architects are responsible for the design
and final shape (in the term’s least abstract sense) of a structure, so the
lawyer is in control of creating the infrastructure of the crime narra-
tive. Simpson’s lead attorney classed the job of storytelling as ‘the trial
lawyer’s real task’, concluding that ‘the jurors must trust the lawyer as a
“storyteller”’ (Cochran 1996: 237).
The very act of reporting the crime events will almost inevitably
engender evaluation and judgement, in both the storyteller and his
audience. Witnesses are discouraged from speaking about more than
the simple facts as they witnessed them; in fact, as Hall and Smith
(1997: 92) note, ‘the opinion of a lay witness based on what he has
seen and heard is inadmissible’. Despite this, it is clear that all accounts
of alleged criminal activity, whether by victim, suspect or eyewitness,
must be treated by the jury as subjective to a greater or lesser degree.
This view is supported by Maley (1994: 37), who states:
to give an account of the facts, is to provide a version of events ...

each party to the exchange is stressing different aspects [and] the
meaning choices are tactical, consonant with the version of events
that each is expressing.
This concept of subjectivity applies throughout the crime-to-trial

process, not only in the initial reporting of the crime itself, but also in
the subsequent investigation and trial stages.
All the participants in the investigative and legal processes have
some form of vested interest, which will inevitably be communicated
in the linguistic and discursive strategies employed by them. The
police clearly have the imperative of securing a conviction; the defence
and prosecution respectively operate according to very different priori-

ties and objectives. This situation is further complicated by the fact
that one or more of the participants in the process may be deliberately
attempting to deceive, whether to hide their own guilt or to prevent
disclosure of the involvement of another.
The subjective nature of testimony, whilst inevitable, may be detri-
mental to the pursuit of criminal justice. Since some of the testimony
presented by a witness as ‘fact’ may actually be opinion or inference,
and it is impossible for the jury to be sure which facts are contami-
nated, the potential for exploitation, whether deliberate or accidental,
is considerable.
Moreover, because the information is intended for the jury, there is
also the distinct possibility that some of the evidence could be further
reinterpreted (or misinterpreted) by jurors who do not share the belief
systems and schemata of the witness. Frank (1949) implicates both
judges and lawyers in this process since they add a further narrative
layer of interpretation to the facts, meaning that information may be
in effect ‘twice refracted’ (p. 22). Bennett and Feldman (1981: 65) refer
to the constructions of reality which are presented as ‘capsule ver-
sions’, informationally condensed versions of events where the speaker
‘selects data, specifies the historical frame, redefines situational factors
and suggests missing observations’.
The resulting picture, elicited from witnesses, can therefore only ever
be a representation of the scene, the crime and its aftermath, and as
such has distinct properties that vary from the actual experience of the
crime itself. The representational and transformative dimensions of
trial narratives will now be discussed.
Representation and transformation in trial narratives
The shift from the original events of the world of the crime story and
that of the resulting investigation to the world of the courtroom,
involves a number of transformations, both cognitive and linguistic.
Since the jurors were not present at the scene of the crime when it was
committed, the crime must be reconstructed in order to enable jurors
to have a clear understanding of what is alleged to have taken place.
Jurors are faced with a number of tasks; not only must they decide,
at a macro-level, which version of the crime narrative – prosecution or
defence – they prefer to believe, they must also evaluate the individual
narratives produced by each witness in terms of their contribution to
and position in the final narrative formulation. Ultimately, the jury
must produce an evaluation of the competing versions put forward for

their scrutiny in the form of a verdict. Frank (1949: 37) underlined the
difficulty, even the inadequacy, of such a process when, more than fifty
years ago, he wrote:
since the actual facts of the case do not walk into court, but hap-
pened outside the courtroom, and always in the past, the task of the
trial court is to reconstruct the past from what are at best second-
hand reports of the facts.
This problem was acknowledged by lead defence attorney Cochran in

the Simpson trial. As he told the jury in both his opening and closing
arguments:
none of us were out there on June 12, 1994. We can only deal with
the witnesses, as they were.
understand this, ladies and gentlemen, that none of us in this court-

room were out at 875 Bundy on June 12th 1994, after 10.30 or 10.45
in the evening, so that everything we say to you is our best effort to
piece together what took place in this case.
(Defence closing argument, 27 September 1995)
Beach (1985: 14) has analysed trials as the construction and presenta-
tion of past crime events, producing the distribution of temporal orien-
tation shown in Table 6.
The quantitative results from Beach’s study (which looked at more
than 10,000 utterances from criminal trials) show that trials are over-
whelmingly dominated by reconstructions of the crime and investiga-
tive stories; this is supported by qualitative evidence of story elicitation
by question-and-answer sequences. The structure of these Q-A
sequences will be explored in chapter 5.
Table 6 Distribution of past, present and future events in trial by jury talk
Temporal and Tense Orientation Percentage Primary Function

Past events 91 per cent Reconstructive
Present events 7 per cent Maintenance/monitoring
Future events 2 per cent Procedural/instructive
The ‘present events’ consisted primarily of meta-talk about the here-

and-now of the trial process, for example in lawyer’s objection
sequences and judicial rulings. The following example of one of the
16,000 objections in the Simpson trial illustrates such an instance; the
action switches from the past-tense question relating to the crime story
(in lines 1–2) to present-tense meta-talk relating to the lawyer’s aggres-
sive questioning style (in lines 6–7):
1→ Q Let me see if I understand this correctly. You asked Denise

2 Brown to talk to Sydney Simpson?
3 A Would you like me to explain it to you, sir?
4 Q No, no. I want you answer my questions first, if you can do
5 that, please.
6→ Ms. Clark: Your Honor, there is an objection. That is argu-
7 mentative and this witness is allowed to explain his answer.
8 Counsel is cutting him off.
9 The Court: Ask the question, Mr. Cochran.
10 Mr. Cochran: Thank you, your Honor.
(Witness cross-examination, 23 February 1995)
The final 2 per cent reporting ‘future events’ was made up of the
prospective regulation of courtroom activity and included the orienta-
tional opening statements and procedural requests. A representative
extract from the defence opening in the Simpson trial illustrates this
orientation to future testimony in the trial:
So when you hear about theories, I’m going to tell you about the facts.
So you will hear from Dr Walker and you will hear ultimately about the
battery of tests and I think you will find that she will say that in
looking at O.J. Simpson and interviewing him, in looking at him, at
this point she finds no evidence of antisocial personality disorder and I
think you will find that becomes very important in this case.
In this extract, Cochran makes prospective references not only to the

testimony which is due to be presented by Dr Walker, but also to its
anticipated reception by the jury.
Although the trial consists predominantly of the presentation in the
past tense of past events, it is not possible, or desirable, for all those
past events which make up the crime story to be reported at trial.
Similarly, the investigative stage is presented in the form of a selective,
and therefore potentially subjective, summary rather than in real time

and detail. This aspect of temporal and informational manipulation
will now be explored.
Manipulating time, space and perspective in courtroom narratives

The internal measures of time, space and perspective within witness
stories are all altered when the crime events are constructed into court-
room narratives. Because the crime story takes place at considerable
spatial and temporal distance from the events which precipitated the
trial, the temporal and spatial coherence of the story must undergo a
series of shifts in deictic centre, involving a translation of the time,
location and participant references of the crime scene past to those of
the courtroom present.
A number of characteristics of the witness examination phase of
criminal trials conspire to make life problematic for the jury attempt-
ing to keep up with the crime narrative. Genette (1980) identifies
three major types of temporal manipulation which occur in literary
narratives:
• Order
dealing with the relationship between the original sequence of
events in the story and the order of presentation in the text;
• Duration
covering the relationship between the time-span of the original
story events and the corresponding amount of text devoted to
them;
• Frequency
referring to how often events are narrated in the text compared to
how often they occur in the story.
I shall now transpose these three categories from fictional narratives

into the courtroom context, and discuss the effect of the adversarial
jury trial process on each of them.
The thematic elicitation of narrative: reordering the story in the trial

In courtroom narratives, the first level of reordering occurs as a result
of the thematic presentation and elicitation of story components, a
process that prioritises legal process over temporal logic. The sequence
in which the witnesses are called often bears little if any relation to the
chronology of the events precipitating the trial. Decisions relating to
the inclusion and positioning of each witness’s testimony are based
solely on their respective evidentiary value or more basic questions of

the availability of witnesses, rather than being motivated by a desire to
create a ‘juror-friendly’ version of events. As Stygall (1994: 123) com-
ments, ‘the original narrative sequencing is simply ignored, even
though its lack creates substantive problems for the jury’.
Judge Ito warned the jury of the potential for temporal incoherence
in the trial narrative; in his instructions prior to the opening state-
ments, he cited the opening arguments as a useful means of orienta-
tion in this respect:
This case, as you know, will be relatively long. And by necessity,

some of this evidence will be presented to you out of chronological
or logical order. So they’ll need to explain to you the case that they
intend to present.
Table 7 gives a brief, month-by-month, summary of the prosecution

case to show how the original crime chronology was manipulated in
the Simpson trial, including the jumbling of evidence about Simpson’s
character and life history, and the crime and investigation stories.
The temporal incongruity inherent in this sequence can be illus-
trated by the following example. The scene-of-crime evidence was pre-
sented in February 1995, and this included evidence from LAPD
officers about bloody shoe prints and gloves alleged to have been
found at the crime scene. However, the expert testimony relating to
these two pieces of evidence was not presented until June 1995, fully
four months later. This is because forensic and other expert testimony
was held back from its logical position in the crime narrative to allow
Table 7 Month-by-month breakdown of witnesses in the Simpson trial
Date of Presentation Witness Type Story
January/February 1995 LAPD officers Crime/Investigation

February 1995 Friends, neighbours and Life of Nicole/the
family of Nicole Simpsons
March 1995 LAPD scene of crime Crime/Investigation
officers
April/May 1995 Friends, house guests, Life of O.J. Simpson/
domestic staff of the Simpsons
O.J. Simpson
June 1995 LAPD/independent Crime/Investigation
criminalists; shoe, phone
and glove experts
all the expert evidence to be presented together between April and

June 1995.
A similar phenomenon is discernible in the equivalent witness list
from the defence, which if anything was more jumbled than that of
the prosecution. This is particularly the case with the testimony pre-
sented in July 1995, when an assortment of witnesses appeared, includ-
ing a selection of Simpson’s family members, eyewitnesses who saw
Simpson on the night of the murders, and experts, including
Simpson’s own physician. This group of witnesses testified on a variety
of issues, ranging from Simpson’s health and fitness level and his
career as an American football player, to his demeanour at LA Airport
on the night of the murders, as Table 8 illustrates.
As well as having to keep up with the twists and turns of the plot in
this complex account, the jury were also required to keep some sense
of time, faced with this barrage of out-of-sequence events.
The degree of temporal and logical incoherence described above is
extreme even in narrative fiction, where techniques such as flashback
and simultaneous story lines may indeed be present, but rarely in such
a jumbled form or with such a lot at stake in keeping up with the
sequence and the mass of characters. In courtroom narratives, it is not
possible for the jury to request that a witness repeat his testimony in
Table 8 Breakdown of defence witnesses – July to September 1995
Presentation Witness Type Story

Date
July 1995 O.J. Simpson’s relatives; daughter, Life of O.J. Simpson

sister, mother
People in neighbourhood and with Life of Nicole/The
Nicole on night of murders Simpsons
Airport and airline staff, fellow Demeanour of
passengers on night of murders O.J. Simpson
Simpson’s physician and hairdresser Life of O.J. Simpson
LAPD officers/workers Crime/Investigation
Simpson’s fitness instructor Life of O.J. Simpson
LAPD videographer Crime/Investigation
Simpson’s housekeeper Life of O.J. Simpson
LAPD officers Crime/Investigation
August 1995 LAPD/FBI forensic experts Crime/Investigation
Independent DNA, fingerprint Crime/Investigation
and pathological experts
September 1995 Professional photographers Crime/Investigation
FBI agents Crime/Investigation
situ; moreover, the jury have only limited powers to request repetition
of missed or misunderstood evidence when they retire to consider their
verdict.
Puzzlingly, and rather disturbingly, despite the complexity of the
case and the sheer amount of evidence from more than 120 witnesses,
the Simpson jurors requested to rehear only one piece of testimony:
that of Simpson’s limousine driver on the night of the murders, who
was an important witness in the prosecution case. The cognitive load
placed on jurors was increased, in terms of memory requirements, by
the fact that the only tools which jurors were allowed were old-fash-
ioned notebooks and pens to aid their recall.
The structure of the trial also means that jurors are required to
make an assessment, at the time of delivery, of which pieces of
evidence are of significance and which are less central. One of the
functions of the opening statements is to provide an indication of
which aspects of the case and their associated witnesses are most
important. Cochran, for example, opening for the defence,
instructed the jury:
1 And he will come in here and tell you about this evidence, how sen-
2 sitive it is and how these police departments are not trained in the
3 collection and use of it, that this is by all accounts, 21st century
4 cyberspace technology that is used by these police departments with
5 covered wagon technology… and so the collection of the evidence
6 becomes very, very, very important in this case.
The temporal dislocation and reorganisation of evidence caused by the

thematic approach to testimony elicitation is exacerbated by the fact
that the prosecution and defence narratives are presented consecu-
tively; the sequence of evidence relating, for example, to Simpson’s
demeanour on the flight he took on the night of the murders is
complex: not only is it elicited from seven witnesses (two appearing for
the prosecution and five for the defence), but it is also referred to in
two narrative bursts, four months apart, as the time line breakdown in
Table 9 shows. In the intervening 14-week period (between March and
July 1995), the jury heard testimony from no fewer than 32 other wit-
nesses, all testifying on unrelated issues.
A further complicating factor in the ordering of testimony is the fact
that the narrative sequence of trial stories is fragmented by the to and
fro of examination and cross-examination, which means that there is
Table 9 Prosecution and defence witnesses relating to Simpson’s

Chicago trip
Testimony Date Witness Details On behalf of

28–29 March Simpson’s limousine driver (LA) Prosecution
29 March LA Airport worker 1 Prosecution
12 July LA Airport worker 2 Defence

12 July LA Airport worker 3 Defence
12 July American Airlines pilot Defence
12 July Three passengers on same flight as Defence
O.J. Simpson
13 July Hertz employee, driver (Chicago) Defence
not even a linear progression through the story within witnesses, let
alone between them. Stygall (1994: 123) discusses how pieces of testi-
mony are broken down into non-sequential fragments during witness
examination by the process of direct and cross-examination. The result
of this legal dynamic is a fragmented and disjointed narrative account.
As law professor Gewirtz (1996: 7–8) states:
neither side is allowed to keep its perspective uninterruptedly before

the decision-maker until its overall story can be fully presented.
Instead, immediately after one side elicits a witness’s story, the
opposing side cross-examines, thereby introducing the opposing
side’s perspective even as the first side’s story is unfolding … one
side’s narrative is constantly being met by the other side’s counter-
narrative (or side-stepping narrative), so that reality is always disas-
sembled into multiple, conflicting and partly overlapping versions.
With each witness, the prosecution and defence stories are interwoven,
on up to four occasions, in the sequence shown in Figure 2.
Having outlined the complex mechanisms by which testimony is
reordered in courtroom narratives, I will now move on to the second of
Genette’s categories, duration, and will discuss the relative emphasis or
de-emphasis placed on particular story events in the trial.
Emphasis and de-emphasis: duration in courtroom narratives

At the level of the macro-narrative, the Simpson trial demonstrates a
number of shifts in the tempo of the storytelling process. Certain
aspects of the case were emphasised, with the defence allegations that
blood evidence was contaminated and that the incriminating bloody
Direct examination
Cross-examination
Re-direct examination
Re-cross examination
Figure 2 Maximal structure of witness examination
glove was planted taking up a significant proportion of the trial,

whereas in the actual crime story they were momentary incidents (or
even, according to the prosecution formulation, non-incidents). Thus,
the defence cross-examined all the officers who had been present at the
crime scene, as well as the LAPD criminalists who had collected and
handled the crime scene evidence. The cross-examination of criminal-
ist Dennis Fung relating to his collection of evidence at the crime
scene, which had taken at most a few hours in the crime story, took
almost three weeks to narrate (and counter-narrate) in the courtroom.
In contrast, other aspects of the case, which were considered to be
less central, were summarised by a single witness on a single day. In
this way, the injuries Simpson suffered during a professional football
career spanning a ten-year period (and which, the defence claimed,
rendered Simpson physically incapable of carrying out the murders)
were condensed into a single day’s testimony by Simpson’s physician.
The legal imperative of the jury trial means that there is no time or
space for irrelevant or inconsequential narrative components. This is
clearly signalled by the judge’s right (exercised freely in the Simpson
trial) to deem evidence and witnesses inadmissible, as occurred, for
example, with the ‘real killers’ hypothesis discussed above. One of the
judge’s roles in the trial is to monitor and regulate the speed at which
the trial narrative unfolds.
In the nine-month-long Simpson trial, Judge Ito adopted a fairly
liberal approach to time-management, a strategy for which he was sub-
sequently criticised in many quarters. Legal experts considered that the
trial had been allowed to go on for too long, and that the overall dura-
tion of federal criminal trials should be capped at three months. There
were some limits on the extent of the trial narrative, although it was
typically the lawyers rather than the witnesses whose contributions
were curtailed.
During witness examination, Ito would often be heard to instruct the
lawyer to ‘move on, counsel’ or to ‘ask the next question’, particularly
during cross-examination when lawyers would pursue the same point
repeatedly. The following pair of extracts illustrates some of Ito’s
attempts to increase the tempo of testimony elicitation:
1 Q If I could, one last question in this area.

2 → The Court: I think we’ve covered this quite a bit now.
3 Q All right. One last question. Then if the court feels
4 it’s in the same vein –
5 → The Court: No. Wind it up, let’s move on.
6 Q Doctor, if Mr. Simpson’s hand was moving at an
7 angle to the instrument inflicting the injury, that
8 could account for the roughness or shagginess of the
9 edge; isn’t that correct, sir?
(Witness cross-examination, 17 July 1995)
When the lawyer ignores the judge’s hedged and veiled directive in
line 2 – ‘I think we’ve covered this quite a bit now’ – Ito resorts to a
more direct approach, producing a bare ‘no’, followed by two succes-
sive direct commands, including an imperative – ‘wind it up, let’s
move on’. This achieves the desired result, and the lawyer gives up his
pursuit of this particular line of questioning.
In the second extract, Ito is even less patient with the lawyer’s pro-
tracted questioning of the witness and calls a sidebar conference to
which the lawyer is summoned to be reprimanded:
1 Q Well, Miss Mazzola, you said a moment ago that you

2 had been taught to keep accurate and complete field
3 notes during the training –
4 → The Court: Let me see counsel at the side bar, please.
5 (The following proceedings were held at the bench)
6 → The Court: I think I’ve heard enough about the need to have
7 accuracy and completeness. You have asked this
8 question now for about the eighteenth time in the
9 last twenty minutes. All right. You have established
10 the point. Move on.
(Sidebar, witness cross-examination, 25 April 1995)
The judge also limits the monologic contributions of the lawyer as well
as his capacity to question witnesses. In the next extract, taken from
the judge’s preamble to the prosecution closing argument, Ito explains
his reasoning on limiting the delivery of the closings and outlines his
compromise solution, which restricted each side to two lawyers only:
1 And I should let you know that previously I had contemplated

2 placing a time limit on the lawyers in their arguments. Some of the
3 factors that I considered in whether or not I should place a time
4 limit on them was the quantity of the evidence that was produced,
5 the conflicts in the testimony, and the complexity of the issues that
6 you will have to resolve. And after considering the length of the
7 case and the nature of the evidence, I have decided not to place a
8 time limit on the argument of the attorneys. However, I have
9 placed upon each side a limit of no more than two attorneys may
10 argue to you for this part of the trial.
(Judge Ito’s address, 26 September 1995)
Frequency of narration of story events in the court

Genette’s final category, frequency, deals with how often a particular
story event is narrated. This aspect of courtroom storytelling too is
defined and constrained by the structure of the adversarial trial.
Genette (1980) divides this aspect into four sub-categories:
1. Narrating once what happened once – singulative narrative

2. Narrating n times what happened n times – singulative (repetition)
3. Narrating n times what happened once – repeating narrative
4. Narrating one time what happened n times – iterative narrative
The trial-by-jury process is dominated by the presentation of construc-

tions of the same event, as in the description of the murders them-
selves, or events, as in the description of the repeated domestic abuse
against Nicole Brown Simpson. These two possibilities are represented
by Genette’s repeating and singulative (repetitive) categories, respectively.
However, crucially, these multiple presentations are also multi-
perspectival in the Rashomon-like sense discussed above; hence, not all
(even not many) of the ‘n’ tellings of the event or events (represented
by Genette’s second and third categories) are likely to be identical.
Although the re-tellings are likely to overlap in their content to a lesser
or greater extent, each witness possesses only a partial picture of the
event. This means that whereas some aspects of each witness’s testi-
mony may share some features with that of other witnesses (creating a
sense of narrative convergence), these versions may equally diverge, in
potentially significant respects, from previous and subsequent accounts
presented by different witnesses. In the courtroom context, therefore,
this aspect of Genette’s model is perhaps more accurately, if more com-
plicatedly, represented as:
• narrating n times what happened once (or n times) with each telling
(at least potentially) varying from other versions (past and future)
A few of the events and details of the crime and investigation stories
will be narrated on a single occasion only (represented by the cate-
gories of singulative or iterative narrative). This ‘once only’ telling is rare
in the courtroom context however, since most witnesses will at least be
subjected to the process of direct and cross-examination, resulting in at
least one re-telling of the original narrative; if the cross-examiner has
succeeded in his task, this will be in a form slightly different to the
initial direct examination version. (See Cotterill 2002 for a more
detailed discussion of these multiply elicited narratives.) In addition,
there will often be a corresponding witness from the other side, who
will present the same event or detail, but from a different perspective.
Most significant pieces of evidence, whether they relate to a singula-
tive aspect or a repeating aspect of the case, will be presented on at
least three separate occasions: in the opening statement, during the
witness examination phase and, finally, in the closing argument.
Although specific details may be glossed over or disregarded, surpris-
ingly few evidential threads are discarded when it comes to the closing
argument phase of the trial; both prosecution and defence attorneys
are highly skilled in the art of summary and paraphrase, and the
density of information presented is, among other things, what gives
the closing argument much of its rhetorical force, as a cumulative line
of reasoning is constructed.
As we have seen, the constraints of courtroom storytelling mean that
the prosecution and defence narratives, far from being linear, cohesive
and, in Bakhtinian terms, monoglossic versions of the crime events, are
instead presented as temporally incoherent, multi-perspectival and het-
eroglossic micro-narratives told by many (in the Simpson trial, 126) dif-
ferent narrative voices. It should be noted that micro-narrative is a
relative term and must be considered in the context of overall length
of the trial; the ‘micro-narrative’ of Detective Mark Fuhrman, for
example, took more than a week to tell.
Each of these witnesses may have a potentially conflicting version of

events to narrate, and each may have a different perspective and inter-
pretation of the events which they recount, as Scheppele (1989: 2085)
points out:
the same event can be described in multiple ways, each true in the
sense that it genuinely describes the experience of the storyteller,
but each version may be differently organised and give a very differ-
ent impression of ‘what happened’.
The judge in the Simpson case pointed out this multi-perspectival

aspect of testimony in his final jury instructions, reminding them that
‘it is a fact that two persons witnessing an incident or transaction often
will see or hear it differently’.
The characteristics and the conflicts created by these individual and
individualised narrative accounts, on which both sides are dependent
for the creation of the prosecution and defence narrative versions, will
now be explored.
Micro-narratives in the courtroom
In their attempts to construct an authoritative and convincing version

of the crime, both prosecution and defence use the testimony of
people who were present at the time of the crime – eyewitnesses and
the victim, if available. In addition, lawyers use the evidence of those
who were not present, but whose expert testimony can contribute to
the interpretation of the forensic traces left behind at the scene, as well
as more general issues of relevance to the particular case. In the
Simpson trial, this meant a considerable battery of forensic experts in
DNA analysis and blood splatter patterning, as well as experts in such
diverse matters as domestic violence, athletes’ injuries and the crafts of
shoe- and glove-making, respectively. This section analyses the range
of micro-narrative voices and their respective roles in constructing the
prosecution and defence versions of the crime story.
Narrative voices in the Simpson trial

There are a number of ways in which macro-narratives – whether
defence or prosecution in orientation – may be constructed from
micro-narrative testimony, including the evidence of eyewitnesses,
forensic scientific evidence gathered from the crime scene and testi-
mony from the defendant and/or victims themselves. I will deal with
the narrative voices of each of these three groups in turn, beginning

with the contribution made by the witnesses in the case.
The voice of the witnesses

The witnesses in any case are obviously crucial to the construction of
both the prosecution and defence narratives. The interactional dynamics
of lawyer–witness exchanges and the means by which witness testimony
is elicited by protracted Q-A sequences are important enough to warrant
chapters of their own; hence chapters 4 and 5, respectively, are devoted
to these issues.
In terms of their contribution to prosecution and defence narra-
tives, however, these witnesses may be divided into two main
groups, the lay witnesses and the experts. In the first group, the
most important narrative voices are those of the central participants
(or non-participants) in the crime story – the defendant and the
victim; these crucial characters will be discussed below. However, I
will begin by analysing the role of forensic evidence, as voiced by
expert witnesses.
The voice of the forensic evidence

The task of the forensic evidence in a criminal trial, which is given a
voice by the criminalists and expert witnesses who collect and analyse
it, is to establish one or more of the crime story elements in detail.
Table 10 summarises a sample of the types of forensic evidence that
may be employed for this purpose, and their particular roles in estab-
lishing the facts of the case.
The forensic evidence may assume an even greater significance if one
or more of the human participants is unable to participate in the
Table 10 Individual crime elements and associated forensic evidence
Crime Element Forensic Examples of Associated Forensic

Categorisation Evidence
By Whom Perpetrator DNA analysis, Polygraph tests
To Whom Victim Dental records, DNA analysis
With What Means Toxicology reports, Gunshot wound
analysis
Where Opportunity Blood stain patterning, Fibre analysis
When Opportunity Time of death estimates
How Modus operandi Crime scene analysis, Ballistics
Why Motive Letters, Insurance policies, Bank records
process of storytelling. This is particularly true of murder cases, where

one of the key participants – the victim – is necessarily absent; in the
Simpson case, of course, there were two absent parties, since there were
two victims. In these circumstances, with no survivors of the night-
time attack and no eyewitnesses to the crime, evidence such as blood
splatters, knife wounds and DNA analysis took on an even greater role
as active voices in the trial.
With three of the key individuals in the crime either silenced (in the
case of the victims) or silent (with Simpson declining to testify in his
own defence), the forensic evidence became the cornerstone of the
prosecution case, with many details of the story of the murders filled in
by deductive or inferential reasoning from forensic data collected at
the crime scene.
Absent voices: the defendant and the victim

The voice of the defendant. The Simpson case was missing another
significant element, one that Wodak (1985: 185) claims is one of the
most important narratives – that of the defendant. Under the fifth
Amendment to the US Constitution, the defendant has the right not to
testify; because Simpson invoked this right, this meant that the prose-
cution were not able to cross-examine him. In the UK, the jury may
draw a negative inference from the defendant’s decision not to testify
in his own defence; in the US, however, prosecuting attorneys are not
permitted to allude to this fact as an implication of guilt in their
closing arguments.
This right does not need to be exercised until the jury has heard all
the evidence, just before the closing arguments. Thus, nine months
into the trial, Cochran made the following (unusual) request:
Mr. Simpson would like to make a brief statement with regard to the
reported – Mr. Simpson would like to make a brief statement regard-
ing the waiver, if the Court pleases.
(Sidebar, 22 September 1995)
The request produced vigorous prosecution objections that this

amounted to ‘testimony without any cross-examination’. Clark
pleaded with the judge:
It is inappropriate and it is done very deliberately by the defense for

a clear purpose. Please don’t do this, your Honor. I beg you. I beg
you. Take the waiver and let the defendant admit that he will not
testify and waive his right, but nothing further should be said on
the record in open court.
Ito finally allowed Simpson to speak, resulting in Simpson’s only

verbal contribution to his own trial, a (somewhat indirect) waiver of
rights:
1 The Court: Mr. Simpson, good morning, sir.

2 The Defendant: Good morning, your Honor. As much as I would
3 like to address some of the misrepresentations
4 made by myself and my – and Nicole concerning
5 our life together, I am mindful of the mood and the
6 stamina of this jury. I have confidence, a lot more it
7 seems than Miss Clark has, of their integrity, and
8 that they will find, as the record stands now, that I
9 did not, could not and would not have committed
10 this crime. I have four kids; two kids I haven’t seen
11 in a year. They ask me every week, ‘Dad, how much
12 longer?’ I want this trial over. Thank you.
13 The Court: All right. Mr. Simpson, you do you understand
14 your right to testify as a witness?
15 The Defendant: Yes, I do.
16 The Court: All right. And you choose to rest your case at this
17 point?
18 The Defendant: I choose.
19 The Court: Thank you very much, sir.
(O.J. Simpson, 22 September 1995)
In terms of a voice in the trial, Simpson himself had remained silent

for the previous nine months. Instead of participating in the trial
himself, he had, in direct examination, practised a form of storytelling
by proxy, with a combination of lawyers who were paid, literally, to
‘represent’ their client – in Cochran’s words, to ‘tell O.J.’s story’
(Cochran 1996) – expert witnesses, hired to testify on the science of
the case, and other witnesses, who were said to have been called by the
defendant; each time a new witness was sworn in, the court record
states:
X, called as a witness by the defendant, was sworn and testified as

follows:
This appears to support Kerr’s (1982) view that defendants are treated
largely as Object and not Subject, an individual confined to the dock
and who speaks only through others. It is also significant in line 16 of
Simpson’s ‘statement’ above, that it was Simpson himself, and not his
attorney who was asked ‘And you choose to rest your case at this point?’
to which he replied ‘I choose’ and not ‘we’.
Although Simpson made the decision not to testify, the victims in
the case had no such choice. The ways in which the prosecution
sought to involve the voices of the two victims in the creation of the
trial narrative, and the construction of the crime story, is the focus of
the next section.
The voice of the victims. At the start of her closing argument, prosecutor
Clark reminded the jury of the victims’ problem in terms of representa-
tion in the trial:
The victims can’t talk and they can’t tell us what happened. We
have to look to the physical evidence and we have to use our
common sense and our reason to make reasonable inferences to
determine what happened to the best of our ability.
In spite of such severe limitations, the prosecution did, however, have

a number of strategies for ensuring that what were perhaps the most
crucial voices – those of the victims – were to some extent ‘heard’ in
court and therefore could play their part in constructing the prosecu-
tion story.
Webster et al. (1991), in their discussion of ‘voices from an empty
chair’ in mock jury trials, found that absent witnesses, and particularly
the voice of the victim, could be even more influential than their phys-
ically present counterparts in influencing the jury. This is perhaps
because such voices are unchallenged by the demands of cross-exami-
nation. Their testimony is potentially even unchallengeable from an
ethical point of view, since attacking the evidence of a victim who
cannot defend himself is likely to be frowned upon by the average
juror.
In the Simpson case, one of the central issues was that of domestic
violence, with the prosecution alleging that O.J. Simpson’s previous
history of violence against his wife was the precursor to her murder.
Ensuring that the voices of the victims, and particularly that of Nicole
Brown Simpson, were heard in court was accomplished by the prosecu-
tion despite and not because of the criminal trial system, which has a
number of controls in place to limit the possible contribution of absent
participants.
Although obviously neither of the victims was able to testify in person,
there was a series of contributions by Nicole Brown Simpson which the
prosecution attempted to introduce as evidence. These included Nicole’s
two 911 emergency calls to the police, her diary, a will and photographs
of her bruised and battered face, which she had stored in a safe deposit
box. Clark (1997: 235) saw the contents of this safe deposit box as crucial
to their case, claiming that ‘the message in the box was clear: in the event
of my death, look for this guy’ (original emphasis).
The prosecution therefore had a series of exhibits which they
wished to present, but they had varying degrees of success in achiev-
ing admissibility of this evidence. The judge admitted testimony relat-
ing to O.J. Simpson’s past behaviour, but restricted it to abuse that
living witnesses had observed – for example, from Nicole’s sister and
mother; however, secondary evidence relating to Nicole’s conversa-
tions with others and her diary entries, which documented the
Simpsons’ turbulent marriage, was judged inadmissible. The legal
justification for this was the ‘hearsay’ rule, which excludes evidence
which is for any reason unverifiable. In this case, what Nicole had told
others of her abuse and her various writings were censored, because
Nicole was not available for cross-examination. This ironic ‘Catch-22’
serves as a powerful illustration of the way in which absent voices can
be, in a sense, doubly silenced by the trial process. Gewirtz (1996: 260)
concurs that ‘the excluded evidence does underscore the various ways
in which victims are silenced at trial – silenced by their murderers, but
also by legal rules that reinforce their silence.’ Faced with such legal
constraints, the prosecution had to find other ways to give Nicole
Brown Simpson a role and a voice in the construction of the case
against her ex-husband.
The prosecutors achieved representation in two different but inter-
connected ways. Throughout the case, they ensured that Nicole’s and
Ron’s faces and voices were present in the courtroom, playing as active
a role as possible in the construction of the prosecution story. They fre-
quently showed photographs and video footage of the bodies, under-
lining not only the victims’ ‘presence’ in the courtroom, but also the
brutality of the crimes.
In Nicole’s case, it was also possible for the prosecution to make con-
siderable capital out of the two 911 emergency calls she had made to
the police alleging domestic violence at the hands of Simpson. The fact
that the tapes were played rather than simply using transcripts of the
calls, which would have conveyed the same informational content, is
significant to the storytelling process. This enabled Nicole to ‘speak for
herself’ rather than relying on the voices of family, friends and foren-
sics to speak for her; in effect, playing the tapes was a dramatic way of
literally introducing ‘direct speech’ by the victim from beyond the
grave with the intention of creating a powerful rhetorical effect.
Advocacy manuals (Boon 1993; Evans 1993) advise trial lawyers to use
this tactic of employing visual and audio evidence whenever possible,
not only for this rhetorical purpose, but also because of the positive
memory effects it is believed to produce.
During the playing of the 911 tapes, Nicole Brown Simpson was
transformed into an active witness giving first-hand evidence directly
to the jury. The use of this evidence placed the prosecution in a strong
position; it was difficult for the defence to challenge such direct and
emotive testimony ‘from the horse’s mouth’, and the witness was obvi-
ously unavailable for cross-examination. This also meant that the pros-
ecution was able to draw inferences from the tape which went
overwhelmingly unchallenged by the defence. Thus, in the opening
statement, the jury was told:
1 You will hear the tape of that 911 call … that 911 tape is a telling
2 glimpse into their relationship that’s for sure, and you will hear Nicole
3 on the telephone talking to the operator. And as you listen to her, you
4 can’t help but discern from the tone of her voice and the things that she says
5 that she is a tough woman, but that she’s also afraid and intimidated. And
6 not only that, but that she feels that her situation is hopeless.
The tape of Nicole’s first 911 call was the first exhibit and the first
‘witness’ testimony presented to the jury in the prosecution’s case. In
their closing argument, a full nine months later, the prosecution
played a composite videotape, which Clark referred to as a ‘visual
history’ of the crime (Clark, 1997: 474), consisting of audio recordings
of both 911 calls, overlaid with photographs of Nicole’s injuries and
footage of both bodies at the crime scene, to remind the jury of
Nicole’s voice just prior to them retiring to consider their verdict.
Prosecutor Darden instructed the jurors:
1 Mr Darden: And I want you to listen to a tape, a tape of an emer-

2 gency call, and you recall that I played that tape a
3 long time ago, months ago, and you probably forgot

4 about it up until yesterday, I hope, but I’m going to
5 ask you to listen to that tape in just a moment
6 → (At 9:35 a.m., People’s Exhibit 21, a videotape, was played.)
7 → (At 9:44 a.m. the playing of the tape concluded.)
8 Mr Darden: I think we have heard enough of that. You will have
9 → this tape in the jury room. I am just a messenger and
10 I think you get the message.
In this extract, Darden presents himself as nothing more than a facili-

tative ‘messenger’ (line 9), merely allowing Brown Simpson to present
her own evidence.
The duration of the 911 call – some nine minutes – is also notewor-
thy (lines 6/7). When the tape had originally been played, during the
witness examination of 911 dispatcher Sharyn Gilbert, the judge had
intervened to stop it only one minute in:
1 Mr Darden: With the court’s permission, your Honor, I would

2 like to play the 1989 911 tape.
3 The Court: All right.
4 → (At 10:11 a.m. an audiotape was played.)
5 → The Court: Excuse me, Mr. Darden. Why don’t you stop that
6 at this time.
7 → (At 10:12 a.m. the playing of the audiotape ended.)
(Witness direct examination, 31 January 1995)
In the closing argument phase of the trial, the lawyer’s floor-holding

monologic statement meant that he was able to keep the tape running
for the full nine minutes, a considerable length of time to listen to a
recording in a setting such as the courtroom. It is somewhat ironic that
the most silent and most genuinely absent of witnesses – one of the
two murder victims – managed to achieve the longest uninterrupted
turn of any of the witnesses in the trial.
The relative evaluative freedom of the closing argument also meant
that the prosecution could develop their interpretation of and specula-
tion about Nicole’s tone of voice and state of mind at the time of the
calls:
1 When you listen to that 911 call, as you take it back into the jury
2 room, listen to the part where she tries to calm him [Simpson can
3 be heard throughout the call shouting in the background] … as she

4 tries to calm him, she tries to calm him by using a calm voice of her
5 own. You get what I’m saying? … What does that mean? Is that helpful
6 to you at all? Let me suggest to you that what that means is that she has
7 been there before. She apparently feels as if she has a way, some tack,
8 some approach that might help calm him down. It is Nicole’s approach
9 to her problem when the defendant becomes enraged, a calm voice,
10 and she is scared and you know she is scared. You can hear the fear, you
11 can hear the terror in her voice when she calls the 911 operator.
Following the defence’s equivalent closing argument, the prosecu-

tion had one final opportunity to address the jury before they retired
to consider their verdict. In a brief rebuttal statement, the prosecu-
tion took the opportunity to replay the video compilation.
Reminding the jury that the victims had indeed been able to
contribute to the telling of the crime story, in their own words,
Clark stated:
usually I feel like I’m the only one left to speak for the victims. But
in this case, Ron and Nicole are speaking to you. They’re speaking to
you and they’re telling you who murdered them.
The use of such active verbal processes as ‘speaking’ and ‘telling’ in this
extract and throughout the presentation of the testimony on behalf of
the victims serves to underline the presence of the victims in the court-
room and their participation in the trial.
Clark continued with a powerful evaluative summary of Nicole’s
contribution, combining both ‘real’ utterances from Nicole’s police
interviews (in lines 2 and 7) and inferential utterances extrapolated
from her actions and behaviour (lines 5–7):
1 Nicole started before she even died. Remember back in 1989, she
2 cried to Detective Edwards, ‘He’s going to kill me. He’s going to kill
3 me.’ The children were there. 1990, she made a safe deposit box,
4 put photographs of her beaten face and her haunted look in a safe
5 deposit box along with a will. She was only 30 years old. How many
6 30 years old you know do that, a will, a safe deposit box? It’s like writing
7 in the event of my death … She knew. ‘He’s going to kill me.’ 1993, the
8 911 tape, the children were there. He was screaming. She was crying
9 and she was frightened. I think the thing that perhaps was so chill-
10 ing about her voice is that sound of resignation. There was a resig-
11 nation to it, inevitability. She knew she was going to die.
Clark continued with a summary of the contribution of the second

victim, Ron Goldman, interpreting his physical struggle with his
assailant as his testimony to the jury:
1 And Ron, he speaks to you by struggling so valiantly. He forced his

2 murderer to leave the evidence behind that you might not ordinar-
3 ily have found.
The prosecution’s concluding remarks reminded the jury that through

a combination of their actual words captured on recordings, and the
physical evidence collected from the crime scene, both victims had, in
a very real and powerful sense, been able tell the story of their deaths
and had made an active contribution to the trial.
Clark ended her emotive summation with a final plea for the voices
of the victims to be heard by the jury:
1 They both are telling you who did it with their hair, their clothes,
2 their bodies, their blood. They tell you he did it. He did it. Mr.
3 Simpson, Orenthal James Simpson, he did it. They told you in the
4 only way they can. Will you hear them or will you ignore their plea
5 for justice, or as Nicole said to Detective Edwards, ‘you never do
6 anything about him’. Will you?
The use of the verb ‘hear’ (in line 4) is of interest in this final
extract, since Clark is appealing not only to the auditory, perceptual
sense of the verb, but also to its more metaphorical sense, as used in
therapeutic contexts in phrases such as ‘I hear where you are coming
from, meaning ‘I understand and empathise’. Thus, her plea is for
the jury not only to literally listen to and process Nicole’s words, but
also to interpret and act on them, according to their collective con-
science; this use is signalled by the contrast set up in line 4 – ‘will
you hear them … or will you ignore them’, implying a level of
processing beyond the straightforwardly perceptual and towards the
evaluative.
The role of the jury in the trial narrative
I will end this chapter with a discussion of the role of the jury as the
audience for the prosecution and defence narratives and will explore
what kind of characteristics a convincing account has in the eyes of
the jury.
Perhaps the most significant difference between fictional and court-
room stories is the role of the reader/listener(/juror) in the process. As
Toolan (1995: 8) points out, ‘the ultimate authority for ratifying a text
as a narrative rests not with the teller but with the perceiver/addressee’;
in the courtroom context, it is the jury that reaches the final decision
about the coherence of the authoritative version of the crime narrative.
The task facing the jury is to take apart the narratives presented by
both sides, and search for a definitive and satisfying crime story, in
essence a deconstructive process, stripping away the evaluate layers of
evaluation and subjectivity. In contrast, fictional, non-forensic narra-
tives have the primary motivation of achieving and heightening emo-
tional engagement between the reader/listener and the text.
The process of deconstruction appears to be progressive, since court-
room narratives are essentially organic and dynamic in nature. The
prosecution and defence need to be flexible and responsive throughout
the trial, to both new disclosures and judicial rulings on the admissibil-
ity of witnesses and evidence. The jury too are, in a very real sense,
constructing the story as they go along. Indeed, Hastie and
Pennington’s (1996: 957) study suggests that there is some evidence
that jurors construct an ‘intermediate summary’ of the evidence pre-
sented to them during the trial; this explanation, they argue, rather
than the original ‘raw’ evidence, forms the basis of the final decision.
Thus, it seems that jurors construct individual narratives throughout
the trial before collaboratively negotiating a (hopefully) unanimous
consensus and implicitly a definitive version of the crime story during
deliberation. This process will be discussed further in chapter 8, dealing
with jury deliberation in the Simpson trial.
In the case of a literary mystery, the reader has only to turn to the
final pages to reveal the identity of the culprit; in the courtroom,
this task is a more onerous and arduous one for the jurors, who play
an active and decisive role in determining the content of the final
scene. In addition to understanding, processing and interpreting a
huge amount of often complex information in a way which the
story reader does not, jurors ultimately carry the ethical responsibil-
ity for the ‘whodunit’.
The trial process is therefore infinitely more interactive than the

reading of an already completed narrative, since this is a story without
an ending until the jury foreperson speaks. Significantly, the jury can
also choose not to decide if they feel that they have insufficient evi-
dence on which to base their judgement – the classic scenario of the
hung jury. This was not a distant possibility for the Simpson case, as
the rate of hung juries in criminal trials in Los Angeles County cur-
rently stands at 13 per cent. Despite widespread fears that a hung jury
would be the likely outcome of the Simpson trial, the jury did manage
to reach a unanimous verdict, acquitting the defendant on both
counts.
What makes a good story? Consistency, completeness and coherence

Simpson’s lead attorney saw a narrative framework, introduced in the
opening statement and reiterated in closings, as the only way in which
jurors could realistically remember and process such complex and vast
amounts of information. With his mind (unsurprisingly) fixed on the
strategic implications of such a framework for the verdict, Cochran
(1996: 237) explained:
what jurors need is a story into whose outline they can plug the tes-
timony and evidence with which they are constantly bombarded. It
is through that process that they form their sympathetic under-
standing of the case. And it is that understanding that, ultimately,
informs their verdict.
There are a number of fundamental dimensions which psychologists

and psycholinguists have identified as crucial in determining jurors’
acceptance of crime stories in court. According to Hastie and
Pennington (1996), there are three key factors which determine jurors’
adoption of a story.
The first criterion is consistency; a convincing story must contain no
internal contradictions.
In addition, the story should have a reasonable degree of complete-
ness; in this respect, the prosecution faced a number of hurdles. The
case against Simpson was based largely on circumstantial evidence, as
we have seen, with no murder weapon and no eyewitnesses to the
crime. Hastie and Pennington (1996: 957) claim that ‘there are some
hints that for some jurors [in the Simpson trial], reasonable doubt took
the form of the incompleteness and vagueness of major components of
the prosecution story’.
The third factor is plausibility, in other words, the extent to which

the story corresponds to jurors’ knowledge of the real world and liter-
ally ‘makes sense’. This final criterion is worthy of more detailed
scrutiny here since it has the most linguistic dimension of the three
factors.
Simpson’s attorney underlined the importance of constructing a
plausible courtroom story, explaining that:
the story you present … must be a clear, coherent, credible frame-

work into which the actual evidence and testimony presented will
fit … if I have accomplished all of these steps those twelve people
will go into the jury room and use my client’s story to piece all the
puzzling things they’ve been told into a coherent picture that
satisfies both their legal duty and their human curiosity about what
really happened.
(Cochran 1996: 237)
The concept of narrative typification (Jackson 1995) is encapsulated in

Cochran’s trial catchphrase ‘if it doesn’t fit, you must acquit’, which he
told the jury repeatedly in the defence closing argument.
The use of narrative storytelling structures within the trial allows
jurors to make ‘judgements about the coherence and completeness of
the “story” compared with their story schema’ (Bennett and Feldman
1981: 7), by implying a normative prototype structure against which
possible alternative versions may be measured. This normative assump-
tion may, in fact, be dangerous on several levels, not least the fact that
many jurors’ schematic prototypes about double homicides are likely
to have been constructed through exposure to a diet of TV movies and
tabloid newspapers. Nevertheless, narrative forms the basis for the
jurors’ decision-making processes and the two cornerstones of criminal
justice are based on such a presumption; if jurors collectively decide
that the story provided is a suitable match for their schema (an aggre-
gate schema achieved by what Den Boer (1993) calls ‘pseudo-consen-
sus’ in the jury room), then the burden of proof has been satisfactorily
fulfilled. If no suitable match has been achieved, the principle of
reasonable doubt is applicable.
The jury will tend to accept from the various opposing versions of
events a single story which makes sense to them, given their under-
standing of the world. Scheppele (1989: 2080) underlines the impor-
tance of jurors applying this real-world knowledge and experience to
the courtroom stories presented to them, stating that:
the resolution of any individual case in the law relies heavily on a

court’s adoption of a particular story, one that makes sense, is true to
what listeners know about the world, and hangs together.
If attorneys can succeed in invoking one element of a particular

schema or script, then it is likely that the associated elements will
follow. Thus, by showing that Detective Mark Fuhrman was guilty of
making racist remarks, the defence implied that he was capable of
planting evidence, corrupting samples and lying in court – all
because Simpson was an African-American. Ultimately, this strategy
seems to have been highly effective for the defence in securing
Simpson’s acquittal and concurs with Jackson’s (1995: 156)
comment that ‘activation of a strong racial, ethnic or religious
schema or stereotype may exert powerful effects upon our current
feelings or moods’. Chapter 7 will discuss some of the linguistic real-
isations of these schema activations in the closing argument of the
defence.
As the chapter on jury selection showed, jurors whose realm of expe-
rience encompasses a similar background to that of the defendant are
likely to be selected by the defence, since it is anticipated that they will
be likely to empathise with defence argumentation and the defendant’s
plight; on the other hand, jurors whose background does not include
aspects of life which are perceived as relevant to the case may well find
themselves rejected by peremptory challenge.
The Simpson jury was a perfect example of Jackson’s (1995) observa-
tion that narrative typifications, which are emotionally laden, may also
be groupable according to particular social and/or professional cate-
gories, or ‘semiotic groups’, and may be responsible for activating what
Hastie and Pennington (1996) refer to as ‘prejudice triggers’ (see
chapter 8).
The first opportunity in the Simpson trial for lawyers from both sides
to attempt to activate these triggers came in the opening statement
phase, heralding the start of the trial.
Opening statements as a conceptual orientation to the trial

narrative
The stated function of the opening statement by each side is as an

ostensibly neutral summary of the trial narrative, in other words, the
presentation of an outline of the substantive issues connected with
the crime and its investigation. The principal difference between the
respective functions of openings and closings is reflected in the fact

that closings are often referred to as ‘arguments’, whereas openings are
usually termed ‘statements’, conveying the more neutral intentionality
of the opening. Judge Ito pointed out this fact to the jury, prior to the
opening statements, directing them that:
Any statements made to you by the attorneys during the course of

their opening statements are not evidence and should not be con-
sidered as such by you. These opening statements are normally
given by the attorneys to sort of give you an overall view of the evi-
dence that they intend to present. It’s to give you a road map so to
speak as to how to evaluate the evidence.
However, the opening statement is less neutral than it appears; it does

not simply serve as an initial orientation to jurors regarding the issues
to be dealt with in the trial, but also functions as a conceptual orienta-
tion to the trial participants and the trial narrative. In addition to pro-
viding a summary of the respective stories to be told during the trial,
the trial opening statements also provide both sides with an opportu-
nity to exploit a further meaning of ‘orientation’ – that of establishing
attitude and stance, echoing Pyszczynski et al.’s (1981) finding that
opening statements frequently ‘promise more than the evidence can
show’.
Both these highly interpersonal aspects – the promotional (discussed
above) and the stance-orientational – were expressed in the defence
opening statement, where Cochran used the metaphor of a cinema
preview, as well as that of a guide or ‘roadmap’:
Now, the opening statement is not opening argument, but it is just

that, opening statement. If you have had occasion to go to a movie,
you know that there is something called the previews of coming
attractions, and that is supposed to be – it is supposed to be a guide,
a roadmap, if you will, what we expect the evidence to show … As
the Court has so appropriately indicated, what I say is not evidence;
it is just to aid you and guide you.
The role of language in constructing this orientational ‘roadmap’

is significant. Perhaps the most crucial aspect of presenting a plausi-
ble and satisfying story in court is the way in which the narratives
are framed, both prospectively in the opening statements and
retrospectively in closings. Since overt evaluation and persuasion are

banned in opening statements, lawyers must achieve a persuasive
effect in their opening statements through the subtle use of lan-
guage. The strategic use of lexical choices in creating these persua-
sive narrative frameworks is the focus of chapter 3.
3
Framing Courtroom Narratives
through Strategic Lexicalisation:
The Opening Statements
Introduction
Opening statements play a significant role in influencing the jury

decision-making process. First, openings have an important primacy
effect. Using post-verdict interviews with mock jurors, researchers such
as Lindquist (1982) have found that as many as 50 per cent of all jury
trials are decided by what is said in opening statements. Advocacy
expert Jeans (1975) puts the figure even higher, at 80 per cent. The psy-
chological literature on opening statements suggests that, even despite
juror scepticism about their influence, openings can have a hugely per-
suasive effect, particularly when, as in the Simpson trial, the case
hinges on a probabilistic assessment of a defendant’s character or
behaviour (Lind and Ke 1985).
A fundamental ingredient in producing this persuasive effect is the
lexical representation of the acts and actors involved in the crime story.
The role of strategic lexical choices in constructing the prosecution and
defence narrative frameworks during opening statements will be the
focus of this chapter. It will involve a detailed analysis of some of the
cognitive and linguistic ‘anchors’ (Vinson 1985; Wagenaar et al. 1993)
relating to the depiction of Simpson as a wife-beater in the prosecution
opening statement, and the defence response in their equivalent
monologic address.
In order to elucidate the potential rhetorical effects of these (re)lexi-
calisations, I will draw on insights from corpus linguistics, accessing
the COBUILD Bank of English and focusing specifically on the notion
of the semantic prosodies of the lexical choices in the two respective
opening statements.
65
Connotation, collocation and semantic prosody
Collocation, ‘the company a word keeps’ to use Firth’s (1957) definition,

can reveal a great deal about the semantic shape of a word or phrase, and
one particular collocational characteristic, semantic prosody, provides
information about its associated connotational orientation.
Louw (1993: 157) defines semantic prosody as ‘a consistent aura of
meaning with which a form is imbued by its collocates’. Sinclair (1987:
155–6) observes that the verb happen, for example, is typically associ-
ated with unpleasant things such as accidents and that, similarly, set in
appears to collocate frequently with negative events and states, such as
‘the rain set in’ and ‘problems set in’. Later work by Stubbs (1995a,
1995b) has also highlighted a similarly negative semantic prosody in
the collocates of the lemma cause.
In seeking to describe the prosodies of words and phrases, a corpus is
invaluable as a resource since it permits large-scale searches for patterns
of word behaviour. Louw’s assertion is that many (or even most)
semantic prosodies operate predominantly at an intuitive level, and he
advocates the exploration of corpora as a way of elucidating more sys-
tematic patterning in semantic profiles.
A number of researchers have conducted studies in precisely this
way, often with a critical linguistic orientation to their work.
Krishnamurthy’s (1996) study, for example, used corpus collocations
to bring out racism in the contexts of use of the words ethnic, racial
and tribal, respectively; Caldas-Coulthard and Moon (1999) exam-
ined collocations of words relating to age and beauty and their
gender-differential usage in newspaper reports, highlighting gender
marginalisation. More recently, Hunston (1999) has explored the
asymmetry of the words deaf and hearing, finding a ‘prosody of
disadvantage and suffering’ in the use of deaf (Hunston 1999: 10).
The lexical items selected for analytical attention in this chapter
relate to references to domestic violence; however, I have not chosen the
more obvious representations of Simpson as a ‘wife-beater’, ‘batterer’ or
‘abuser’, although the prosecution argument contains copious exam-
ples of these powerfully negatively oriented formulations. Rather, this
analysis takes some of the more subtle terms which are used by the
prosecution to construct an image of Simpson as a violent man ulti-
mately capable of murdering his wife. The final section deals with the
defence response to this presentation of Simpson, and examines some
of their attempts to minimise and neutralise the negative prosodies
evoked by the prosecution.
The Opening Statements 67
Constructing the prosecution and defence crime narratives

through lexical choice
Through the skilful exploitation of different layers of lexical meaning,

it is possible for lawyers to communicate subtle and partisan informa-
tion about victims and alleged perpetrators, without falling foul of the
rules of evidence and without appearing to subvert the intended func-
tion of the opening statement. In order to achieve this, lawyers must
manipulate the grey area between denotational meaning, the relatively
neutral representational depiction of an entity and its more evaluative
connotational meaning.
The aim of the lawyer is to use strategic lexical choices which orient
the jury towards a particular conceptualisation of the trial events and
personalities, in other words, by prescriptive and prospective lexicalisa-
tion. In so doing, the lawyer is able to exploit the connotational and
collocational properties of the lexical items selected.
The opening statement represents a potentially powerful opportu-
nity for lawyers from both sides to map out prospectively the ‘semantic
environment’ – to use Sinclair’s (1991) term – of the crime, the victim
and the alleged perpetrator, to construct a framework into which the
witnesses and physical evidence will be systematically placed as the
trial progresses.
The power of strategic lexical choice in influencing perception is
illustrated by Danet’s (1980) much-cited study of the differential use of
lexical items in an American illegal abortion trial. The prosecution
argument presented a manslaughter case, constructed around the life
(and death) of a baby, whereas the defence conceptualised the case in
terms of a foetus. The defence argued that since the foetus was inca-
pable of independent life, there could have been no crime of
manslaughter committed against it. The jury agreed with the prosecu-
tion formulation and the doctor was convicted of manslaughter. This
simple example is an apt illustration of the power of semantic cate-
gories and labels and the presuppositions which underpin them.
Drew (1992: 478) also discusses the use of loaded lexicalisations in a
rape trial, where the lawyer argued that the initial meeting between
defendant and plaintiff took place in a bar, with all its potential conno-
tations of sleaze and promiscuity; the defence narrative in contrast
refers to the location repeatedly as a club. Through a series of similar
relexicalisations, defence lawyers are able systematically to construct
elaborate scenarios which rely for their effect upon the jury under-
standing the connotational loading of the lexical items chosen.
‘Domestic discord’, ‘rocky relationships’: representing

marital violence in the Simpson opening statements
One central feature of the prosecution case against Simpson was that he
had been an aggressive and violent husband, and that a precedent of vio-
lence towards Nicole had been established during their marriage, which
culminated in the double murder of Nicole Brown and Ron Goldman in a
jealous rage killing. For lead prosecutor Marcia Clark, the case – and the
opening statement formulation of it – was a straightforward one, with the
issue of domestic abuse at its core: ‘Chris [Darden] would lead off with the
why of the crime, the motive: domestic violence. And I would follow with
the how. A clean one-two punch’ (Clark 1997: 265–6). The defence,
however, disputed the claim that Nicole was abused by her husband and
had an alternative version of events, which instead presented Nicole
Brown Simpson as a manipulative and promiscuous woman.
The groundwork for these conflicting images of the couple and
their relationship in and out of marriage was laid during the opening
statement phase of the criminal trial and was constructed on the
basis of a number of significant lexical choices depicting Nicole and
O.J. Simpson respectively, as well as the violent acts alleged to have
characterised their marriage. The remainder of this chapter will focus
on some of the conflicting lexical representations of the couple and
their relationship in the two opening statements, drawing on
collocational and connotational insights from the COBUILD Bank of
English.1 I will begin with the case for the prosecution.
Encountering O.J. Simpson

In the prosecution opening statement, Simpson was portrayed as an
individual with a sharp contrast between his public and private per-
sonae. In order for the jury to be able to contemplate Simpson as a
potential double murderer, it was crucial for the prosecution to decon-
struct the professional image of him as a football icon and movie star.
Prosecutor Darden reminded the jury that although
1 we’ve seen him play football for USC, we watched him thrash LA
2 playing the Rose Bowl … we watched him leap turnstiles and chairs
3 and run to airplanes in the Hertz commercials and we watched him
4 with a 15-inch Afro in Naked Gun 33 1/2 [sic] … and we came to
5 think that we know him, what we’ve been seeing ladies and gentlemen,
6 is the public face, the public persona, the face of the athlete, the face of
7 the actor. It is not the actor who is on trial here today.
The private persona depicted by Darden was far less attractive. One of
the alternative images constructed by the prosecution cast Simpson in
the role of the jealous, possessive husband obsessed by his ex-wife:
1 That is the face we will expose to you in this trial, the other side of
2 O.J. Simpson, the side you never met before. We will expose in this
3 trial and who [sic] to you in this trial [sic] the other face … the one
4 that Nicole Brown encountered almost every day of her adult life, the
5 one she encountered during the last moments of her adult life; the
6 same face Ronald Goldman encountered during the last moments of
7 his life.
The verb chosen – encounter – (in lines 4, 5 and 6 of the extract above)
is of some significance, not least because it is used to refer rather
uncharacteristically to a person (Simpson) rather than an inanimate
entity, its more common usage. It also carries a negative semantic
prosody, which may be exemplified by examining the semantic profile
of the word in the COBUILD corpus.
A search of the corpus reveals that the verb encounter collocates
strongly with a set of negative phenomena, including those listed here:
male hierarchy and regular encounter prejudice from
a new Soviet Union seem to encounter new obstacles.Today,
Even real hotel managers encounter problems. Earlier
then you’re going to encounter a glass ceiling in your
for the hazards they will encounter whether it’s radiation,
forces continue to encounter pockets of stiff resistance
a demand that is sure to encounter fierce opposition from
medical risks they might encounter at their intended
In addition to their negative prosodies, these collocates also form sub-

groups which share a number of other characteristics; both hazards and
risks – used here in a scientific sense – represent unpredictable dangers,
whilst resistance and opposition have pre-modifiers (stiff and fierce
respectively) which indicate a degree of violence. By representing
Simpson as the object of encounter, the prosecution were able to evoke
both the negative prosody and the sense of unpredictable violence

conveyed by the verb and its collocates.
This also ties in with another conceptualisation of Simpson used by
the prosecution throughout their closing argument on more than 20
occasions, indicative of the way in which the opening statement is
conceptually – and linguistically – connected to the closing argument.
Simpson’s lead attorney underlined this point, stating that ‘the first
thing you say to a jury and the last things said are all of one piece … a
thread that runs through the whole trial’ (Cochran 1996: 236–7).
Simpson was portrayed in the prosecution closing using the metaphor
of a ticking time bomb – unpredictable, violent and essentially uncon-
trollable. This would appear to be a good example of the phenomenon
described by Louw (1993: 172), whereby semantic prosodies may be
supported by metaphorical constructs which serve to reinforce the
message conveyed. As he notes:
one even finds that the assistance of a metaphor can be enlisted

both to prepare us for the advent of a semantic prosody and to
maintain its intensity once it has appeared.
The following extract illustrates one example of the prosecution time

bomb metaphor:
the fuse is getting shorter, the fuse is getting shorter, and there is about to
be an explosion … he is about to lose control like he did on those
earlier occasions. And sure he didn’t kill her on those earlier occa-
sions in October of ’93 or in 1989. But that was then and back then
the fuse was a lot longer. But now the fuse is way short and it is awfully
short.
The extensive (and equally strategic) use of metaphor, such as that of

Simpson as a time bomb, was a defining characteristic of both the pros-
ecution and defence closing arguments, and will be dealt with in
further detail in chapter 7.
The issue of control – gaining it and maintaining it over Nicole, and,
as Darden suggests above, ultimately losing it himself – was the princi-
pal depiction of the Simpson marriage in the prosecution opening, in
terms of both its frequency of use and the significance attached to it.
Their claim was that the domestic violence that Nicole suffered as a
result of her ‘encounters’ with Simpson was motivated by his desire to
control his wife, and that it was this need to control which ultimately
led to her murder.
Just as encounter can be seen to demonstrate a tendency towards a
strongly negative semantic prosody, so the notion of control appears to
have a similarly pronounced negative profile. This will now be
explored and exemplified using evidence from the corpus.
Controlling Nicole Brown Simpson

The theme of control recurs repeatedly in the prosecution opening state-
ment, the word control itself occurring no fewer than 66 times, in both
nominalised and verbal forms. Simpson is depicted as having controlled
his wife in a number of different ways, including the following:
• O.J. Simpson prevented his wife from having a job outside the
home, and thereby from having any measure of financial/personal
independence;
• He used his wealth to gain power over her by giving her money and
gifts;
• He interfered with her relationships and friendships, choosing her
friends for her;
• Simpson stalked his ex-wife after their separation and later divorce.
• He was obsessively jealous of her subsequent relationships with
other men.
(adapted from Gaines 1999)
The following pair of extracts show representative samples from the

prosecution opening which demonstrate both the extent and context
of use of the word control:
1 And as the years went on and as they continued to date and as he

2 gained more and more control over her, the more control he gained, the
3 more abusive he became. As you listen to the evidence in this case,
4 you’re going to be hearing evidence regarding domestic abuse, domes-
5 tic violence, stalking, intimidation, physical abuse, wife beating, public
6 humiliation. As you listen to the trial and you hear this evidence and
7 see this evidence, please keep in mind that all of these different kinds
8 of abuse were all different methods to control her.
1 He killed her because he couldn’t have her; and if he couldn’t have

2 her, he didn’t want anybody else to have her. He killed her to control
3 her. Control is a continuing thing. It was a continuing thing, the

4 central focus of their entire relationship, by killing Nicole, this
5 defendant assumed total control over her. By killing her, he com-
6 mitted the ultimate act of control.
The word control was systematically used by the prosecution to con-

struct an image of Simpson as a man who was obsessed by an over-
whelming desire to control his wife, to such an extent that he was
prepared to murder her in order to prevent her from having a life of
her own once they were divorced.
The semantic profile of ‘control’ – the corpus evidence

An analysis of the collocational profile of the verb to control in the
corpus reveals a number of characteristics of significance to the present
discussion. Two aspects are of particular relevance: first, the typical
agent of control, and second, what or who commonly represents the
object of control. These will be dealt with in turn.
Evidence from the corpus suggests that the kinds of people who typ-
ically control tend to be authority figures, often representatives of
official bodies of some kind, for example the police, army or govern-
ment. Thus, their warrant to control is legitimated to a great extent by
their official position and societal status. The following examples from
the corpus illustrate this tendency:
government is failing to control its police in the gold
Mr Arafat’s ability to control the PLO’s unruly
Police trying to control the violence
forces were attempting to control the situation
Labour government would aim to control industrial dumping
new powers for UN observers to control Iraq’s arms capability.
If we now turn our attention to corpus evidence of what or who is

typically controlled, it becomes clear that the majority of objects of
control are generally held to be things that represent a danger or a
negative influence of some kind. Some corpus examples of the lexical
fields which these phenomena fall into include:
Warfare/weaponry
aircraft to overfly Iraq. To control chemical weapons, Iraq
recommend measures to control terrorist activities
talks on how to control arms sales. Together,the
Economic problems
to simultaneously control inflation and produce enough
for everyone else. To control costs, Bill Clinton
our attempts to control spending on state pensions.
Medical problems
a new programme to control the outbreak of cholera in
foreign help to control the spread of disease among
It appears, then, that control is legitimised if two criteria are

satisfied: 1) that the controller has some degree of official, externally
validated sanction to take on this role; and 2) that this control is
associated with events and conditions that are generally perceived to
be negative and/or dangerous, and as such need be controlled for the
greater good.
Neither of these conditions is adequately fulfilled in the Simpson
context. The sanction for husbands to control their wives traditionally
accorded by Christian marriage vows no longer applies in contempo-
rary western society; certainly in California, where the Simpson case
took place, the ‘love, honour and obey’ clause has largely been
replaced by a range of more egalitarian alternatives. In conceptualis-
ing Simpson as a controller of his wife, the prosecution presented
Simpson’s behaviour as entirely unjustified and unreasonable,
constructing Simpson as an obsessive man excessively concerned with
discipline and authority.
One further group of collocates which emerged from the corpus search
of the verb control demonstrates another context where control seems
entirely justifiable. It seems that controlling oneself in a variety of ways is
a laudable, if challenging, undertaking. This group of collocates deals
with the controlling of various emotional states and conditions:
Emotions
for you to control your impulses when you feel angry
large. Struggling to control my emotion, I asked him
of Sally’s mother to control an addiction needed to be
John was struggling to control his temper
This small sub-group reveals an interesting glimpse of a potentially

significant gender difference in the type of collocates associated with
self-control. The first and second lines, considered in their broader
textual contexts, deal with female control, and the fourth, which deals
with a male control issue, seems to highlight a potential gender differ-
ence in the connotations attached to the concept. If the perception
here of women controlling their emotions and men controlling their
tempers is more generalised, then this seems an appropriate conceptu-
alisation for the prosecutors in the Simpson case, who attempted to
portray Nicole Brown Simpson as the emotionally vulnerable wife and
O.J. Simpson as the violent and abusive husband who finally, in prose-
cutor Darden’s words, ‘loses control’ of himself.
A more in-depth search of the corpus reveals some interesting gender
differences in precisely which aspects of themselves men and women
seek to control. These differences will now be explored and
exemplified.
Gender differences in the corpus evidence

For the string ‘control’ + ‘her’, the corpus returns 36 examples, of
which a representative selection of 12 lines is presented below:
weak and powerless, unable to control her life but
from taking the drugs needed to control her condition.
Danielle, 12, struggled to control her emotions.
Laura could barely control her excitement.
Nurse who could not control her outrage, even
of Michelle as she struggled to control her ragged emotions.
preoccupied with trying to control her weight, while

very likely be unable to control her spending; once
currently taking medication to control her mood swings and
her life, she had vowed to control her illness
of her mother’s inability to control her alcoholism.
pills and although unable to control her feelings, Edina
The female-oriented control seems to cover a range of topics, from

emotional difficulties to mental illness, gambling and alcohol addic-
tion, and diseases of various kinds. If this list is contrasted with the
male-oriented control, a very different set of references applies:
can’t win at blackjack, can’t control his temper and now
Drago said struggling to control his rising temper.
was hardly able to control his rage.
taut from his effort to control his fury, he leapt
her dad Vic. Unable to control his anger, Vic
got to stop. He must control his aggression and
He is a man who can control his temperament
be in a position to control his impulsive nature
Struggling to control his machine he
on because he can’t control his drinking
De Voss could not control his actions.
was that he could control his frustration
A corpus search of the string ‘control’ + ‘over’ + ‘her’, which accounted

for 18 instances of control in the prosecution opening, returned only
three lines which dealt with individuals (male) controlling other indi-
viduals (female). Nevertheless, the context of use of these occurrences
is noteworthy; one of the three represented the asymmetry of the
parent–child relationship, with the remaining two examples referring
to contexts of domestic abuse:
in the end, after I started having therapy, I realized it

was actually all to do with me. The one thing I had never
bargained on was that my girlfriend would report me. I
actually thought I had control over her. But one night we
had a row, I laid into her and she ran to her sister’s.
His mother became an alcoholic. Ashby, her youngest son,

and his brother Clive, found it difficult to forgive her for
her weakness in the face of a boorish husband who demanded
complete control over her.
The sole occurrence of ‘control’ + ‘over’ + ‘him’ was a generic-he refer-

ence to the potential dangers of controlling a child’s development:
as soon as one exerts control over him, his natural growth

will be violently interrupted.
The corpus evidence for control seems to present a highly stereotypical,

gender-differentiated picture for men and women, an image that was
also conveyed in the Simpson trial. Women are represented as emo-
tional and vulnerable, attempting (and struggling) to keep control of
their feelings and the affective side of their lives. For the women, the
majority of collocates also seem to refer to relatively internalised emo-
tions and situations; in contrast the male representation is one of
aggression and outwardly-oriented violence.
In the context of the Simpson marriage, this represents a very
similar construction of their relationship from the prosecution
standpoint. Nicole Brown Simpson was presented as a dependent
and over-emotional woman (although this, of course, in no way
renders her deserving of physical violence); O.J. Simpson, by
contrast, was portrayed as a belligerent man whose desire to control
his wife was so great that it progressed over a five-year period from
arguments to violence and ultimately to her murder.
The idea of progressive violence was central to the prosecution case.
They conceptualised the domestic violence as a chain of events where
the level of violence increased steadily, until it reached a climax on the
night of the murders. The construct chosen by the prosecution to refer
to this process was a cycle of violence.
‘A cycle of violence’
A corpus analysis of this string and its semantic profile indicates that it
may have been a highly appropriate choice of representation for the
prosecution. The phrase appears to have two dominant characteristics,
based on the corpus evidence. The phrase cycle of seems to collocate

strongly with negative events and situations, and in addition, cycles,
and particularly cycles of violence, have a defining characteristic in
that they tend to increase in severity over a long period of time. Both
these characteristics represented the Simpson situation, from the pros-
ecution’s perspective. Each of these aspects will be exemplified in turn.
From an analysis of the string ‘cycle + of’, the corpus seems to
confirm the negative prosody of ‘cycles’:
could mean a cycle of confrontation and
break free from this cycle of repression and violent
east has seen a gruesome cycle of revenge killings since
to break out of the cycle of poverty. Naturally,the
aimed at ending the cycle of violence and tension
have raised fears of a cycle of tit-for-tat racial
led to a seemingly unending cycle of budget cuts and tax
merely perpetuate the cycle of hatred and retribution,
This would create another cycle of problems for teachers.
culminating in a vicious cycle of addiction. Larger and
locked into a lifelong cycle of crime and punishment.
homeless families to a cycle of deprivation which in
Cycles of violence are also protracted and increasing in brutality:
decades-long cycle of violence. Colombia’s new
were in a repeating cycle of violence, where the
an escalating cycle of violence. For National
halt the worsening cycle of violence. Alone, Lebanon
In the prosecution opening, both aspects of the cycle of violence were

highlighted in the context of Simpson’s escalating abuse of his wife.
Prosecutor Darden began by alluding to the escalation of the violence
in a quantitative sense. He uses the verb punctuate (lines 1–2) to evoke
the fact that Simpson’s attacks on his wife grew not only more fre-
quent but also more violent:
1 And the marriage was a stormy marriage and it was a marriage punc-
2 tuated by acts of violence and that violence would always be followed
3 by an apology. He would apologise, give her jewellery, buy her
4 flowers. He would promise to do better, promise, promise to main-
5 tain control of himself and he would promise not to do it again. And
6 then those acts of violence would be followed by additional acts of
7 violence, and it became a cycle; violence, apologies, a period of quiet
8 and calm, then violence and apologies, quiet and calm, violence,
9 apologies, quiet, calm, a cycle of violence that characterised their
10 relationship.
1 What we are suggesting, and the evidence will show, that there was
2 a cycle of violence, a cycle of violence and the dominant theme in their
3 relationship and in that cycle and the ultimate objective was always
4 control, control.
This is a construct revisited in the prosecution closing argument, again

related to Darden’s use of the time bomb metaphor, representing
Simpson’s temper as a slow-burning fuse:
1 This relationship between this man and Nicole, you know, it is like
2 the time bomb ticking away. Just a matter of time, just a matter of
3 time before something really bad happened … You know, you meet
4 people in life and there are people with short fuses. You know, they
5 just go off. And there are others with longer fuses, you know, takes
6 them a little while longer to go off. And relationships are the same
7 way sometimes, you know, especially a violent abusive relationship
8 like this one. This thing was like a fuse, a bomb with a long fuse …
9 that fuse is burning in 1985 … The fuse is lit. It’s burning, but it’s a
10 slow burn. We next go to 1989 … we have to go back in the past to
11 see how we got to where we are today because when you do, you
12 see a pattern developing here.
In this context, Simpson murdering his wife in a jealous rage is presented

as an entirely logical progression of events in the cycle of violence:
1 As you listen to the evidence, you will see that his decision to kill
2 finally was merely a final link in a progressive chain of abusive and con-
3 trolling conduct, and it was a chain that consisted of fear and intimi-
4 dation and battery and emotional and mental abuse and economic
5 abuse and control and stalking. And you’ll see that there was a
6 common scheme and common plan in all of this, and that was to
7 control, to control her. It was all designed just to control her. And in
8 controlling her, it was the private man, private O.J. Simpson, it was
9 the defendant who committed that final ultimate act of control.
The issue of escalation was to become of great significance in the sub-

sequent evidential stage of the trial, as the prosecution attempted to
establish a motive for the killings. An expert on domestic violence was
called to testify that, along with some obvious situational trigger for
the homicide, the essential criterion in cases where an abusive spouse
eventually kills is ‘a pattern of escalating violence’.
The significance (and the cleverness) of portraying the events as
cyclical in nature is reinforced by the prevalence of a ‘cyclical theory of
battering’ (Walker 1979) in the literature on domestic violence. Greene
et al. (1985: 207) explain that there is a ‘three-phase cycle typical of
many battering relationships … the incidents increase in number and
severity’. By portraying the events leading up to Nicole Brown
Simpson’s murder in this way, the prosecution’s intention was to con-
vince the jury that her killing was the natural conclusion, even an
inevitability, in the progression of violence.
The case for the defence
The defence’s response to the prosecution’s opening statement was vig-

orous and consisted of a systematic rebuttal of each of the prosecu-
tion’s contentions. In particular, the defence were faced with a
problem in trying to explain away the issue of Simpson’s alleged
attacks on his wife, and the representation of them as an escalating
cycle. As we have seen, on a number of occasions Nicole had called the
police to report domestic abuse by her husband, including the two
911 calls to the emergency services.
The prosecution evidence did seem to support the two central crite-
ria of a ‘cycle of violence’ – first, that there had been repeated acts of
violence, and second, that the nature of these attacks had grown
steadily more serious over the years, culminating in Nicole’s murder.
The defence needed to establish a credible counter-claim such that

the cycle of violence was in fact:
(a) not a ‘cycle’, and

(b) the ‘violence’ was verbal rather than physical.
They attempted to do this through the use of a series of carefully

selected lexical choices of their own. An analysis of these terms will
make up the remainder of this chapter.
Unrelated incidents
One of the ways in which the defence attempted to subvert the idea of
Simpson as a serial wife-beater was by conceptualising the alleged
assaults against Nicole Brown Simpson as incidents. This representation
aimed to de-emphasise the systematic nature of the abuse and thereby
reduce the damage to Simpson’s credibility, since it (presumably) repre-
sented a ‘better’ image to be presented as a husband who occasionally
loses control and beats his wife impulsively, than to be seen as one
who repeatedly assaults her compulsively. An example of this phenom-
enon is illustrated next:
1 Two incidents they talked about, the one incident involving the man
2 Joe Stellini was at Mezzaluna and the other incident was a restaurant
3 called Tryst and in both incidents there was no problem, no fight …
4 Mr Simpson went home with his wife that night, so that this was not
5 any incident where they were stalking or fighting, anything like that.
6 There was no obsessive behaviour. I hope to put those in some kind of
7 perspective. Mr Darden talked in his opening argument about the
8 April 1985 incident in which some damage was done to a vehicle, and
9 as I understand it, the testimony will be that there was not any inci-
10 dent in 1985 because Miss Nicole was pregnant, had a c-section later in
11 that year and they didn’t have any situation like that. They did have
12 some discussion apparently maybe in ’86 or ’84, some damage done
13 to a car and she was not in that car. She was not struck on that occa-
14 sion, so I think you will find that incident of not great consequence.
In the next extract, the insignificance of the incidents is further miti-

gated by the use of the verb get along, which minimises the severity of
the problem and, through the use of the habitual present, underlines
the ubiquity of divorce:
1 They may try to bring out incidents about this marriage, and these
2 people did divorce in 1992, and unfortunately in our society there
3 are far too many divorces. People don’t always get along and we some-
4 times get divorced.
The corpus evidence for the relative neutrality of incident supports

this formulation, in so far as more generalised usage of the term
seems to emphasise the random rather than the systematic nature of
events. This is demonstrated by the collocate list in Table 11 and by
the selected examples below, which include a number of allusions to
the idea of ‘unrelatedness’. The Mutual Information (MI) score pro-
vided gives a sense of the strength of collocation in each instance; the
higher the MI score, the more likely a particular word is to occur with
the node word. Thus, in the following list, the most common word in
the corpus which co-occurs with ‘incident’ is the collocate ‘unrelated.
With the possible exception of the word spate in Table 11, the corpus
evidence appears to suggest that the use of the term incident to describe
the domestic abuse in the Simpson marriage may have been highly
appropriate for the defence, as it collocates strongly with a series of
words which convey singularity and randomness. The following set of
examples illustrates this tendency:
Table 11 Collocate list for incident
Collocate Frequency MI score
Unrelated 7 8.276571
Submarines 5 7.808070
Isolated 20 7.261989
Srinagar 3 7.252760
Arson 3 7.149991
Spate 4 7.099048
Involving 27 6.848210
Violent 27 6.677456
Racial 20 6.642780
Separate 27 5.900674
Investigate 7 5.861293
Occurred 12 5.758393
Minor 12 5.693696
Unpleasant 4 5.687138
Terrorist 6 5.635717
Note: All the collocates presented here have been studied in a span of four words to the left
and right of the node word.
The defence attempt to suggest that these incidents were of a non-

violent nature seems less satisfying, however; despite the presence of
It was a series of unrelated incidents and falls and it
as a result of one isolated incident the attack on
what’s said to be the first incident of its kind,
shot down today in two separate incidents over the Persian
the Mentally Ill, said sporadic incidents of criminal
the collocate minor in the list above, a number of collocates (including

violent, unpleasant and terrorist) suggest a high level of violence rather
than serving to minimise connotations of aggression. Thus, the corpus
evidence on incident presents a somewhat mixed picture.
To support the idea that Simpson’s violence towards his wife consisted
of a series of unconnected incidents, the defence opening statement also
used an interesting grammatical strategy to detach Simpson from respon-
sibility for the events reported. This involved the removal of agency from
a number of references to the attacks with the aim of de-emphasising
Simpson’s role. This is also perhaps a side-effect of the use of incidents to
describe them, since (as can be seen in the collocate list above), incidents
collocate with the intransitive verb occur reasonably frequently.
In the defence opening, there are numerous examples of this type of
unattributed event, either through the use of intransitive verbs or
through passivisation, as in the following extracts:
He [Darden] told you how, for instance, that this was like a terrible
marriage and that all kinds of bad things happened.
Apparently maybe in ’86 or in ’84, some damage was done to a car

and she was not in that car. She was not struck on that occasion, so I
think you will find that incident of not great consequence.
Let me say up front that Mr. Simpson is not proud at all of the fact
that he and his wife got into an altercation and she was struck on
January 1st 1989.
(All extracts from defence opening statement, 25 January 1995)
By employing these types of passive constructions (see Ehrlich 2001, 2002

for analysis of similar non-agentive attribution by rape defendants)
Cochran attempts to minimise Simpson’s involvement in the violence.
This final extract from the defence opening also contains an example
of the third strategy employed by the defence in minimising the
semantic force of the prosecution opening. By using the word alterca-
tion, defence attorney Cochran was attempting to recast the domestic
violence as occurring at a verbal rather than a physical level.
Relexicalisation: from physical to verbal exchanges

A further example of altercation illustrates Cochran’s attempts to sepa-
rate the two concepts in the minds of the jury:
1 You understand that the fact that someone has an altercation with
2 one’s wife in 1989 is not capable of being predicted whether that
3 person would kill her or be involved in any other fights or whatever.
The theme of verbal debate rather than physical violence characteris-

ing the Simpson marriage was developed by Cochran through the use
of a series of verbal process nominalisations – dispute, discussion and
conversation, respectively; this first extract shows a typical use of the
word discussion by the defence:
1 And I think the important thing about a trial is that finally you are
2 going to get to hear all of this tape and what you are going to hear,
3 Mr. Darden didn’t tell you this yesterday, is that there was a discus-
4 sion on this 911 tape and he alluded to the fact that Mr. Simpson
5 couldn’t get out of his mind what he had seen back in April 1992.
The discussion which Cochran makes reference to includes exchanges

such as the following which occurred during Nicole’s second 911 call
of 1993. Here, as Nicole Brown Simpson is on the phone to the emer-
gency call centre, O.J. Simpson can be clearly heard shouting in the
background:
1 Simpson: I don’t give a [expletive] anymore.... That wife of his, she

2 took so much for this mother [expletive] [inaudible]
3 Nicole: Would you just please, O.J., O.J., O.J., O.J., could you
4 please [inaudible] please leave.
5 Simpson: I’m leaving with my two [expletive] fists is when I’m

6 leaving. You ain’t got to worry about me any more.
A second extract from the defence opening statement illustrates the

way in which the defence used the terms dispute and conversation to
portray what took place between the couple:
1 And there was a dispute because when Miss Brown Simpson would
2 ever see Paula Barbieri’s picture, she was very upset about that, and
3 Mr. Simpson, on this date, I believe, saw a picture of somebody that
4 she had dated during the time they had been separated and he said,
5 gee, what is fair for me will be fair to you and they got into this con-
6 versation that went over a period of time. At some point there was
7 just a verbal conversation, it escalated, and tempers flare and that
8 sometimes happens with married couples. That doesn’t make it right
9 but sometimes it happens.
In this extract, what precisely is involved in the ‘escalation’ of the con-

versation and the ‘flaring’ of tempers is never explicitly outlined for
the jury, and the presumed violence which ensued is further mitigated
by the dismissive intransitive verb happen. As Sinclair (1991) has noted,
however, this verbal choice is frequently indicative of negative events
and outcomes. All these terms – dispute, discussion and conversation –
express verbal events. However, a comparative corpus analysis of the
context of use of the three reveals some interesting differences between
them. I will explore these differences in turn, beginning with dispute.
Referring to the events of that evening as a dispute seems to have
been an ill-judged depiction for the defence to choose on the basis of
collocational prosodic information from the corpus. The top half of
the collocate list, as indicated in Table 12, shows that disputes are
Table 12 Collocate list for dispute
Collocate Frequency MI score

Demarcation 3 10.830622
Longstanding 3 10.313171
Territorial 9 9.380506
Bitter 19 8.296938
Domestic 14 7.216790
Damaging 3 6.889786
strongly collocated with domestic and that these disputes are typically
ongoing and detrimental in nature.
Potentially more damaging still to the defence depiction of the
Simpsons’ marital problems is the tendency for domestic disputes to
be associated with violence and police involvement. If the defence’s
aim was to defuse connotations of this type in the minds of the jury,
referring to events as domestic disputes, as Cochran did on several
occasions, does not appear to be a particularly wise strategy, as Table
13 shows (on p. 86).
A few indicative concordance lines from the corpus for domestic
dispute further illustrate the defence’s problem:
Held hostage following a domestic dispute THE SUN
Crime. He was slain in a domestic dispute They’ve charged
Below the heart during a domestic dispute at Greenbank,
BOONDALL man involved in a domestic dispute threatened police
a man was stabbed in a domestic dispute at Brighton
Officers who’d gone to a domestic dispute This guy was drunk
for the assault describe a domestic dispute call earlier
The second term of reference used by the defence – discussion –

seems to belong more consistently to the realm of verbal and non-
violent interaction. The collocate list for discussion emphasises talk
on an intellectual and professional level and generally has a positive
prosody – in other words ‘it’s good to talk’. The following selected
lines illustrate this orientation; perhaps due to the predominance of
journalistic texts in the corpus, many of the concordance lines relate
to the political arena:
arms cuts, now under discussion in Vienna. The
contributing to a wider discussion on how monetary union
said there’d be further discussion to try and agree on
decision, a community discussion on what to do

Table 13 Collocate list for domestic dispute
Collocate
A
police
this
victim
called
in
they
that
greenbank
slain
hunted
tyne
hostage
stabbed
widow
brighton
referred
drunk
assault
involving
describe
threatened
charged
The collocate list for discussion also seems to underline the positive
semantic prosody associated with a discussion.
The only real exception to this tendency is the collocate heated
which, in spite of its potential allusions to aggression, remains at the
level of verbal rather than physical interaction, referring in the corpus
to predominantly political and business contexts, as in these examples:
an hour locked in a heated discussion with backbenchers.
Once, during a heated discussion with Moore over
Of the three terms, however, conversation is perhaps the most positive

in terms of its semantic prosody, with a preponderance of collocates
expressing socially oriented discourse with no element of threat or vio-
lence. The overwhelming majority of the evaluative adjectival collocates –
even with a possible euphemistic interpretation of animated – imply a
positive prosody, as the collocates picture in Table 15 (p. 88) shows.
Table 14 Collocate list for discussion
Collocate
roundtable
extraterrestrial
negotiation
hmso
topic
heated
initiate
informal
consultation
philosophical
preceding
lengthy
buffet
forum
tutors
rational
extracts
lively
timely
engaging
teddie
dis
stimulating
The following representative concordance lines illustrate this picture:
in apparently relaxed conversation with news presenters
engaged in animated conversation and I faded into
it was a pleasant conversation I recall. He told
I’d been enjoying our conversation so much that I’d
Despite a number of lines, which indicate criticism of conversa-

tions deemed to be ‘unintelligent’, there is no suggestion in the
corpus that conversations involve any degree of violence or aggres-
sion. For the defence, therefore, it perhaps constitutes the most
appropriate of the three possible representations of events in the
Simpson household.
With the exception of dispute, the profiles of discussion and conversa-
tion, in terms of their respective semantic prosodies, appear to support
Table 15 Collocate ‘picture’ of conversation
snatches overhear taped NODE piece peppered Follows

transcript snatches animated NODE turns bengali Bus
enjoys topic meaningful NODE between recorded princes
engage steered stimulating NODE unintelli encouraged friend
engaged directing lengthy NODE alleged impossible bar
struck thread earnest NODE pieces someone phone
tone resumed intimate NODE starts suddenly include
listening sustain polite NODE with appeared woman
constant engage casual NODE model somebody husband
recording topics sample NODE continued music remembe
strike excerpt intelligent NODE turned mdnm earlier
tape unintellig background NODE took place having
version enjoys pleasant NODE among french girl
details recalled telephone NODE soon isn became
having engaged everyday NODE about seems main
result entering phone NODE along mx hour
join enjoying friendly NODE became himself couldn
trouble deep private NODE without turned gone
middle loud criminal NODE finally friends 25
end cinema innocent NODE led paul young
the view that these were highly intelligent choices for the defence to
have made in their attempts to relexicalise the Simpson marriage as a
non-violent one.
From representation to interpretation: the view from the

jury room
Any trial jury faces a difficult task; in the unfamiliar setting of the
courtroom, both individually and collectively, jurors must sift through
evidence and argument in an attempt to determine the innocence or
guilt of the defendant. In such an unfamiliar environment, the value
and impact of the opening statements may be considerable.
The conceptual framework presented during the opening statements
forms the foundation of the remainder of the trial, since it is in this
context that the evidence presented subsequently is to be considered.
The lexical choices made by lawyers in their opening statements are,
therefore, potentially of great significance in orienting the jury in their
consideration of the evidence.
The jury in the Simpson case were presented with an additional, and
unusual, problem, however, which was raised in chapter 1. They did
not approach the trial as blank slates: not only did the majority of
jurors recognise Simpson; for a significant number he represented a

positive role model.
In this context, the challenge faced by the prosecution, therefore,
was to deconstruct the prevailing image of Simpson as a rich, powerful
and successful man, and to reconstruct him as a violent wife-beater
and, ultimately, a murderer. On the second of these characterisations,
the prosecution clearly failed, since the jury acquitted Simpson of all
charges and in record time. On the issue of domestic violence,
however, the prosecution seem to have had more success in persuading
the jury, although they would undoubtedly have traded this in return
for a guilty verdict on the homicide charges.
Cooley et al. (1995), a book co-authored by several members of the
Simpson jury, provides a tantalising glimpse of the jurors’ thought
processes with respect to Simpson and the issue of domestic violence.
It is perhaps appropriate that the final words of this chapter, as in the
trial, should go to the jurors, as a telling indication of the magnitude of
the problem faced by the prosecution in deconstructing and re-present-
ing their famous defendant:
Everybody had a certain perception of O.J., at least I did prior to the trial
… I knew nothing about his personal life and I was surprised to
know that he had been in a marriage that was abusive.
(Male, 46 years, African American)
I wasn’t shocked with the accusations. I believe that O.J. and Nicole
had a very violent relationship and I didn’t find it shocking or sur-
prising at all. I kind of felt that that was their relationship before this
case.
(Female, 38 years, African American)
O.J. had always been a hero of mine since just before the Rose Bowl
game. I didn’t like it when he ran back that … kick-off for a touch-
down against Ohio State, but outside of that, he’s always been a
hero of mine. I just don’t think his persona viewed on TV and on
advertisements doesn’t – you just don’t perceive him as being a violent
person or a spouse abuser.
(Male, 53 years, White/Native American)
This chapter has demonstrated some of the linguistic ways in which

prosecution and defence lawyers are able to exploit their respective
opening statements in order to orient the jury towards their side’s

version of the trial narrative. Chapter 4 will deal with the subsequent
phase in the adversarial trial process – witness examination and cross-
examination.
I will begin with an analysis of the interactional dynamics of the
courtroom, focusing on the various roles and relationships in the jury
trial, and their influence on the type of talk produced. In particular, I
will address the way in which all talk is designed for a multi-party audi-
ence, but above all for the jury.
4
Interaction in The Criminal Trial:
Participants and Processes, Roles
and Relationships
The criminal trial as an interactional setting
The dynamics of courtroom interaction are characterised by the roles

adopted by the participants, which are both predetermined and rule-
governed. This fact, coupled with the highly purposive nature of court-
room talk, means that many of the properties of this specialised
communicative setting are determined by the hierarchies and power
relations in the courtroom context.
Interaction in the adversarial criminal courtroom differs in a number
of significant respects from its casual conversational counterpart. In
addition, trial talk demonstrates both similarities and differences in its
dynamic properties in comparison with other, similarly power-asym-
metric institutional environments, including the classroom, the work-
place and the doctor’s surgery. In this chapter I will explore the
following issues:
• What types of talk typically occur in the adversarial trial by jury at

each stage of the trial process, and who are the participants involved
at each of these stages?
• How does the institutionalised and hierarchically structured
environment of the courtroom influence talk by participants?
• In what respects is interaction in court similar to and different from
a) casual conversation, and b) interaction in other power-asymmet-
ric, institutional settings?
• Finally, and most significantly, how does the presence of the jury –
the trial’s ‘silent participant’ – influence the type of talk produced
by judges, lawyers and witnesses?
91
Courtroom discourse as power-asymmetric institutional

talk
From a discourse as well as a legal perspective, the courtroom is a

highly role- and rule-governed environment. Not only are the various
participants bound by laws and protocols which govern their physical
behaviour and demeanour, but there are also clearly defined controls
on their language. These linguistic constraints include factors such as
the quantity of talk allocated to each participant; in other words, the
relative distribution of talk between the judge, lawyers and witnesses,
and also the nature of that talk, including interaction, turn initiation
and the differential use of declaratives, interrogatives and imperative
forms in court.
The lines of asymmetry in the courtroom are largely drawn up
along a professional–lay cline. Chapter 6 will examine some of the
tensions created by this dimension, exploring the complex relation-
ship between expert witnesses, lawyers and jurors. For the trial pro-
fessionals, the lawyers and judge, the courtroom is a place of work
where the seemingly archaic rules and protocols are entirely famil-
iar, whereas the witnesses and jurors, the lay participants in the
process, are typically unaccustomed to such an environment and are
at a disadvantage, both legally and linguistically. For them, the judi-
cial process can be a bewildering and threatening affair, where the
casual conversational rights of generally equal access and free nego-
tiation of turns and turn types are suspended, to be replaced by a
hierarchical system of interaction, where control and constraint are
the norm.
Thus, in the trial-by-jury system, the familiar features of conversa-
tional management are, as Matoesian (1993: 79) notes, ‘systematically
transformed and exploited to manage the powerful interests and inter-
actional contingencies of legal disciplinary regimes’. Whilst casual con-
versational talk is managed relatively spontaneously with turn-taking
negotiated at a local level, in the courtroom, many of these norms are
predetermined, with pre-allocation of turns and turn-types the rule
rather than the exception. (See Atkinson and Drew 1979, for a detailed
description of the turn-taking system in court.)
The expression of institutional hierarchies through control over
interaction is embodied in the roles and participant configurations to
be found at various stages in the criminal trial. The next section will
explore the different types of interaction which occur during each
phase of the trial, illustrated with examples from the Simpson data at
each point.
Interaction in the Criminal Trial 93
Trial talk: the preliminary, evidential and judicial phases
In approaching an analysis of interaction in the courtroom, it is impor-

tant to consider trial talk not as a homogeneous single entity, but
rather as a highly structured and stratified legal process, each stage of
which has a clearly defined legal purpose. Each of these phases also has
distinctive interactional characteristics determined by the roles played
by its participants. The phases of the criminal trial are summarised in
the left-hand column of Figure 3; the right-hand column represents the
participants involved at each stage, with an indication of the direction-
ality of interaction; a single arrow therefore signals instances of mono-
logic talk, whilst a double-headed arrow indicates dialogic interaction.
The trial process is divided into three major stages, as illustrated in the
left hand column of Figure 3: the preliminary phase, involving jury selec-
tion questionnaires and voir dire interviews; the evidential phase, consisting
of the examination and cross-examination of witnesses, framed by the
opening and closing arguments; and finally, the judicial phase, where the
judge and jury take centre stage, in the adjudicatory portion of the trial,
including the delivery of jury instructions and the deliberation process,
followed by the verdict and the sentencing or release of the defendant.
Each of the key participants (judge, jurors, lawyers and witnesses –
including the defendant) is bound by normative standards and proto-
cols which predetermine the language produced at each stage of the
trial. One of the primary roles of the judge is to enforce these rules and
maintain ‘order in court’. I will therefore begin this discussion with an
analysis of the role of the judge as manager of courtroom interaction
through the various trial stages.
Judge talk: keeping order in court
The judge plays a dual role in the trial process: first, as representative of
the Law; second, and more significantly from the point of view of
interactional dynamics, as controller and moderator of the talk pro-
duced by all the other participants.
The judge has the greatest degree of linguistic freedom, commensu-
rate with his status, in terms of his own turns as well as his control
over those of the other interactants in court. The judge is responsible
for managing the day-to-day running of the trial and has the freedom
to address all members of the courtroom cast; from lawyers and wit-
nesses to the jury, press corps and public gallery, the judge has the
right not only to address any of those present in court, but also to
restrict the turns of these participants.
TRIAL PHASE PARTICIPANTS AND INTERACTIONAL DYNAMICS
(1) PRELIMINARY PHASE
JURY SELECTION Judge Jury Pool

Lawyers Jury Pool
(2) EVIDENTIAL PHASE
OPENING STATEMENTS Lawyers Jury
WITNESS EXAMINATION Lawyers Witnesses
CLOSING ARGUMENTS Lawyers Jury
(3) JUDICIAL PHASE
JURY INSTRUCTIONS
& SUMMING UP Judge Jury
JURY DELIBERATION Juror Juror
VERDICT Jury Foreperson Judge
SENTENCING/RELEASE Judge Defendant
Key: Monologic address Dialogic interaction

Figure 3 Processes and participants in the criminal trial
Judicial monologue: jury instructions and rulings

For much of the trial, the judge takes on a fairly passive, supervisory
role; much of his power lies in his ability to intervene as and when
required. The judge’s verbal involvement in the trial is predominantly
a monologic one; he is responsible for a variety of types of address, pri-

marily in providing instructions to the jury at the beginning and end
of the trial, as well as rulings on motions from lawyers.
Following the verdict, the judge is also required to produce a further
powerfully performative monologue, either liberating the defendant (if
found not guilty) or, in the case of a guilty verdict, pronouncing the
sentence and any concomitant recommendations regarding the appro-
priate period of incarceration.
Judicial dialogue: objections and sidebar sequences

When dialogue involving the judge does occur, it is typically in
response to an overt request for an audience made by one or more of
the lawyers. Objection sequences, where one side protests about some
aspect of the other side’s line of questioning or application of the law
(there are twelve types of objection permitted under California law),
were frequent interruptions in the Simpson trial, with more than
16,000 occurring during the nine-month trial.
Objection Sequences: ‘Your Honor, I object’

Objections are usually resolved without the need to suspend trial pro-
ceedings, as in the following instance, where the dispute is cleared up
with a straightforward insert sequence. This may be in either a two-part
sequence (as with the two examples in the first extract) or a three-part
sequence, including a redirection to the lawyer (in the second extract):
Two-stage objection sequence

1 Q And Miss Mazzola was under the impression that
2 you had left the Rockingham scene earlier than
3 5:20, wasn’t she?
4 → Mr Goldberg: Calls for speculation.
5 → The Court: Sustained.
6 Q Do you know if Miss Mazzola was under the
7 impression in June that the two of you had left
8 Rockingham before 5:20?
9 → Mr Goldberg: Calls for hearsay.
10 → The Court: Overruled.
11 The Witness: I don’t know when she thought we left Rockingham.
(Witness cross-examination, 13 April 1995)
Three-stage objection sequence

1 Q Now, Doctor, did you find, in your review of mate-
2 rials on June 22, 1994 with Dr Baden, that there
3 had been a mistake made by Dr Golden with

4 respect to that entry of ‘no injuries’?
5 → Mr Shapiro: I’m going to object as leading and assumes a fact
6 not in evidence; misstates the true facts.
8 → The Court: Rephrase the question.
9 Mr Kelberg: Sure.
10 Q Doctor, on June 22, 1994, did you examine any of
11 the tissue preserved by Dr Golden from the autopsy
12 of Nicole Brown Simpson?
(Witness cross-examination, 6 June 1995)
Sometimes the debate continues after the judge’s ruling on the objec-
tion, prompting exchanges such as the following:
1
Judge Ito: I will sustain the objection.
2
Mr Cochran: Wait a minute, judge.
3
Mr Darden: The Court has ruled.
4
Mr Cochran: I hadn’t been heard. Both of you guys talked and that
5
is not fair. You are not –
6
Mr Darden: We are accusing you of whining.
7
Judge Ito: Hold on. Hold on. Counsel, counsel, ‘hold on’ means
8
stop.
9
As a last resort, on those occasions when the judge was unable to

control the disputes, he was able to impose financial penalties on the
lawyers, as in this example of a contempt fine:
1 Judge Ito: You know, wait a minute. I’ve about had enough of
2 this between the two of you.
3 Mr Darden: He started it, your Honor.
4 Judge Ito: You are both baiting each other. You both violated
5 the Court’s order. 250 bucks both of you today.
6 Mr Darden: I am very short today, your Honor.
7 Judge Ito: All right. I’ve had enough of this.
8 Mr Cochran: Thank you, your Honor.
In all, the much-criticised Judge Ito imposed $3,000 of fines on the

defence and $850 of penalties on the prosecution, in his attempts to
maintain control over the interaction in court.
More complex or problematic matters which cannot be resolved in

open court are often dealt with in a sidebar conference, which Walraven
(1997), writing about the Simpson trial, refers to as ‘moments of heated
legal arguments, mundane banter, humor, sarcasm, redundancy, confu-
sion, verbal diarrhoea, and sometimes, sheer exhaustion’; more than 300
of these conferences occurred in the Simpson trial. Gaines (2002) explores
many of these aspects in sidebar data taken from the O.J. Simpson trial.
Sidebar conferences
Malcolm (1996: 106) asserts that what takes place during these sotto voce
sidebar conferences can be crucial to the outcome of the trial, since it is
during these discussions that ‘the conflicting claims of narrative procedure
– of stories crying out to be told and the law’s constraints on their telling –
are argued and adjudicated’. In this context of trial-and-error advocacy,
she claims, the jury need to be protected from disbelief, which may disil-
lusion them in their duty. By relegating such discussions to a private
place, out of earshot of the jurors, Malcolm (1996: 109) argues that the
legal process ‘clearly denotes what is backstage and what is onstage …
keeping the illusion-destroying activities of the backstage firmly hidden
from view’. The need to keep such discussions from the ears of the jurors
is underlined by Judge Ito’s frequent warnings to lawyers during sidebars
to keep their voices down, as in the following extract:
1 → Judge Ito: We’re at the sidebar. I want to caution counsel on

2 both sides there’s too much talking going on by counsel
3 over at the jury box on your end and you guys are over
4 in the corner there talking to each other. I can hear you
5 talking. And if I can hear you talking, the jurors can
6 hear what your conversation is. You guys are too close
7 to the jury box. If you want to talk with each other,
8 consult, do it over at counsel table.
9 Ms. Clark: All right.
10 → Judge Ito: I don’t want any conversations while you’re over at the
11 jury box. Counsel, if I have to warn you to keep your
12 voice down one more time, it’s going to cost you 250
13 bucks.
14 → Judge Ito: All right. We’re over at the sidebar. What’s your
15 authority for being able to force an expert witness
16 to make calculations that he doesn’t agree with?
17 Mr Neufeld: It’s not a question of making calculations. I am
18 allowed to ask him a question, and the question –
19 → Judge Ito: Keep your voice down.
20 Mr Neufeld: The question I asked him is, can one calculate the
21 frequencies of all possible contributors to this
22 mixture. He said, ‘One can, but I disagree with it.’
23 That’s his answer on that. He also made it clear –
24 Judge Ito: Keep your voice down. How much more are you
25 going to do besides just this chart?
26 Mr. Neufeld: I’m not doing the other –
27 → Judge Ito: Counsel, if I have to warn you to keep your voice down
28 one more time, it’s going to cost you 250 bucks.
(Sidebar conference, 23 June 1995)
After warning the lawyers that the jury can hear their private discus-
sions about the witness (in lines 1–8), the judge interrupts the lawyer’s
subsequent objection on two occasions in close succession, reminding
him to ‘keep his voice down’ (lines 19 and 24, respectively). When the
lawyer in question disregards the judge’s instruction, Ito loses his
patience and threatens to fine the lawyer (in lines 27–8).
In the Simpson case, sidebar conferences were often loud and unruly,
leading Ito to rule, after one occasion when ten lawyers crowded the
bench vying for the judge’s attention, that only one representative
lawyer from each side would be allowed to participate in a sidebar con-
ference in an attempt to control the disputes between the two sides:
The Court: I’m going to start a new rule. Starting tomorrow, you
only get one lawyer up here. You guys just egg each
other on and add to this.
(Sidebar, 17 April 1995)
In addition to controlling the number of lawyers involved, a sidebar

may also take place without the court reporter present if the matter is
of a sensitive nature – the origin of the expression ‘off the record’. In
extreme cases, the judge may even suspend the trial entirely and
summon the lawyers concerned to a private discussion in his cham-
bers. For the purposes of the present study, both ‘off the record’ and ‘in
camera’ discussions were accessed via the official court records.
A sidebar conference may be requested by a lawyer or by the judge.
When the judge decides to hold a sidebar conference, the lawyers have
little choice but to agree:
1 Q Did criminalist Mazzola do anything to cause that in

2 your presence?
3 Mr Scheck: Your Honor, move to strike all of this, last two ques-
4 tions.
5 The Court: On what basis?
6 Mr Scheck: No foundation for this witness as to any of this.
7 The Court: Sidebar.
When the sidebar is requested by the lawyer, however, there are

mixed fortunes for the attorney concerned. On the occasion shown
below, the politely hedged request is successful for the lawyer con-
cerned, and leads to a discussion between Judge Ito and Simpson’s lead
defence lawyer:
1 → Mr Cochran: Your Honor, we would like to put something on

2 the record if we might. Perhaps the court may
3 want us to approach the bench.
4 The Court: What is the topic, counsel?
5 Mr Cochran: With regard to the jury, we have a request.
6 The Court: A request?
7 Mr Cochran: A request, yes.
8 → The Court: All right. Madam reporter.
(Sidebar request, 6 July 1995)
The following example, taken from later in the trial, leads to a less sat-
isfactory outcome for the lawyer concerned and underlines the control
held by the judge over the interaction. The judge’s reprimand (in lines
9 and 11) results in a request for a sidebar (line 12) which is subse-
quently denied by the judge (lines 13 and 15):
1 Q Now, in terms of the arrangements being made with

2 respect to this evidence, what was your understand
3 ing about whether or not the socks were going to be
4 sent to Albany?
5 A I understand the socks was sent to a different loca-
6 tion than Albany.
7 Q Uh-huh. And was it your understanding that the
8 socks were not going to be sent to Albany –
9 → The Court: Sounds like testimony to me, counsel.
10 Mr Scheck: Well, your Honor –
11 → The Court: This is testimony. Ask a question about what he did.
12 → Mr Scheck: All right. May we approach for a second, your Honor?
13 → The Court: No.

14 Mr Scheck: A matter of judicial notice?
15 → The Court: No. Proceed.
(Sidebar request, 23 August 1995)
An adjacent extract of the interaction between the judge, the lawyer

and his witness serves as an illustration of the extent to which the
judge also controls the topic of discussion and the focus of the relevant
question:
16 → The Court: Counsel, we’ve had that testimony about EDTA.

17 Let’s proceed with what this witness did.
18 Q When did you get a call with respect to an opportu-
19 nity to examine the socks?
20 A The night of February 15th, 1995.
21 Q Can you explain how that – where you were?
22 Mr Goldberg: Not relevant.
23 → The Court: Overruled.
24 The Witness: That day, I was in Seattle, Washington, attending
25 the Academy of Forensic Science annual meeting
26 held in Seattle, other forensic scientists –
27 The Court: All right. That’s not necessary. Just where were
28 you. Next question.
29 Q Did you have plans to return to Albany?
30 A I come from Connecticut, not Albany.
31 Q Did you have plans to go to the Albany medical
32 center on February 17th after your – after the
33 convention?
34 Mr Goldberg: Irrelevant.
35 → The Court: Sustained. Counsel, the jury understands he’s
36 from Connecticut, he works in Connecticut –
37 → Mr Scheck: Your Honor, may I approach?
38 → The Court: No. Proceed.
39 → Mr Scheck: I believe the circumstances here are relevant.
40 → The Court: Proceed. No, they’re not. They’re not.
(Sidebar request, 23 August 1995)
After directing the lawyer’s line of questioning in lines 16–17, the

judge continues with an interruption of the witness’s response, lim-
iting the detail provided and moving the questioning on with a terse
‘next question’ instruction (line 28). The judge then goes on to rep-
rimand the witness again for providing too much detail in his testi-
mony, complete with an interpretation of the jury’s comprehension
of the evidence (in line 35–6), and ends by refusing Scheck’s request
for a sidebar discussion, dismissing the circumstances as incon-
testably irrelevant (lines 37–40).
In grammatical terms, many of the judge’s contributions take the
form of directives and imperatives, as in ‘proceed’ in lines 38 and 40 in
the last extract, or the ellipted ‘next question’ instruction. The right to
use such forms is symbolic of the judge’s power and influence in court,
and specifically of his ability to direct the talk, either by preventing a
lawyer from pursuing a particular line of questioning (or a witness a
particular response) or, conversely, by encouraging or even requiring it.
In summary, the judge may occupy any of the slots in the exchange
(after Sinclair and Coulthard 1975; Coulthard 1985), providing (I)nitia-
tions in the form of functional directives, (R)esponses, to requests for
rulings and objections, or evaluative (F)ollow-up. In the courtroom, the
judge’s decisions are final and binding and, significantly, are con-
testable only in retrospect, on legal grounds and through the appeal
courts.
Lawyer talk
Lawyers occupy second place in the interactional hierarchy of the

courtroom. They do not have the same control as the judge over other
participants in the trial and must defer to the judge, legally as well as
linguistically; however, lawyers do have a considerable degree of
control over both their own talk and the contributions of the lay par-
ticipants below them in the interactional chain, the witnesses and
jurors. This section will examine the interactional properties of lawyer
talk in all its forms, both monologic and dialogic, and during the direct
and cross-examination of witnesses.
Lawyer monologue: opening statements and closing arguments

The right to produce sustained floor-holding monologue is a graphic
illustration of the hierarchical structure of courtroom talk. The institu-
tionally more powerful participants – the lawyers and the judge,
respectively – are sanctioned to make these monologic contributions, a
tendency which may be observed in a wide range of other
power–asymmetric discourse settings; holding the floor for relatively
extended periods is accorded to other ‘powerful’ participants such as
doctors, teachers and managers in similarly asymmetric contexts.
In common with judges, lawyers have a number of opportunities to

produce monologue in court, specifically in the initial and final sec-
tions of the evidential phase during opening and closing arguments
(see Figure 3). In openings and closings, lawyers from both sides are,
for the only time in the trial, allowed to address the jury directly.
The fact that the lawyer is able to address the jury in the form of an
uninterrupted monologue is significant; furthermore, the positioning
of these monologues as the first and final contributions lends them
even greater importance in the trial process. The previous chapter
explored this and other issues relating to opening statements; chapter
7 will deal with the closing arguments in more detail.
Lawyer dialogue: lawyer–witness interaction

In dialogic lawyer–witness interaction, there is also a high degree of
power asymmetry. Whereas in casual conversation, the management of
turn-holding is a highly skilled, locally negotiated matter, where par-
ticipants attempt to negotiate the smooth transition of the turn from
one speaker to the next, thereby avoiding face-threatening clashes, in
the courtroom context, such considerations of politeness, face and
cooperation are less significant. This is because the default position in
power-differential interaction is that the more powerful of the interac-
tants may hold the floor until they are ready to give it up. Then, and
only then, is it possible for the less powerful participant to join in at
the discretion of the other, more powerful, speaker.
The Simpson data have endless examples of moments when wit-
nesses are reminded of these interactional rules, as in the following
example where the witness is put firmly in his interactional place, sub-
ordinated to both judge and lawyer:
Judge: Hold on, Mr Douroux, would you allow Mr Darden and

the other lawyers to finish asking the question before you
start to answer?
Witness: OK. Yes, sir.
Judge: See, you just did it right now.
Witness: I’m sorry.
(Witness direct examination, 8 May 1995)
For Stenström (1994), the ‘taking’ of a turn may be represented along a

cline of conversational power, depending on whether the turn-taker
demonstrates interactional control or dominance by taking the turn
from a speaker who apparently or clearly has not finished his contribu-
tion. In the courtroom, the default assumption is that it is the lawyer

who hands over the turn, rather than the witness who takes it himself,
even in the presence of what in casual conversation would be gen-
uinely interpretable as a transition relevance place (Duncan 1972).
As the next example shows, interruptions by witnesses are not well
tolerated by lawyers either:
1 → Q You told us at 2:10 you wanted to make a call to the

2 Coroner’s office, right?
3 A To make first notification that we had a double homicide out
4 in west Los Angeles, not to ask the coroner’s office to
5 respond.
6 → Q Okay. Let me finish the question.
7 A Okay.
Here, the witness misinterprets the tag ‘right?’ (line 2), intended by
the lawyer as a simple topic marker and holding device, as a transition
relevance place, in other words, a legitimate opportunity to intervene.
The witness’s error is hardly surprising, given that the utterance (‘You
told us at 2:10 you wanted to make a call to the Coroner’s office,
right?’) bears all the hallmarks of a transition relevance place, includ-
ing a turn-terminal intonational contour (discernible from video
footage of the exchange), a completed propositional unit and a tagged
interrogative; together this cluster of features is more than indicative of
turn completion. The result of the witness’s apparent interruption is
an immediate rebuke from the lawyer (in line 6), who seizes back the
turn and continues with the remainder of the question.
In the examination of witnesses, conducted predominantly by
means of dialogic Q-A sequences, the lawyer takes on the role of
questioner, a role again typically associated with the more powerful
participant in power-asymmetric dyads. The lawyer can therefore be
seen to function predominantly in the role of initiator of inquiry and
evaluator of witness response (at the ‘I’ and ‘F’ moves of the exchange,
respectively), those roles most frequently associated with interaction-
ally powerful participants. Some of the ways in which lawyers exploit
this fundamental dynamic will be discussed in chapter 5.
In contrast, the witness’s interactional options in court are severely
limited. The principal role of the witness is to provide appropriate
responses to the questions of the lawyer (and, on occasion, the judge),
occupying the ‘R’ move of the exchange, traditionally reserved for less
powerful interactional participants, such as the suspect (in police

interviews), the patient (in talk in medical settings) or the candidate
(in a job interview).
The default requirement is for the witness in court to provide ‘preferred’
second-part responses – answers to the lawyer’s questions – which
adequately satisfy all four of the Gricean maxims. When they take their
oath prior to testifying, witnesses swear to tell ‘the truth, (maxim of
quality) the whole truth (quantity) and nothing but the truth (relation)’,
thereby ostensibly satisfying the first three of the four criteria for
optimally cooperative talk (Grice 1975). By going through the legally
binding performative utterance of the oath, witnesses effectively agree to
be ‘cooperative’ participants, under threat of perjury charges.
The fourth maxim, of manner (‘avoid obscurity and ambiguity’), is
managed by means of the requirement for witnesses to be ‘responsive’,
in other words, to answer the question to the satisfaction of both
lawyer and judge. If a ‘responsive’ answer is not forthcoming, the judge
may rule the witness ‘non-responsive’ and (under the threat of con-
tempt charges) may oblige the witness to provide a more acceptable
response, even down to prescribing its form as a restrictive Y/N
response, as in the following example:
1 Q All right. Now, in the course of your preparing or

2 shooting the video that day, did you ever have
3 occasion to either touch or bump into Mr.
4 Simpson at all?
5 A There was one situation. It was at a break, whether
6 they’re relighting or redoing cameras or whatever
7 it was, and they asked us to stay on the floor, stay
8 in our spots because, as you saw the videotape,
9 each person has a spot and –
10 → Mr Darden: Objection, your Honor. Pardon me, sir. This is non-
11 responsive.
12 → Mr Cochran: Your Honor, this is – he’s responding seems to me.
13 → Mr Darden: The question called for a yes or no answer.
14 → The Court: Sustained. The witness may answer yes or no.
15 The Witness: I’m sorry, I’ve forgotten the question.
(Witness direct examination, 19 July 1995)
At this micro-level of Q-A, the lawyer, and ultimately the judge,

control the interaction; in addition to the rule on ‘responsiveness’,
lawyers have turn-taking control over answers which are considered
too lengthy or which stray into areas which the lawyer would rather
leave unexplored, since they may be damaging to their case. In both
instances, the lawyer is able to limit the witness’s response through the
judicious and timely use of interruptions.
At a macro-interactional level, the very fact that the lawyer is able to
summon a witness to take the stand and give evidence at all – if neces-
sary by subpoena – is indicative of the power asymmetry between
lawyers, as representative of the judicial system, and the lone witness:
The Court: All right. The defense may call their next witness.
Mr Blasier: Your Honor, the defense calls Dr Fredric Rieders.
(24 July 1995)
The lawyer also determines the timing of the end of the witness’s
appearance in court, by informing the judge that he has ‘no further
questions’ (lines 5–6 in the next extract), signalling the end of the
questioning process; finally, the judge conducts the formal dismissal of
the witness from the courtroom through the formally declarative direc-
tive ‘you may step down’ (line 8):
1 Q And we have looked at page 71, and – okay. Those

2 are the ones that deal with G1, G2, G3 and G4; is
3 that correct?
4 A Yes
5 → Mr Scheck: Mr Sims, thank you very much. I have no further ques-
6 tions, your Honor.
7 → The Court: Thank you, Mr Scheck. All right. We will stand in
8 recess. Mr Sims, you may step down.
In summary, witnesses are poorly placed in the interactional hierar-

chy of courtroom talk; they have no control over the talk of other par-
ticipants in the trial process and only a very limited control over their
own contributions. Witnesses are cast in the (R)esponse role of the
exchange, and attempts by them either to initiate talk or to provide
evaluative feedback are penalised. Questions from witnesses are rare
and are typically limited to requests for clarification.
Despite these general tendencies, it is important to acknowledge the
fact that all witnesses do not contribute to the trial narrative in the
same way; there are significant variations between direct and cross-
examination strategies, in terms of both lawyers’ questions and the
responses of the witness. The discursive characteristics of this type of

trial talk will be the focus of attention in the next chapter.
It is also necessary to differentiate the term ‘witness’, since not all
witnesses are of equal status in the trial courtroom. The differences in
power, position and role of lay, expert and quasi-expert witnesses,
respectively, have a significant effect on the type of talk that takes
place within the lawyer–witness dyad; the contrastive styles and strate-
gies of some of these types of witness will be discussed in detail in
chapter 6.
Having so far considered the legal professionals who make a
significant verbal contribution to the trial process – the judge, lawyers
and witnesses – the chapter will now move on to an analysis of the
various types of ‘silent’ addressees involved in the jury trial and will
discuss and exemplify their respective roles in influencing the interac-
tion which takes place in the courtroom.
Producing talk for multiple audiences
The dynamics discussed so far have dealt with the ‘surface-level’ mono-
logue or dialogue occurring in court, involving judge–jury and
lawyer–jury monologue as well as judge–lawyer and lawyer–witness
dyadic talk. However, the interactional dynamics of the courtroom,
and of the criminal trial in particular, are fundamentally more complex
and multi-party in nature.
Although much of the talk that occurs in court is dyadic in its formal
properties, ostensibly involving a single speaker and a single hearer,
the participant configuration is more accurately represented as multi-
party interaction, since the ultimate destination for all of this talk is the
third-party jury.
In addition to the jury, there is a range of secondary addressees –
from court transcriber and press correspondents to the public gallery
and (in the Simpson case) the viewing TV audience. Although all these
participants must remain, by law, silent observers of the trial process,
they all, to a greater or lesser extent, influence the nature of the talk
which is produced.
Any utterance that occurs in the courtroom has, is required to
have and, as the analysis which follows will show, is designed to
have, some of or all these different hearers in mind, all of whom
receive the information for different purposes. I will now discuss
these silent participants, and their potential role in influencing the
Simpson trial process.
The public gallery and the viewing public: voyeurs of the

Simpson trial
The public gallery
Some of the individuals who observe trial proceedings are positioned
both legally and linguistically outside the trial process itself, in so far as
they have no active role to play in the outcome of the case. The
involvement of these individuals in the trial is generally motivated by
entertainment and curiosity value; indeed, part of the appeal of attend-
ing live court proceedings, as Gewirtz (1996: 151) points out, is that
‘real people have been hurt and that a real defendant may be exposed
and punished’; when that defendant is a world-wide sporting icon and
media celebrity, so much the better, guaranteeing daily queues around
the Los Angeles courthouse for one of the 80 prized seats available in
the public gallery of the ‘trial of the century’.
The public audience – whom I will refer to as voyeurs of the trial – is
made up of the occupiers of the public gallery. These individuals play
no active role in the trial as such, however they are symbolic of the
constitutionally enshrined ‘public domain’ nature of most American
trial proceedings. In addition, there is a powerful sense in which the
public gallery, containing a representative, if self-selected, sample of
the American people, functions as a (mediated and limited) expression
of public morality. Criminal law is fundamentally intended to embody
the moral condemnation of the broader community, as reflected in the
naming of jury trials as ‘The People vs. X’, represented by a set of prose-
cution attorneys in the courtroom. The criminal trial may thus be seen
as a form of trial by proxy, carried out for, and on behalf of, ‘The
People’, a small proportion of whom are present, though silent, in the
courtroom.
This requirement to observe proceedings in silence was not always
adhered to by the public gallery in the Simpson trial, as the following
two extracts illustrate. In the first, Cochran asks the judge to ask the
public gallery to refrain from commenting on the witness’s
demeanour, on the grounds that the jury may hear:
1 → Mr Cochran: We would like to put something on the record if

2 we might. Perhaps the Court may want us to
3 approach the bench.
4 The Court: What is the topic, counsel?
5 Mr Cochran: With regard to the jury, we have a request.
6 The Court: A request?
7 Mr Cochran: A request, yes.

8 The Court: All right. Madam reporter.
9 (The following proceedings were held at the bench)
10 → Mr Cochran: Your Honor, I hear remarks from the peanut
11 gallery [Cochran’s pet name for the public
12 gallery]. I couldn’t hear what was said…
(Sidebar, 6 July 1995)
In this second extract, following an outburst of laughter, the judge rep-

rimands the public gallery, underlining their passive role in the trial:
Excuse me. Excuse me. Excuse me. Excuse me. Excuse me. This is
not an audience participation enterprise here, folks. You’re here as
an audience, not as participants. If I hear another outburst from the
audience, I’m clearing the courtroom. There’s nothing funny about
this.
(Judge Ito, 26 May 1995)
In addition to these loyal trial attenders, there was also a second,

much larger sub-category of ‘voyeurs’ in the Simpson trial – the
television audience – positioned both outside the trial proceedings and
outside the courtroom itself.
The viewing public

Record numbers of television viewers tuned in to daily live broad-
casts of the unfolding drama; even before the trial got under way,
the slow Bronco chase which preceded Simpson’s arrest was watched
by 95 million viewers in the US alone, and viewing figures indicate
that 91 per cent of Americans who were watching television at
10 am on 3 October 1995 (the day of the verdict), amounting to
some 150 million people, were watching a station broadcasting live
coverage of the verdict (Alexander 1996: 169).
Just as the trial-watchers within the courtroom – the public gallery
members – are allowed to remain in the courtroom as long as the judge
permits, the same is true of the television cameras. All but three of the
US States allow cameras into criminal trials, in stark contrast to the
situation in the UK, where cameras are universally barred from all
court proceedings, and seem likely to remain so for the foreseeable
future. However, such access is at the discretion of the judge and may
be revoked at any time; in terms of the viewing public, therefore, the
judge controls what may be seen and heard and what may not.
In the Simpson trial there was a number of near-misses when the

judge threatened to censor the proceedings, such as in the following
extract, where prosecutor Clark was chastised by the judge:
1 We are at the sidebar. Miss Clark, I expressed to you my desire not

2 to publicly display the body of the victim so that the news media
3 would get pictures of them so it would be on the front of the
4 National Enquirer later this week, and the television camera was
5 focused in on those small photographs on there and you didn’t give
6 me enough warning to tell me what it was so I could cut that.
(Sidebar, 24 January 1995)
In two moments of high drama, the judge went further and halted televi-
sion coverage of the trial, by means of a ‘kill switch’ located on his bench.
During the prosecution opening statement, Judge Ito (who con-
stantly monitored the Court TV coverage on a screen under his bench)
noticed that one of the alternate jurors was in shot, contravening Rule
980 of the California Rules of Court, which prohibits the identification
of jurors (Gill 1999: 141). He immediately suspended broadcasts,
stating that ‘that is a direct violation of 980 and I’m going to terminate
the television coverage as a result of that’. Only, interestingly, after
representations from both prosecution and defence was the transmis-
sion resumed. The reasoning of the two sides is significant, since it
reveals something of their respective positions on the role and
influence of the viewing public as a secondary addressee for the trial
proceedings.
The defence, who potentially had more at stake than the prosecu-
tion, since their opening statement was yet to come, framed their
request in terms of Simpson’s, and to a lesser extent, his family’s post-
trial reputations, which, they claimed, would be irreparably damaged if
the public was not permitted to watch the remainder of the trial:
1 We are representing a man whose life is at stake in this trial and we

2 believe that the evidence will show that he is wrongly charged. And,
3 therefore, his life after this trial in the world of public opinion is
4 also at stake. And in fairness to Mr Simpson, to his mother, his
5 sisters, his children, who are here, his friends and supporters world-
6 wide, I think it would be tremendously unfair to have the world see
7 the opening statements of the prosecution and not see the opening
8 statements on behalf of Mr Simpson.
In contrast, the prosecution took the moral high ground in the debate,
downplaying the significance of the public audience and focusing
instead on the role of the jury, emphasising the importance of their
continued access to the trial:
1 Well, your Honor, the important people to hear from both sides is
2 the jury. They’re the ones that matter here. The defendant will have
3 his opening statement heard by the people who will vote on the
4 issue of guilt or innocence, and that is what counts … We are not
5 playing to the world here, your Honor. We’re playing to the jury.
6 The jury is the one that has to hear everything, and they will
7 whether the Court cuts the feed or not.
On the second occasion, which occurred during the prosecution

closing argument, the camera focused on O.J. Simpson’s note-filled
writing pad positioned in front of the defendant. Ito called it a ‘very
flagrant violation and intrusion into the attorney/client privilege’ and
stated that he was ‘inclined to terminate the coverage at this time’.
This time, the judge was less receptive to attempts to win him over:
1 Mr Cochran: May we have a second?

2 Ms. McFadden: Your Honor, would you hear argument on the
3 issue?
4 The Court: Sit down.
Nevertheless, as on the first occasion, Ito backed down early the next
day and allowed the cameras back in after discussions with the TV
company.
It is interesting to note that, in a very real sense, the Simpson trial as
entertainment has now come full circle. On 7 September 2000, the LA
Superior Court ruled that the American TV station CBS should be
allowed to broadcast a controversial dramatisation of the trial;
Simpson’s attorneys had claimed in their representations to the court
that the mini-series represented the ‘tabloidization of the 6th
Amendment’ (O’Neill 2000).
‘Playing to the camera’

Both sets of lawyers, the judge and some of the witnesses were all criti-
cised by the media for ‘playing to the crowd’ at various stages of the
trial (particularly in the closing arguments) indulging their new role as
media celebrities at the expense of their legal responsibilities. It was

claimed that they had designed their talk as much for the benefit of
the TV cameras and journalists who covered every twist and turn of the
trial as for the jurors in court. As Gewirtz (1996: 154) notes:
at every point [of the Simpson trial] there was a trial before the
broader public at least as intense as the trial before the jury, and this
broader public trial, magnified and distended by the media, pro-
foundly affected what went on in the courtroom.
Perhaps the most theatrical gesture of all in the Simpson trial occurred
when Simpson was asked to try on the bloody gloves found at the
crime scene. As Rantala (1996: 44) puts it:
On June 15th, the jury watched (once) and the world watched (over
and over and over again via the videotape) O.J. Simpson put on the
gloves used in the commission of the murders of Nicole Brown
Simpson and Ronald Goldman.
Simpson struggled and grimaced, finally declaring ‘they’re too small’.

Despite the protestations of the prosecution that Simpson was faking it,
for many observers, including a number of the jurors, this became one of
the defining images of the trial and, as Gill (1999: 144) states, ‘one of the
prosecutor’s biggest mistakes’. This incident also coined the trial’s most
famous catchphrase (itself a metaphor for the trial by jury process) –
defence attorney Cochran’s: ‘If it doesn’t fit, you must acquit.’
Not only were the courtroom players criticised by media observers,
perhaps more significantly, a number of jurors expressed a similar view,
with one member of the jury stating that ‘they were playing to the
media. They were playing to the public, and it caused a lot of delays as
far as the trial was concerned … It was a show for a while’ (Cooley
et al. 1995: 205). A second juror also claimed that the trial ‘was carried
on for the cameras and public opinion’.
Both the prosecution and defence lawyers alluded to the role of the
television audience in their respective closing arguments, reminding
the jurors of their civic duty as representatives of ‘the People’. The
prosecution told the jury that the wider community would be watch-
ing and would judge the jury according to their verdict:
1 Well, let me say this to you, that today – tonight, the whole world is
2 watching us tonight or watching me, and they have listened to the
3 evidence and they have watched the witnesses testify here on tele-
4 vision and they want to know what you’re going to do and we know
5 what you’re going to do … The world is watching and everybody
6 wants to know what you are going to do. Marcia Clark and I know
7 you are going to do the right thing under the law. And whatever
8 you do, the decision is yours, and I’m glad that it is not mine.
(Prosecution closing argument, 26/27 September 1995)
Prosecutor Darden ended with the less than reassuring ‘and whatever
you do, the decision is yours, and I’m glad that it is not mine’. The
judge was concerned by the pressure put on the jurors to ‘do the right
thing’, and again threatened to ‘pull the plug’ on TV coverage of the
trial:
1 The Court: I’m concerned that attorneys from both sides have referred
2 to what other people around this country may think. That causes me to
3 believe that the lawyers are pandering to the cameras and that causes me to
4 believe that probably I ought to pull the plug on the cameras. I’m contem-
5 plating doing that because I’m tired of this kind of argument.
There is much debate over the issue of what Schuetz (1999a) refers
to as ‘telelitigation’. With the increasing popularity of voyeuristic
‘fly-on-the-wall’ reality TV such as ‘Big Brother’, the boundary
between the real world and the world of the ‘docusoap’ is becoming
increasingly blurred. It is perhaps not so fanciful to imagine a world
where ‘telelitigation’ becomes an everyday reality, in the same way
as the ‘housemates’ in Big Brother are evicted from the house on the
basis of votes cast by the general public. It is certainly true to say
that the lawyers in the Simpson trial had at least one eye on the
relentless presence of the courtroom and TV audience and their
shifting opinions on the trial.
Having analysed the role of the general public in the trial public, I
will now briefly discuss the contribution made by a further group of
‘outsider’ voyeurs, the hordes of journalists from all around the world
who reported on the Simpson trial.
The press: reporting the trial

In the Simpson trial, the press corps represented a substantial group,
with 1,159 press passes issued in total. Both jurors and journalists play
an overtly productive role in the courtroom, contributing articles and
adjudication, respectively, although one (the jury) operates within the
trial process, whereas the other (the press) is confined to the outer
reaches of the courtroom, and takes no active part in the trial itself.
The fact that the products of these journalists are so firmly out of
bounds to the jurors – in fact a number of jurors were dismissed for
gaining illicit access to news media – is testament not only to the per-
ceived power of persuasion of the media, but also to the censoring
power of the criminal justice system, which in the Simpson case
imposed a punitive nine-month period of sequestration on jurors,
denying them (among many other things) access to any external
media source. The opening paragraph of the court order gives a flavour
of the restrictions imposed:
The trial jurors and alternates in this case shall NOT read any news-
paper article or other written account, including magazines or
books, or watch any television programs dealing with this case, the
defendant or his family, the victims or their families, the attorneys
or any other matter concerning this case. The court will distribute to
the jurors and alternates the local daily newspaper of their choice,
edited to remove any coverage of this case …
So far, I have dealt with two audiences who are relatively detached
from the legal process. The next section deals with the two further
audiences of courtroom talk who are active within the trial itself – the
court reporter (also referred to as a ‘transcriber’), a participant over-
whelmingly overlooked in studies of courtroom interaction, and, most
crucially the jury, as the ultimate addressee of trial talk. I will begin
with a study of the court reporter and their role in influencing trial
interaction.
Producing a written record of trial proceedings: the role and

influence of the court reporter
The job of the court reporter is to produce an accurate record of trial
proceedings. The accuracy of this written version is of crucial import-
ance, since it represents the official record of what actually occurred in
court and is often the sole data source on which any subsequent appeal
proceedings are based. (See Graffam Walker 1986; Blackwell 1996;
Eades 1996; and Komter 2002 for discussions of the issues and dilem-
mas associated with the creation of ‘verbatim transcripts’ of forensic
proceedings.)
An initial prerequisite for the fulfilment of the court reporter’s remit is
clearly the ability to hear proceedings in order for them to be accurately
transcribed. This requirement for the basic audibility of witness testimony

is underlined in the following extract, where the judge has to remind the
witness to ‘keep his voice up’ (contrasting with the examples on pp. 97–8
above, where the lawyer is reminded to ‘keep his voice down’):
1 Q You took out a ruler and you didn’t even touch the
2 swatches. You just got near them and made your best
3 measurements?
4 A Excuse me. In millimeters I believe. I’m not sure.
5 → The Court: All right. Mr Yamauchi, you’re going to have to keep
6 your voice up for the court reporter.
(Witness cross-examination, 30 May 1995)
It seems somewhat ironic that the Simpson case was broadcast live
around the world in Nicam stereo, using the most up-to-date recording
and satellite transmission equipment, and yet the spatial and acoustic
environment of the courtroom itself meant that the true and significant
‘audience’, notably the jury and the court reporters seated only feet away
from the witness, often had difficulties in hearing the testimony.
An associated issue is that of incorporating non-verbal events into the
official written record. In the following extract, the judge makes numer-
ous attempts to interpret and accurately convey (by reference to base-
ball analogies) the gestures expressed by the lawyer in his question:
1 Q Okay. Did you ever see Mr Cochran waive [sic] his

2 hands like this back and forth across his chest today
3 [indicating]?
4 A No, sir.
5 → The Court: I know we have videotape, but do you want to
6 describe the gesture you just made for the record?
7 Q You never saw Mr Cochran make a motion like this
8 [indicating] with his hands?
9 A No, sir.
10 → The Court: Sort of a gesture similar to an empire indicating safe
11 several times.
12 Q Did you ever see Mr Cochran make a gesture like
13 this [indicating] during your testimony?
14 A No, sir.
15 → The Court: Indicating a third base coach saying slide. That’s
16 about the closest I can get.
(Sidebar, 2 March 1995)
For the court reporter attempting to transcribe trial proceedings ver-

batim, there are a number of other practical matters which influence
the production of courtroom talk. The first concerns the issue of speed
of testimony and its turn-taking complexity, an important consideration
in the conversion of spoken interaction to a written representation.
There are many instances of warnings from the judge to witnesses,
asking them to refrain from interrupting the lawyer’s question, with
the justification that overlapping talk is difficult for the court tran-
scribers to cope with, as in the following example:
1 Q Miss Mazzola, just so there’s no misunderstanding,

2 when I talk about the white sill area on the driver’s
3 door, I’m referring to – well, I’m sorry. Did you
4 know when I asked you those questions that I was
5 referring to that white strip of metal which is
6 under, next to the driver’s door –
7 A I had an idea that’s what you –
8 Q – in that picture? You did have an idea?
9 A Yes.
10 Q Okay. In fact, during your prep session –
11 → The Court: Excuse me. Excuse me. Excuse me. Miss Mazzola,
12 please, let him finish –
13 The Witness: Sorry.
14 → The Court: – asking the question before you start to answer.
15 The court reporter can only write down one
16 person at a time. All right. Thank you.
Sometimes, however, even the attempts of the judge to control the

dynamics of lawyer–witness questioning prove unsuccessful. The fol-
lowing extract reports an attempted rebellion on the part of the court
reporters in the Simpson trial, in response to the rapid and combative
questioning style of one of Simpson’s defence attorneys, which leads to
an uncompromising ultimatum from the judge:
1 The Court: We are over at the sidebar. The court reporters have
2 both threatened to quit if you are allowed to do
3 another witness.
4 Mr Cochran: They won’t quit; I will slow down.
5 The Court: It is not just slowing down, but talking over people
6 and other things. They said if Cochran is doing the
7 next witness, I am quitting. That is what they just

8 told me. Okay?
The ultimate sanction ordered by Judge Ito was to deny both sides the
recording of their exchanges, because they refused to manage their
turns appropriately:
1 Court Reporter: I’m sorry, judge. I can’t make a record when

2 counsel are both speaking at the same time.
3 The Court: Just put ‘attorneys ignore Court’s order to talk one
4 at a time, there is no record to report’.
(Judge Ito, 8 March 1995)
In addition to these considerations, there are many occasions when

lawyer–witness questioning is temporarily halted to allow the complex-
ities of the evidence to be accurately recorded by the court reporter.
The following extract illustrates the problem faced by the court
reporter in transcribing complex expert evidence; it also serves as an
interesting insight into the notion of ‘expertness’ in court (to be dealt
with in more detail in chapter 6), as it is the lawyer rather than the
expert witness who provides the spelling of the problematic word in
line 11, following the witness’s hesitation in line 10:
1 A Oh, now you’re talking a different thing. Now,

2 what you’re referring to is stoichiometric effect
3 where if you have a minor component, that it’s
4 possible – depending on how much of that minor
5 component is present, it’s possible not to see the
6 other contribution. But that would be at very low
7 levels of DNA.
8 → The Court: All right. Would you spell stoichiometric for the
9 reporter?
10 → The Witness: S-t-o – I believe I need to write it down.
11 → Mr Blasier: S-t-o-c-h-i-o-m-e-t-r-i-c. I think.
12 The Court: We’ll accept that.
Considering the fact that the court reporter, on the surface at least,
plays a minor role in trial proceedings, examples such as the three dis-
cussed here illustrate that they do in fact exert a considerable degree of
influence over the type of talk produced by the ‘main’ participants in

the trial process.
A final example serves as perhaps the ultimate illustration of the
under-acknowledged power of the court reporter. In this data extract,
the court reporter (via the judge) demonstrates her control over the
non-verbal as well as the verbal behaviour of the lawyer; to this effect,
the judge warns the lawyer in question:
Mr Goldberg, the court reporters always hate lawyers who stand

there and jingle change in your pocket, so if there is change in your
pocket it will be confiscated by the Court tomorrow.
(Judge Ito, 22 August 1995)
Even displays of power such as this pale into insignificance, however,

in comparison with the influence of the final ‘silent’ participant in trial
proceedings – the jury – who are responsible for determining the form
and the content of the majority of the interaction which takes place in
the courtroom. The final section of this chapter will be taken up with
an analysis of the ‘juror effect’ on trial talk, in the context of the jury
as primary audience.
The jury as audience

The purpose of the criminal trial is to determine the guilt or innocence
of the defendant(s) brought before it. In carrying out this task, the role
of the jury is crucial, in so far as the burden of reaching that verdict
rests on their shoulders.
In the adversarial system, the sole means by which this decision is
reached is through the verbal presentation and assessment of evidence
elicited during witness examination. In principle, jurors are sanc-
tioned by law to ask questions of witnesses, although they must be
submitted in writing and delivered to the witness by the judge.
However, this is a little known right, which is only rarely used by
jurors; in practice, testimony is overwhelmingly elicited through the
medium of lawyer-initiated questions.
The controls on juror–juror interaction too are tightly constrained.
The jury in the Simpson case were frequently reminded that they
might talk only in the privacy of the jury room, and that, prior to
deliberation, this talk should not include a discussion of any aspect of
the case. Judge Ito’s direction to the jury consisted of the following for-
mulaic speech, reiterated several times a day throughout the nine
months of the trial:
All right. Ladies and gentlemen, we are going to take a brief recess.
Please remember all of my admonitions. Do not discuss this case
amongst yourselves, don’t form any opinions about the case, don’t
conduct any deliberations until the matter has been submitted to
you, nor are you to allow anyone to communicate with you with
regard to the case. I see jurors mouthing the words with me. Thank
you. All right. Just as long as you remember them all.
(Judge Ito, 1 June 1995)
Ito’s jury instructions underlined the court’s control over juror’s inter-
actional rights and responsibilities:
You must not discuss this case with any other person except a fellow
juror, and you must not discuss the case with a fellow juror until the
case is submitted to you for your decision and then only when all
twelve jurors are present in the jury room.
(Judge Ito, 23 January/22 September 1995)
Thus, not only is the timing of juror–juror discussions about the case
prescribed (when the case has been ‘submitted to you for your deci-
sion’), but also the location for that interaction (‘in the jury room’) and
even the required participant-configuration of the discussion (‘only when
all twelve jurors are present’).
In California courtrooms, the verdict is not even delivered by the
jury foreperson, as it is in the UK. Rather, the clerk of the court is
handed an envelope containing the verdict, and reads this aloud in the
courtroom. The verbal role of the jury is therefore extremely restricted.
Although for the majority of the trial, the jury are cast in the role of
non-participators, their judicial role is decisive. Since the jury exist and
are convened (or empanelled) with the sole purpose of evaluating the
evidence and the credibility of the conflicting accounts presented to
them, they have a far greater influence on the construction of these
versions of reality than the typical ‘audience’ listening, for example, to
a play or a speech.
An understanding of courtroom interaction as multi-party rather than
dyadic is crucial to any evaluation of trial language, and will now be
discussed.
Trial talk as multi-party interaction: the role of the jury
The precise role of the jury as ‘hearer’ is a complex, and under-

explored, area of research. Goffman (1981) identifies two basic cate-
gories of hearer – the ratified and the unratified – with finer distinc-
tions according to the extent to which the hearer’s involvement in the
talk is sanctioned by the speaker. These are summarised below:
Participation Framework – Reception Roles

A: Ratified
• Addressed Recipient
‘the one to whom the speaker addresses his visual attention
and to whom, incidentally, he expects to turn over his speaking
role’
• Unaddressed Recipient
‘the rest of the ‘official hearers’, who may or may not be
listening’
B: Unratified
• Overhearers
‘inadvertent’, ‘non-official listeners or bystanders
• Eavesdroppers
‘engineered’, ‘non-official’ followers of talk
(Goffman 1981, summarised in Levinson 1988: 169)
Category A here accounts for recipients whose presence is acknowl-

edged and whose involvement in the discourse is sanctioned and
approved; in contrast, category B hearers, as representative of
‘unofficial’ participants in talk reception, may either be ‘accidentally’
involved (as in the case of eavesdroppers) or may have deliberately
engineered the situation so as to intentionally be overhearers.
In terms of eavesdroppers and overhearers, the Simpson trial was
unusual in several respects. As we have seen, the trial attracted unprece-
dented public attention and interest; this group of curious onlookers,
both those in court and their armchair counterparts, do not, however,
fit easily into the categories outlined by Goffman. They most closely
resemble eavesdroppers in his terms, as participants who listen but are
not directly involved in the talk, and who are motivated by a purpose-
ful desire to hear what is being talked about; however, this group do not
qualify as unratified since their presence is sanctioned by the court. They
therefore represent a hybrid group, perhaps best termed ‘ratified over-
hearers’, a category also used by Levinson (1988: 197).
In some respects, the right of the public to participate as recipients of
trial interaction was actually less constrained than that of the jury,
who were constantly excluded from lawyer–judge debates and disputes
over witnesses and trial procedure, and were even required to leave the
courtroom temporarily, almost on a daily basis. The following extract

illustrates one such occasion, where the judge ordered the jury to leave
until the dispute, involving an aggressive exchange of objections
between lawyers, had been resolved:
1 The Court: Objection sustained. Counsel, that’s grand jury, you

2 can’t go into this.
3 Mr Cochran: All he is going to go into is what he testified about,
4 judge.
5 Mr Darden: We have a one-lawyer rule. Stop whining.
6 …
7 The Court: Ladies and gentlemen of the jury, we are going to
8 take a brief 15-minute recess at this time. Please
9 remember my admonition to you; don’t discuss the
10 case among yourselves, form any opinions, allow
11 anybody to talk about the case. I’m going to ask you
12 to step back in the jury room, please.
(The following proceedings were held in open court, out of the pres-
ence of the jury.)
13 The Court: Thank you, counsel. We’ll be in recess for 15. The
14 record will reflect the jury has withdrawn from the
15 courtroom.
(Judge Ito, 2 February 1995)
The descriptor which most closely corresponds to the role of the jury
in the trial is that of ratified recipient in the first category of ‘hearer’. The
ratification of the jury is achieved by means of the process of jury selec-
tion where jury members are ‘recruited’ with the primary aim of hearing
the evidence put before them; a typical juror oath includes the explicit
requirement to ‘listen to every question and answer, without fear or
favour’. It is significant that such an explicit instruction is given in the
juror oath, since, as Goffman points out, the normative expectations of
these roles are not always fulfilled: ‘a ratified participant may not be lis-
tening’ and as the category of unratified hearer acknowledges, ‘someone
listening may not be a ratified participant’ (Goffman 1981: 132).
Drawing on the work of Goffman, Levinson (1988: 197) is also criti-
cal of these ‘gross roles of producer and receiver’, arguing that the cate-
gories do not adequately take account of the complexities of the
receivership role in power-asymmetric talk such as that of the court-
room. Levinson’s model casts the jury in the roles of ‘audience’ and
‘indirect target’ of trial talk.
At different stages of the trial, the jury are more or less explicitly
identified as the ratified recipient of trial talk. The jury is the overtly
acknowledged addressee of the initial and final jury instructions; where
the monologic nature of the contributions made by the judge means
that the addressee would otherwise be ambiguous or unclear, the
intended addressee is signalled by the use of explicit address forms, as
in this pair of extracts taken from the judge’s initial and final jury
instructions, respectively:
Ladies and gentlemen of the jury, it is my duty to instruct you on the

law that applies to this case.
(Judge Ito, initial jury instructions, 23 January 1995)
Upon receipt of the exhibits from both sides, both sides having now
rested, ladies and gentlemen, as you heard, the counsel for both the
prosecution and the defense have rested their case. There will be no
further testimony or evidence presented to you.
(Judge Ito, final jury instructions, 22 September 1995)
A similar strategy may be observed in the lawyers’ monologic contribu-

tions, the opening and closing arguments:
But the fact that Mark Fuhrman is a racist and lied about it on the
witness stand does not mean that we haven’t proven the defendant
guilty beyond a reasonable doubt. And it would be a tragedy if with
such overwhelming evidence, ladies and gentlemen, as we have pre-
sented to you, you found the defendant not guilty in spite of all
that, because of the racist attitudes of one police officer.
Ladies and gentlemen of the jury, I thank you very much for your
patience. I’ve tried to reason through this evidence, drawing the fair
inferences as best we could looking at the integrity of the evidence,
and I just think there is very little question here, is there?
In dialogic interactional contexts, consisting predominantly of the

witness examination phase of the trial, the jury as ratified recipient are
signalled less explicitly. Rather than overt acknowledgements of the
jury as the addressee, in the form of direct address forms or eye

contact, which occur throughout the monologic contributions, the
dialogue of lawyer–witness questioning, which makes up much of the
trial, takes on instead the characteristics of display talk.
Lawyer–witness interaction as ‘display talk’

Goffman (1981: 137) discusses the notion of ‘display talk’, referring to
the jury as the ‘encircling hearers’ and likening them to the audience
of a TV talk show, positioned outside the immediate questioner/
respondent dyad, but none the less the intended addressee or ‘target’
in Levinson’s terms.
In the Simpson trial, the jury as observers of a courtroom ‘display’
were also noted by the lead prosecutor Clark, who, commenting on the
spatial organisation of the courtroom, noted:
the rail is the three-foot-high wooden divider that separates the

lawyers and parties to the action from the spectators. But its impor-
tance far transcends that of a physical barrier. The rail is an unofficial
line of demarcation separating the players from the watchers.
(Clark 1997: 194)
A further sense of the way in which the physical layout of the court-
room reflects the various ‘audiences’ of trial testimony is illustrated by
the following dispute over visual access to the evidence. This extract
demonstrates, in a spatial sense, the need for many different hearers to
have access to each piece of evidence.
1 Q Would it help to illustrate that point about chro-

2 mosomes and DNA for you to draw a chart for the
3 jury?
4 A Probably.
5 …
6 The Court: Could we possibly put this over on this side over
7 here?
8 → Mr Clarke: My only concern is that some of the jurors will be
9 at some distance.
10 → The Court: Well, the problem is, indeed – defense counsel
11 needs to be able to see it as well. So what we’ll do
12 is, after we complete the drawing, we’ll exhibit it to
13 the full jury panel.
14 …
15 → The Court: All right. And let’s see if we can move that back so
16 we’re not cutting off Juror No. 1.
17 …
18 → The Court: Well, let’s make due [sic] with what we have here
19 and then we’ll exhibit it to the jurors.
20 …
21 → Mr Neufeld: I’m sorry, your Honor. Perhaps it could be turned a
22 little bit so the defense can see it.
23 → The Court: Well, counsel, who is going to be handling this
24 witness on cross-examination?
25 Mr Neufeld: I will.
26 → The Court: All right. Mr Neufeld, why don’t you sit over next
27 to Mr Goldberg there.
28 → Mr Neufeld: Also, the problem is that Mr Simpson is not able to
29 see it.
30 → The Court: I understand that, counsel, but it’s going to be
31 exhibited for everybody. We have to make due [sic]
32 with the angles we have.
33 Mr Neufeld: Oh, I can see it.
34 …
35 → The Court: Dr if you could, please, for the jury describe again
36 DNA and this concept of chromosomes and its
37 packaging.
The discussion in lines 6–14 highlights the need for the jury, as the
ultimate trial adjudicators, to have clear visual (and verbal) access to
the evidence, in this case a diagram. The other courtroom participants,
however, also need to see and hear the testimony; the lawyer who is
about to cross-examine this witness is concerned in lines 21–7 that he
and his defence team may have a restricted view and therefore be at a
disadvantage in their formulation of cross-examination questions. He
is also concerned that the defendant should be able to see the diagram
(lines 28–9). The exasperated judge becomes increasingly impatient
with these multiple demands, and finally tells all concerned that ‘we
have to make due [sic] with the angles we have’. Finally, he moves the
process forward, taking a moment to remind the witness that the
primary recipient of the testimony should be the jury (lines 35–8).
The concept of ‘display talk’ is discussed at some length by Goffman
(1981), who talks of the multiplicity inherent in the term ‘audience’, con-
trasting the courtroom ‘audience’ with its counterparts at the theatre play
and the political speech. One of the important differences between these
two contexts and the courtroom is the fact that the interactional rules of
the courtroom (including the essential presence of the jury) are legally
determined and binding, whereas audiences listening to a play or a
speech are voluntary ‘hearers’ and have a degree of interactional freedom;
not only are they at liberty to come and go as they please, they may also
provide feedback in the form of heckling or cheering, laughter or
applause in response to the ‘performance’ before them. In contrast, jurors
have no opportunity for feedback of this type, nor are they allowed to
provide minimal responses to indicate that they are even listening at all.
Jurors in teen courts, for example, are routinely warned during initial jury
instructions to ‘Control your emotions (facial expressions, etc.)’.
Goffman’s interactional analogy, equating the jury with a TV talk show
audience, is perhaps misleading, since the jury have a more important
and decisive role to play in the overall outcome of the purposive speech
event, beyond the straightforward role of spectator for the purpose of
entertainment (in the case of the theatre) or enlightenment (in the case
of the lecture or speech). Although the jury are not verbally involved in
the dialogic lawyer–witness exchange, the principal aim of examination is
to permit the prosecution and defence to display their respective pieces of
evidence for the scrutiny of the jury in an attempt to coerce and
influence their final judgement. As Levinson (1988: 197) notes of cross-
examination, there are ‘many details of the interrogation format that
display a sensitivity to the fact that the crucial participants (judge and
jury) are in audience role’, and which demonstrate an awareness that
questioning is conducted ‘in order to be assessed by (and partly on behalf
of) channel-linked adjudicators, namely judge and jury’.
The Simpson data contain numerous indications of the awareness of all
trial participants of the role of the jury as audience. The extract which
follows provides an indication of this awareness on the part of the judge:
1 Q All right. And do you see bloody shoeprints there?

2 A Yes.
3 Q Can you point to them, please.
4 A Here, here, here. There is a faint one here, and I
5 believe there is one right there [indicating].
6 → The Court: Officer Riske, can you keep your voice up because
7 everybody in the jury box needs to hear what you
8 are saying.
9 → The Witness: I’m sorry.
(Witness direct examination, 9 February 1995)
In addition to such straightforward considerations as audibility, the

judge sometimes reminds the witness more explicitly to direct his
responses to the jury rather than to the examining attorney, as in the
following example:
1 Q You have seen those photographs before, have you

2 not?
3 A Yes, I have.
4 Q And what is 1327 a picture of?
5 → The Court: All right. Mr Ragle, would you address the jury when
6 you are giving your answers, please.
7 The Witness: I don’t know which one is 13 –
8 Q The one on the left.
9 A Okay. This is a photograph of the glove and part
10 of the pavement that was a sidewalk at Bundy, and
11 this is apparently the hat and someone pointing
12 their finger at this particular item.
(Witness direct examination, 21 August 1995)
The interactional rules of engagement in court mean that the usual (and
natural) dynamic of ‘reply to the questioner’ is replaced with the more
indirect and, for the witness, less intuitive, ‘address the jury’ (line 5).
Of all the talk which takes place in the courtroom, the
lawyer–witness dyad represents the dominant site of interaction.
Chapter 5 focuses on some of the ways in which lawyers are able to
prevent witnesses from telling their various narratives in their own
way, both through manipulation of the question form employed and
through post hoc modification of the witness’s response.
5
Direct and Cross-Examination:
Questions and Answers in Court
Introduction
Questions and their adjacency pair partner, answers, are of fundamen-

tal importance to the trial by jury process. The dialogic questioning of
witnesses, by lawyers from both sides, is the basic activity which domi-
nates the trial and is the mechanism by which the elicitation of the
conflicting crime narratives is achieved.
As Figure 4 illustrates, in the Simpson trial, as in the vast majority of
jury trials, the interaction consisted overwhelmingly of the examina-
tion and cross-examination of witnesses.
Within this dominant evidential phase, the primacy of the Q-A pair as
the testimony elicitation technique of choice is undeniable; as Atkinson
and Drew observe of witness examination, speakers’ turns should be
designed ‘at least minimally as either questions or answers’ (1979: 35).
The judge in the Simpson trial frequently reminded both lawyers
and witnesses of this requirement, as the following example illustrates:
1 Q Did you see his reaction when that happened?

2 A He started literally flying. I mean not flying in the air,
3 but he started jumping around and hobbling and he
4 started screaming, ‘my knee, my knee.’ So he started –
5→ The Court: Wait, wait. Next question. This is not a narrative.
6 This is question and answer.
7 Mr Cochran: All right.
8→ The Court: Ask the next question.
9 Q All right. At that point – this happened during a
10 break on the set that day; is that correct?
126
Direct and Cross-Examination 127
100
91.9%
90
80
70
60
50
40
30
20
2.7% 1.3% 1.4% 2.7%
10
0
Jury Selection Openings Witness Exam Closings Deliberations
Trial Phase
Figure 4 Proportion of time (measured in days) spent on each respective trial
phase
The witness in this extract is reprimanded for (mis)interpreting the Y/N

question in line 1 as an opportunity to narrativise; rather than restricting
the response to a basic ‘yes’ (as presumably was intended by the lawyer),
the witness attempts to offer a full and detailed account of Simpson’s
reaction (lines 2–4). The result is a clear rebuke from the judge and a
reminder of the requirement for Q-A interaction (lines 5–6). The lawyer’s
response takes the form of an optimally controlling Y/N tag question
which sets the Q-A sequence of exchanges back on track (lines 9–10).
In discussing direct and cross-examination questioning, my inten-
tion is not to model these two types of trial talk exhaustively or com-
paratively, since much of this work has been covered in detailed
comparative analyses of the frequency of use of leading and other
closed question forms, such as general Y/N and response-restricting
alternative questions (see, inter alia, Harris 1984; Woodbury 1984;
Phillips 1987; Graffam Walker 1987; Luchjenbroers 1997). Taken as a
collective body of research, their findings indicate overwhelmingly
that closed questions, as indicative of lawyers’ control over testimony
elicitation, are the clear strategy of choice for criminal trial lawyers,
accounting for between 64 per cent and 87 per cent of all questions in
the cross-examination phase of criminal trials.
In this chapter, I aim to focus on how the specialised interactional

dynamics of the courtroom (discussed in the previous chapter) make
it possible for lawyers to stretch the boundaries of the concept ‘ques-
tion’ to its limits, exploiting the discursive properties of both ques-
tion forms and functions in their attempts to construct persuasive
testimony. I will outline some of the mechanisms by which testi-
mony is constrained, in both direct and cross-examination, by a
variety of lexical indicators built into the question itself. Finally, I
will examine the role of the discourse marker ‘so’ as a cross-examina-
tion means of post hoc evaluation of testimony. However, I will begin
with a brief discussion of the different aims and characteristics of
the two primary sites of questioning in the trial, direct and cross-
examination, respectively.
Direct vs. cross-examination: construction vs. destruction
From a dynamic perspective, direct examination is, in many ways, the

poor relation of its more flamboyant and dramatic cross-examination
counterpart. Just as the opening statement is often considered by
lawyers to be less cogent than the more overtly rhetorical closing argu-
ment, so cross-examination is considered to be where the real cut-and-
thrust of trial advocacy takes place.
I will illustrate this perception with examples from two very different
domains. A study of advocacy training manuals reveals not only a
greater amount of text devoted to cross- rather than direct examina-
tion, but also a preponderance of whole texts which deal with cross-
examination techniques, with titles such as Cross-Examination in
Criminal Trials (Stone 1995), The Art of Questioning: Thirty Maxims of
Cross-Examination (Megargee Brown 1987), Trying Cases to Win: Cross-
Examination (Stern 1993) and, perhaps most famous of all, The Art of
Cross-Examination (Wellman 1998); to the writer’s knowledge, there is
not a single equivalent text devoted exclusively to the techniques of
direct examination. The existence of so many ‘how to’ manuals for
cross-examination is also, of course, a recognition of the fact that it is
acknowledged as being more difficult, with its confrontational orienta-
tion, than its direct examination counterpart.
The second example illustrates the relative lack of dynamic ‘enter-
tainment appeal’ of direct examination in comparison with cross-
examination and is drawn from the film world. In a recent survey of
more than 50 films belonging to the ‘courtroom drama’ genre, includ-
ing The Verdict (1982), Presumed Innocent (1990) and The Client (1994), I
found that in the overwhelming majority of instances, the direct exam-

ination of witnesses was either severely truncated or omitted entirely;
Genette (1980: 94) refers to these types of temporal manipulation as
summary and ellipsis, respectively. In contrast, scenes of cross-examina-
tion were often protracted and were shown in something approaching
‘real time’, or scene in Genette’s terms. It is difficult not to reach the
rather disturbing conclusion that people are entertained more by
scenes of destruction (exemplified by cross-examination) than of con-
struction (the essence of direct examination).
This basic difference in the respective purposes of direct and cross-
examination has significant implications for the linguistic and
discursive structure of the two types of questioning. I will now explore
each in turn, beginning with direct examination.
Direct examination questioning: co-constructing the narrative

Despite its comparative lack of excitement, direct examination ques-
tioning nevertheless has a crucial part to play in constructing the trial
narrative of each side, particularly that of the prosecution, whose need
to construct a coherent narrative account, as we have seen, is greater
than that of the defence. This is reflected in the name, since direct
examination (or examination-in-chief as it is known in the English legal
system) represents an initial, dominant narrative statement, which is
then responded to, challenged and sometimes subverted in cross-exam-
ination questioning.
Many advocacy manuals point out that the aim of direct examina-
tion, where witnesses from the ‘home’ side are questioned, is to:
lay before the tribunal [jury] all that the witness knows which is rel-
evant and material. Defining the purpose in this way is intended to
emphasise that the advocate should from the first to last be in
control of the witness.
(Hyam 1990: 56)
Boon (1993: 100) further states that the evidence should be presented
in such a way as to be ‘clearly understood and persuasive’. Direct
examination is therefore the site of the co-construction of testimony
between advocate and witness, but a collaboration where the lawyer
remains firmly in control. The dual aims of this type of questioning are
to provide the jury with a clear outline of the witness’s contribution to
the narrative, and also to construct a persuasive account; as McElhaney
(1976: 78) points out:
unless the outlook is so dismal that the only hope in litigation is to

create confusion, a coherent statement of the facts by the witnesses
is essential to the jury’s understanding and acceptance of your posi-
tion. (my emphasis)
Confusion and miscomprehension are to be avoided in direct exami-

nation testimony, particularly in the prosecution narrative, because
therein lie the seeds of ‘reasonable doubt’; for the defence, in contrast,
confusion can be an asset, and its active creation is even recom-
mended by some advocacy manuals as a legitimate and desirable
cross-examination strategy. For the direct examination lawyer,
however, the clarity of the elicited testimony is of paramount impor-
tance, since, as Stone (1995: 128) advises trainee barristers, ‘evidence
must be clear if it is to be understood, remembered and applied in
reaching a verdict … evidence which is not clear will be neither
remembered nor convincing’.
One way in which clarity of presentation is achieved in direct exam-
ination testimony is by the use of protracted Q-A sequences, which
provide the jury with (what outside the courtroom would be) an over-
explicit account of the witness’s micro-narrative contribution.
Achieving clarity through overexplicitness: direct examination questioning

strategies
The enormous number of courtroom interrogatives in the Simpson
trial (an estimated 50,000+) can, to a great extent, be accounted for by
reference to the triangulated lawyer–witness–jury dynamic discussed in
detail in the previous chapter. In the context of questioning where the
ultimate destination of the response to any given question is the jury
rather than the questioning lawyer, there is a need for particularly
unambiguous and explicit transmission of testimony to the jurors.
The result of this dynamic is that an adjacency pair which might
typically occur in casual conversation as:
1 Q Did he say anything?

2 A Yes, he told me that …
efficiently satisfying the cooperative maxims of quantity and manner,

tends to become extended in court into a sequence of Q-A turns, as in
the following example, where the real informative response is only
elicited in line 6 after an additional lawyer-initiated Q-A sequence in
lines 3 and 4:
1 → Q Did he say something to you?

2 A Yes he did.
3 Q Was it connected with the bar?
4 A Yes.
5 Q What did he say?
6 → A He told me that …
This degree of protraction allows the lawyer to ensure that ‘his’

witness’s evidence is explicitly (if inefficiently) transmitted to the jury,
by restricting the informational content of each micro-response; the
use of a staged Q-A structure has the advantage of ensuring that the
implicit be made explicit.
Thus, although an exchange may be brief and efficient in casual con-
versation, leading to an unambiguous understanding between its par-
ticipants which is both cooperatively and collaboratively negotiated
(again in line with Gricean principles), this becomes a more complex
exercise in the courtroom. Each aspect of a contribution must be dis-
sected and a relevant Q-A sequence formulated for each.
This involves considerable linguistic and logical dexterity on the part
of the examiner and also patience on the part of the witness; if the fol-
lowing exchange were to occur outside the courtroom, the ‘witness’
would surely demand the ‘lawyer’ got to the point! In court, both
witness and lawyer cooperate in building a systematic linguistic image
of the minutiae of the event:
1 Q Did you write any reports at all at that point?

2 A No, sir.
3 Q You then did something with that tape?
4→ A Yes, sir.
5→ Q And what was that?
6 A I put it in my desk drawer.
7 Q Okay. Now at this point, was this your regular drawer?
8 A Yes, sir.
9 Q Okay. Now did you ever take that tape up or put it in the so-
10 called Simpson war room at Parker Center?
11 → A Yes, sir.
12 → Q When was that?
13 A That was probably three, four months later.
14 → Q Alright. So you, at first you put it in your desk, is that correct?
15 → A Yes, sir.
16 Q And about how long would you say it stayed in your desk?
17 A About three or four months.

(Witness direct examination, 31 March 1995)
This line of questioning continued for some considerable time, refor-

mulating the same points repeatedly with a strict Q-A structure. It is
clear that the questions in lines 5 and 12 serve to lengthen the dis-
course sequence, since the preceding questions in lines 3 and 9–10
respectively could easily have produced the required information
much more efficiently. It is interesting, therefore, to note the degree of
tolerance of this (normally) unusual overexplicit strategy by the
witness particularly, as a means of conveying a transparent and unam-
biguous message to the jury. The use of such a measured, if protracted
approach is especially important in the courtroom setting, since
arguably the most influential participants, the jury, are not able to
request clarification or reiteration of testimony at the time of delivery.
From the lawyer’s perspective, all the questions asked, whether in
direct or cross-examination, should optimally be display, in other
words, dealing with pre-existing knowledge on the part of questioner,
rather than referential, involving a genuine request for unknown infor-
mation. If there is not a preponderance of display questions, this indi-
cates that the lawyer’s trial preparation has been inadequate; indeed, a
basic tenet for trainee lawyers is that they should never ask a question
to which they do not already know the answer.
This applies particularly in the case of direct examination. The lawyer,
who is familiar with the witness’s story, must still ‘question’ the witness
and follow up pseudo-spontaneously to their responses, all the time
hoping that the witness will not falter or stray too far from the script. In
addition, the lawyer must hope that the witness will be sufficiently skilled
verbally to construct a coherent and rhetorically persuasive account.
Schiffrin (1994: 165, 169) makes the useful distinction between
information-seeking questions (as in lines 5, 12 and 16 above) and
information-checking (in lines 1, 3 and 7). She notes that questions
which function to genuinely elicit new information (or in direct exam-
ination ‘questioning as display’ terms, apparently genuinely, since there
must be a co-conspiratorial suspension of disbelief for such question-
ing to succeed) represent straightforward realisations of Searle’s (1969)
felicity conditions for questions, summarised below:
Condition Rule
Speaker lacks knowledge of a particular Preparatory
state of affairs
Speaker wants (or feigns wanting) to gain (In)Sincerity

that knowledge
Speaker elicits information from hearer Essential
The italicised portions here demonstrate the subversion of the felicity

conditions for casual conversation in the context of courtroom
‘display’ talk. Schiffrin observes that information-checking questions
also fulfil the same three conditions; however, the essential difference
is in the scope of what is being questioned and the type of response
sought. In information-checking questions, the information sought is
not the completion, in ideational terms, of a proposition, but rather
the reception of a referent or proposition.
Since the scope of this type of question is so much more limited
than its information-seeking counterpart, the questioner is able to for-
mulate the confirmatory question as a restrictive Y/N, thereby con-
straining the turn length of the witness. Therefore, from the lawyer’s
perspective, not only do confirmatory Y/N questions have contribu-
tion-controlling ‘benefits’, they also have a secondary consequence in
terms of turn-taking; whereas genuine information-seeking questions
serve to select a next speaker, an information-checking question either
functions as a backchannel device or else allows the current speaker to
continue to hold the floor, pending receipt of acknowledgement.
‘When you say . . .’ as a direct examination marker of clarification requests

The phrase ‘when you say …’ appears to be an extremely useful one for
trial lawyers. Although it also appears in cross-examination, its princi-
pal use (in a ratio of approximately 4:1) is in the direct examination of
witnesses, both lay and expert; in the Simpson trial data, this string
occurs on no fewer than 607 occasions. In this section I will focus on
its use with lay witnesses, however, see chapter 6, for an example of its
use as a jargon clarification request with expert witnesses.
‘When you say …’ questions allow the direct examination lawyer
temporarily to suspend the progression of testimony and return to an
aspect which is perceived to be unclear, ambiguous or potentially con-
fusing for the jury. The lawyer can then ask the witness either to refor-
mulate the original response by being more specific, or expand on it,
perhaps by providing an example.
The extracts which follow demonstrate two uses of ‘when you say …’
questions in direct examination, as 1) a request for clarification/elabora-
tion of a previous response (say more), and 2) as a request for greater
clarification/specificity (say it more precisely), requesting better fulfilment
of the Gricean maxims of quantity (1) and manner (2), respectively. In

the example below, the witness is asked to expand on a brief and unclear
reference to changes in Simpson’s ‘facial structure’:
1 Q Now, was his anger manifested in any way other than the fact
2 that he became – other than the fact that he began screaming?
3 → A Yeah. His whole facial structure changed. I mean, everything
4 changed about him.
5 → Q Okay. When you say his facial structure changed, what do you
6 mean? Elaborate on that for us, please.
7 A It was calm, quiet, normal conversation, like we were sitting
8 here right now, and then all of a sudden it turned into – the
9 eyes got real angry. It was as – his whole jaw, everything
10 started, you know – his whole face just changed completely
11 when he got upset. Umm – it wasn’t as if it was O.J. any more.
12 He looked like a different person and that is what Nicole had
13 always said when he gets angry …
This cooperatively minded witness obliges with a lengthy turn describ-

ing Simpson’s facial expressions and mood on the night of the
murders, in lines 7–13.
The requests in the second category – those which seek greater
specificity than was originally provided in the witness’ response – serve a
rather different function in the drive for clarity and comprehensibility.
Many of the requests in this second category derive from the deictic
shifts involved in transposing the original crime and investigation stories
into the trial environment (an aspect previously discussed in chapter 2).
This shift means that certain references which relate to the spatial
and temporal frame of the crime or the investigation are no longer
coherent; it is therefore necessary for the lawyer to ask for the particu-
lar referent to be explained in order to ensure that the jury will be able
to follow the evidence. The following three extracts illustrate requests
for greater specificity in exophoric pronoun, spatial and temporal refer-
ences, respectively:
1) Pronoun referent:
1 Q Now, when you say ‘we,’ who are you referring to?
2 A I was making this phone call for Tom Lange, so I was referring
3 to ‘we’ as in Tom and I.
2) Location:
1 Q Okay. Then what did you do?

2 → A As I went out to my mailbox, which is in the front of the
3 Condo complex and at that point, I was – noticed a dog
4 barking quite profusely.
5 → Q When you say ‘the front,’ would that be on the street of Bundy
6 itself?
7 A Yes. It faces the street of Bundy.
3) Time:
1 Q Well, did seeing that photograph refresh your recollection

2 even before you took the witness stand in this case, that there
3 was a rear gate at that location?
4 → A That morning I did not recall seeing a back gate.
5 → Q Miss Mazzola, when you say, ‘that morning,’ you mean the
6 morning of June 13th?
7 A Correct.
The final two extracts (‘location’ and ‘time’) also illustrate (for the
lawyer) a desirable side-effect of the use of these ‘when you say …’
questions, which is the fact that, by formulating the question in this
way, it potentially allows the lawyer the opportunity to add a further
segment, a ‘do you mean …’ or ‘would that be …’ coda.
The following extract shows how the ‘when you say …’ question
allows the lawyer effectively to answer his own query, and, moreover,
do it more effectively than the witness was able to:
1 Q You shot the aerobics segment of this video in one day.

2 A Correct.
3→ Q And when you say one day, you don’t mean just in eight hours,
4 correct?
5 A Correct.
6→ Q It actually took you what? 15 hours, 16 hours to shoot this video?
7 A I don’t know the exact time, but it was pretty high. Yeah, it
8 was right up in that area.
9→ Q And Mr. Simpson was present at the beginning of the video?
10 A Yes.
11 → Q And he was present at the end; is that correct?
12 A Yes, he was.
13 → Q Okay. And you described for us already some of his limitations,
14 correct?
15 A Correct.
16 → Q And when you saw Mr. Simpson, you recognized those limitations,
17 right? You recognized the fact that he had some limitations, right?
18 → A When I saw him –
19 → Q Okay. Well, when you saw him on the 27th or 26th rather.
20 A 25th, the day of the shooting?
21 Q Okay.
22 A Right. Sure. I knew of his limitations by that point.
23 → Q And you were concerned that he might not be able to make it
24 through the video?
25 A Right.
The lawyer’s response to his own question of ‘15 hours, 16 hours to

shoot this video’ (lines 3/6) makes up for the witness’s apparent
memory lapse or knowledge gap, an unhelpful ‘I don’t know the exact
time, but it was pretty high. Yeah, it was right up in that area’ response
(lines 7–8). This demonstrates that the witness is not the ‘primary
knower’ (Berry 1981) but the joint knower of the information; the initial
query is therefore clearly identifiable as a display question. This type of
exchange, which from the point of view of information distribution
seems counter-intuitive, is possible only because the lawyer already
knows the ‘correct’ answer, even if the witness has forgotten or is
uncertain.
This extract also illustrates the extent to which the lawyer’s initial
contribution enables him to subsequently narrate an entire story
segment, with the witness merely providing confirmatory Y/N
responses. Through a sequence of Y/N questions, connected by the
additive cohesive device ‘and’, the lawyer manages to tell the story
himself without the witness making a single contribution. When the
witness does attempt to make a more substantial narrative contribu-
tion (in line 18 – ‘when I saw him …’) the lawyer interrupts and
takes back the floor.
In addition to illustrating the extent to which the lawyer rather than
the witness is often the source of the evidence (even in direct examina-
tion), this extract shows how the lawyer is able to pick up the tempo of
testimony, by proceeding rapidly through non-critical evidence which
is nevertheless foundational to a forthcoming contribution.
Slips in witness performance, such as that demonstrated by the witness

above, can be corrected in a slightly more interactive way than by the
lawyer simply providing the required response himself. This is achieved
by means of the corrective insert (or repair) sequence (non-corrective
insert sequences in cross-examination will be dealt with in due course).
Emergency repairs: damage limitation through insert sequences in

direct examination
The lawyer has relatively little control over the content of the response
provided by his witness during examination. Below, I will discuss some of
the ways in which lawyers attempt to compensate for this by indicating
in the question what the content, form and duration of the response
should be; however, a common strategy for post hoc remedial work on
‘defective’ testimony is the emergency repair insert sequence, which has a
clarificatory function. The following example illustrates this strategy in
operation during the direct examination phase of questioning:
1 Q OK, who were the five?

2 A That would have been Det Harper, Det Haro, Det Lefall, myself
3 and Det Rogers I believe is the fifth one, from West Los Angeles.
4 → Q Rogers or Roberts?
5 → A I’m sorry, Roberts.
6 Q Roberts is from West LA, and were there other nonpolice per-
7 sonnel also present?
(Witness direct examination, 3 April 1995)
The aim of this entire exchange is to establish the credibility of the

witness’s memory, foundational to the forthcoming testimony, and so
the lawyer builds up a steady picture of the relevant period remem-
bered in great (perhaps rehearsed) detail by the police officer. When
the officer stumbles over his lines, the lawyer inserts a repair sequence
(lines 4–5), with the aim of damage limitation. In his next turn, the
lawyer reiterates the ‘correct’ response – ‘Roberts is from West LA’ (line
6) – before continuing with the next question. Again, such a form of
questioning is only possible because of the unusual information distri-
bution between the ‘questioner’ and ‘answerer’.
The same witness falters again quite soon after this initial error,
which induces a further emergency repair sequence:
1 Q And what is your best recollection, sir, of the time of this video
2 shoot? what time was it being shot?
3→ A Well, umm, it had to have been shot between 3.15 and 6.45,
4 I’m sorry, 3.15 and 4.45.
5→ Q All right. In that time frame, is that right?
6→ A Yes, sir.
7→ Q Alright. You referred to a log which helps you verify that also,
8 correct?
9→ A That’s correct sir.
10 → Q OK, 3.15 to 4.45. Now, on Friday, we mentioned ...
The potential damage is such that the lawyer again feels the need to
reiterate the ‘correct’ response in line 9, before moving on to the next
question.
Having said that the question is the basic currency of the witness-
examination phase, there is one final strategy which characterises parts
of direct examination, specifically those where the lawyer feels reason-
ably confident about the evidence and the witness’s ability to produce
it. This strategy involves the lawyer formulating his questions in such a
way as to make them appear not as questions at all, but as friendly
requests for information. I will conclude my discussion of direct exam-
ination talk with an analysis of this aspect.
‘Would you share with us . . .’: when is a question not a question?

During direct examination, it is advantageous for the lawyer to appear
less controlling than in cross-examination. By appearing to encourage
and reassure the witness, the lawyer can gain credibility in the eyes of
the jury by appearing benevolent and sympathetic, although in reality
he may still be in control of the interaction. The inherent power
accorded by the role of ‘lawyer’ is sufficient that there is no need for all
questions to be formulated coercively.
This apparently cooperative strategy gives the observer (the jury) the
sense that witness and counsel are collaborating in building the story
and that the whole process is a negotiated and negotiable event, when
in fact, this is far from the truth. An example of this approach at work
is the following example:
Q And I want to, if I can, get a clear picture of the number of

times that you had occasion to get inside that particular vehicle.
Are you with me on that?
In this instance, the lawyer is attempting to appear supportive of his

witness; he does this by seeming to negotiate with the witness about
how the testimony should proceed. Given the gulf between the two
participants in terms of power, it is highly unlikely that the lawyer is
genuinely attempting to collaborate with his witness, and yet, irrespec-
tive of the witness’s response (in this case the implied acquiescence), it
appears that the interaction between the two is relatively relaxed and
as friendly as it is possible to be in the courtroom setting.
If a witness can be portrayed as speaking freely and voluntarily, and
to be ‘negotiating’ (in this case the content of) his turns, then the effect
may well be the perception of more reliable and authentic testimony
than that of a witness who appears coerced and constrained in their
evidence. This impression is also reinforced through the use of meta-
talk, which appears to make the questioning process transparent,
explicit and, therefore, credible.
Q I’m going to ask you to look at this next exhibit and describe for
the ladies and gentlemen of the jury what is depicted in that
photograph.
In much the same way as a doctor tells a patient ‘I’m going to ask you to
slip off your shirt’ or a teacher addresses the class with ‘I’d like you to
turn to a partner and discuss possible solutions to the greenhouse effect’,
defence attorney Cochran in particular tends to employ indirect direc-
tives such as ‘I’m going to ask you to look at ...’, which, on the surface,
come across as a request rather than a command. Similarly, his frequent
use of ‘Can you ...?’ complete with ‘just’, which serves to minimise his
request, allows Cochran to produce implied directives which takes the
form of apparently egalitarian requests, as in the following extract:
Q Can you just show us generally, and we can get a pointer for you,
where did you park the Bronco vehicle?
In all three settings – the doctor’s surgery, the classroom and the court-
room – cooperation and compliance are the preferred responses. Both
these extracts serve as examples of the multifunctionality of form in
relation to function in the courtroom; had a similarly formulated utter-
ance ‘I’m going to ask you to ...’ been addressed to the judge, a range of
responses, including rejection, would have been available to him. As it
is, the witness’s acquiescence is anticipated. The mapping of function

and form thus appears highly dependent on the power dynamic at
work between the participants in the courtroom setting.
In this way, Cochran indicates that he excludes himself as a direct
recipient of the witness’s testimony by portraying himself as relatively
dispassionate and uninvolved with regard to his responses. He
attempts to come across as benign and therefore unthreatening to both
witness and jury. In other words, he puts himself forward as a form of
conduit for the transmission of information between witness and jury,
and implies that his involvement is merely facilitative.
The verbs employed by Cochran (from the semantic fields of coun-
selling and fine art, respectively) in questioning his ‘friendly’ witness in
the following examples are similarly designed to imply collaboration and
cooperation. In addition, he uses the inclusive ‘us’ and ‘for the ladies and
gentlemen of the jury’ to diffuse the impression that the question has
come from him, and that the response is intended for him:
Q Can you briefly share with us what those different numbers are?
Q If you can tell us – and you may have to step down. What I
wanted to find out was, how did you peer inside the envelope?
Since we don’t have the envelope here this morning is the
problem. So if you can help us with that and paint a word picture
for the jury as to how you peered inside the envelope, sir.
The second question contains an especially imaginative variation on

the hidden imperative ‘tell us ...’ and attempts a multiple effect, using
as it does another hidden directive ‘Can you ...’, an apparently face-
saving ‘if you can’, and an assurance of Cochran’s neutrality with a
further reference to the jury. Cochran follows this question by further
obliging the witness in open court to mime his actions, prefaced by
similarly complex forms of ‘encouragement’. It is inconceivable that
the witness should refuse the lawyer’s ‘suggestion’:
Q Why don’t you, if the court would allow, step down, using the
seat there as the driver’s compartment, and if you can, demon-
strate it for the jurors, show us how you stepped in, if you can.
You may step down from the stand if you need to.
The features described here, which appear in direct examination ques-

tioning, are noticeably absent from its cross-examination counterpart.
Rather than appearing to encourage and facilitate the elicitation of tes-
timony by the witness, cross-examination is characterised by a greater
degree of control and constraint over the witness’s responses, without
the luxury of positive image-building opportunities for the lawyer, or
apparent ‘freedom’ for the witness.
I will now describe and exemplify some of these cross-examination
control strategies.
Cross-examination questioning: deconstructing the narrative

The cross-examining lawyer is concerned with retaining tight
control over the speed at which testimony is elicited as well as the
content and form of the evidence. The analysis that follows will
focus predominantly on the linguistic characteristics of destructive
types of cross-examination, where the existing narrative is attacked,
rather than constructive narrative, where an alternative version is
proposed.
The first category of questions which I will analyse is the multiple
question, where more than one interrogative is integrated into a single
question form. Through the use of such questions, cross-examination
lawyers are able to oblige witnesses to agree to propositions embedded
within the question which they are either oblivious to, or which they
are unable to unpack in order to deal with separately.
Multiple Qs and embedding: when is a question more than a question?

Cross-examination questions routinely contain multiple embeddings
with a number of interdependent interrogative layers, a technique
which may be observed in the following annotated question put to an
expert witness which consists of no fewer than five separate proposi-
tional elements:
1 Q And with respect to the Bronco [topic marker], if the blood had
2 been observed on the lower portion of the driver’s door of the
3 Bronco [1] and someone had thought that was significant from
4 a forensic science standpoint [2], if you had been out on the
5 crime, at the crime scene as a criminalist [3], would you have
6 wanted to remove that evidence at the scene [4] as opposed to
7 removing it at some later point [5]?
8 A Yes.
(Witness cross-examination, 21 August 1995)
Despite this type of complexity, the witness is frequently expected to

respond with a single, inclusive Y/N response, as in this instance, and
is usually instructed by the judge to simply ‘answer the question’ if
they attempt (on rare occasions) to unpack the components of the
question to deal with them individually.
Sometimes, the complexity of the question represents little more
than an inconvenience which holds up progression of the testimony
only momentarily, as in the following instance:
1→ Q And someplace sometime in 24 years you have

2 worked in an area where you’ve had some friendly
3 encounter with somebody in your particular beat
4 are you, as a matter of procedure and your training
5 did you at that time have occasion and were you
6 required by your training to write that down?
7 Mr Darden: I would object to this question. It is compound
8 and it is confusing and Mr Cochran has become a
9 witness. He is testifying.
10 → The Court: Overruled. Overruled. Do you understand the question?
11 → The Witness: I think so.
12 Mr Cochran: Thank you. Try to answer, please, sir.
(Witness cross-examination, 31 January 1995)
Despite the objection (in lines 7–9), where the prosecutor complains
that the defence lawyer has effectively taken on the role of the witness,
the complex, multiply-embedded question in lines 1–6 is allowed by
the judge. This line of questioning continues despite the fact that the
witness gives the less than reassuring ‘I think so’ in response to the
comprehension check question (lines 10 and 11 respectively). In this
example, at least on the surface, there seems to be little substantive
damage done by the complexity of the question.
However, in addition to creating a processing challenge for the
witness, this strategy does allow lawyers to insert potentially incrimi-
nating assertions within what may appear to be a relatively innocuous
question. The example below illustrates this potential. Whilst ques-
tioning a police officer in order to ascertain the precise number of
occasions on which he had been called to the Simpson house, the pros-
ecution lawyer succeeds in making the assertion – which up to this
point had been hotly contested – that Simpson and his wife had ‘been
in a fight’ (lines 10–11). The formulation of the final question as a
confirmatory Y/N serves to shift the witness’s attention away from the
potentially damaging admission that the couple had been fighting. The
officer responds straightforwardly, as directed, to the Y/N question,
and the assertion goes unchallenged:
1 Q Detective Edwards, let me see if I understand that last answer.

2 Mr Simpson told you that the police had been out eight times
3 before for the same kind of call? He told you that?
4 A What he said was that –
5→ Q I’m asking the question.
6 A They had been out there for the same similar type call, yeah,
7 been out here before for this and you never did anything before.
8→ Q Mr Simpson told you – listen to my question, if you may. Did
9 Mr Simpson tell you that the police had been out eight times
10 before on calls involving the situation where he and his wife
11 had been in a fight? He told you that?
12 → A Yes.
(Witness cross-examination, 31 January 1995)
In the end the witness concedes, and responds with a compliant ‘yes’
(in line 12) and the inherent ambiguity of the phrase is left unex-
plored.
In addition to these types of question complexities, it is also possible
for cross-examination lawyers to provide, within the question, a pro-
jected indication of what the response should contain, both in terms of
the extent and content of the response. The next section will begin
with an exploration of cross-examination lawyers’ strategies for
defining response boundaries.
Defining response boundaries

The first testimony-constraining strategy involves the clear demarca-
tion of response boundaries within the initial elicitation, a technique
illustrated below:
1 Q You can tell us that you had a conversation with them after
2 you first saw Mr Fuhrman?
3 A Yes.
4 → Q Without saying what was said, as a result of that conversation,
5 when you next saw Mr Fuhrman in their office, what did you do?
6 A I went inside the Marine recruiting center and I introduced
7 myself and I just began speaking to all of the men.
(Witness direct examination, 5 September 1995)
In this example, the witness is asked to comment on her meeting with

the allegedly racist police officer who investigated the Simpson case,
but her response is constrained by the use of ‘without saying what was
said’ (line 4). The jury are thus told about her actions, but are effec-
tively prevented from hearing about the potentially significant content
of the conversation, where Detective Fuhrman is alleged to have made
racist comments.
In addition to the initial limitation of response content, the lawyer is
also able, thanks to the non-reciprocal turn-taking allocation of the
lawyer–witness dyad, to interrupt the witness in the middle of her
response, to provide a reminder of the boundaries set up in the initial
question:
1→ Q After Andrea came out, and without telling us what she said,
2 did you have any conversation with her about what had tran-
3 spired while you stepped out of Hennessey’s and she was still
4 inside at Fuhrman’s table?
5 A Yes.
6 Q Okay.
7 A I just asked what – actually I didn’t really even ask what was
8 said. She just said, ‘oh, God’.
9→ Q Don’t tell us what she said.
10 → A All right.
11 → Q My only question is did she tell you something about the
12 conversation?
13 A Yes, she did.
In line 9, the witness is reminded that the initial restriction of ‘without

telling us what she said’ still applies to her testimony. In line 11, the
lawyer restates the question, with a clear indication of the boundaries
of the required response ‘my only question is …’. This strategy is
extremely effective for the lawyer, since the response is condensed
from her initial diffuse narrative into a small but perfectly formed Y/N
response.
Constraining response form

Lawyers are permitted not only to control witnesses in terms of the
content of the responses, but also to indicate prescriptively the linguis-
tic form that the response should take. The witness in the following
example is instructed in a pseudo quiz-style question to respond very
specifically in terms of an ‘epithet known to the world that denotes

black people and begins which “N”’:
1 Q Being very careful with your answer. Did he, in describing the
2 gangs that he worked with, describe any particular race?
3 A Yes.
4→ Q Did he use an epithet well-known to the world that denotes black
5 people and begins with ‘N’?
6 A Yes.
7 …
8 Q Later in the conversation did he make another reference to
9 ‘N’ people?
10 A Yes, he did.
11 Q Can you tell us what he said?
12 A [no audible response.]
13 → Q You may use the ‘N’ word, if you wish.
The (African-American) defence lawyer is attempting to achieve an

important communicative purpose in his question about the LAPD
officer’s remarks. He deliberately dissociates himself from the use of
what became known in the trial as ‘the “N” word’ (referring to the
racial slur ‘nigger’), to avoid the danger of alienating members of the
jury.1
Witness self-monitoring
Of course, the ideal scenario for the lawyer is one where the lawyer is
able to instil in the witness the need to control their own testimony,
without the lawyer’s intervention. In the following example, the
witness manages to restrain herself mid-transgression (line 9), follow-
ing a reminder from the lawyer in line 7 – ‘Don’t tell us what anybody
said’ of his original boundary marker ‘without going into anything
that she said …’ (line 3):
1 Q Did you see any police officers that day?

2 A I didn’t. I wasn’t seeing anything except –
3 → Q Without going into anything that she said, did you learn any
4 thing from Miss Hannak later with reference to police officers?
5 A Well, I actually learned when I started to come out from
6 under the Demerol, my other roommate came in and – well –
7 → Q Don’t tell us what anybody said.
8 → A It is just personal – I don’t have to go into that, but anyway,

9 she mentioned – oh, I can’t say what she said.
10 → Q Okay.
11 A I became aware that Karel had met two police officers that
12 had come in for other business in the hospital at that point.
A problem case
Despite the verbal gymnastics performed by most witnesses when faced
with response constraints of the type discussed so far, not all witnesses
are able to rise to the challenge, which may be glossed (somewhat triv-
ially) as akin to the party game of ‘describe the object on the card
without using the word itself’. Witnesses who are asked to ‘perform’ in
this abstract and communicatively unnatural manner are sometimes
unable to comply with the demands made of them, and instead tie
themselves in explanatory knots, as illustrated by the next example.
Here another witness who claims to have heard Officer Fuhrman make
racist comments is cross-examined by defence attorney Bailey:
1→ Q Can you tell us, Miss Singer, what you mean when
2 you say ‘the manner in which it was used,’ without
3 going into any text?
4 Ms Clark: Your Honor, same objection.
5 The Court: Overruled.
6→ Miss Singer: There are words that we can speak that don’t – are
7 not followed by – they are meaningless words. I
8 can say a specific word and it doesn’t hurt anybody
9 because I don’t mean it. When he says the things,
10 he says it is bolstered by –
11 Ms Clark: Your Honor, objection. Non-responsive.
Singer is unable to negotiate the restrictions placed on her by the

instruction ‘without going into any text’ and is reduced to an
incoherent stream of false starts and reformulations. This results in
an objection by prosecutor Clark that the witness is non-responsive,
in other words, has not answered the question adequately. The
objection is granted by the judge and the witness is subsequently
reprimanded.
In addition to prospectively controlling the witness response at the
level of the ‘I’ move, there are also many ways in which lawyers are
able to retrospectively evaluate the responses provided by the witness, in

order to gain a rhetorical advantage.
One of these strategies is the use of insert sequences, which have
already been discussed in the context of direct examination. As we saw
above, inserts in direct examination testimony serve to repair and limit
damage to witness credibility, in cross-examination questioning, they
are used to reinforce damaging admissions made by witnesses through
enforced repetition.
Insert sequences as damage reinforcement in cross-examination

There are numerous sequences during cross-examinations in the
Simpson data which appear to be complete, both from an ideational
and a textual perspective, but which are subsequently extended by the
insertion of what appears to be a clarificatory insert sequence, as in the
following example:
1 Q But when you first discovered it [the tape] during the first
2 week of March, who in the robbery/homicide division did
3 you talk to about this.
4 A Nobody.
5 Q You didn’t tell anybody at first?
6 A No.
7→ Q Alright and when was the first time you told somebody in
8 robbery/homicide?
9→ A It was either – it would have had to be either March 22nd or
10 the 23rd. ...
There is certainly little chance of the first response (a simple ‘nobody’,

in line 4) being misunderstood or misinterpreted by the jury, and so
the only reasonable explanation is that the lawyer is asking the witness
to repeat his response for another (rhetorical) purpose, namely to
emphasise its importance as a damaging admission. In this instance,
the two-week delay in notifying colleagues that the tape had been
located was a significant admission, in so far as it indicated a degree of
forgetfulness and disorganisation and hinted at LAPD incompetence, a
vital component of the defence’s investigation counter-narrative.
The formulation of the initial question in a Wh- form – ‘Who … did
you talk to about this?’ (lines 2–3) carries the presupposition and the
implication that he should have told somebody, making the admission
that he told ‘nobody’ all the more damaging. The lawyer’s follow-up
question – ‘You didn’t tell anyone at first?’ – was also delivered with a
fall-rise intonational contour (r+) expressing surprise and with the suit-
able expression on the face of the lawyer, to reinforce the effect.
In this example, the aim of the examiner seems to be that of obliging
the witness to reiterate a damaging admission. This has the advantage
of reinforcing and compounding the error of judgement in the minds
of the jury, as simple repetition is an effective way of ensuring the
statement (and its implications) are fully processed.
A further strategy with respect to cross-examination witness insert
sequences operates at the level of topic coherence. The lawyer is able to
divert the attention of the witness by inserting into a hitherto coherent
sequence of questions a ‘rogue’ question which seems out of sync with
the discourse progression thus far:
1 Q And did you ever get inside it [the vehicle]?

2 A No, sir.
3→ Q By the way, do you carry, in the course of your work as a tow truck
4 driver, do you have one of these things called a slim jim?
5 A Yes I do.
6 Q: And with regard to that slim jim you could open that vehicle
7 real quickly, couldn’t you?
8 A Yes I could.
9 Q How long would it take you to use your slim jim to open a
10 vehicle like that Bronco?
The lawyer casually pursues the hypothetical situation and is rewarded

for his patience by causing the witness to make the potentially damag-
ing concession that he – an LAPD employee – at least theoretically, had
both the means and the window of opportunity to open the locked
vehicle and potentially tamper with crucial blood evidence inside:
1 → Q How long would it take?

2 A Couple minutes if I had to open it.
3 → Q If you wanted to open it, couple minutes?
4 A Yeah.
Finally, Cochran adds the merest suggestion of motive to the equation,

asking the witness the hypothetical ‘if you wanted to … how long
would it take?’ question. By using this kind of conditional construction,
the defence attorney is attempting to introduce at least the possibility

of ‘reasonable doubt’ as to the integrity of the witness.
One of the most interesting aspects of the ‘slim jim’ example above
is the use of the marker ‘by the way’ (in line 3). Cross-examination in
the Simpson trial data features this string frequently (with more than
400 occurrences). Although it is used in direct (and sometimes cross-)
examination in its more typical usage, as a way of introducing an issue
omitted from earlier questioning or as a supplementary question, its
function in cross-examination seems more strategic. In the majority of
instances, the marker ‘by the way’ seems to operate as a means of
appearing to minimise an aspect which is actually of great significance.
An example will illustrate this function:
1 Q Did you contemplate in any way that the crime scene would
2 be crawling with news media the minute the discovery was
3 made that the victim was Mr. Simpson’s wife, if it were?
4 A I didn’t think about that on the way in, no.
5 → Q Now, when you arrived at the police station, you and Detective
6 Phillips – and by the way, who got there first, if you remember?
7 A I don’t, sir.
8 Q When you arrived at the police station, what did you first do?
(Witness cross-examination, 13 March 1995)
In this fairly typical example, the question relating to who arrived first
at the crime scene (in line 5) is introduced almost as an incidental
query which attracts little attention compared to the preceding, and
more overt ‘topic shift’ marker ‘now’. The issue of who arrived first
turns out to be crucial however, since it establishes whether Detective
Fuhrman (the allegedly racist LAPD officer) had the time to plant the
incriminating evidence, a key feature of the defence’s ‘rush to judge-
ment’ narrative. However, by introducing it as a ‘by the way’ topic
interjection within a sequence of unrelated questions, the witness
perhaps does not fully realise its importance. Because a number of
instances of this ‘by the way’ type of question occur when the cross-
examining lawyer appears to be looking away from the witness,
perhaps pacing the courtroom or shuffling papers, its significance is
further downplayed.
A final way in which cross-examination lawyers are able to oblige
witnesses to repeat incriminating statements is by using a summarising
Y/N question, which forces the witness to repeat a damaging admis-
sion, as in the following example of an echo question:
1 Q And how far away were they from you at the time that you
2 went inside, when you left the vehicle to go inside Parker
3 Center?
4 A It was about 15 yards.
5 → Q 15 yards away?
6 → A Yes.
Such echo questions are common in other power-asymmetric con-

texts, such as in the classroom (Sinclair and Coulthard 1975), where
the teacher uses them to simultaneously check comprehension in the
teacher–pupil dyad and reinforce the ‘correct’ answer for the benefit
of the wider ‘audience’, in this instance, the remaining class members.
Many of these instances of echo questions, or more developed
summary questions, are prefaced by the discourse marker ‘so’. I will
end the chapter by exploring this phenomenon in more detail.
The ‘so’ summariser in cross-examination

‘So’ summarisers are a lawyer-preferential linguistic resource (occasion-
ally also used by expert witnesses – see chapter 6) and represent a pow-
erful ‘extra’ feedback turn after the ideational completion of the Q-A
pair or a sequence of pairs.
The use of third-turn strategies such as these summary sentences repre-
sents a similar phenomenon to that of ‘formulating’ in news interviews
(Garfinkel and Sacks 1970; Heritage and Watson 1980), which involves
‘summarising, glossing or developing the gist of an informant’s earlier
statements’ (Heritage 1985: 100). Such summarisers are also routinely pro-
vided by the teacher in classroom interaction and by doctors in the GP
surgery, indicative of their power-asymmetric characteristics.
Discussing the use of formulating utterances in the context of the
news interview, Heritage argues that this type of talk is more directly
addressed to the ‘overhearing audience’ than are the majority of ques-
tions and answers that precede it. This would certainly appear to be true
in the courtroom context, since in the majority of cases, including the
examples presented below from the Simpson trial, there is no
clarificatory advantage to be gained at the local question(er)-answer(er)
level. None of the responses provided in the build-up to the summariser
is ambiguous or equivocal, and therefore in need of more explicit expla-
nation; the only justification which makes sense is one where the evalu-
ative summariser is used with a strategic motivation, for the purposes of
communicating with the jury. As Heritage (1985: 104) notes:
formulations advance the prior report by finding a point in the prior

utterance and thus shifting its focus, redeveloping its gist, making
something explicit that was previously implicit in the prior
utterance, or by making inferences about its presuppositions or
implications.
As the following data extracts illustrate, all these effects and others
are produced in the courtroom context. Such formulations are of par-
ticular value in cross-examination since they are inferentially elabora-
tive, isolating certain elements of prior utterances and explicitly
outlining their relatedness to each other, even if this causality may not
have been present in the initial utterance. Because the summariser typ-
ically takes the form of a restrictive Y/N question, the potential for the
witness to contradict the proposition is severely limited.
Before exploring their use in cross-examination, however, it is
interesting to consider briefly how summarisers are employed by
direct examination lawyers. The following extract from direct exami-
nation illustrates the use of the ‘so’-type summariser to underline the
credibility of the witness:
1 Q All right. With respect to your first crime scene, did you actu-
2 ally pick up any evidence at that crime scene?
3 A Yes, under supervision.
4 Q And was there any biological evidence that was involved in
5 that first crime scene?
6 A There was a lot of biological evidence.
7 Q Can you give us just a guesstimate as to how many stains?
8 A [no audible response.]
9 Q I mean, are we talking about less than a dozen or more than a
10 dozen?
11 A More than a dozen.
12 Q Did you pick up some of those stains yourself?
13 A Yes, I did.
14 → Q Now, when you processed that first crime scene, did you get any
15 feedbacks in terms of how you had done?
16 A We – the people that were processing the scene were given a
17 commendation for the scene.
18 → Q So this was your first crime scene and you received a commendation
19 for it?
20 A Right.
Here, the basic foundational work is accomplished in lines 1–13, where

the witness outlines her experience of crime scene evidence collection.
From these initial overtures, relating to general issues and not specific
to the Simpson case, it is not entirely clear where the lawyer is
heading. The ‘now’ of line 14 marks a discourse boundary, reorienting
the witness examination towards the rhetorical point of the question-
ing which the lawyer is attempting to make, which is to establish the
credibility of the witness as a competent worker (in the context of
defence claims that crime scene evidence was contaminated by incom-
petent forensic scientists). The ‘so’ summariser in lines 18–19 functions
as an explicit indication of the implicit logical inference, namely that if
someone receives a commendation for their first job, this constitutes
confirmation of their competence. ‘So’ summarisers in direct examina-
tion such as that in the example above function as a way of reinforcing
the cumulatively constructed message in a final lawyer turn, referred to
by Heritage (1985: 106) as a ‘cooperative recycle’.
In cross-examination, the orientation of the ‘so’ summariser is also
to emphasise the force of the previous sequence, but rather than allow-
ing the witness to confirm something favourable, as in direct examina-
tion, the aim in cross-examination is to oblige the witness to concede
and reiterate in an explicit form something damaging. In this example
from cross-examination, the lawyer pursues a repetitive and destructive
line of questioning, culminating in a damning summary sentence:
1 A You won’t find her on that log, no sir.

2 Q Why won’t we?
3 A Good question I don’t know.
4 Q Well was there any other log that she signed in on when she
5 came there?
6 A No sir, not that I’m aware of.
7→ Q So you have no reports which tell you exactly what time she got there,
8 so you have to give us only your independent recollection, is that
9 correct?
10 A That’s correct, yes sir.
By the end of a punishing sequence of questions, the witness concedes

defeat and produces an unhedged, emphatic admission that:
A The entire time when she arrived, spent and left, is just an
approximation on my part.
Because of the damaging nature of the admission that no accurate

records were kept of the comings and goings at the crime scene, and
since this constituted a major factor in the defence claim that
evidence was tampered with at the scene, it is important for
Cochran to end unambiguously, thereby preventing the witness
from contradicting the carefully laid groundwork for the final admis-
sion. In order to ensure this, he employs one of the most controlling
Y/N question types, the statement + tag, which ideationally sets out
the ‘facts’ and subsequently invites the witness to respond, in this
case in the affirmative. Because the witness is interactionally con-
strained and is restricted to answering only the question put before
him, and because of the weight of evidence provided by the preced-
ing exhaustive reiteration of the same point, Cochran easily gains
his acquiescence.
The following extract provides a further graphic illustration of the
potential rhetorical force of the ‘so’ summariser; here one of the cross-
examination lawyers is questioning the LAPD scenes-of-crime officer
about a plastic shovel found in Simpson’s vehicle, regarded as highly
significant by officers investigating the murders, until it turned out to
be a snow shovel which came as standard issue with every Ford
Bronco. Cross-examiner F. Lee Bailey is able to formulate a damning
‘so’ summariser, in the very first exchange of Detective Fuhrman’s six
gruelling days of cross-examination. The use of verbs such as ‘enlight-
ened’ (line 3) and the derisory intonation adopted by Bailey contribute
still further to the sense of incredulity which characterised Bailey’s
cross-examination, leaving the witness humiliated:
1 Q Good morning, Detective Fuhrman.

2 A Good morning, Mr Bailey.
3 Q Could you tell us when it was that you were enlightened as to
4 the fact that the plastic you saw in Mr Simpson’s Bronco
5 comes with the car, when you learned that?
6 A Yes. I believe it was Saturday.
7 Q Saturday.
8 A Yes.
9→ Q So that after nine months of investigation, you discovered on
10 Saturday that this important piece of evidence was perfectly
11 innocuous; is that right?
The same officer was later questioned about his alleged racist attitudes
towards African-Americans – evidence, for the defence, of motivation
for the alleged racially motivated planting of evidence. In this instance,

Bailey uses a prospective ‘so’ summariser, not only to commit the
witness to something already stated by him, but in an attempt to
provide a damaging backdrop to forthcoming testimony by another
witness:
1 Q I want you to assume that perhaps at some time, since 1985 or 6,

2 you addressed a member of the African American race as a
3 nigger. Is it possible that you have forgotten that act on your part?
4 A No, it is not possible.
5 Q Are you therefore saying that you have not used that word in
6 the past ten years, Detective Fuhrman?
7 A Yes, that is what I’m saying.
8 Q And you say under oath that you have not addressed any black
9 person as a nigger or spoken about black people as niggers in
10 the past ten years, Detective Fuhrman?
11 A That’s what I’m saying, sir.
12 → Q So anyone who comes to this court and quotes you as using that
13 word in dealing with African Americans would be a liar, would
14 they not, Detective Fuhrman?
15 A Yes, they would.
Having given the witness the potential face-saving defence of a lack

of recall of events 11–12 years previously (line 3), Lee Bailey encour-
ages the witness, on two separate occasions, to make the unambiguous
statement ‘under oath’ (line 8) that it is ‘not possible’ (line 4) that he
ever used the epithet nigger ‘in the past ten years’ (lines 8–10). Bailey
then follows up this one-two with the knockout blow in lines 12–14,
since the defence have a number of witnesses in the wings who will
subsequently testify to just that scenario.
In addition to the potential rhetorical force of the ‘so’ summariser,
this form of linguistic domination also has turn-taking implications,
since it contains elements of the I(nitiate) R(esponse) F(ollow up)
exchange structure found in other powerful–powerless dyads, such as
teacher–pupil interaction, where the ‘professional’ initiates the
exchange by posing a question, the relatively powerless participant
(the pupil) is obliged to respond, and this is then followed up by some
form of evaluative feedback, such as the teacher’s ‘yes, that’s right’. In
the legal setting, the effect is a similar one, in that it serves to reinforce
the dominance of the lawyer; the exchange is not complete until he
has confirmed, acknowledged and evaluated the response, as in the fol-

lowing example:
1 Q And by that time, if you recall, had we started picking the

2 jury in this case?
3 A I really don’t know sir.
4 Q All right. If it was in October, you were aware of the proceed-
5 ings that took place here, were you?
6 A I’m aware of the proceedings, yes, sir, but as to the chrono-
7 logy, no sir.
8→ Q All right. So you don’t know whether it was during pretrial or we had
9 started picking a jury at that point.
10 → A That’s correct, sir.
Here, despite the fact that Cochran indicates to the witness that this is
a genuine request for recall (‘if you recall’ – line 1) thereby at least
giving him the option of not remembering, he insists on pursuing the
point until the witness has repeated the same response three times. It is
not, however, until Cochran has himself reiterated the response (lines
8–9) that the topic shifts and another issue is explored.
This chapter has illustrated some of the ways in which lawyers, oper-
ating in both direct and cross-examination modes, are able to control
and constrain the testimony elicited from witnesses on the stand. Not
all witnesses are equally easy to control, however. In particular, the cat-
egory of ‘expert witness’ is acknowledged by lawyers as one of the most
difficult to handle.
Chapter 6 addresses the language of the expert witness, focusing in
detail on the negotiation of power, knowledge and status which takes
place during witness examination between the lawyer, the expert and,
by proxy, the jury.
6
Mind the Gap: Negotiating Power,
Knowledge and Status in Expert
Witness Testimony
Introduction
The typical criminal trial involves a range of testimony from a variety

of individuals, lay witnesses, police officers and experts. This chapter
focuses on the role of one specific type of witness – the expert – and
analyses the particular set of interactional dynamics and the relative
distribution of knowledge and expertise which characterise expert
witness testimony. These phenomena will be discussed in the context
of and exemplified by experts in the Simpson trial.
The expert witness and his testimony play an increasingly important
role in both civil and criminal trials. Experts are routinely called by
both prosecution and defence to present evidence on a wide range of
forensic issues, from psychological behavioural profiling of offenders,
through to fingerprint analysis and complex DNA testimony and even,
on occasion, forensic linguistic evidence on issues such as disputed
authorship. Professionals from virtually any field can be called as
expert witnesses; a glance at a UK-based register of experts1 reveals a
diversity encompassing domains as esoteric as insect excrement analy-
sis and the assessment of faulty hairdressing procedures.
As I have shown, many of the interactional and discursive frame-
works of the criminal trial are fundamentally constructed in such a
way as to promote the role of the law and the lawyer at the expense
of all other trial participants and processes, including the expert
witness. On the lawyer’s territory, it is the law which constitutes the
overriding, dominant discourse and, as Renoe (1996: 155) has noted,
‘experts who are “expert” and have authority, can fail to retain it
once they become enmeshed in the locally managed interactions of
the courtroom’.
156
Expert Witness Testimony 157
The analysis of expert witnesses presented in this chapter will begin

with an examination of the interactional and informational character-
istics of expert testimony, with a specific focus on the ways in which
expert evidence differs from that of lay witnesses.
Expert vs. lay witness testimony: interactional and

informational differences
Jackson (1995: 419) notes that expert witnesses benefit from a number
of interactional advantages over their lay counterparts. These include
fewer interruptions and less overlapping speech; less use of
confirmation-seeking questions (and hence more information-seeking
questions); and longer narrative spans. Since research carried out by
O’Barr (1982), Conley and O’Barr (1998) and others shows that narra-
tive speech appears to be more persuasive with jurors than fragmented
testimony, it seems that expert testimony is intrinsically more likely to
be accepted by jurors than the lay witness equivalent.
Testimony from the experts in the Simpson case demonstrates a
number of these preferential tendencies in the way in which lay and
expert witnesses are questioned. These strategies go some way towards
neutralising the power asymmetry between lawyer and witness during
direct examination, by according the expert witness a greater degree of
freedom in their responses. This means that although the lawyer
retains fundamental control over topic choice and change, turn length
and allocation, the expert witness is at least given the opportunity to
respond to questions more fully than simply providing Y/N confirma-
tions.
I will now explore the occurrence and effectiveness of these strategies
in the Simpson trial data, beginning with the expert witness’s access to
floor-holding narrative.
Expert witness narratives

In terms of turn length (measured in number of words per response),
the expert witness seems far better placed than the lay witness. The
figures for two sample lay and expert witnesses, whose testimony
amounted to 20,000 words, demonstrate the tendencies shown in
Figure 5 which indicates that the expert witness is given far greater
leeway in his responses in terms of turn length than his lay witness
counterpart. The difference appears to lie at the top end of the scale
rather than at the bottom, with a maximum response length for the
lay witness of 52 words; in contrast, the expert witness is permitted to
200 198
180
160 153
140
120
100
80
60
40 23
20 2 10 6 3 2 1 1 1
0
1–50 51–100 101–150 151–200 201–250 251–300 301–350 351–400 401–450
Number of words per response Lay witnesses Expert witnesses

Figure 5 Turn length in number of words per response – lay vs. expert
witnesses
produce far lengthier contributions, up to a maximum of 433 words in

one instance of direct examination testimony. This is at least partly
explained by the need for expert witnesses to ‘amplify’ their responses,
‘requiring more examples, more explanation and ultimately, a higher
word count’ (Stygall 2001).
However, in general, such high figures are exceptional; for both
witness types, the majority of responses are grouped at the lower end
of the scale and are limited to a few words, leaving the lawyer firmly in
interactional control. Although the majority of responses from both
lay and expert witness types are between one and three words long
(accounting for straightforward ‘yes’ and ‘no’ responses as well as vari-
ations such as ‘yes it is’, ‘no he didn’t’, and so on), the expert is
allowed greater freedom to expand on answers, to give examples and
to explain and develop important points. This proves to be the case in
both direct and cross-examination, although, as might be expected,
cross-examination questioning is more controlling than direct, in
terms of its response-restricting character. Figure 6 illustrates this
difference.
In qualitative terms, a representative picture of the expert’s narrative
testimony style is illustrated in the following extract:
1 Q Now, what is your basis for that opinion?

2 A The basis of the opinion – my opinion that it fell
3 below a minimum standard –
4 → Mr Goldberg: Well, I’m going to object. Calls for a narrative.
110.4
120
100
80
59
60
40
10.7 10.5
20
0
Lay Direct Lay Cross Expert Direct Expert Cross
Witness Type and Examination Phase
Figure 6 Average number of words per response – lay vs. expert witness,
direct vs. cross-examination
5 → The Court: Overruled. You can answer the question.

6 → The Witness: The outcome of the evidence, the things that
7 occurred to the evidence that caused it to lose
8 some of its individuality, some of the items that
9 were contaminated at the evidence [sic] in the
10 sense, for instance, there was something placed
11 over a body at that evidence – at that crime
12 scene, which was a mistake in the sense of the
13 choice of whatever it was, not a mistake necessar
14 ily to over a body if it is in public view, and there
15 is some question of – of just humanistic aspect of
16 covering up the remains of somebody.
This fairly typical example of narrative-style testimony from an

expert elicits a response of almost 100 words. The expert does not
always have quite as much control over the form of his response,
however, nor as much explicit assistance from the judge in permitting
a narrative form (line 5).
In the next extract, the witness’s request for permission to narrativise

(in line 4) is rejected first by the judge (in line 5) and then by the lawyer
who asked the original question (line 6). The judge at first produces an
open question – ‘What is the basis of your testimony?’ – which he pre-
sumably realises is tantamount to inviting a narrative response. Then he
modifies the question into a more restrictive Y/N form (lines 7–8) which
reduces the witness to a single-word affirmative confirmation in line 9:
1 Q Well, is your opinion based on your understand-

2 ing of what the reason was that that was not
3 collected?
4 → A Can I answer that in a narrative form?
5 → The Court: No.
6 → Mr Blasier: No.
7 → The Court: What is the basis of your testimony? Was it the
8 testimony that you heard?
9 → The Witness: Yes.
10 The Court: All right. Proceed.
In another data extract from an expert witness examination, the

witness’s attempts to control the interaction leads to an objection
which is subsequently sustained by the judge:
1 The Court: We are over at sidebar.

2→ Mr Cochran: Your Honor, when we were here before – I asked
3 to come first. Your Honor, when we were here
4 before, I asked your Honor to admonish Detective
5 Lange. And the jury – if you watch the jury, they’re
6 not impressed with this. He keeps volunteering
7 answers. This is an experienced witness. And I asked
8 you before to admonish him to stop answering ques
9 tions that quickly. This is some kind of a routine
10 they’ve adopted. I think it’s unfair. He’s done that
11 three or four times today. It’s not right, your Honor. I
12 would ask you to admonish him.
13 The Court: I think the answer was yes, which hardly is volun-
14 teering information.
15 → Mr Cochran: But, your Honor, there was an objection. And this
16 is an experienced witness. He’s volunteering – because
17 he knows not to answer until there’s a ruling. He’s
18 been an officer 28 years. He knows not to answer until

19 you have a chance to rule.
20 The Court: I’ll instruct him.
21 Mr Cochran: Thank you, your Honor.
This objection leads to a reprimand from the judge, in the presence of the
jury, a face-losing and potentially credibility damaging act for the witness:
1 → The Court: All right. Detective Lange, when you hear one of
2 the parties making an objection, would you please
3 wait to answer the question until I’ve had a
4 chance to rule on the objection?
5 The Witness: Yes, your Honor.
6 The Court: Miss Clark.
7 Q All right, sir.
(Judge Ito, 7 March 1995)
In addition to being allowed to hold the floor for longer periods, it

also appears to be more acceptable for the expert witness to interrupt
the lawyer without punitive intervention from the judge more fre-
quently than is the case for lay witnesses. I will now explore the way in
which interruptions by experts are handled in comparison to floor-
stealing attempts by lay witnesses.
Witness-initiated interruptions: lay vs. expert witnesses

This differential management of witness-initiated interruptions is illus-
trated by the following example. Here, it is the lawyer who is at some-
thing of an interactional disadvantage, managing an average
contribution of only nine words per turn, in contrast to the witness’s
average response length of 39 words. Moreover, the witness interrupts
the lawyer’s questions on a number of occasions (lines 11 and 16).
Perhaps even more significant is the fact that both lawyer and judge
tolerate this apparent transgression of lawyer–witness questioning
dynamics with neither objection nor reprimand:
1 Q Could you give me just a real rough list of some of the law
2 enforcement agencies that you work for.
3 A Well, we work for many of the police departments in the sur
4 rounding counties, for the district attorney’s office, for cases
5 that they bring to us in the surrounding counties. We occa-
6 sionally work with the police department and the courts in

7 the city of Philadelphia, too. We are scientists, so we assist
8 there. Well, either the courts themselves or sometimes the
9 defense attorneys. You know, it makes no difference.
10 Q Do you work with –
11 → A We also do work for police departments at times in New
12 Jersey, in as far away – well, we have done work for the Los
13 Angeles police department at one point or we may have
14 done some more recently that I don’t know of.
15 Q Do you work –
16 → A So we do it for all over the country.
17 Q Do you do work for any foreign police agencies?
18 A Yes. Occasionally we did some work for the medical exam
19 iner and the prosecutor in Brazil in one of the countries.
20 Puerto Rico of course, which is part of the United States, we
21 have done work there.
A parallel stretch of data taken from a lay witness’s attempts at turn

self-selection has a more punitive tone and produces very different
consequences for the witness:
1 Q Was there any occasion when you saw him in

2 private? What I mean by that is alone in a room
3 where there was no one else around?
4 A There have been times, say, like I remember we
5 was in Florida and I saw him in the – in the – in
6 the bar area, hotel bar area.
7 Q Okay. Again that is a public area, yeah, too –
8→ A Yeah, yeah, right.
9 Q There was a bartender –
10 → A Over to the side, yes.
11 Q Okay. What I mean is alone in a room where there
12 was no one else?
13 → A No.
14 Q Never happened?
15 → A No, never.
16 The Court: Excuse me.
17 Ms Clark: I’m sorry.
18 → The Court: Mr Bingham, if you would you, would you allow
19 Miss Clark to finish asking you the question before
20 you start to answer, because the court reporter is

21 having a hard time because you are both trying to
22 talk at the same time.
23 The Witness: I shall.
24 → The Court: Okay. You will get out of here a lot quicker if we
25 do it that way.
26 The Witness: Thank you.
27 The Court: Miss Clark.
In this extract, overlapping contributions by the lawyer and witness (in

lines 8, 10, 13, and 15, respectively) result in a sharp reprimand from
the judge (lines 18–25). Judge Ito is careful to signal to the witness that
although both lawyer and witness are jointly responsible for producing
the simultaneous speech, it is the witness who must concede by default
– ‘Mr Bingham … allow Miss Clark to finishing asking you the question
before you start to answer’ (lines 18–20).
Expert attempts to topic shift

A second area where expert witnesses seem to be slightly better placed
than lay witnesses is in their attempts to challenge lawyers on the
content of their questions, both at the general level of topic and at the
level of micro-questions within that topic.
Expert witnesses appear to be more successful at re-orienting talk
towards their own agendas than lay witnesses who attempt a similar
task. It should be pointed out, however, that these remain minor and
reasonably infrequent ‘victories’ on the part of expert witnesses when
viewed in the context of the overall control over testimony elicitation
demonstrated by the lawyers and judge; nevertheless, the following
extract does represent a witness ‘success story’ in terms of regaining or
retaining some degree of control:
1 Q My question is, has any remedial action been

2 taken with respect to Dennis Fung’s failure to note
3 on the property reports the quantity of swatches
4 collected through each of these bloodstains?
5→ A The issue is whether – well, he has two options. He
6 can either – so I want to paraphrase something before I
7 answer your question.
8 → Mr Neufeld: Well, I would ask, your Honor, that you ask the
9 witness to please respond to the question, which
10 was, was any remedial action taken.
11 → The Court: Answer the question, please.

12 → The Witness: I can’t answer it yes or no because he doesn’t have
13 to count the swatches.
14 Q That’s your position?
15 A Depending on how he does it. So –
16 Q Your position is, he doesn’t have to count the
17 swatches?
18 → A No. Not – you’re misstating what I’m saying. There
19 are two ways to book bloodstains. You can either
20 count the swatches or you can say ‘a red stain col-
21 lected on swatches’ or on cloth and then you
22 wouldn’t count them ...
In line 5 of the extract, the witness tries to postpone (or perhaps avoid
entirely) answering the lawyer’s question relating to the issue of reme-
dial action; his strategy consists of a direct (and declarative) statement
of intent to ‘paraphrase something’ prior to addressing the question.
The lawyer responds with an objection, enlisting the judge’s support in
obliging the witness to respond (lines 8–10). However, the witness’s
response to the judge’s unambiguous and unhedged directive ‘answer
the question, please’ is a face-threatening denial – ‘I can’t answer it yes
or no because he doesn’t have to count the swatches’ (lines 12–13).
The witness continues with a challenge to the lawyer’s next question
in line 18, and goes on to produce a protracted floor-holding response
which is interrupted by neither judge nor lawyer.
To keep these relatively minor ‘successes’ in perspective, it should be
noted that not all such attempts have as positive an outcome for the
expert witness; such laxness and relaxation of the interactional rules
remains, crucially, at the discretion of the lawyer and judge. As the fol-
lowing example illustrates, the outcome lies ultimately in the hands of
the judge:
1 Q Based on your observations of the Bronco, the

2 times you’ve looked at it, can you see those two
3 circled areas if the door is closed?
4 → The Witness: Let me comment about this photograph first, if I
5 may, because I can’t –
6 → The Court: No. You have to answer the question.
7 → The Witness: Okay.
It is presumably in the lawyer’s interest to know when to reprimand

and when it is better to allow the witness some degree of interactional
freedom and to choose judiciously between the two. If the witness’s
misdemeanour relates to evidence of little or no substantive value (or
damage) to the overall case, it may be better for the lawyer to let it go
unchecked and unchallenged from time to time; in terms of scoring
points in the lawyer’s relationship with the jury, this means that the
lawyer is more likely to come across as allowing the witness to present
their evidence in their own way, at least to some extent, rather than
pedantically pursuing each minor point.
In the worst-case scenario, lawyers who abuse expert witnesses are
likely to be badly regarded by the jury – the ultimate sanction in the
trial by jury courtroom. Sales (1977: 112) warns expert witnesses of the
potential ‘tactical use of emotions and personal attacks that lawyers
take for granted’ and advises experts to desensitise themselves to the
‘nasty treatment they will experience on the witness stand’ (p. 113). He
does, however, reassure the witness that juries do not take kindly to
such behaviour and that repeated attacks are likely to evoke sympathy
for the witness, reminding the witness that this level of hostility is
likely to occur only as a result of effective testimony and as such,
should be regarded as a sign of victory rather than defeat for the
expert.
Training manuals, in their guidance to novice expert witnesses,
underline the fact that the witness can still make an impact on the
stand and gain an advantage in court through manipulation of the
style of presentation of their evidence, even though they may be
tightly constrained in other respects. Gee and Mason (1990: 119)
advise experts that ‘within the confines of the adversarial system, how a
witness presents his evidence can be important and injustice may be
done if the right evidence is presented in the wrong way’, demonstrat-
ing an insight into the ‘trial as performance’ dimension of the adver-
sarial system. Brodsky’s (1982: 273) advice also emphasises the
incorporation of theatrical gestures into expert testimony, as much for
effect as in a genuine attempt to buy thinking time:
Take time to think. The staccato, machine-gun pace of some attor-

neys during cross-examination tends to lead some witnesses to give
very quick, insufficiently thought-out answers. Pause, cock your
head, look up into the distance for a moment, make it clear you are
giving the question serious thought, and then answer.
In formulating responses, experts are warned against simply providing

single-word affirmative or negative answers; the implication in many
texts is that a straightforwardly quantitative advantage can be gained
by holding the floor for as long as possible. Hence, Hall and Smith
(1997: 91) advise, ‘instead of constantly repeating the answer “yes” to
every question … vary the response, e.g. “that’s correct”, “this is so”
etc.’. Brodsky’s claim is that ‘this reply empowers the witness more
than the simple “yes” reply’ (1999: 10). Similarly, in the case of multi-
ple questions, the ‘attentive witness’ is counselled to ‘note the two
questions by observing “you have asked me two questions”’ before
dealing with each separately (although as we saw in the previous
chapter, this ideal may, in reality, be difficult to achieve).
Along the similar quantitative line of ‘more is more’, Brodsky (1999:
93) concludes that the expert witness should always try to have the last
word if possible:
Always get the last word, adding ‘that is correct’ after her ‘indeeds’.
Alertness for turning around the semantic flow is what gave Dr X
the chance to get into a continuing dialogue and to make a differ-
ence on the stand … When the attorney comments on one’s testi-
mony, having the ‘last word’ can empower the witness and reduce a
sense of helplessness.
The conflict between the expert witness and the lawyer stems to a great
extent from the fact that both are professionals and ‘experts’ within their
own domains. However, in the trial setting, both lawyer and expert are
required to interact, both collaboratively in direct examination and com-
petitively in cross-examination, where clashes between egos and expertise
are common. I will now move on to discuss the layering of expertise
which takes place in court when an expert takes the stand.
Lawyer–expert witness talk: multiple layers of expertise
In terms of the relative knowledge distribution of its participants, the

courtroom represents a complex interactional setting. Linell (1998:
143), in a generic discussion of institutional talk, identifies three levels
of discourse and knowledge in communicative events involving
various types of ‘professional’.
He distinguishes between intraprofessional discourse, consisting of
interaction within specific professions; interprofessional discourse, which
involves talk between individuals representing different professions;
and finally, professional–lay discourse, which accounts for interaction

occurring when professionals communicate with lay people.
The work of the adversarial courtroom can be usefully considered
along these axes of knowledge and power, with all three of these dyad
types present at various stages of the trial, as Table 16 illustrates. Table
16 is organised hierarchically, representing a progressive decrease in
social and professional proximity between participants.
On a locally dyadic level, talk occurring between the legal profes-
sionals – lawyer–lawyer and lawyer–judge talk, respectively – appears to
demonstrate the smallest distance in terms of knowledge differential.
Not only is the official status of these participants identical or very
similar, but they also belong to the same legal discourse community,
and therefore share a common knowledge of the language and behav-
iours normatively associated with it. This includes the jargon of the
field as well as the interactional conventions which their roles embody.
Intraprofessional discourse, where the likelihood of frame conflicts
(Goffman 1981; Tannen 1993) between interactants is minimised, on
the grounds that the protocols, procedures and discourse conventions
of the field are shared, represents, in theory, the least problematic type
of dyad in terms of its potential for miscommunication (Aronsson
1991: 239).
At the opposite end of the spectrum lies professional–lay discourse.
This type of interaction includes talk where the lawyer addresses jurors
directly, as in the opening and closing arguments, or where the lawyer
examines or cross-examines a lay witness in open court (talk of the
type explored in the previous chapter). In both these instances, the
potential for miscommunication is significantly increased, since the
disparity in knowledge, experience and status is greater between the
participants. Phillips (2003) provides a detailed discussion of ‘lawyer’s
language: how and why legal language is different [from its lay coun-
terpart]’, discussing the potential for communicative difficulty created
Table 16 Intra-professional, inter-professional and professional – lay

interaction in the adversarial criminal trial
Interactional Dyad Discourse Type Trial Phase Exemplification
Lawyer–judge talk Intra-professional Sidebar conference/objections

Lawyer–lawyer talk Intra-professional Objection sequences/sidebars
Lawyer–expert talk Inter-professional Expert witness examination
Lawyer–witness talk Professional–lay Witness examination
Lawyer–jury talk Professional–lay Opening/closing arguments
by lawyer’s language which, for the layperson, frequently proves ‘not

only alien but alienating’ (p. 30).
The lay juror and the lay witness are unlikely to be experienced in
the interactional and legal conventions of the courtroom; in both
cases, any knowledge and experience they do possess will be eclipsed
by that of the lawyer, for whom such talk is probably second nature
and has been acquired over years of experience and training. The
witness is typically naïve about the process in which they are involved,
not only because appearing in court is a relatively rare occurrence, but
also because lay witnesses are called and then excused from the court-
room following their evidence and are not exposed to the trial events
which surround and contextualise their testimony.
This form of judicial ‘divide-and-rule’ mentality governs the entire
trial by jury process; trials are punctuated by ‘off-the-record’
lawyer–judge interactions and discussions which take place out of
earshot of the jury, meaning that the judge and the lawyers are the
only participants present throughout the trial. Each individual witness
therefore is only one small piece in the jigsaw which makes up the trial
and never has the opportunity to see more than their localised role in
it. Interestingly, perhaps as an acknowledgement of the expert’s rela-
tive independence and neutrality compared to the lay witness, the
expert is normally permitted to attend the whole trial, both preceding
and following their turn on the stand although few choose to do so.
The expert witness occupies a unique position, situated between the
legal professionals and the lay jurors, indeed this duality of role is
encapsulated in the very term ‘expert witness’. Outside the courtroom
setting, the expert shares, or may even exceed, the professional status
of the lawyer in terms of knowledge and social standing; however, out
of this familiar environment, and placed in the witness box, the expert
is subject to the rule and role constraints of the courtroom.
This chapter explores some of the linguistic consequences of this clash
of professional worlds in the courtroom, illustrated with expert witness
data from the Simpson trial. The first section attempts to answer three
fundamental questions relating to the expert as witness: first, what is an
expert witness, second, what is the expert’s role in the trial and finally,
who defines and polices the notion of ‘expertness’, in other words, on
what basis is the expert’s expertise admitted into court?
What makes an expert expert: defining ‘expertness’ in court

The courts have clear guidelines as to what constitutes expertise and
what qualifies as admissible expert evidence. Although the precise
wording of these criteria varies from one jurisdiction to another, they

are typically drawn up with reference to the respective levels of knowl-
edge held by the various participants in the courtroom, most crucially
the jury.
One of two sets of criteria governing the admissibility of expert evi-
dence is typically applied, depending upon the particular jurisdiction.
The first, and older of the two, is the Frye test (Frye v. United States 293
F1013 (DC Cir 1923)), which outlines four conditions. These were in
essence supplanted by the 1975 Federal Rules of Evidence, here cited in
Greene et al. (1985: 210):
1. the subject matter must be beyond the common understanding of the

average juror or must assist the juror in understanding the evidence;
2. the expert must be sufficiently qualified, so that his or her opinion or
inference will aid the jury;
3. the evidence about which the expert testifies must be scientifically
reliable and generally accepted in the scientific community; and
4. the probative value of the evidence must outweigh its prejudicial effect.
A more lenient interpretation of expert witness criteria is provided

by Rule 702 of the Federal Rules of Evidence, which requires only that:
1. the expert be qualified through skill, knowledge or experience; and

2. the expert be able to help the trier of fact understand the evidence or
determine a fact in issue.
These sample criteria, although not the most recent, are a useful
starting point in so far as they serve to underline the relativity of the
expert’s knowledge; for the court, the expert is predominantly an
expert because they possess ‘skill, knowledge or experience’ not held by
the lay jury.
What function does the expert have in the trial?

Given these qualifying criteria, the role of the expert witness is
intended to be essentially facilitative, in so far as his responsibility in
court is to assist the jury in their deliberations by supplementing the
existing expertise of the other participants with some type of specialist
knowledge, in other words:
the duty of expert witnesses is to furnish the judge or jury with the
necessary scientific criteria for testing the accuracy of their conclu-
sions so as to enable the judge or jury to form their own indepen-

dent judgement by the application of these criteria to the facts pro-
vided in evidence
(Lord Cooper in Davis v. Edinburgh Magistrates (1953),
in Curzon 1986: 211)
The testimony of an expert witness is therefore judged inadmissible

where ‘the court is as capable of forming an opinion as is the expert
witness’ (Curzon 1986: 211).
A further, more recent, amendment to the rules surrounding the
admissibility of expert evidence resulted from the 1993 Daubert Ruling
(Daubert v. Merrell Dow Pharmaceuticals Inc. 113 S Ct 2786 (1993)),
which has become known as the Daubert Standard. The judge ruled
that, for the first time, trial judges were to play a more active role in
assessing the validity of expert evidence as well as the credibility of the
expert. In the post-Daubert era, judges are therefore required to make a
preliminary assessment of the scientific validity of expert evidence in
determining its admissibility in court, further evidencing the primacy
of the law over the concerns of other institutions such as the scientific
community.
It is significant that this initial decision regarding the legitimacy of
the expert and determining their access to the courtroom is placed in
the hands of a legal professional – the judge – rather than a profes-
sional from the relevant field, not only because it serves as an indica-
tion of the influence of the law on the professions in the trial domain,
but also because it is symbolic of the systematic disempowerment of
the expert which is characteristic of the expert witness’s appearance in
court. This is despite the facilitative motivation behind expert evidence
which renders the expert’s expertise necessary and legitimises their par-
ticipation in the trial.
Allied to this is the fact that, ultimately, it is the (by definition) non-
expert juror who has the final and binding decision as to the credibility
of the witness and their evidence. As Ross (1997: 254) points out:
the jurors are really the experts. They have the final judicial decision
and they can choose with impunity and without need for
justification to accept or reject the ‘expert’ testimony of any witness
in favour of common-sense.
The right, indeed the requirement, for jurors to evaluate experts with a
view to accepting the testimony of some and rejecting that of others, is
encapsulated in a portion of the initial jury instructions as delivered by

Judge Ito to the Simpson jurors. The jurors were instructed that:
in determining the weight to be given an opinion expressed by any

witness, you should consider his or her credibility … You are not
required to accept such opinion, but should give it the weight, if any, to
which you find it to be entitled . . . You are not bound to accept an expert
opinion as conclusive, but should give to it the weight to which you find it
to be entitled. You may disregard any such opinion if you find it to be
unreasonable.
In effect, what takes place when an ‘expert’, however defined, takes the
stand amounts to a double layering of professional expertise. First, the
expert has an externally validated and self-contained expertise which is
tapped into by the prosecution or defence, indeed this knowledge legit-
imises their role in the trial; however, this knowledge and expertise
must undergo interrogation by the legal discourse community. Thus,
the expert witness is only able to testify within the strict limits of the
courtroom setting (in terms of interaction) and with due respect for the
law (in terms of the rules of evidence).
As Goodwin and Goodwin (1997: 296) point out, the result is a
complex dialogic framework involving the embedding of one discourse
type – that of the expert’s respective domain of interest – within
another – that of the legal process. From a Foucauldian perspective, the
testimony of an expert witness in court is an illustration of the way in
which locally determined discursive practices serve to construct what
kinds of talk can and cannot be heard, and who is qualified to present
an authoritative version of the ‘truth’. The integration of the parallel
discourse worlds of science and law in the courtroom results in a
blending of voices, producing a heteroglossic mixture of professional
concerns and conventions, in Bakhtinian terms. Finally, in the adver-
sarial system, this knowledge is then subjected to the scrutiny of a
non-expert, non-legal form of adjudication, in the shape of the jury.
The challenge of appearing as an expert is acknowledged as a poten-
tially problematic and traumatic experience, and to this end, an entire
industry of consultants, training courses and ‘how to’ manuals has
grown up to advise experts on the best way to handle testifying in
court.
The majority of these manuals take a pessimistic tone, depicting the
courtroom as essentially hostile and threatening, with titles such as
‘Coping on the Witness Stand’ (Sales 1977) and ‘The Mental Health
Professional on the Witness Stand: A Survival Guide’ (Brodsky 1982).

Brodsky likens giving expert testimony to ‘hostilities with the enemy
[with] fierce fighting’, drawing the analogy between courtroom cross-
examination and Wonder Woman deflecting a barrage of assailant’s
bullets with her bracelets! Brodsky’s latest manual, The Expert ‘Expert
Witness’: More Maxims and Guidelines for Testifying in Court (1999: 8)
has an air of resignation in its advice to experts to expect court appear-
ances to be frustrating, since:
[expert] witnesses are not able to correct false innuendoes and infer-
ences … They should act responsively and reply honestly, and
accept that being on the witness stand means that they cannot
always say everything they wish.
Such pre-emptive defeatism is a direct consequence and by-product of

the adversarial system, which is based on the principles of opposition
and dichotomy.
Both lawyers and expert witnesses, in their respective training texts,
attempt to persuade themselves (and presumably through such postur-
ing, each other) that they are in a stronger position than the other
when it comes to expert witness questioning in court. Advocacy educa-
tor Boon (1993: 124), for example, talks of the erroneous impression
that the witness is in a position of superiority over the lawyer, arguing
that although ‘an advocate cross-examining an expert may appear to be
at a disadvantage because she is generally asking questions in the
expert’s domain, not her own’, in reality, it is the lawyer who has a
strategic territorial advantage. In direct contrast, Mildred (1982: 70)
reassures potential expert witnesses that although the lawyer has the
advantage in so far as she is ‘trained and experienced in questioning …
the expert has the advantage in that the battle is conducted in the
realm of his own knowledge and experience’.
There is, however, a significant threat to the expert’s perceived
field advantage. In an increasingly common strategy, Simpson’s
defence team employed what Renoe (1996: 115) refers to as a ‘tag-
team approach’ to lawyering, which involved using specialist
lawyers to question (in this instance) the prosecution’s DNA experts.
The use not only of an impressive array of expert witnesses, but also
expert attorneys who question these witnesses results in a blending of
professional voices, meaning that some of the boundaries between
the legal and scientific worlds can become (and in the Simpson trial
became) blurred.
In the next section, I will look at expert witness testimony during

the direct examination phase of trial, where the expert and attorney
must collaborate in a relationship of mutual dependency. Lawyer and
expert must work together first to establish the credibility of the
expert and then to defuse the jargon of the expert’s field in order to
ensure that comprehensible testimony is transmitted to the members
of the jury. I will begin my analysis with discussion of the notion of
expert witness credibility, and its representation in court during direct
examination.
Establishing the expert as ‘expert’ for the jury: direct examination

strategies
In direct examination, the lawyer needs to acknowledge and display
the expertise of the witness, since it is crucial for the lawyer to establish
the credibility and validity of his expert and their evidence.
The preliminary validation of the expert begins even before the
expert is called to testify. The jury is primed for the arrival of the
expert by the lawyer’s references to him in the opening statements.
Not only is his forthcoming evidence presented as implicitly valuable
and credible, but references to the expert himself are couched in the
language of deference; thus the lawyer in opening argument may make
references to the ‘forthcoming attraction’ or ‘the world-renowned sci-
entist Dr Baden, who will talk to us about DNA evidence’ (Scheck,
defence opening statement).
In the following example from the defence opening, Cochran
manages simultaneously to portray his own expert witness in a
favourable light, and contrasts this with the corresponding lack of
expert knowledge of the prosecution attorney, whom he rejects with a
dismissive (and arguably sexist) reference to culinary skills:
1 One of our experts is named Dr Kary Mullis. Let me tell you who Dr
2 Kary Mullis is. Dr Kary Mullis is a DNA expert. He is the man who
3 invented PCR, polymerase chain reaction. He is the man who
4 received the Nobel Peace [sic] Prize for this invention. And he will
5 come in here and tell you about this evidence … And so when Miss
6 Clark tells you yesterday that it is possible [sic] like cooking or doing
7 something like that … she said she wasn’t an expert, and I agree
8 now on that at least – she is an expert lawyer, but not in this area –
9 the experts will say that is just not true.
In the absence of postdoctoral researchers in biochemistry on the

empanelled jury, identifying the expert as the inventor of PCR (in lines
2–3) is unlikely to be hugely valuable as a means of establishing credi-
bility, except perhaps in the most abstract sense that inventors of
‘scientific’ things which achieve the status of an acronym are generally
perceived to be intelligent. However, this particular witness has a
double whammy of honours, since there are surely few more impres-
sive references to externalised recognition of excellence and expertise
than a Nobel Prize, even if Cochran does confuse his award categories,
referring to it as the Nobel Peace Prize.
It is not, however, realistic for the defence (even Simpson’s Dream
Team of lawyers) to retain only the services of Nobel Prize winners; for
the more lowly experts, defence attorney Cochran adopts a different
approach to validating expert status:
1 There is an expert in the United States whose name is Dr Lenore

2 Walker. She is by all accounts the No. 1 expert in America in the
3 field of domestic violence. She has been called by some the mother
4 of the battered women’s syndrome … We know that Mr Darden is
5 not an expert in this area; he is a lawyer conveying the facts as he
6 understood them, but he wasn’t there. Dr Lenore Walker, this No. 1
7 expert in America, perhaps in the world, in this concept, has seen
8 and interviewed and tested Mr Simpson.
In this extract from the opening statement, the lawyer employs a

less specific validation of Walker’s expertness. He consistently refers
to the witness as ‘the No. 1 expert in America’ (lines 2 and 6–7),
even extending this to a suitably hedged ‘perhaps in the world’ (line
7). However this witness does not have the benefit of a prestigious,
independently bestowed honour such as a Nobel Prize; the lawyer is
therefore reduced to attributing to the witness such labels as ‘the
mother of the battered women’s syndrome’ to unidentified sources
such as ‘some’ (line 3) and the equally unspecific ‘by all accounts’
(line 2). The witness’s status as ‘Dr’ is, however, an externally vali-
dated measure of her status and is used in all references to her. As
Jackson (1995) has noted, deferential references and address forms
such as ‘Dr’, ‘Professor’, and so on lay the foundations for the expert
and their testimony to be taken seriously. He concludes, ‘even before
the witness has uttered a word, counsel has sent a powerful message
to the court relating to competence’ (p. 417).
The prosecution worked hard in their rebuttal argument – just prior

to the jury being sent out to consider their verdict – to persuade jurors
that they should not attach too much significance to the credentials of
defence experts:
1 I think I’m not alone in getting a little bit intimidated by experts,

2 you know, they have ‘Doctor’ in front of their name and what do I
3 know, but you shouldn’t be. You shouldn’t be. You are allowed to
4 evaluate the opinion of a Doctor, and if it doesn’t make sense, you
5 can say, ‘you don’t make sense, I don’t believe you’. It doesn’t
6 matter if they have ‘Doctor’ or ‘PhD’ before or after their name.
This extract includes an admission by this ‘non-expert’ lawyer that she

was phased by some of the experts (lines 1–2); one of the worst post-
trial criticisms of Clark by the jurors was that she lacked authority;
comments like this can presumably have done her position no good at
all. In a more colloquial version of Judge Ito’s formal jury instruction,
to the same effect, Clark reminds the jury that assessment of the evi-
dence should be based on common-sense principles:
1 Q One last question in this line. Were you told in your training
2 that it is the job of a criminalist to be independent of the
3 police and to resist pressure to rush analysis that would com-
4 promise your work?
5 → A Again, that’s a common-sense question. You never want to
6 rush your work or do anything at all that could compromise
7 the integrity of your work.
8 Q Was there any emphasis in your training that it was impor-
9 tant for a criminalist on occasion to resist pressure from police
10 to do work in a rush?
11 → A I think I just answered that.
12 → Q And what’s your – and your answer is, it’s just common sense,
13 but you don’t recall anybody specifically stressing that?
Credentials and credibility: drawing on qualifications and profes-

sional affiliations in direct examination
In attempting to legitimise the witness as an expert in his field,
recourse is typically made in direct examination questioning to his aca-
demic standing, satisfying the ‘suitably qualified’ criterion of the
Federal Rules of Evidence discussed above. A great deal of importance is

placed on the institutional legitimisation of knowledge; by referring to
degrees and honours conferred by universities, research institutions
and official organisations, both the lawyer and the witness are able to
draw on a form of institutional ‘shorthand’. Much of this legitimacy
must be taken on trust, since, as Jackson (1995: 416) states:
by detailing academic qualifications, we have to incorporate faith

that the court is telling us this person is an expert and relying on
other institutional authorities – professional bodies, universities etc.
For Goodwin and Goodwin (1997), the fact that the expert is able to draw
on this wealth of respected institutional support in establishing his credi-
bility means that his evidence is fundamentally more highly valued than
that of the individual lay witness, since ‘expert witnesses ... are entitled to
speak about events in the courtroom because of their membership in a
relevant community of practitioners’ (p. 306). The fact that the expert
acts as a designated representative of his own academic field, professional
discipline or official organisation also explains the fact that he is permit-
ted to include in evidence opinions formed and conclusions reached,
whereas ‘the opinion of a lay witness based on what he has seen and
heard is not admissible’ (Hall and Smith 1997: 92).
The positive response of deference and admiration that this kind of
official legitimisation is meant to engender relies on the jury’s respect
for authority and official institutions; perhaps one of the most interest-
ing aspects of the Simpson trial (and, indeed, the Rodney King trial
which preceded it) was the way in which the case focused the jury’s
attention on the status and legitimacy of several important US institu-
tions, leading them in particular to question the integrity of the Los
Angeles Police Department, accused by the defence of having racist
officers and planting evidence at the crime scene.
Once the witness has been sworn in, the dialogic process of credibility-
building typically begins with the lawyer asking a series of questions
designed to demonstrate the extent of the expertise held by the witness,
by reference to their academic qualifications, as in the following extract:
1 Q Dr Cotton, who are you employed by?

2 A I’m employed by Cellmark Diagnostics in Germantown,
3 Maryland.
4 → Q As far as your formal education, do you have any higher level
5 or upper level degrees?
6 A Yes, I do.
7 → Q Could you describe that, please?
8 A I have a Master’s degree with a major in Biology and I have a
9 PhD with a major in Biochemistry and Molecular Biology.
A similar strategy to this is employed to situate the expert within

their professional context. In this case, rather than focus on the pres-
tige of the institution and the calibre of the expert as a student, the
emphasis is placed on the expert’s years of experience in the field as
well as their familiarity with similar cases, drawing where possible on
membership of established professional bodies. This is not only impor-
tant for establishing the credibility of a single expert, it is also intended
to allow the jury to make comparisons between experts from the two
sides.
Jurors in the Simpson case were guided by Judge Ito in his initial jury
instructions to use the qualifications of the expert as an important
means of deciding the respective validity of conflicting evidence by
prosecution and defence experts. Ito stated:
In resolving any conflict that may exist in the testimony of expert

witnesses, you must weigh the opinion of one expert against that of
another. In doing this, you should consider the relative qualifications and
credibility of the expert witnesses, as well as the reasons for each
opinion and the facts and other matters upon which it was based.
In this respect, Cotton was a dream witness, with a string of prestige

affiliations:
1→ Q As far as your position as a laboratory director, how long

2 have you been in that role?
3 A About two years.
4→ Q This jury has heard testimony previously about an organisa-
5 tion known as the American Academy of Forensic Sciences,
6 are you a member of that group?
7 A Yes I am.
8→ Q Are you a member of any other organisations or societies?
9 A I’m a member of the American Society of Cell Biology, The
10 American Society of Human Genetics and the American
11 Association of Blood Bank …
The innocuous, ostensibly referential question in line 8 (‘Are you a

member of any other organisations or societies?’) is recognised by the
witness as an opportunity to display her extensive professional affilia-
tions, in the process producing an extended narrative response to a for-
mally Y/N question.
For lawyers seeking to establish the credibility of the expert, both
academic endeavour and celebrity (or notoriety) are powerful weapons.
Renoe (1996) argues that the combination in court of the two great
institutions of the scientific academy and the law are in many ways
complementary, since the adversarial trial system is inherently struc-
tured to ‘enable fact and subsequent interpretation to be manipulated
within certain, predetermined confines which exploit a general faith in
science and self-regulating bodies’ (p. 120).
In addition to allowing the witness to display their credibility by ref-
erence to these external authorities in direct examination, the lawyer
must always be mindful of the fact that the evidence elicited is des-
tined for the non-expert jury. The questioning lawyer must therefore
negotiate the delicate balance between encouraging the expert to
display their expertise, and eliciting testimony which is incomprehen-
sible for its primary audience. One linguistic symbol of expertness is
the use of jargon, the specialised language of the expert’s field. The
next section will explore the use and abuse of jargon in expert witness
testimony and the strategies adopted by direct examination lawyers to
maintain the delicate balance between competence and incomprehen-
sibility.
Lexical representations of ‘expertness’: blinding them with science

Brodsky (1999: 127), in his guide for prospective expert witnesses,
warns that their tolerance level for jargon and that of the jury may well
differ, reminding experts of the difference between the illocutionary
force of their contributions and the potential perlocutionary effect on
the jury:
we [experts] often believe that we are persuasive, lucid and coherent

when we are not … our language and vocabulary usage, the stereo-
typed perceptions of professionals and experts, an excessive atten-
tion by jurors to minor statements or behaviors are just part of what
lead to impressions very different from those we infer.
Storey-White (1997) suggests that expert witnesses are faced with a par-
ticular problem with respect to comprehensibility. Unlike lay wit-
nesses, who give their evidence in their own words and reflect their
own experience (for example, in eyewitness or character testimony),
the expert must, both to validate their status as an ‘expert’ and to
convey adequately the concepts of their field, use a range of imper-
sonal, jargonistic and potentially inaccessible terms and concepts in
giving their evidence. As Storey-White observes, ‘police, forensic and
other professional witnesses’ … “own words” are likely to be largely
incomprehensible to the defendant, jury, and, unless they have done
their homework, counsel as well’ (p. 281). In terms of the ownership of
knowledge, Renoe (1996: 115) notes that since experts do not testify
about the commonplace, but rather the specialised, this can be seen to
confer on them ‘privileged access to certain “facts”’.
The problem faced by the lawyer eliciting expert evidence is how to
steer a course which will:
tread the fine line between sounding as if one knows what one is
talking about (i.e. is a reputable and respected forensic scientist) –
an image which can be destroyed if one’s language is too informal –
and retaining the confidence of a jury which distrusts ‘experts’,
while at the same time not confusing them or boring them so much
that they will lose track of what one is saying.
(Storey-White 1997: 284)
Having maximised and heightened the status of the expert during the
initial phase of examination, the lawyer’s next job is to elicit the rele-
vant testimony and manage the technical language which invariably
(and perhaps inevitably) accompanies it. To do this, the lawyer must
not only put the questions and steer the overall trajectory of the partic-
ular witness’s evidence, but also needs to act as a form of intermediary
between the expert and the jury, anticipating the gaps in knowledge
and terminology which may render the testimony unintelligible to the
jury, and guiding the witness to plug those gaps with appropriate
definitions, explanations and exemplifications, as and when required.
Despite calls for jargon-free testimony, the discipline of forensic
science is sufficiently complex and technological that there are, and
must be, specific terms describing particular procedures and techniques
which are localised and which tend to become abbreviated, due to
their frequency of use, by those who work in the field.
In the courtroom context, it is important for this type of terminol-
ogy to be expanded and/or explained for the benefit of the lay jury,
who are likely to be unfamiliar with the specialised lexis of the field.
Stone (1995) considers this to be of crucial importance in both direct

examination, to facilitate the comprehension of testimony and in
cross-examination, since ‘once the mystique and fog of terminology
are removed, ordinary facts may be revealed which a jury can assess on
a common-sense basis, with less reliance on the expert’ (p. 212).
The juror is in something of a double bind in attempting to under-
stand expert evidence. This is because, as has been discussed above, the
embedding of the expert within the legal discourse community essen-
tially amounts to a double dose of institutional talk for the lay juror:
that of the expert’s domain, transposed into the legal arena, which
observers from Mellinkoff (1963) to Tiersma (1999) have shown to be a
minefield in terms of potential comprehensibility difficulties. The juror
therefore must attempt to handle both the jargon associated with the
expert’s subject area and the legal jargon which surrounds its elicitation.
In direct examination, it is in the lawyer’s interest to aid jurors’ com-
prehension of both the legalese and the expertese. Control over legal
terminology lies solely in the hands of the lawyer; however, the next
section will focus on the collaborative attempts of lawyers and experts
to minimise the miscomprehension and incomprehension of expert
evidence.
Managing jargon in expert witness testimony

There are two principal types of jargon which need to be explained
to the jury. First, bona fide specialist terms which fall outside the
lexical range commonly understood by ‘the public’. The following
pair of extracts provides examples of this type of jargon (indicated in
bold) and illustrates lawyer requests for definition (highlighted in
italics:
1 Q Would that stab wound, nevertheless, have caused some

2 bleeding?
3 → A Yes, it would. It is a highly vascular area of the neck.
4 → Q When you say ‘highly vascular,’ what does that mean in lay –
5 A The term – has got a lot of branches from the arteries and a lot
6 of venous channels, and a wound to this area of the neck,
7 which is one and one-half to two inches deep would cause
8 significant bleeding.
(Witness direct examination, 7 June 1995)
The overlapping turns in lines 4 and 5 in this example are indicative of

the witness’s anticipation of the lawyer’s request for explanation:
1 → A And there is some movement, because one wound is not as

2 deep as the other, but still it would signify some partial
3 immobilisation, at least because given the localised area of all
4 these four stab wounds on that area.
5 → Q And immobilisation is a long word to mean in essence what?
6 A Prevent movement of the person by holding them or holding
7 them against a wall or just holding them tight so that you
8 have some control over them that they cannot exert the same
9 degree of movement as you would expect in a person who is
10 not so compromised.
Both these examples incorporate in their lawyer-initiated requests

for definition an overt signal that the definition should involve
some degree of simplification, whether conceptual or linguistic.
Thus, in line 4, in the first example, the lawyer requests a ‘lay’ expla-
nation, and in line 5, in the second example, he asks for an ‘in
essence’ definition.
The second category of jargon concerns familiar words used with
unfamiliar meanings or collocations in the specific context of use.
This second category of difficulty involves misunderstanding, and is
equally as problematic as non-understanding, since a juror who
believes that they understand is potentially as dangerous (or even
more dangerous) than one who knows that they do not. The follow-
ing example illustrates a request for clarification of this type of
terminology – the technical meaning of the apparently transparent
‘respond negatively’:
1 A Another type of negative control is an extraction blank. And

2 this is a sample that’s taken through the full extraction
3 process. And that’s to demonstrate whether there’s any conta-
4 minant in your reagents. And so that also should respond
5 negatively.
6 → Q When you say ‘respond negatively,’ could you explain to the jury
7 what you mean by that?
8 → A Yes. By responding negatively, meaning no results are
9 obtained. And you’ll see with some of the D1S80 gels –
10 you’ll see when I show the D1S80 gels that when you run
11 the sample, if no bands are visible, then that’s responding
12 negatively.
Whatever the source of potential comprehension difficulty, the

expert’s testimony must undergo a process of ‘recontextualisation’
(Linell, 1998: 144), similar to Goffman’s (1974) notion of ‘reframing’.
This process of recontextualisation or reframing typically incorporates
some degree of textual modification, of one of four potential types:
• simplification
• condensation
• elaboration
• refocusing
(Bernstein 1990, cited in Linell 1998: 145)
and involves the relocation of aspects of a particular discourse type

from one context to another. These elements may include ‘linguistic
expressions, concepts and propositions, “facts”, arguments and lines of
argumentation … assessments, values and ideologies, knowledge and
theoretical constructs’ (Linell 1998: 145).
In the courtroom setting, the testimony elicited from the expert
witness must first pass through the legal filter of the lawyer and the
court, and pass into the consciousness of the lay jury who assess its
credibility. For the purposes of the court trial, the first two of
Bernstein’s four categories would seem to be the most relevant; they
both involve the process of transposition in terms of the quality of
information (through simplification) and the quantity of input
(through condensation). This pair of strategies is exemplified in the
examples above, first by the ‘lay’ definition request (signalling
simplification) and the ‘in essence’ request, which incorporates a sense
of condensation. Both these processes are necessary to facilitate the
comprehension of complex expert evidence by the lay jury.
In linguistic terms, the expert designing his contributions with the
jury in mind is instructed to avoid jargon wherever possible, and where
it is not, to append a lay explanation, as in the following pair of exam-
ples (bold typeface indicates the potentially problematic jargon, with
the explanation again reproduced in italics):
there was a comminuted fracture, that is the bone was broken into
several fragments.
and in this particular case, you’ll see on some of the gels, it’s an [sic]
1831, meaning there’s two bands that are present.
One consequence of the amount of time and attention devoted by

direct examination lawyers to enabling their witnesses to demonstrate
and validate their expertise, and ensuring that the jury keeps up with the
concomitant jargon, is that it represents a potential face threat to the
lawyer’s own status. Expert testimony is therefore the site of a great deal
of face work by lawyers as they attend to their own need to sustain
credibility in the company of an acknowledged and validated ‘expert’.
The expert, above all other ‘external’ interlopers, represents the
greatest potential threat to the lawyer’s position and is recognised as
the most difficult type of witness for the lawyer to deal with in cross-
examination (Hyam 1990). The next section will analyse the linguistic
realisations of attempts by lawyers to temper and mitigate the expert-
ness of their witnesses with the aim of displaying their own expertise,
during the cross-examination phase of trial.
The lawyer as quasi-expert: knowing the field (and showing it)
The lawyer, through pre-trial preparation and research, becomes an

honorary associate member of the particular discourse community,
sometimes acquiring a great degree of familiarity with the terms and
issues relevant to the case. Indeed, one of Simpson’s key defence attor-
neys, Barry Scheck, has forged a hugely successful career specialising in
DNA evidence cross-examination and is widely acknowledged as an
expert in the field himself.
Lawyers are encouraged to acquire these skills so as to be better able
to negotiate the demands of cross-examining expert witnesses, as
Mildred (1982: 70) points out, ‘it is necessary for the cross-examiner
himself to have a complete working knowledge of the expert’s subject
as well as the facts of the case’. One more recent manual, which trains
medical experts to testify in court, reminds would-be witnesses that ‘it
should never be forgotten that, although one is a professional, and
perhaps an expert, one is in the presence of other professionals’ (Gee
and Mason 1990: 113).
Expert questions, expert answers

This blending of professional roles and voices can, on occasion, lead to
debates between lawyers and experts over complex and detailed issues,
which bear all the hallmarks of intra-professional talk, despite their
fundamental inter-professional orientation. This level of expertise
enabled Scheck to conduct devastating cross-examinations of the pros-
ecution’s DNA experts in the Simpson trial. In the first extract repro-
duced below, Scheck challenges the competence of the witness by

questioning his apparent ignorance of the term ‘external blind
proficiency test’:
1 Q Now, have you never taken in your laboratory an external

2 blind proficiency test, could you?
3 → A Okay. Could you please define that?
4 Q Okay. You don’t – you’ve never heard the term ‘external
5 blind proficiency test’?
6 → A Yes, but I want to know if we’re on the same wavelength.
7 Q All right. How would you define an external blind proficiency
8 test?
(Witness cross-examination. 26 May 1995)
When the witness responds to the lawyer’s question by requesting a

definition of the term (line 3), the lawyer interprets his request as a
sign of ignorance, responding with mock incredulity, ‘You don’t –
you’ve never heard the term?’ (line 4). The witness attempts to repair
the damage by protesting ‘Yes, but I want to know if we’re on the
same wavelength’ (line 6). Sensing a victory in the credibility stakes,
Scheck pursues the point, repeating and exploring the newly uncov-
ered apparent gap in the witness’s knowledge on a further four occa-
sions in quick succession:
1 Q Then what’s your – what is your definition of an open exter-

2 nal proficiency test?
3 A Open external. I don’t know what that means.
4 → Q Never heard that expression?
5 A No, I haven’t.
6 Q Have you ever heard anyone define an open external
7 proficiency test as a test where the samples are submitted
8 from an external source, but the analysts at the laboratory
9 know that it’s a test?
10 A That’s what I just described, isn’t it? They’re – it’s done by an
11 outside source and they don’t know the results. Isn’t that
12 what I said?
13 Q That’s how you define an external blind test, right?
14 A Right.
15 Q Wouldn’t an external blind proficiency test be on where the
16 samples are submitted by an external source, but the labora-
17 tory doesn’t know it’s a test, they think it’s a real case?
18 A I understand that to be a double blind.

19 Q That’s how you define double blind?
20 A Yes.
21 → Q All right. You’ve never heard anybody refer to such a test as
22 an external blind?
23 Q External blind is the way I just explained it.
24 → Q Right. And you’ve never heard anybody – you’ve never heard
25 of an – an open external test? That definition you’ve never
26 heard of?
27 A No.
Scheck also takes the opportunity to display his own knowledge of the
field in lines 15–17, offering the witness (an experienced criminalist
with the LAPD) a suggested definition. In terms of demonstrating rela-
tive levels of expertise, questions such as this also communicate a
subtle message to both the witness (as a warning) and the jury (as a
reassurance) that the lawyer is sufficiently knowledgeable about the
domain of testimony that he is able to interpret its value correctly,
effectively keeping up with the expert.
Scheck seizes on this apparent crack in the expert’s armour and
launches a more wide-ranging attack on the witness’s credibility. He
tries to suggest that the expert is out of touch with his field (and by
implication that he – the lawyer – is up to date) by asking a series of
questions relating to the witness’s academic reading habits:
1 Q Mr. Yamauchi, have you ever read the report of the National
2 Research Council entitled ‘DNA technology in forensic
3 science’?
4 A Yes I have. I’m familiar with that.
5 → Q Have you read it cover to cover?
6 → A Maybe not cover to cover.
7 → Q Have you studied it?
8 → A Well, certain areas I’ve read numerous times.
9 Q Are you familiar with the section of the National Research
10 Council report at page 88 concerning laboratory error rates?
11 A I’m really not familiar with this area because generally speak-
12 ing, that was supposed to be or have to do with the RFLP
13 testing.
14 Q So you didn’t read that section of the NRC report because you
15 think that the section on laboratory error rates only con-
16 cerned RFLP testing?
17 → A No, I’ve read this, but I’m not - like I haven’t studied it.
(Witness, cross-examination, 26 May 1995)
The face threat to the witness conveyed in this extract is consider-

able. Although the witness starts well, confirming that he is ‘familiar
with’ the NRC report (line 4), he later concedes that he has neither
‘read it cover to cover’ nor ‘studied it’ (lines 6 and 8, respectively),
conditions which are implicitly signalled by the lawyer as essential.
When Scheck then asks about a specific page of the report, he suc-
ceeds in eliciting the potentially damaging admission that the
witness is ‘really not familiar with this area’ (line 11). In lines 14–16,
the lawyer presents a summary of this admission, complete with ‘so’
summariser, which the witness duly confirms. The lawyer continues
by running through a number of journals followed by questions
such as ‘do you read that regularly?’ In each case the witness
responds with some variation of ‘no, not on a regular basis’. The
witness further damages his credibility by conceding that he has not
read the report of the California Association of Crime Lab Directors;
his response that:
A Something like that sounds familiar. I’d like to see that though
if you have a copy.
plays directly into the hands of the lawyer, who is thereby portrayed as
the ‘expert’ who clearly does have a copy of the relevant report, and
moreover, has read it recently and in some depth.
Even an experienced lawyer, however, can occasionally lose sight of
his ‘real’ addressee – the jury – and their communicative needs. In the
following example, Scheck is so keen to show that he is familiar with
the expert’s field that he overstates his case, in terms of both the struc-
tural complexity of the question and its content. When the opposing
lawyer objects, even Scheck has to concede that his question was
‘unintelligible’ (in line 23):
1 Q And what bacteria does when it begins to form in

2 let’s say a wet stain in a plastic bag is, it will begin –
3 the bacteria will begin to eat away at the DNA?
4 A It will begin to degrade it.
5 Q Yes. The term ‘degrade.’ Could you tell the jury
6 what the term ‘degrade’ means?
7 A ‘Degrade’ in that sense means that the genetic

8 protein or DNA is broken down by the – by the
9 bacteria.
10 Q Is it sort of a situation like if you put – like milk
11 being spoiled, when it’s left out for a long time,
12 the bacteria begins to form within it? Would that
13 be an analogy that you think would be appropri-
14 ate, souring milk?
15 A I – it’s a rough analogy.
16 → Q Okay. And would you not agree, sir, that when
17 biological material such as wet bloodstains begin
18 to degrade through bacterial contamination, that
19 there is greater danger of cross-contaminating
20 those degraded samples than if the samples had
21 not been degraded?
22 → Mr Goldberg: Unintelligible, your Honor.
23 → Mr Scheck: Let me rephrase that because it is unintelligible.
25 → Mr Scheck: Sustained and self-censured.
26 → The Court: Yes. Sustained. I was just reading it myself here.
27 Q Let me start it this way. Let us assume that we
28 started with a – one of these red swatches such as
29 you took from the Bundy crime scene and the
30 sample was not degraded. You with me?
31 A Got you.
Even the judge admits to having trouble following this type of ques-
tion, confessing that ‘I was just reading it myself here’ (line 26), refer-
ring to his electronic transcript on his laptop computer. When Scheck
reinitiates his questioning, adopting a more measured step-wise version
of the question (‘Let me start it this way …’, line 27), he even pauses to
check that the expert is keeping up (‘You with me?’), in line 30. The
expert provides a reassuring ‘Got you’ (in line 31) and the sequence
continues.
A further way in which it is possible for the lawyer to demonstrate
his knowledge of the field is by developing the ideational content of
the expert’s testimony in an initiation move, restricting the witness
to providing positively evaluative feedback. Only the more confident
lawyers are able to adopt such a strategy, as in the following
example:
1 → A Now, if you think of the chromosome as the packaging of the

2 DNA, if you unwind the DNA from the chromosome for each
3 one, you would have a very long thread. And the best analogy
4 that I can give to you is that it’s not very different from
5 having a spool of thread … But if you unwind the DNA from
6 the chromosome for each one, you would have a very long
7 thread …
8 → Q Now in terms of this concept of chromosomes, if DNA were a
9 book, would a chromosome be something like a chapter to a
10 book?
11 → A Yeah, that’s good.
Here, the lawyer interrupts the witness’s metaphorical explanation

of DNA structure (in lines 3–6), and rather than asking a narrative-
seeking question or simply allowing the witness to continue her expla-
nation, Scheck instead makes a suggestion of his own (lines 8–10),
asking the witness for Y/N confirmation, which the expert duly pro-
vides in line 11, along with a complimentary ‘that’s good’.
Although the data show an overwhelming tendency towards the
lawyer’s establishment of a strong and knowledgeable position vis-à-vis
the expert, there are a number of occasions when the expert strikes
back and challenges the lawyer on his familiarity with the expert’s
field. An example of such a (rare) moment is presented below:
1 Q Were you told in your training that it’s more important to be

2 careful and reliable when doing DNA typing than to rush and
3 make mistakes?
4 A I think that takes common sense. Anybody can see that.
When the same witness is asked a follow-up question about procedures

in his job, he reacts by dismissing it as another naïve ‘common-sense’
question (line 5 below):
1 Q One last question in this line. Were you told in your training
2 that it is the job of a criminalist to be independent of the
3 police and to resist pressure to rush analysis that would com-
4 promise your work?
5 → A Again, that’s a common-sense question. You never want to
6 rush your work or do anything at all that could compromise
7 the integrity of your work.
8 Q Was there any emphasis in your training that it was impor-

9 tant for a criminalist on occasion to resist pressure from police
10 to do work in a rush?
11 → A I think I just answered that.
12 → Q And what’s your – and your answer is, it’s just common sense,
13 but you don’t recall anybody specifically stressing that?
When the lawyer attempts to put the question again, presumably to

elicit a response without the face-threatening evaluative component,
the witness responds by pointing out that he ‘just answered that’ (line
11).
Such behaviour clearly represents an overt challenge to the authority
of the lawyer and, furthermore, subverts a key questioning technique
in cross-examination, namely the re-elicitation of potentially damag-
ing testimony through repetition or reformulation of the original ques-
tion.
The lawyer’s equilibrium is disturbed by this transgression, and she
momentarily – and somewhat uncharacteristically – becomes hesitant,
producing a false start (‘and what’s your – and your answer is …’ in
line 12) before recovering her balance. It is interesting to note that the
majority of questions (11 of the next 12) which immediately follow
this problematic exchange take the form of highly controlling Y/N
questions, as if the lawyer is attempting to reassure herself of precisely
who is in charge.
The lawyer as quasi-expert: knowing the jargon (and using

it)
In addition to substantive illustrations of lawyer–expert proximity

based on the scientific facts themselves, there are also many occasions
in the Simpson trial expert testimony where the lawyer is keen to show
that they too are fully au fait with the jargon of the expert’s specialist
area even, as in this case, the colloquial version (lines 4–5):
1 Q In other words, you got enough to determine these were

2 latent prints; is that correct?
3 A Yes.
4 → Q But you have not been able to, as they say in the parlance, make
5 → those prints to any particular person; is that correct?
In the following extract (also discussed in chapter 4), the cross-

examining lawyer even goes so far as to usurp the role of the expert
in providing the spelling of a specialist term for the court reporter,
despite the fact that video footage of this segment indicates that the
question was intended for and directed to the expert rather than the
lawyer:
1 The Witness: Oh, now you’re talking a different thing. Now,

2 what you’re referring to is stoichiometric effect
3 where if you have a minor component, that it’s
4 possible – depending on how much of that
5 minor component is present, it’s possible not to
6 see the other contribution. But that would be at
7 very low levels of DNA.
8→ The Court: All right. Would you spell stoichiometric for the
9 reporter?
10 → The Witness: S-t-o – I believe I need to write it down.
11 → Mr Blasier: S-t-o-c-h-i-o-m-e-t-r-i-c. I think.
12 The Court: We’ll accept that.
It is a measure of the lawyer’s authority in this situation that there are

no objections from anyone at the blatant ‘steal’ by the lawyer when
the witness falters even momentarily (in line 10), pausing to check the
spelling of the term by writing it down. The lawyer intervenes and
immediately spells the word without hesitation, simultaneously man-
aging to enhance his own credibility (by correctly spelling a clearly
‘difficult’ word, even for the expert) and at the same time, portraying
the witness as less competent by comparison. The final indignity for
the witness comes when the judge ignores the lawyer’s post hoc hedge,
‘I think’ (line 11) and unquestioningly accepts the lawyer’s attempt
without verifying it with the expert. Although it can hardly be argued
that this was a defining moment in the trial, it does serve as an illustra-
tion of the small-scale subversions by the lawyer of the expert’s ‘exper-
tise’ which, cumulatively and in combination, may subtly undermine
the status of this type of witness.
The next example shows just how far the specialist lawyer can
become entrenched into the discourse community of the expert. Here,
the lawyer’s attempt at ‘translating’ the witness’s previous series of jar-
gonistic responses could hardly be said to constitute the ‘lay definition’
he claims to be providing:
1 A As I told you, the – there could have been the – this sharp
2 force penetrating injury could have superimposed that cut so
3 you won’t be able to see where this injury ends. The other
4 possibility is that this particular wound was continued as a
5 sharp force penetrating injury.
6→ Q Let’s start with your first hypothetical and I want to, in
7 essence, as a lay definition of what you have been saying,
8 would it be accurate to say that this second superficial incise
9 wound could have continued into the area where in photo
10 graph G-40 we actually see this next sharp force injury that
11 you are talking about?
12 A Yes.
The witness clearly understands this (marginal) reformulation from the

lawyer; however, it is not clear to what extent the lawyer’s ‘facilitative’
rephrasing would improve the jury’s chances of comprehension. It is
interesting to note that this lawyer too uses the same signals of
simplification – ‘as a lay definition’ (line 7), and condensation – ‘in
essence’ (lines 6–7), as the (different) lawyer above.
The lawyer’s knowledge of the jargon, and his desire to demonstrate
this knowledge, sometimes results in an exchange such as the follow-
ing, where the lawyer first uses the expert’s jargon and subsequently
asks for a definition of the term. From a discourse sequencing perspec-
tive, this is clearly incoherent; however, it is an extremely common
strategy in the Simpson (and other trial) data:
1 → Q All right. Now, did you receive some training in the handling
2 of items concerning hair and trace that may be on those
3 items?
4 A Yes, I have.
5 → Q Now, when I say hair and trace, tell us what that means.
6 → A Hair, the obvious, different hair. Trace, you’ve got soil debris.
7 You also have carpet fibers. Anything, minute items that
8 might have been dropped from various items.
The lawyer first uses the forensic term ‘hair and trace’ in her initial
question (line 2). The witness, a forensic scientist, assimilates the term
without difficulty and responds affirmatively. The second question (in
line 5) surprises the witness and, in terms of logical coherence, seems
somewhat out of sequence with the ‘expected’ discourse progression;

one might have predicted a follow-up question in line 5 dealing with
the nature or extent of the training received by the expert, alluded to
in the initial foundational question. Somewhat puzzled by the
definitional request, the expert responds with a bemused, but desper-
ately cooperative, ‘hair, the obvious, different hair’ (line 6) and ‘any-
thing’ (line 7). The pragmatic subtext of this initial section of the
response is confusion on the part of the witness that the lawyer should
need to ask the meaning of a term, which the lawyer clearly already
understands through her usage of the term in the original question.
A second example of this phenomenon is shown below:
1 → Q And those are you say laboratory prepared stains.

2 A Yes.
3 → Q Could you tell us what that means?
4 A Well, what that generally means is that somebody takes a
5 fresh blood sample, puts it on something like a clean cotton
6 swatch material and then just lets it sit at ambient conditions
7 and usually indoors.
One potential explanation for discourse sequencing of this type lies in

the fact that the question is designed to serve a rhetorical as much as a
referential purpose, functioning as a display question for the jury. Thus,
in addition to simply eliciting the ideational response, the lawyer is
simultaneously demonstrating her own familiarity with the work of
the forensic scientist and attempting to convey this knowledge to the
jury members, who are, almost certainly, less aware. In the first
example above, as we saw, the witness failed to grasp the subtlety of
this multiplicity of audience, with the resulting confusion.
Many of the witness training manuals attempt to raise experts’
awareness of the jury as audience, warning against the ‘temptation of
engaging in a one-to-one relationship and conversation with either the
direct-examining or cross-examining attorney’ (Brodsky 1982: 272) and
instructing instead that ‘although it is the lawyer who is asking the
questions, it is the jury, judge, sheriff or magistrate who need to know
the answers’ (Gee and Mason 1990: 109). Experts are thus instructed to
employ what Hall and Smith (1997: 69) refer to as ‘The ‘Wimbledon’
rule’: ‘As at a tennis match, when your head swivels from side to side
as the rally continues, so face counsel when he is addressing you and
then turn your head and reply to the tribunal’.
Lawyers sometimes carry out even more explicit face work to dis-
tance themselves from potentially threatening questions which
endanger their status vis-à-vis the expert. By signalling overtly that
the response is intended not as a truly lawyer-initiated query, but
rather as questioning by proxy on behalf of the silent juror-recipient,
the lawyer is able to avoid potential confusions such as that
exemplified above.
This type of explicit signposting occurs in the questioning of both
lay witnesses and experts, but seems to be more common when lawyers
are dealing with experts, perhaps because of the need to remind
experts to step outside of the expert witness-expert lawyer dyad and
tailor their responses to the level of the non-expert juror.
The following pair of examples illustrates two variations of the basic
strategy of explicit signalling:
1 → Q And sometimes at the bottom of those bands there is some

2 thing that are called plasmids?
3 A Yes. I – I think those may be plasmids, although I’m not sure
4 those are plasmids.
5 → Q Why don’t you tell the jury what a plasmid is.
6 → A Yes. A plasmid is a relatively small piece of circular DNA that
7 is usually found inside a bacterium. It is separate from the
8 bacterial DNA, but it goes along for the ride with the bac-
terium.
1 Q The cross-hybridisation, when you were reading from the user

2 guide there was something in there that I think needs to be
3 clarified. I believe the exact words were that this cross-
4 hybridisation occurs more with the subtyping probes?
5 A Yes, that’s correct.
6 → Q Could you tell the jury, just so they understand what that means,
7 what are the subtyping probes that were used in this case?
8 A Well, the sub – subtyping probes, there are four nominal
9 alleles, and this is the 1 allele, the 2 allele, the 3 allele and the
10 4 allele and then there are also subtypes and that is the 1.1
11 and the 1.3 and the 1.2, but the 1.2 has to be inferred because
12 there is not a specific probe for that 1.2. So it is more
13 common to see the cross-hybridisation occurring with
14 samples of the subtype …
In this second example, the lawyer makes an explicit us–them distinc-

tion in his request for a definition – ‘could you tell the jury, just so they
understand’ (line 6), thereby underlining that his alliance is closer to
the expert than to the juror in terms of expert knowledge; the expert’s
explanation, incomprehensible to this reader, however, surely serves
only to exacerbate the potential for comprehension difficulty, intro-
ducing yet more terminology which, in turn, needs to be defined.
In both these extracts, the lawyer manages to preserve and even
enhance his own knowledge status by indicating explicitly that he is only
asking the question because the jury might not know (and needs to
know) the details of the particular technique and piece of documenta-
tion, respectively. This type of explicit signal to the witness to orient their
response to the jury serves the double function of reminding the witness
to frame their response with the juror-recipient in mind, as well as allow-
ing the lawyer to withdraw from the explanatory exchange.
A final extract illustrates the three phenomena described in this
section – a post hoc definition request, explicitly signalled as for the
benefit of the jury, and following the lawyer’s display of knowledge of
the field and the jargon term – in a single example:
1 Q And one of the problems that an analyst has with this system is,
2 sometimes these dots light up faintly and it is difficult to tell
3 whether the dot represents a real allele in the mixture or it is
4 what is I guess in your business called an artifact?
5 A Yes. That’s one of the limitations of the system.
6 Q And could you tell the jury what an artifact is?
7 A An artifact would be, for example, if you are seeing some signal
8 at one of these dots that’s very weak, but it’s not really part of
9 the actual type …
Judging the experts: contrasting legal and lay opinions of

expert testimony in the Simpson trial
The prosecution in the Simpson case were highly critical of the theatrical-
ity demonstrated by some of the defence experts, referring to one as ‘an
affable, charming man [who] had expert witnessing down to a science (so
to speak) ... He sat on the stand as if he owned it ... For his performance,
Baden was paid $100,000’ (Clark 1997: 431-2). Clark was equally
disparaging of Dr Henry Lee, whom she described as ‘the vaunted super-
star of the defence’s line-up … one of the country’s most revered – and
charismatic – criminalists’ (p. 433). Even five years on from the trial,
prosecutor Darden, in a Larry King Live interview (12 June 2000) was still
bitter about the defence’s financial capabilities in relation to their own –
the cost of putting together Simpson’s ‘Dream Team’ has been estimated
at around ten million dollars, with a significant proportion of the money
spent on experts such as Baden and Lee as well as equally expert lawyers
such as Barry Scheck and Johnnie Cochran.
In the same interview, Darden also makes the point that some
experts were attracted by the calibre of the lawyers as well as the high
profile nature of the case, a case of star lawyers attracting star experts.
In Darden’s words:
I think they [the defence] had more than just resources. I think they
had their reputations. And I think it takes a Cochran and a Bailey to
attract a guy like Henry Lee and cause him to come out of
Connecticut and serve on the defence team.
In order to try to minimise the impact of ‘star’ expert witnesses such as

Lee, cross-examining lawyers are instructed to question this type of
witness, even when there are no substantive grounds for doing so, as
Stone (1995: 214) advises:
Even where no substantial challenge of expert evidence is made, it is

often a good tactic to ask just one or two questions to prevent the
evidence from appearing beyond criticism and so that jurors should
not be overawed by the expert.
In the Simpson trial, the strategy of calling such ‘famous’ experts by

the defence did seem to bear persuasive fruit. In post-trial interviews,
jurors appeared to have been convinced by Lee’s testimony pertaining
to the collection of evidence at the crime scene. It seems, however,
that this effect was achieved as much by the image constructed by the
defence of Lee as an expert, in the ways described in this chapter, as by
the actual testimony itself – a case of testimony style triumphing over
evidential substance. In post-trial writings, jury foreperson Cooley
(Cooley et al. 1995: 117) expressed the following view, which was
echoed by several of her fellow jurors:
He was a very impressive gentleman. Highly intelligent, world-

renowned. I had a lot of respect for Dr Lee. There’s just something
about his approach that makes you respect him. And maybe it’s
because of his professional background ... He was a very impressive

witness. (my emphasis)
It is interesting, and perhaps significant, that Cooley should choose to

equate these particular aspects of Lee’s image with his status as an
impressive witness, since together they represent the two areas of
attention for the direct examination lawyer in constructing an initial
state of credibility for the expert witness, as discussed above.
However, what emerges above all from the post-trial journals, memoirs
and interviews with the O.J. jurors is the difficulty of achieving an effec-
tive balance between credibility and comprehensibility. Many of the
comments from jurors seem to bear out Jackson’s (1995) observation that
being too easy to understand might lose the witness credibility and preju-
dice the impact of the testimony just as much as being incomprehensible.
Jackson concludes that ‘a modicum of unintelligibility may actually be
helpful, as communicating the fact that the witness does know more
than the juror, thus as confirming expert status’ (p. 419). This certainly
seems to have been the case in the Simpson trial.
Many of the jurors felt that the experts had been patronising to
them in their conceptual and linguistic oversimplification of the evi-
dence, and that they stereotyped the intelligence level of the jury
based on racial and socio-economic grounds, confirming prosecutor
Darden’s pre-trial concerns following jury selection. As one juror put it:
Of all witnesses, Robin Cotton was excellent. The lady knows her
job. She’s highly professional. But … she lost us, and I say us
because I believe that everybody felt the same way. She talked down
and when you talk down to people, you tend to lose them. They feel
that, well, she thinks you don’t understand anyway, so why should
I spend a lot of time and effort listening to what she says?
(First juror in Cooley et al. 1995: 114)
A second juror backed up this view, stating that she felt that the
expert:
talked down to us because she felt that the mentality of the jury was
not at her level ... When I got out, I kept hearing more and more
people saying there was only one graduate on the jury and so forth,
and that indicates to me that they felt everyone else was illiterate ...
The boredom came in when people treated you as if you were a
kindergartner [sic] or first grader. I realise that if you have a PhD and
you’re talking to someone who does not have training in the world
of serology or forensic science, you might assume they’re not going
to understand some of the basics. Of course, you’re not going to
understand the total details of that field, but you don’t have to.
(Second juror, ibid.: 114–15)
This juror goes on to express her frustration at the interactional con-

straints of the courtroom which meant that she was unable to signal
comprehension to the witness; instead she was obliged to sit through
more than a week of testimony by this particular witness, becoming
increasingly exasperated. As she recalls:
Unfortunately, there’s no way to let people know that you got you
got it. You can’t just raise your hand and say ‘Dr Cotton, I under-
stand what you’re talking about. Move on.’
(ibid.: 115)
Both these jurors seem to confirm the greater importance of the style
in which evidence is presented over the substantive evidence itself. The
first witness states that although ‘the lady knows her job’ and was
‘highly professional’, she had lost the jurors’ attention as well as their
respect, ironically not because of the information communicated – the
complexities of the evidence or the opacity of the jargon, both of
which are the obsessive preoccupations of direct examination lawyers –
but rather because of over-zealous attempts at simplification. In other
words, these jurors (and several others) felt that the ideational content
of the testimony was given too much priority and that the interpersonal
aspects of expert testimony such as face-saving, politeness, audience
design and accommodation had been sacrificed. This resulted in many
jurors effectively ‘tuning out’ of the protracted expert testimony.
There may also be a speculative and tentative case for arguing that
gender may play a role in this respect; the jurors who complained of
the neglect of the more interpersonal aspects of expert testimony deliv-
ery were all female, perhaps a reflection of Tannen’s (1996) observation
of a female tendency towards more interpersonally-oriented ‘rapport’
talk in contrast to a male preference for referential ‘report’ talk.
Putting aside the issues of race and celebrity, the views expressed by
these jurors may go some of the way to explaining the extraordinarily
short deliberation period of fewer than four hours. It may also go some
way to explaining the ‘not guilty’ verdict, since the majority of the
prosecution case was constructed around the DNA evidence, which,
they claimed, incontestably demonstrated Simpson’s guilt. As lead

prosecutor Clark (1997: 396) stated:
one in 57 billion people had that DNA type. There are only 5 billion
people on the planet. Odds like this are called ‘identification’. It’s
probably the closest thing you can get to a perfect match.
It was in the face of such seemingly overwhelming odds that the jury
found Simpson not guilty.
One final observation on the dynamics of expert evidence in the
Simpson case is relevant at this point. Jury foreperson Cooley’s comments
on the DNA testimony express an enduring impression that it was the
lawyer rather than the expert who had rendered the evidence comprehen-
sible, presumably in his portion of the defence closing argument:
On the whole, I did not find the DNA too complicated to grasp because
Scheck took the time to explain it … Now, granted, we may not be
experts in the field because we never studied DNA … You don’t
really have to be a chemist or a scientist to be oriented to the front
part of something … I see us not being so naive on those points.
(Cooley et al. 1995: 118)
What is highly significant in this interview extract is the fact that

Cooley attributes the comprehensibility of the complex DNA evidence
to the lawyer rather than as a result of the efforts of the expert wit-
nesses who actually testified. This final example perhaps serves to illus-
trate the extent to which it is the lawyer who is considered responsible
for constructing the narrative which is ultimately presented to the jury,
even in the case of complex expert witness testimony, which one
might have assumed would remain the preserve of the expert.
This chapter, and chapter 5, have focused on the dialogic phase of
the trial, exploring some of the linguistic properties of the direct and
cross-examination questioning of expert and lay witnesses. In chapter
7, I move into the final segment of the evidential phase and analyse
the closing arguments of prosecution and defence, the final monologic
addresses delivered to the jury prior to their crucial deliberations. As
with the analysis of the opening arguments, I will again focus on a
lexical dimension of the data, in this instance the use of strategic
metaphorical choice, as a means of conceptualising both the individu-
als in the crime/investigation narratives and the adversarial trial-by-
jury process itself.
7
‘If It Doesn’t Fit, You Must Acquit’:
Reframing the Story through
Metaphorical Choice in the
Closing Arguments
Introduction
In chapter 3, I addressed the prospective conceptualisation of trial par-

ticipants through prescriptive lexicalisation in the opening statement
phase of the trial. Following the elicitation of testimony from all the
witnesses, human and physical, lawyers from both sides have a further,
and final, opportunity to present a persuasive summary of the evidence
in the closing argument, before the jury retire to consider its verdict.
The closing argument
Advocates and academics underline the importance of the closing

argument to the process of convincing juries and convicting the
accused. Bugliosi (1996: 194), commenting on the Simpson case, states
for example:
I’ve always considered final summation the most important part of

the trial for the lawyer. It’s the climax of the case, where the lawyer
has his last and best opportunity to convince the jury of the right-
ness of his cause.
The closing argument is not only significant because of the recency

effect involved, it is also important because closings have an undeni-
ably theatrical quality, indeed a number of books consisting of nothing
but closing arguments have been published, with titles such as Greatest
Closing Arguments in Modern Law (Lief et al. 1998). Alvord (1998), in a
review of this collection, waxed lyrical about their entertainment
199
value, claiming that ‘the arguments read like passionate poems deftly
crafted to challenge the mind and satisfy the soul’. Walter’s (1988)
study, which reports lawyers’ and jurors’ perceptions of this aspect of
the trial, is similarly admiring in its depiction of the rhetorical skill
involved in closing a case.
In closing arguments, however, there is certainly a fine line between
an impressive dramatic performance and a cynical display of histrion-
ics, and the closing arguments in the Simpson criminal trial, particu-
larly that of the defence, were highly contentious affairs. Some
commentators, including the attorney who represented the Goldman
family in the later (successful) civil action against Simpson, felt that
the defence team had crossed a line and were ‘clever lawyers skilfully
pulling the wool over the eyes of a misguided jury’ (Petrocelli 1998:
21).
As he had done with the opening arguments, Judge Ito applied a
‘two lawyer’ rule, which meant that the ‘big guns’ of each respective
side – Clark and Darden for the prosecution, Cochran and Scheck for
the defence – had the opportunity to present the final argumentative
summaries to the jury.
In their attempts to persuade the jury, both sides made extensive use
of metaphorical representations as a powerful means of guiding (or as
Petrocelli claims, of misguiding) the jury. Metaphor can to some extent
be regarded as a fairly sophisticated form of lexicalisation, since both
its use (by the speaker) and its processing (by the hearer) imply a
further level of cognitive abstraction beyond that required for more
literal lexicalisations.
Moreover, the use of metaphor in courtroom argumentation repre-
sents not just a single, isolated lexical choice; but also involves the sys-
tematic and sustained construction of a framework within which to
view the trial participants and processes. Hence, describing Simpson as
a ‘wife-beater’ is a literal representation, whereas referring to him as a
‘ticking time bomb’, as this chapter will discuss, encapsulates many
additional dimensions of reference and connotation.
The potential strategic value of metaphor in the courtroom setting
will now be discussed.
Metaphor in the courtroom
Many of the most commonly accepted definitions of metaphor, includ-

ing those of Lakoff and Johnson (1980) and Goatly (1997) emphasise
the innocuous explanatory function of metaphorical constructs:
Metaphorical Choice in the Closing Arguments 201
a metaphor is ... a unit of discourse [which] is used to refer uncon-

ventionally to an object, process or concept, or colligates in an
unconventional way ... understood on the basis of similarity,
matching or analogy. (Goatly 1997: 8)
However, there is an allied dimension which this type of definition

does not take into account. Metaphor also has a coercive rhetorical
aspect which may be fully exploited in the power-asymmetric environ-
ment of the courtroom. Despite the relative wealth of research into
both courtroom argumentation and the use of metaphor in casual con-
versation, surprisingly little attention has been paid to the role of
metaphor in courtroom interaction.
Metaphorical constructs serve to create a powerful conceptual and
ideological framework for the jury, and in this way lawyers are able to
influence the perception of both witnesses and their evidence. The use
of alternative representations permits a coercive reconstruction of
‘reality’ in the crime story, in terms which may activate powerful
schemata in the minds of the jury, thereby achieving a good degree of
fit in terms of narrative typification. Bugliosi (1996: 199) underlines
the coercive value of metaphorical imagery in the closing argument:
I do not agree that it is difficult to hold a jury’s attention for more

than an hour or so. In fact, it is not difficult to keep their attention
for one, two, or even three days if the lawyer can deliver a powerful,
exciting summation that is sprinkled with example, metaphor and
humour.
Not only is such a linguistic strategy valuable in framing the crime

story, in other words the acts and actors which constitute the story in
the trial (Jackson 1995), but it is equally possible to orient jurors
towards a particular view of the trial process itself – the story of the
trial. Each of these two possibilities will be discussed in turn, however,
I will begin by providing an overview of the use of metaphor by prose-
cution and defence attorneys in the two closing arguments.
Metaphor in the Simpson courtroom

Both the prosecution and defence closing arguments were highly
charged metaphorically, although the defence summation contained
nearly three times as many incidences of metaphor as its prosecution
counterpart (219 vs. 71). If the respective length of each closing argu-
ment is taken into consideration, these figures translate into an average
of one metaphorical reference every 5.2 minutes for the defence, com-
pared with one every 10.1 minutes for the prosecution, in other words
metaphor was almost twice as frequent in the defence closing
(although as this chapter will show, the respective distribution of these
references was very different in the two closings).
These totals were calculated according to the incidence of individual
lexical items from particular fields in non-literal usage. In order to rep-
resent the degree of metaphoricity employed, which ranged from a
single word to fully developed and extended metaphorical sequences,
instances where more than one lexical item from the field occurred
were calculated accordingly. Thus, the single lexical item ‘battle’,
unmodified and unevaluated, was counted as one incidence, whereas a
sequence such as the following: ‘if the fuse is running short…’ (Cochran,
defence closing argument), which includes nominal and verbal items
of a metaphorical nature, was considered to represent two instances.
Some of these references represented clear lexical fields, such as ‘war’
(for example, ‘battle’, ‘dogfight’ and ‘weapon’) or ‘sport’ (including ele-
ments such as ‘race’, and ‘passing the baton’). Others belonged to less
specific lexical groups – references to ‘smoke and mirrors’ and ‘make-
believe fantasy’ – which I grouped into a category called
‘magic/fantasy’. Finally, there were also several cases when a single
metaphor constituted the sole member of a lexical group, for example
a ‘search for justice’.
The results from the analysis of the prosecution and defence closing
arguments are summarised in Tables 17 and 18.
It is clear that several of the metaphorical representations shown in
Tables 17 and 18 are simply reiterations of classic courtroom
metaphors; indeed, this intuitive feeling is supported by an extensive
survey of a range of advocacy texts, which revealed a preponderance of
‘war’, ‘sport’ and ‘theatre’ metaphors, representing attorneys as war-
riors, athletes or actors, respectively. By extension, the texts employing
the ‘war’ metaphor tended to see the adversarial courtroom as a
battlefield with opposing sides fighting to win the elusive prize of
victory, or more heroically as ‘fighters struggling to accomplish justice
... where the trial is a fight and the maiming is done with words’
(Spence 1989: 43).
Instances of the sporting metaphor represented the trial process as a
high-profile football game, borrowing lexical items from the sphere of
warfare to describe its activities; thus, the courtroom is transformed
into a sports field rather than a battlefield, with the participants
depicted as competitive athletes attempting to gain supremacy over the
opposing team and win a famous victory. It is interesting to note that

the press chose a sporting metaphor to refer to Simpson’s set of
defence attorneys as the ‘Dream Team’, echoing the name given to the
1992 US Olympic basketball team. A small number of metaphors in
the closing arguments fell into this category, with sport represented as
‘pseudo-war’, in effect a double layering of metaphorical constructs,
with references to ‘winning’ and ‘losing’, ‘victory’ and ‘defeat’, ‘sides’
and ‘battles’ implying elements of both ‘sport’ and ‘war’. Significantly,
the prosecution did not employ a single sporting metaphor in their
closing argument; perhaps to have done so would have reinforced
Simpson’s status as a national sporting hero in the eyes of the jury,
thus conflicting with the persona of a double murderer, which they
were striving to construct.
The most common metaphor of all in advocacy texts, however, is
that of the courtroom as ‘theatre’, complete with attorneys and
witnesses as actors and the jury as audience. Evans (1993: 33) even
Table 17 Metaphors in the prosecution closing argument
Lexical Field Frequency Example
Jigsaw puzzle 31 (43.7%) that, ladies and gentlemen, is one piece of

evidence that proves the Defendant’s guilt,
opportunity, one piece of the puzzle
Bomb 21 (29.6%) and when that fuse starts burning, ladies
and gentlemen, and it starts getting shorter
and shorter, sets him off
Magic/fantasy 10 (14.1%) or is it smoke and mirrors? Is it all just
smoke to cloud everything, cloud all the
issues, distract you?
Journey 4 (5.6%) well, they are all questions and issues that
were raised as a distraction. They were roads
raised, roads created by the Defendant to
lead you away from the core truth ... but
these roads, ladies and gentlemen, are false
roads because they lead to a dead end
Messenger 2 (2.8%) I am just a messenger and I think you get
the message and you get the message
straight out of his mouth
Search for a trial is supposed to be a search for the
truth/justice 2 (2.8%) truth and sometimes the truth is uncovered
or revealed at the end of a long road
War 1 (1.4%) the defence is going to call these people,
whoa, this is going to be some dog fight
Total 71
204
Table 18 Metaphors in the defence closing argument
Lexical Field Total Example

War 30 (13.7%) on his fourth trip here we discovered a letter
that he had sent to the prosecution. This
man had become a soldier in the
prosecution’s army
Messenger 29 (13.2%) so these are the lies of the co-lead detective
in this case. If you cannot trust the
messenger, you can’t trust the message that
they’re trying to give you
Sport 28 (12.8%) the prosecution was first running with it. We
then took the baton and we started running
with it. We have run almost up to the jury
box and soon we are going to pass the baton
to you
Bomb 21 (9.6%) I’m sure he got tired and petered out because
this fuse he kept talking about kept going
out. It never blew up, never exploded
Journey 20 (9.1%) I apologise to you for the length that this
journey has taken. But, you know, when
you’re seeking justice, there are no shortcuts
Geographical 19 (8.7%) people tell you about mountains of evidence
features and oceans of evidence, their oceans soon
become little streams, their mountains
become molehills
Jigsaw puzzle 17 (7.8%) when you buy a puzzle, on the outside of the
box there is a picture so you know what the
puzzle looks like when it is finished. Well, in
this case, the prosecution took a photograph
or picture of O.J. Simpson first, then they
took the pieces apart
Magic/fantasy 17 (7.8%) and then he goes into this kind of
make-believe fantasy world where he is
going to try to tell you on June 12th he is
going to conjure up this rage
Search for 16 (7.3%) it is nice to have vivid imaginations, but
truth/justice here in this courtroom we are searching for
truth on this journey for justice
Drama 10 (4.5%) that is how silly what they are talking about
in this case as he tries to play out this drama
Disease 8 (3.7%) I say it is corroboration that something is
wrong, something is terribly wrong with the
most important pieces of evidence in this
case. It is a cancer that is infecting the heart
of this case
Common 4 (1.8%) if you are in a search for truth, you look and
thread/chain see if there’s a common thread of truth that
runs throughout these witnesses
TOTAL 219
goes as far as to claim that advocacy is chosen for the very reasons that
would-be attorneys have a latent ambition to tread the boards:
you wouldn’t want to be an advocate if there wasn’t something of

an actor inside you ... by aiming for the courtroom, you have
chosen to go on the professional stage, as surely as if you’d tried to
make it in the West End or on television ... There’s part of you that’s
stage-struck, if you can’t reach into yourself and find the actor,
move over to some other kind of lawyering.
The recasting of the courtroom as a stage is deeply rooted in the clas-

sical rhetorical tradition, providing a dramatic setting for great orators
with the jury and public gallery as the audience, which in the Simpson
trial was supplemented by millions of television viewers.
These three metaphors (the trial as ‘war’, ‘sport’ and ‘theatre’, respec-
tively) were present in both prosecution and defence closing argu-
ments; however, the combined total for all three accounted for a mere
1.4 per cent in the prosecution closing, but a massive 31 per cent in
the defence argument.
The prosecution closing was dominated by two metaphors: the ‘time
bomb’ as the prosecution’s conceptualisation of Simpson himself,
accounting for almost one third (29.6 per cent) of their total, and the
‘jigsaw puzzle’, representing almost half (43.7 per cent). A detailed
exploration of these two metaphorical choices, representing the
participants in the crime/investigation narratives on the one hand, and
the trial process itself on the other, will be the focus of the remainder
of this chapter. I will begin with an analysis of the metaphor of the
defendant as a time bomb.
Coercion and the time bomb
The potential coercive force of the bomb metaphor is undeniable,

although it is of course also possible for a badly constructed bomb to
explode in the face of the bomb-maker. Throughout the prosecution
summation, Simpson was repeatedly referred to as a ticking time
bomb, whose violent ‘explosion’ on the night of the murders was as
inevitable as that of a time bomb which remains undiscovered.
Toobin (1996: 419), commenting on the trial, evaluated prosecutor
Darden’s use of the ‘burning fuse’ analogy as ‘the perfect metaphor for
the Simpson marriage’. He summarises Darden’s line of argumentation:
it is because he hit her in the past. And because he slapped her and
threw her out of the house and kicked her and punched her and
grabbed her around the neck ... and it’s because he used a baseball
bat to break the windshield of her Mercedes back in 1985. And it’s
because he kicked her door down in 1993 ... It’s because of a letter
he wrote her ... June the 6th, talking about the IRS. It’s because he
stalked her. Darden then took each of these domestic violence inci-
dents and in chronological order and punctuated them with the
phrase ‘And the fuse is burning’.
In portraying Simpson as a time bomb, Darden displays a skilled usage

of ‘hiding’ and ‘highlighting’ (Lakoff and Johnson 1980). These phe-
nomena acknowledge the fact that ‘in allowing us to focus on one
aspect of a concept ... a metaphorical construct can keep us from focus-
ing on other aspects of the concept that are inconsistent with that
metaphor’ (Lakoff and Johnson 1980: 10).
In his portion of the prosecution closing argument, Darden uses
numerous incidents, including the 911 call made by Nicole to the
police and photographs of her injuries, to reinforce the idea of a slow
but inevitable build-up to the murders, in the manner of a fuse
burning on a bomb. He further heightens the tension by switching to a
dramatic use of the present tense:
the fuse is getting shorter, the fuse is getting shorter, and there is about to
be an explosion, he is about to lose control, and he is about to lose
control like he did on those earlier occasions. And sure he didn’t kill
her on those earlier occasions in October of ’93 or in 1989. But that
was then and back then the fuse was a lot longer. But now the fuse is way
short and it is awfully short.
In addition to this inevitability factor, the bomb schema also incorporates

an innate sense of fear and danger. Darden was keen to exploit this
characteristic too, by drawing a parallel between the fear that people have
of bombs and the escalating fear Nicole had of Simpson. Recounting the
incident where Simpson is alleged to have broken the windshield of her
car with a baseball bat, Darden concludes:
how do we evaluate this, when a man takes a baseball bat to his

wife’s car and beats the ‘F’ out of it? If nothing else, it sends a
message to her. It instils fear, wouldn’t you agree? And would you
agree it suggests to her that this can happen to you, then maybe
you’ll be next? That fuse is burning. It’s burning in 1985 … the fuse is
lit. It’s burning, but it’s a slow burn.
For the prosecution, then, the ‘Simpson as time bomb’ metaphorical

construct was a powerful attempt to bring home to the jury the idea of
Simpson as an unpredictable, dangerous and out of control wife-beater,
and, ultimately, murderer.
The defence response: defusing the time bomb

Since the defence closing argument follows that of the prosecution, the
defence had two strategic choices in their response to the representa-
tion of Simpson as a time bomb. They could either choose to ignore
the prosecution’s construct of Simpson as a time bomb and formulate a
different metaphorical context – a different frame for the crime story –
within which to represent their argument; or they could take up the
prosecution’s metaphorical choice and subvert it for their own pur-
poses, in a similar way to Mark Antony, who picks up and subverts
Brutus’ references to ‘honour’ and Caesar’s ‘ambition’ in his funeral
oration:
When that the poor have cried, Caesar hath wept;

Ambition should be made of sterner stuff.
Yet Brutus says he was ambitious;
And Brutus is an honourable man
(Julius Caesar, III.ii.91)
For their purposes, the defence team chose to pick up the ‘time bomb’
metaphor, although their emphasis was very different from that of the
prosecution. Almost 10 per cent of the defence metaphors concern the
bomb, however their usage is without exception reactive and negative,
denying the validity of the metaphor, referring to it as ‘a specious theory’
and ‘speculation’ (Cochran, defence closing argument). Thus, Cochran
attempts to defuse the bomb, by emphasising – in Lakoff and Johnson’s
terms, by ‘highlighting’ – those metaphorical aspects of the bomb which
Darden had attempted to ‘hide’ (Lakoff and Johnson 1980):
you notice how at the end he kind of petered out of steam there,
and I’m sure he got tired and he petered out because this fuse he
kept talking about kept going out. It never blew up, never exploded.
There was no triggering mechanism.
Cochran concludes with a typically uncompromising attack on prose-

cutor Darden:
so we get all the way back past May into June and there is no
trigger, there is no fuse, there is nothing going on. The only fuse,
the only trigger is in Mr Darden’s mind.
In addition to representing the acts and actors in the crime story in

these terms, the closing arguments also gave both sides the opportu-
nity to reconceptualise the trial itself and its constituent processes. This
was particularly important for the prosecution with the pressure of the
burden of proof on them; the remainder of this chapter will deal with
the prosecution construct of the trial as a jigsaw puzzle and the defence
response to it.
Reframing the ‘story of the trial’: the trial as jigsaw puzzle

metaphor
Even more dominant for the prosecution than the construct of

Simpson as a ticking (and eventually exploding) bomb was the
metaphor of the trial as a jigsaw puzzle, which accounted for almost
half of their total number of metaphors (43.7 per cent).
The prosecution closing argument involved the completion of a
computerised jigsaw puzzle. As lead prosecutor Clark summarised each
piece of evidence – the blood, the glove, the knitted cap, and so on –
another piece of the puzzle was inserted on the screen. When the final
piece moved into position, the image revealed to the jury was the face
of the defendant, a facsimile of Simpson’s post-arrest mug shot.
This metaphor was not only used to conceptualise the trial for the
jury, but also as a structuring device creating both cohesion and inter-
textuality between the two summations. This structuring function is
clearly visible if the distribution of the puzzle metaphor in the two
arguments is compared, as shown in Figure 7.
As Figure 7 demonstrates, for the prosecution, the puzzle metaphor is
to be found predominantly in the first half of the closing argument,
creating a conceptual framework into which all of the evidence – the
18 16 17
16
14 13
12
10
6 4
4 2
2 0 0 0 0 0 0 0
0
1–20 21–40 41–60 61–80 81–100 101–110
Page Numbers Puzzle Bomb
Figure 7 Distribution of the puzzle and bomb metaphors in the prosecution
summation
‘pieces’ – are fitted. The first level is visual, with the computer-gener-
ated puzzle pieces progressively making up a final image of Simpson’s
face; the second level verbal, with prosecutor Clark constructing a
highly cohesive argument. As each piece of evidence and witness is
summarised, Clark applies the coda ‘and another piece of the puzzle’ or
a variation of it, concluding her initial summation, as the image of
Simpson gradually appears on the computer screen:
and this important evidence completes the picture of the

Defendant’s guilt as it explains the motive for these murders and
shows you what led this Defendant to be sitting here in this court-
room today.
Following the completion of the image, the puzzle metaphor is not

repeated and plays no further role in the prosecution closing; instead,
Darden follows up with his discussion of domestic violence, and the
time bomb metaphor makes its first appearance. The metaphorical ref-
erences are therefore clearly divided between Clark, with her image of
the trial as a jigsaw puzzle, and Darden, who subsequently concen-
trates on the representation of Simpson as a time bomb in the latter
half of the closing.
The defence strategy contrasts sharply with that of the prosecution,

as can be seen in Figure 8.
In the defence closing, the metaphors are predominantly handled by
Cochran, with Scheck’s presentation of the scientific evidence (pages
76-114 of this data extract) almost entirely free of metaphor. The
defence’s use of the time bomb metaphor is more evenly distributed
than that of the prosecution, but consists of progressive rebuttals of
the construct as relevant to the case. The defence also pick up the
puzzle metaphor from the prosecution closing and subvert it to fit their
own argument. They use it in a very different way. Rather than
construct a careful argument around the infrastructure of the jigsaw,
the defence summation relies much more on the dramatic impact of
the metaphor, with Cochran preferring to save these references for the
final stages of the closing.
This is clearly a most theatrical strategy, in keeping with much of the
defence’s conduct throughout the trial. Cochran manages to pack all
14 puzzle references into a short space of time towards the end of the
summation, having made no reference to puzzles or pieces for over a
day and a half.
The defence strategy consists of deconstructing the picture pre-
sented by the prosecution, by taking each piece of their argument and
14 14
12
10
10 9
4 3
2
2
0 0 0 0 0 0 0
0
1–20 21–40 41–60 61–80 81–100 101–126
Page Numbers
Puzzle Bomb
Figure 8 Distribution of the puzzle and bomb metaphors in the defence
summation
challenging it, and includes giving the jury a series of 15 questions to

consider, each dealing with aspects of the pieces of the prosecution
puzzle. Cochran told the jury:
1 There may be 1000 such questions in a case like this which could be
2 put to her, but we intend no such exercise. I do think, after careful
3 deliberation, that it might be fair to suggest fifteen questions, just
4 fifteen questions which literally hang in the air in this courtroom at
5 this moment. And as the time approaches for you to decide this
6 case, for us to hand the baton to you, I offer these questions now as
7 a most important challenge to the prosecution, the prosecution
8 which claims that it has met its burden in this case.
Cochran added somewhat facetiously:
1 When I’m concluded, for Miss Clark’s convenience, should she

2 decide to deal with these very troublesome questions, I’m going to
3 leave her a written list of these questions here when I conclude.
He went on to list the 15 questions, which related to the defence’s

alternative crime and investigation narratives presented in the opening
statements; a random sample of three of the questions is presented
below:
No. 1. Why, there on the monitor, did the blood show up on the
sock almost two months after a careful search for evidence?
No. 8. Why did Deputy District Attorney Hank Goldberg, in a des-

perate effort to cover up for the missing 1.5 milliliters of
Mr. Simpson’s blood, secretly go out to the home of police
nurse Thano Peratis without notice to the defense and get
him to contradict his previous sworn testimony at both the
grand jury and the preliminary hearing?
No. 11. Why, following a bitter struggle allegedly with Mr

Goldman, were there no bruises or marks on O.J. Simpson’s
body? And you will have those photographs back in the
jury room.
Having discussed the quantity and relative distribution of puzzle

metaphors in the two arguments, it is now useful to analyse the congru-
ence of the puzzle metaphor as it relates to the courtroom.
The jigsaw as a metaphor for the courtroom

A sample dictionary definition of the terms ‘puzzle’ and ‘jigsaw puzzle’
reveals two principal characteristics:
1. PUZZLE
a) a person or thing that is hard to understand or does not seem to
have an explanation;
b) a question, game or toy that you need skill or careful thought to
answer correctly or put together properly.
2. JIGSAW PUZZLE
a game, especially for children, using a picture on cardboard or wood
that has been cut up into odd shapes. You have to make the picture
again by putting the pieces together correctly again.
(Collins COBUILD English Dictionary 1995)
Both the sub-definitions of 1. acknowledge the fact that a puzzle has

two defining elements; first, it is essentially a problem (or person)
which is perplexing and difficult to understand; furthermore, the
nature of the problem (or person) is such that its solution is problem-
atic and requires intellectual exertion.
This is clearly true of the criminal case, to the extent that the appar-
ently disparate worlds of the criminal investigation and the puzzle
occupy overlapping lexical fields: both may be ‘solved’ by putting the
‘pieces’ (whether physical pieces or pieces of evidence) into place;
indeed criminal investigation is often referred to as the ‘piecing
together’ of, for instance, the final movements of the victim to form a
coherent picture of a crime; and the forensic psychologist forms a
‘picture’ of the perpetrator according to his interpretation of the clues
at the scene of a crime.
It is interesting to note that The Cambridge International Dictionary of
English uses corpus-derived examples with a forensic theme, to demon-
strate the usage of the two terms ‘puzzle’ and ‘jigsaw puzzle’:
1. PUZZLE:
The police are trying to solve the puzzle of who sent them the
letter.
2. JIGSAW PUZZLE:
The police are trying to piece together the jigsaw of how the
dead man spent his last hours.
(Cambridge International Dictionary of English 1995)
The only element of the COBUILD dictionary definition (1). which

does not survive the transition from a puzzle to a crime is the sense of
it as a ‘game’, which is an element which may be legitimately attached
to a jigsaw, but not to a criminal investigation, particularly in a case of
double homicide. This is a point Cochran, Simpson’s lead defence
attorney, signals during his closing argument, in the form of a rebuke
to the prosecution when he accuses them of minimising the serious-
ness of the case by framing it in terms of a jigsaw puzzle:
and so that little example, a jigsaw puzzle, was clever, but really it
trivializes a man’s fight for his freedom, who has always said that he
was innocent from day one.
By taking the metaphor out of its context and objectifying it, a process
which Halliday refers to as ‘dressing up as a noun’, Cochran is able to
define it as a rhetorical device and thereby modify and evaluate it.
Halliday (1985: 75) asserts that the nominalised form allows the user to
‘exploit the full potential of the language for mapping any transitivity
structure … on to any desired message structure’; for Cochran, the
objectification of the jigsaw puzzle provides him with the opportunity
to emphasise what is in this case a negative aspect of the term, the
sense of the jigsaw puzzle as a trivial game.
As far as definition (2). is concerned, the idea of the jigsaw as an
abstract representation of some aspect of the real world, removed in
time and space from that reality, is certainly true of the criminal and
judicial investigation. Both Clark and Cochran acknowledge the rela-
tive distance, both temporal and physical, between themselves and the
events at the crime scene, and the representational nature of the trial,
as was shown in chapter 2:
understand this, ladies and gentlemen; that none of us in this court-

room were out at 875 Bundy on June 12th 1994, after 10.30 or 10.45
in the evening, so that everything we say to you is our best effort to
piece together what took place in this case.
short of a videotape, we very rarely know exactly how any crime

occurred ... We have to look to the physical evidence and we have
to use our common sense and our reason to make reasonable infer-
ences to determine what happened to the best of our ability.
The second element carried by definition 2. is the fact that the jigsaw
consists of an image where the ‘picture’ has been divided into its con-
stituent parts, or ‘pieces’ to be reassembled. This concept has clear par-
allels with the criminal investigation and criminal trial processes.
Detectives are charged with the collection and screening of large
number of pieces of evidence, including forensic and other evidence,
witness statements and suspect interrogation, which must be grouped
and assembled to form a representation of events – a crime story –
which is both factually accurate and intuitively plausible ‘beyond rea-
sonable doubt’.
The coercive force of the puzzle metaphor

The representation of the trial process as the completion of a jigsaw
puzzle is particularly appropriate as a choice for the prosecution. Its
strength lies primarily in the fact that a murder trial essentially
attempts to correctly identify the perpetrator, in other words, to
create a convincing image (or picture) of the killer. In this sense, the
prosecution strategy of a computerised jigsaw, with each part of
Simpson’s face signifying a piece of evidence, is somewhat analogous
to the construction of the prosecution’s case, a basically constructive
process with evidence contributing cumulatively to a credible story
for the jury.
This is certainly true of the prosecution in the Simpson trial; their
case consisted of a combination of forensic, eyewitness and circum-
stantial evidence which, they claimed, together constituted enough
pieces of the puzzle to be able to construct a coherent picture of
events. The defence counter-claim is that some pieces are from the
wrong puzzle, others are missing and those that exist have been
wrongly assembled to create a misleading picture.
The value of inferencing for the prosecution – filling in the gaps

Of course, neither the prosecution nor the defence have all of the
pieces relating to the case, but they claim to have enough pieces to
allow the creation of a clear picture, beyond a reasonable doubt. The
prosecution argument is that it is not necessary to have all of the
pieces in order to understand what happened, since some of the facts

of the case are clearly peripheral or less vital to the case than others:
let’s talk about the physical evidence ... we already have the evi-
dence to show you that the Defendant did commit these murders,
without even really getting into the physical evidence.
Prosecutor Clark further states that a majority of pieces is all that is

necessary (despite the fact that the computerised image constructed by
the prosecution of Simpson’s face was itself complete), since common-
sense inferences can be made about other events and circumstances.
Similarly, in a jigsaw, having a roof and windows would usually mean
the activation of an in-built ‘house’ schema to fill in the gaps, without
it being necessary to have all of the relevant pieces. Clark asserts that
such a schema-driven fill-in process can be applied to the evidence in
the case:
Ron Goldman left Mezzaluna at approximately 9:50. That is approxi-

mate time. It could have been a few minutes later. So we know that some-
time before 10:00 he left. We know he changed his clothes, okay? But
the direct thing we know is that sometime before 10:00 he left. We
know he changed clothes because he was wearing something differ-
ent when he was found. We know how long it takes for him to get
home, because we have a witness telling us that, but what we don’t
know exactly is what time he left his house.
In this data extract, the underlined sections are equivalent to pieces

that the prosecution possess. As far as the italicised sections are con-
cerned, where the prosecution do not have the relevant pieces, Clark
suggests the gap-fill of logical inferencing:
We have to make an inference from the evidence that we know about as

to when he got to Bundy. Now you can draw an inference that is rea-
sonable or you can draw an inference that is unreasonable. What we
are required to do here and what I must do is draw inferences, excuse me,
that are reasonable. Based on what we know, when he left the
Mezzaluna, changing clothes, freshening up ... I think it is reasonable
to infer that he took ten minutes or so to do that ...
This concept of inference also applies to the piecing together of events

and actions into logically satisfying units, so as to create a crime story
which is both coherent and complete, which, as we saw in chapter 2,
are both important criteria in securing a conviction (Hastie and
Pennington 1996).
An example of this feature from the data is the following, where the
logical connection is temporal in nature:
simple common sense tells you that the thumping, the glove and the
defendant’s appearance on the driveway almost immediately thereafter
are all part of one set of events, all connected in time and space. You
don’t need science to tell you that; you need reason and logic.
The main picture or pieces of the border?

The prosecution further employ the concept of essential and peripheral
pieces when Clark talks about the fact that the LAPD were unable to find
the murder weapon. Although this is clearly a gap in the crime story – a
missing piece of the puzzle – she argues that the lack of a murder weapon
is a peripheral rather than a central piece, and should therefore be disre-
garded. At the outset of the closing argument she tells the jury:
Of who murdered Ron Goldman and Nicole Brown, some evidence

has been presented to you that really is not relevant to answer the core
question. And it is up to you, the jury, to weed out the distractions,
weed out the side shows and determine what evidence is it that
really helps me answer this question ... Because the side issues may be
very interesting, they present very important issues, very serious issues, but
issues that really do not relate to who committed these murders
These missing pieces are subsequently equated with pieces of the sky in
a jigsaw puzzle, as pieces that provide additional information, but are
not crucial for overall comprehension:
In order to get the picture, to know what a jigsaw puzzle is depict-

ing, if you’re missing a couple of pieces of the sky, you still have the
picture. You know, for example, it shows a house and, you know,
and a dog and a kid in the yard and that sort of thing, you can see
the picture. You miss a couple of pieces of the sky sometimes, you do lose
those pieces, no big deal. You’ve got the picture ... you’ve got all the neces-
sary pieces of the puzzle ... There are certain things we are not
required to prove. I am going to get into that later. But those are like
pieces of the sky, you don’t need them. It would be nice, but you don’t
need them.
Defence contentions – reasonable doubt vs. the burden of proof

The defence argument, by contrast, concentrates more on the destruction
of the physical and circumstantial evidence. It is sufficient for them
merely to create ‘reasonable doubt’ in the minds of the jury; they do not
have to provide an alternative for the puzzle image. In the terminology of
the jigsaw puzzle, the concept of ‘reasonable doubt’ relates to the final
image created by the synthesis of the pieces, the cumulative effect.
Since the onus is on the prosecution to produce the necessary pieces
– the ‘burden of proof’ – all that the defence effectively have to show is
that the pieces could theoretically combine to form a picture of the
accused, but it is equally possible for them to display an (unidentified)
person or persons if rearranged in a different order. The defence are not
obliged to provide an alternative to arguments which embellish the
prosecution case, the ‘pieces of the sky’ referred to by Clark, but if the
central arguments or evidence are flawed, if the key pieces are missing
or misplaced in the puzzle, then the jury are instructed to acquit the
accused – hence the memorable slogan of the trial, referring partly to
the infamous glove and also applied on many occasions to the prose-
cution evidence: ‘If it doesn’t fit, you must acquit’ (Cochran, defence
closing argument).
Moreover, the fact that the burden of proof is on the prosecution
means that if a single piece of evidence has two equally possible inter-
pretations, then the jury are instructed to take the defence alternative;
that is, according to the rules of evidence, if a particular puzzle piece
would conceivably fit into more than once space or if the puzzle piece
is two-sided, with two possible images, then the slot or the side sug-
gested by the defence should be taken. Cochran quotes from expert
witness testimony to illustrate this point:
I can’t exclude the possibility that the EPA B might have been from
Nicole Brown Simpson ... That is again a maybe, and a maybe
doesn’t cut it in a criminal case. And when you have two reasonable
conflicting inferences, you’ve got to go with the one consistent with
innocence.
The defence subversion of the puzzle metaphor

The essence of the defence is that since (according to them) Simpson is
being framed by the LAPD, it is hardly surprising that all the prosecu-
tion’s evidence appears to add up to Simpson as the perpetrator, given
that they claim the prosecution worked backwards from the idea of
Simpson as guilty and collected (or fabricated) evidence to reinforce
this view:
when you buy a puzzle, on the outside of the box of the puzzle,
there is a picture, so you know what the puzzle looks like when it is
finished. Well, in this case, the prosecution took a photograph or picture
of O.J. Simpson first, then they took the pieces apart. If they really
wanted to talk about reasonable doubt, you don’t jump to conclu-
sions at the beginning
The defence further maintain that the reason some of the prosecu-
tion’s evidence does not fit their argument is that they are trying to fit
the wrong pieces into the puzzle, that is an irrelevant witness or a
tainted forensic sample, or else they may be attempting to form the
wrong picture entirely. There is also the possibility that they are fabri-
cating a piece to fit a space, either because that piece is missing or
because it doesn’t exist at all. There are numerous examples of these
claims, that the prosecution are, in effect, constructing an incorrect
picture of Simpson as the murderer, by trying to make pieces fit into a
space where they do not belong. Such examples include the following:
we called a leading witness who came in and passed that on for you.
You could see on the overlays there. They cannot explain that. They
could have called witnesses. They didn’t. We called the witness to
prove beyond any doubt that those gloves don’t shrink. The gloves
didn’t fit Mr Simpson because he is not the killer.
The fact that a particular piece may appear to be the right size and
shape to fit in a given space does not necessarily mean that it belongs
there; some jigsaw puzzles consist of pieces belonging to a limited
number of patterns, so there is, in theory, a large number of different
pieces which fit into a given slot. However, the image printed on the
piece is decisive in determining whether it actually belongs in that
space. Thus, when Clark recounts the testimony of a key eyewitness,
there is considerable room for manoeuvre in the witness’s description

to implicate any of a range of individuals who may fit the bill. This
point is not lost on the witness, who is unwilling to state unequivo-
cally that it was Simpson that he saw:
now Allan told you that the man who he saw enter the house
appeared to be the same size as the defendant and about the same height
and weight. He would not stretch even one iota to draw the obvious
conclusion that the man he saw walking up the driveway was the
defendant. Of course it was.
The presentation of complex and lengthy evidence over the nine

months was certainly made more comprehensible for the long-suffer-
ing jurors through the use of metaphor, but the use of metaphor in the
main part of the trial was limited to an occasional usage. It was during
the closing arguments that both prosecution and defence chose to use
a full repertoire of metaphorical constructs.
Other ‘powerful’ participants in asymmetric, persuasive groups in
fields such as politics and advertising, have long acknowledged the
value of the metaphor in reframing reality and in persuading an audi-
ence, and the lawyers in this case certainly used this potent rhetorical
technique to attempt to persuade jurors of the guilt or innocence of
the accused.
In the final analysis, the Simpson criminal jury chose to reject the
prosecution’s ultimate puzzle configuration, that is the image of
Simpson as the perpetrator. This may have been for any number of
reasons, perhaps because of the influence of the so-called ‘race-card’
played by the defence, or the fact that the jury found it impossible to
convict such a famous American sporting celebrity, or simply due to
‘reasonable doubt’ over the evidence. Whatever the reasons, the jury
preferred to accept the defence formulation that the puzzle had not
been completed satisfactorily, a puzzle whose pieces consisted of alle-
gations of racist police officers, planted and contaminated evidence
and sloppy investigative procedures.
With the presentation of the evidence and the final arguments from
both sides complete, the trial could now move on to the crucial delib-
eration phase. This study will conclude with an analysis of the jury
deliberation process in the Simpson case, drawing on post-trial
memoirs, diaries and interviews with the Simpson jurors.
8
Judging the Jury: the Deliberation,
the Verdict and the Aftermath
Introduction
After four days of impassioned closing arguments by both sides, the

Simpson jurors were sent out to consider the case. This book, like the
trial, will conclude with the deliberation process and verdict.
For the researcher of language and the law, the jury room is a secret
world, where access is almost universally barred, both during delibera-
tion itself and post-verdict, when a gagging order is often imposed on
jurors. In the British judicial system, Dyer (2000) talks of an ‘impene-
trable veil of secrecy’ which hangs over the jury room, with Section 8
of the Contempt of Court Act imposing a blanket ban on jurors dis-
cussing ‘statements made, opinions expressed, arguments advanced or
votes cast’ during the deliberation process.
California law too prohibits access to the jury’s deliberations;
however, although it is not possible to gain direct access to the Simpson
jury room, the researcher does have access to some of the jurors’ post-
trial thoughts and opinions, at least in this instance. Judge Ito formally
released the Simpson jurors from their ‘vow of silence’ by means of a
performative speech at the end of the trial, which included a fatherly
word of advice about what kind of reception they could expect in the
‘outside’ world after their nine-month period of sequestration:
Whether you wish to cooperate with the news media is, of course,
entirely up to you. However, I must warn you to expect the worst as
far as that is concerned … Ladies and gentlemen of the jury, I am
now going to excuse you from further service on this case. As you
know, this does absolve you from your vows of silence.
(Judge Ito, 2 October 1995)
220
The Deliberation, the Verdict and the Aftermath 221
The resulting interviews, journals and books produced by jurors about

their experiences during the trial and deliberation provide a fascinating
‘insider’ perspective on the Simpson trial process.
Although ‘self-report’ data such as those provided by the Simpson
jurors must always be treated with caution, the existence of so much post-
trial feedback from so many of the jurors in the Simpson case allows us to
build up a relatively comprehensive and rounded account of what took
place in the jury room; as such, it represents an excellent opportunity to
study the deliberation process based on this ‘insider’ data.
In addition to analysing the jurors’ self-observations, this chapter
will also include the contributions of lawyers, psychologists and lin-
guists, all of whom have attempted to explain the sensational not-
guilty verdict. Finally, I will conclude with a brief discussion of some of
the implications of the Simpson trial, and its verdict, for the criminal
trial by jury system in general.
However, I will begin with an analysis of the deliberation process
itself, and a brief exploration of juror decision-making processes.
The deliberation process: emotion vs. logic
Judge Ito’s directed the jury in his jury instructions that their verdict
was to be based on a dispassionate assessment of the evidence:
1 You must not be influenced by pity for a defendant or by prejudice

2 against him. You must not be biased against the defendant because he
3 has been arrested for this offense … You must not be influenced by
4 mere sentiment, conjecture, sympathy, passion, prejudice, public opinion or
5 public feeling. Both the prosecution and the defendant have a right to
6 expect that you will conscientiously consider and weigh the evidence,
7 apply the law and reach a just verdict regardless of the circumstances.
(Final jury instructions, 22 September 1995)
Faced with such unambiguous guidance, the jury were apparently

faced with the difficult task of stripping away the layers of emotion
and rhetoric on the surface of the testimony and the summations they
had heard – the respective narrative formulations of the murders – and
searching for the essential crime story beneath, the process of decon-
struction discussed in chapter 2.
Despite Ito’s direction, many jurors reported post-trial that they had
been swayed by affective rather than purely logical means of persuasion.
Knox (1995: 261–2), for example, wrote:
Let me tell you firsthand about the impact of the Dream Team. When
you’re sitting in that jury box and they’re arguing their case right at
you, Man, what a show! Talk about power and charisma. You don’t
nod off when Johnnie Cochran and F. Lee Bailey … take the floor.
Believe me, when the Dream Team talked, the O.J. jury listened.
The same juror also praised the storytelling abilities of the two lawyers,
stating that, ‘what both lawyers have in common is their ability to give
you a story, an interesting narrative wrapped around their facts’ (ibid.:
264). Knox, himself an African-American, makes the interesting point
that this aspect may have made the defence narratives particularly
appealing to the (majority of) African-Americans who made up the
jury, with their strong cultural tradition of storytelling. He concludes
that, although he thought the prosecution had a better case in terms of
the facts, ‘they never knew how to present it. They just couldn’t keep it
sharp and simple’ (ibid.: 264). Such opinions appear to support the
view of researchers such as McCabe and Purves (1974: 72), who state:
although the machinery of the law seems to aim at total, dispassion-

ate objectivity, yet the final verdict arises from an informal, very
human group situation … trials pretend to get the facts, but these
are always muddied by the human elements.
Heffer (2002), drawing on the work on Jerome Bruner, also discusses

the difficulties jurors face in negotiating these two modes of reasoning,
referred to by Bruner as ‘paradigmatic’ (dealing with the Law) and ‘nar-
rative’ (dealing with the ‘real world’), respectively (Bruner 1986, 1990).
Heffer’s conclusion is that this clash of modes creates a tension which
may result in a unbalanced verdict, where jurors disregard elements of
the crime story which do not fit into their narrative version of events
developed over the course of the trial, and give undue weight to others.
The Simpson trial, as Hastie and Pennington (1996: 959) point out,
was the site of an unusually large number of what they term ‘prejudice
triggers’, many of which centred on Simpson’s race, as Table 19 shows.
Hastie and Pennington’s research, which depicts verdicts as ‘reflexive
reactions’ evoked by the presence of these ‘triggers’ in the evidence,
echoes the view of veteran judge Frank (1949: 131), who claimed that
‘Mr Prejudice’ and ‘Miss Sympathy’ are the ‘names of witnesses whose
testimony is never recorded, but must nevertheless be reckoned with in
trials by jury’. As we have seen, the role played by linguistic, and par-
ticularly lexical, choices in creating prejudicial advantage within the
testimony is significant.
Table 19 ‘Prejudice triggers’ in the Simpson trial
‘Prejudice Trigger’ Implied Verdict

Simpson was an African-American who beat his white wife Conviction
Simpson was an African-American who sold out to ‘white Conviction
moneyed society’ and lived in a ‘white world’, had married
a white woman, etc.
Simpson was an African-American who overcame his Acquittal
disadvantaged background to succeed in a racist society
Nicole Brown Simpson had led a wanton and immoral life Acquittal
LAPD was an elitist, racist organisation Acquittal
(Created after Hastie and Pennington 1996: 959)
Judging the prosecution and defence narratives: ‘if it

doesn’t fit, you must acquit’
The defence’s reference to the prosecution’s ill-fitting glove represents

a highly appropriate metaphor for the jury deliberation process. In
many of the post-trial writings and interviews, the jurors spoke of the
individual and collective process of narrative typification (Jackson 1995:
419) which went on in the jury room, whereby they attempted to
‘make sense’ of the evidence. Through a process of trying the various
stories on for size, the jurors attempted to reach a consensus on the
most acceptable ‘fit’ of story, given the evidence presented.
Discussing the deliberation process, Rubin-Jackson (in Cooley et al.
1995: 99) referred to the way in which she reconstructed the crime
story within the jury room, in an attempt to evaluate its narrative
plausibility. Significantly, she discusses this ‘re-enactment’ in the his-
toric present tense, simulating a powerful sense of deictic proximity to
the crime events. Her portrayal of one of the officer’s versions of the
investigation story is reproduced below:
1 you go into the house and you spotted blood prior to going into the
2 house. So you scaled the wall and now you get into the backyard and
3 get Arnelle to let you into the house. No one ever goes upstairs. No
4 one ever searches the house … It doesn’t make sense.
This extract illustrates the two primary uses of the historic present
tense; first, Rubin-Jackson is able to transport herself, by linguistic
means, to the time and place of the crime and its investigation (in lines
1 and 2). Then, by evaluating the officer’s actions as a potential ‘habit-
ual action’ – the second use of the tense – the juror is able to measure
the typicality and by implication the plausibility of the officer’s behav-

iour against a media-created schema of what police officers are meant
to do at crime scenes (lines 3–4). Rubin-Jackson’s conclusion is that ‘it
doesn’t make sense’ (line 4).
This approach to placing oneself within the narrative by a process of
temporal transposition is a more subtle, and a more linguistic, strategy
than in a case reported by Hans and Vidmar (1986: 99) where the jury
physically re-enacted a shooting by role-play in the jury room, in order
to assess the credibility of the evidence and the plausibility of the
story.
Hastie et al. (1983: 195) claim that the ‘logical’ order of verdict deci-
sion-making is subverted when individualistic and internalised story
schemata motivate the deliberation process. The process by which evi-
dence informs the construction of the story, which in turn determines
the verdict, is shown in the following sequence:
Presentation → Story → Choice of

of Evidence Development Verdict
Hastie et al. (1983) contend that this classic sequence is, in a majority
of cases, transformed into a more reciprocal process. Thus, a predeter-
mined choice of verdict, inspired by affective motivational forces, may
influence both the comprehension and the recall of evidence, with a cor-
responding story likely to be constructed which justifies the preferred
verdict. Stories will modify the impact of evidence and the evidence
may greatly constrain the choice of verdict. In this context, jury
foreperson Cooley’s (1995) comment ‘I was sick when I saw they [the
gloves] didn’t fit because I just thought for sure they were going to fit’
(p. 125) reveals an underlying and prefabricated narrative framework
into which the evidence was placed and was found to be (for her) a
poor fit.
There appears to be further evidence of this process taking place in
the Simpson jury with respect to the testimony of Allan Park, Simpson’s
driver, which was crucial to the prosecution’s case. He testified that he
had rung Simpson’s doorbell repeatedly on the night of the murders,
but had received no reply. He claimed he later saw someone resembling
O.J. Simpson dart into the house and, a few minutes later, Simpson had
opened the door, claiming to have been asleep. However, Park also
stated that Simpson’s white Bronco was not in the driveway when, in
fact, it was. This observational lapse was cited by several Simpson
acquitters as evidence of Park’s unreliability as a witness.
One of the jurors who thought Simpson was guilty, however, spoke
of a compensatory strategy, whereby she applied the hypothetical
inferencing principle (as suggested by Clark in the prosecution
closing argument) to fill the incoherent gap, creating a scenario
which enabled the evidence to still make sense, despite the apparent
anomalies:
I don’t care what anyone says but I thought that Allan Park was
honest in his testimony. He was excited about picking up O.J. Simpson.
That was his main thing, as was getting him to the airport on time. The
question came up about him seeing the Bronco parked on
Rockingham. I thought that if he was not looking for a car – because
basically all he was looking for was a better way to enter into the property
– then he would not have seen it.
(Cooley et al. 1995: 110)
Ultimately, for many of the jurors, it wasn’t simply the fact that that
the gloves didn’t fit, but that Simpson himself didn’t fit the mould of a
killer, which seems to have contributed to his acquittal. As I discussed
in chapter 3, the prosecution seem to have successfully portrayed
Simpson as a wife-beater; although jury members were shocked and
surprised to discover that Simpson was guilty of domestic abuse, they
were given fairly incontrovertible evidence, in the form of Simpson’s
‘no contest’ conviction in the 1980s for violence against his (then) wife
Nicole. The image of Simpson as a double murderer, however, was
more difficult for the jurors to assimilate. Goldberg (1996: 352) one of
the prosecution attorneys, cites a post-verdict interview with one male
juror who asked: ‘How could a man with everything commit murder?’
In the final analysis, the jury, en masse, chose to believe a combina-
tion of the two defence investigation narratives (outlined in chapter 2),
depicting LAPD Detectives Fuhrman and Vannatter in a ‘rush to judge-
ment’ involving planted evidence and a subverted investigation. In
addition, the defence seem to have managed to convince the jury that
the collection of evidence and the analysis procedures followed in the
LAPD laboratory were sloppy and had led to contamination of the
physical evidence – the ‘bungling investigators’ story.
These two narrative versions focused on the investigation rather than
the crime itself, and were able independently to undermine central
parts of the prosecution story and explain away much of prosecution
evidence, without incriminating Simpson. This was the strategy Clark
criticised in her closing argument (and discussed earlier) of ‘smoke and
mirrors, just smoke to cloud everything, cloud all the issues, distract
you’. (Clark, prosecution closing argument, 26 September 1995).
The verdict
After less than four hours’ deliberation, the jury indicated that they
had reached a verdict. In the best tradition of extending the suspense
as far as possible, however, the judge postponed the delivery of the
verdict, adjourning the court until the following morning. He
explained that several lawyers were absent from the courtroom, appar-
ently caught out by the speed of the verdict:
1 Ladies and gentlemen, we are missing, as you can tell, several of the
2 attorneys. Predominantly we are missing Miss Clark and
3 Mr. Cochran. And I indicated to the attorneys that I would give
4 them a reasonable opportunity to be here for the announcement of
5 the verdict and I have indicated to them that I will accept the
6 verdict from you tomorrow morning at ten o’clock.
At 10 am the next morning, the verdict was finally announced. In

accordance with California law, the verdict was read aloud by the clerk
to the court:
The Court: Mr Simpson, would you please stand and face the
jury. Mrs Robertson.
The Clerk: Superior Court of California, County of Los Angeles.
In the matter of People of the State of California
versus Orenthal James Simpson, case number
BA097211. We, the jury, in the above-entitled action,
find the defendant, Orenthal James Simpson, not
guilty of the crime of murder in violation of Penal
Code section 187(a), a felony, upon Nicole Brown
Simpson, a human being, as charged in Count I of the
information…
It is interesting to note that even in their hour of adjudicatory glory,

the jurors still did not have an opportunity to contribute orally to the
proceedings. Rather, the verdict was delivered by the clerk, speaking on
behalf of the jury foreperson. A similar not guilty verdict followed on
Count II, relating to the murder of Ron Goldman. Simpson was thus
acquitted on both counts of first degree murder.
Following the verdicts, each juror was asked individually to confirm

their verdict, producing a single affirmative response, their only verbal
contribution in open court during the entire trial:
1 The Clerk: Juror No. 1, as to count I, is this your verdict?

2 Juror No. 1: Yes.
3 The Clerk: Juror No. 2, as to count I, is this your verdict?
4 Juror No. 2: Yes …
After the verdict

Observers were taken by surprise by two aspects of the Simpson
verdict. First, the length of the deliberation period was judged to have
been indecently short, considering the amount and the complexity of
the evidence to be evaluated. The Daily Telegraph had predicted a far
lengthier period of deliberation, as their headline ‘Experts expect four-
week wait for O.J. verdict’ (2 October 1995) which appeared the day
before the verdict, attests.
Second, in addition to the speed of the deliberations, the ‘not guilty’
verdict itself was also unexpected, with the Italian daily La Republicca
describing Simpson’s acquittal as ‘a twist worthy of an Oscar’, continu-
ing the cinematic metaphor with the claim that the trial had ‘wrong-
footed everyone who had tried to guess the ending before the credits
rolled’; The British tabloid The Sun declared the verdict ‘the biggest sur-
prise in legal history’, as ‘The Juice’ (O.J.’s nickname since his foot-
balling days) was ‘set loose’.
Following the verdict, all that remained to be done was for both
defendant and jury to be released from their respective periods of
incarceration. This was achieved by means of a final pair of performa-
tive speech acts from the judge. The Simpson jurors, after a record
266 days of sequestration, were released from jury duty with the
following utterance:
1 Ladies and gentlemen of the jury, I am now going to excuse you from
2 further service on this case. As you know, this does absolve you from
3 your vow of silence. You may take with you your juror notebooks as
4 you have requested and I will be chatting with you shortly. All
5 right. Thank you very much. And I’ll see you all later.
Finally, Simpson himself was freed after 474 days in jail, bringing the
criminal trial to an end:
1 The Court: All right. The defendant having been acquitted of both
2 charges, he is ordered transported to an appropriate sheriff’s
3 facility and released forthwith. We’ll stand in recess.
The Guardian newspaper claimed that the acquittal had left ‘American
justice in tatters’, with the LA Times stating that there were harsh
lessons to be learned from the ‘message’ sent by the jurors to the crim-
inal justice system (Tarlow 1995: B9).
A few implications for trial by jury in the aftermath of the

Simpson case
Simpson’s acquittal was widely attributed to the emotive influence of a

cluster of factors – race, wealth and celebrity – all of which had preoc-
cupied the Simpson trial lawyers at the time of jury selection.
Montalbano (1995: A1), writing in the LA Times on the day after the
verdict, included the following soundbites from ‘trial watchers’ which
reflected the views of many observers:
‘I suspect he was found not guilty because he is such a well-loved

celebrity.’
‘A man with money and fame hires the best lawyers and wins, even
though he is guilty.’
‘The decision was influenced by the fact that O.J. is Afro-American
… The white people were afraid of stirring up black riots.’
Judge Hiller Zobel (who later presided over another high-profile case –
the trial of the British nanny, Louise Woodward) was also scathing of
the Simpson verdict, describing the trial by jury system as tantamount
to ‘asking the ignorant to use the incomprehensible to decide the
unknowable’ (cited in Grove 1998: 205).
Opinion is divided on the value and future of the trial by jury system;
however, an increasing number of lawyers and legal academics are
coming to believe that it may not always represent the best way of deliv-
ering justice. Even supporters of the jury trial acknowledge that ‘nothing
is so good about the jury system as it stands that it cannot be improved
and human rights better protected’ (The Independent, August 2000).
Baldwin and McConville (1979: 1) argue that the jury system involves:
twelve individuals often with no prior contact with the courts, who
are chosen at random to listen to evidence (sometimes of a highly
technical nature) and to decide upon matters affecting the reputa-

tion and the liberty of those charged with criminal offences. They
are given no training for this task, they deliberate in secret, they
return a verdict without giving reasons, and they are responsible to
their own conscience but to no one else.
Reforming trial by jury

In the UK, the forthcoming Criminal Justice Bill (discussed in Burrell and
Verkaik 2002), currently subject to considerable scrutiny and debate, pro-
poses a number of reforms to the trial by jury system. These measures
include the removal of the automatic right to trial by jury for defendants
and the introduction of guidelines meaning that judges will be given
new powers to sit alone in ‘serious and complex fraud’ cases where the
use of ‘professional jurors’ (see below) is not deemed appropriate.
In the European context, Article 6 of European Convention on Human
Rights (ECHR), which came into effect in October 2000, has provoked an
ongoing debate about the adjudications made by juries, and the right of
the victims of crime to have access to the reasoning behind acquittals
(Travis 2002). One suggestion currently being considered is that juries
should be required to provide explanations and justifications for their
verdicts. This proposal, reported by Verkaik (2000), consists of a ‘struc-
tured list of questions’ agreed in advance by lawyers and the judge, to be
completed, in writing, by the jury foreperson; an alternative, less popular
amongst the judiciary, is for the judge to ‘sit in’ with the jury, acting as a
legal adviser, a system already in operation in France and Belgium.
Commenting on these proposals, The Independent editorial of 25 August
2000 cites the O.J. Simpson case as a positive force for change in the US,
claiming that ‘it was healthy for the American public to know that the
jury in the O.J. Simpson case thought he was guilty and acquitted him
because they disliked the LAPD’.
One of the most comprehensive recent studies on jury reform was
completed in November 1999 by the New Zealand Law Commission,
involving 312 jurors in 48 criminal trials. The Commission’s recom-
mendations included greater guidance for the jury foreperson, more
assistance through the use of visual aids and additional help for jurors
in cases involving multiple defendants. In addition, the researchers
have called for jurors to have more opportunities to ask the judge ques-
tions during the trial and have advocated the provision of a written
summary of the judge’s summing up on the law for jurors during delib-
eration as a means of improving juror comprehension of legal princi-
ples and terminology.
The ‘professionalisation’ of trial participants

A further development in trial by jury concerns the movement of the
lay participants in the trial process towards ever greater ‘professionali-
sation’, reflecting a trend also taking place in many other institutional
settings, where official accreditation and qualification are becoming
compulsory in, for example, schools, universities and the police force.
Within the judicial system, this trend is evidenced by decisions such as
the Daubert (1993) ruling (discussed in chapter 6), which have placed
greater controls on the admissibility of expert witnesses and their evi-
dence.
In addition, in the UK, there is currently an ongoing challenge to the
right of the defendant to a jury trial per se, led by the Home Secretary, as
well as a proposal to end the 600-year-old system of lay magistracy, in
favour of hearings by ‘professional’ magistrates. In the government’s
forthcoming Criminal Justice Bill, a number of restrictions are proposed
on the right to a jury trial in complex fraud cases where it is suggested
that ‘professional’ jurors rather than laypeople should hear the evidence.
There are also some signs of such a process taking place in the US, at
least in part due to cases like Simpson’s. There are increasing calls for
‘professional jurors’ who would be ‘trained to listen objectively and
would be schooled with the kinds of decision-making skills necessary
to function effectively within an adversarial context’ (Schmalleger
1996: 366). Professional jurors, it is argued, would be better equipped
to cut through the discursively constructed rhetoric of trial lawyers
than their lay counterparts.
The impact of this process of professionalisation on the linguistic
strategies employed by all participants in court is likely to be of increasing
interest to both lawyer-linguists and forensic linguists alike. It seems that
the next few years are likely to be a time of great change for the trial by
jury process. It is to be hoped, on both an analytical and a consultative
level, that the forensic linguist will have a important role to play in these
and other developments in the criminal justice system, so many of which
have significant linguistic, as well as legal consequences.
Coda: O.J. Simpson and the civil trial
Despite the fact that the criminal trial of O.J. Simpson trial resulted in
an acquittal, the story was not yet over. In terms of narrative resolution,
there was a yawning gap left by Simpson’s acquittal. In the LA Times,
Buchanan (1995: B9) portrayed the case as an unfinished story; drawing

parallels between the trial and a literary narrative, she wrote:
Had the O.J. Simpson case been fiction, when he was holding
himself hostage with a gun to his head during the slow-speed
freeway chase, he would have been trying to escape in order to find
the real killer and exonerate himself. But this is real life in America,
where justice is rare and the jury system does not work … in real
life, in journalism, murders go unsolved, some missing people stay
lost forever, and killers often beat the system. Unresolved murders
are unfinished stories.
In this instance, however, the story of the ‘trial of the century’ was to
have a fascinating coda.
The US criminal justice system incorporates the ‘double jeopardy’
rule, which states that an individual cannot normally be tried twice for
the same crime. However, it is possible for a private prosecution to be
taken out within the civil system. On 12 June 1995, the family of
Nicole Brown Simpson filed a civil suit against Simpson, claiming mon-
etary damages for the death of their daughter. Ron Goldman’s family
filed a similar suit.
From the point of view of Buchanan’s ‘unfinished story’, the civil
trial represented an opportunity for a rare second chance to resolve the
whodunit mystery. The civil case presented an intriguing situation: the
same basic story was to be told by both prosecution and defence,
although by different lawyers, using the same cast of crime and investi-
gation story characters and the same forensic exhibits. In Cotterill
(2002), I explore aspects of the intertextuality created by this paral-
lelism. From an interactional perspective, the basic dynamics of the civil
trial were similar to those of criminal proceedings, although, critically,
Simpson could be (and was) obliged by the prosecution to take the
stand and testify in his own defence.
In addition, the different legal framework of the civil trial system
meant that the respective prosecution and defence stories were put to
the scrutiny of a new set of jurors in a trial with a new set of rules. In
particular, the criteria for what, in legal terms, could be accepted by
the jury as a ‘reasonable’ degree of narrative coherence was
significantly lower. Rather than fulfilling an exacting burden of proof,
the prosecution were required to show only that Simpson was ‘more
likely than not’ to have committed the crimes, by means of a ‘prepon-
derance of evidence’; correspondingly, the judgement could be a major-
ity verdict of 9:3 rather than (in the Simpson criminal trial) a unani-
mous one. Moreover, the jury were asked to judge on financial compen-
sation rather than a custodial sentence. In this trial, Simpson was
judged ‘liable’ for the deaths of Nicole Brown Simpson and Ron
Goldman, and was ordered to pay $33.5 million in compensatory
damages.
Notes
Chapter 1
1. Here and throughout the book, I will use the ‘generic-he’ pronoun. This is
principally because the majority of those involved in the legal process, statis-
tically speaking, are male.
2. The Simpson defence team were dubbed the ‘Dream Team’ by the American
press, a name originally given to the all-conquering US basketball team at
the 1992 Barcelona Olympics.
Chapter 2
1. Ryunosuke Akutagawa, Rashomon and Other Stories, trans. Takashi Kojima
(Charles Tuttle Co., 1952).
Chapter 3
1. Data drawn from the CobuildDirect corpus created by COBUILD at the
University of Birmingham.
Chapter 5
1. In fact, the lawyer here had earlier attempted (unsuccessfully) to have the
word ‘nigger’ banned from the courtroom altogether, so as ‘not to inflame
the predominantly black jury’ (Rice 1997: 42).
Chapter 6
1. http://www.greatbritain.co.uk/experts/expert.shtml.
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Official Simpson trial web–sites

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Cases cited
Scotland: Lord Cooper in Davis v. Edinburgh Magistrates (1953).
United States: Daubert v. Merrell Dow Pharmaceuticals Inc. 113 S Ct 2786 (1993).
Frye v. United States 293 F1013 (DC Cir 1923).
Index
adversarial system, 9 peremptory challenge vs challenge

audience design, 12–13 for cause, 12
and persuasion, 32–3, 35–6, 37–8,
burden of proof, 10, 26, 217 59–62, 88–9
role in the trial, 117–22, 170–1
closing arguments, 56–8, 101–2, and voir dire, 13
199–219 jury instructions, 63, 94–5
connotation, 67
conversational analysis, 4 Labovian narrative structure, 23–5
corpus linguistics, 65–90 lawyers(’)
court reporting, 113–17 interaction with witnesses, 102–6,
courtroom interaction, 91–125 122–25
cross-examination, 5, 43–4, 126–55, language of, 101–6
128–9, 141–55 monologue, 101–2
questioning of expert witnesses,
Daubert Standard, 170 166–94
direct examination, 5, 43–4, 129–41
domestic violence, 15–16, 65–90 metaphor, 70, 199–219
micro-narratives, 49–59
expert witnesses, 5–6, 156–98
and jargon, 178–83, 189–92 narrative typification, 6, 29, 32–3, 61
forensic evidence, 50–1 objections, 39, 95–7

O. J. (Simpson, Orenthal James),
inferential reasoning, 26–7, 29, arrest of, for murder, 1
214–17 civil trial of, 230–2
interruptions, 161–3 criminal trial of, the case for the
prosecution, 28–30
judge–defendant discourse, 7 criminal trial of, the case for the
judges(’) defence, 30–5
dialogue, 95–6 criminal trial of, the verdict, 226–8
the language, of, 7, 8, 45–7 jurors’ attitudes towards, 14–15,
monologue, 94–5 21, 88–9
jurors(’) and history of domestic violence,
as audience, 117–22 65–90
attitudes to expert witnesses, opening statements, 23–4, 33,
194–8 62–4, 65–90, 101–2, 173–5
and courtroom dynamics, 106 police interview with, 1
and the deliberation process,
220–8 prejudice triggers, 62, 222–3
and the jury selection process, press reporting, 112–3, 227
11–18 public gallery, 107–8
244
Index 245
questions Scottish law, 10–11

defining response boundaries in, semantic prosody, 65–90
143–7 sidebars, 46, 97–101
direct and cross-examination, storytelling, 19–64, 222
126–55 systemic functional linguistics, 7–8
as display talk, 122–5
expert vs lay witnesses, 156–98 temporal manipulation, 40–9
information-seeking vs testimony styles
information checking, expert vs lay, 157–64
132–3 narrative vs fragmented, 6
in lawyer–witness talk, 5–6, 102–6 rule vs role-oriented, 8
multiple, during cross- topic coherence, 148
examination, 141–3 topic shift, 163–5
yes-no vs wh-, 5, 127 trial by jury, 228–30
trial transcripts, 113–17
race TV audience, 108–112
and the jury selection process, 12,
16–17, 18 voice of the victim, 49, 50–8
in the O. J. Simpson criminal trial,
62 witnesses, 50
rape trials, 4 interaction with lawyers, 102–6,
reasonable doubt, 10, 27–8, 217 122–5

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Language and Power

Table 1 Statistics for the original juror pool, pre-selection 17

Figure 1 The crime, the investigation and trial narratives 22

Figure 3 Processes and participants in the criminal trial 94

Late at night on 13 June 1994, a man discovered a blood-stained dog in

returned to his Rockingham mansion, where he ﬁnally surrendered

The People vs. Orenthal James Simpson

Theoretical orientations and approaches

The approach to data analysis adopted in this book is deliberately

Researching courtroom language

From a survey of the literature on courtroom language, it is possible to

Conversational analysis, ethnography and interactional dynamics

Testimony styles and the narrativisation of courtroom accounts

closing arguments of the Simpson trial, I consider the persuasive force

Power and ideology in courtroom language

mechanisms, including mood and modality choices (after Halliday

Power and persuasion: the role of language in adversarial

The US criminal justice system is founded on the fundamental princi-

ﬂawed, incomplete or implausible – in other words, to create reason-

First, choose your audience: the jury selection process

Jury selection: an art or a science?

The jury selection process as audience design in action

contexts, such attempts to accommodate to other speakers are primarily

The Simpson juror questionnaire

• Will you hold the prosecution to a higher standard than is legally

The combination of Simpson’s ethnic origin, fame and wealth consti-

• Have you ever seen O.J. Simpson as he appeared in movies such as

• Did you see O.J. Simpson play football in college or as a professional

One question in particular explicitly foregrounded the kind of ‘logic’

There is, perhaps, a subtle presupposition contained in this suggestive,

In addition to the issue of celebrity, prospective jurors were also

during their turbulent marriage. A number of the prosecution-oriented

• Do you believe people with professional lives that involve physical

Once again, the polarity of these questions, which appeared without a

• Male professional athletes who participate in contact sports are LESS

• How big a problem do you think racial discrimination against

represented an attempt to gauge jurors’ perceptions of race and racism

Selecting the Simpson jury – an early victory for the defence

Table 1 Statistics for the original juror pool, pre-selection

Ethnic Origin Percentage Composition

Table 2 Jury statistics, post-selection

Ethnic Origin % Composition % Change from Original Juror

The trial as storytelling

Linguists, lawyers and applied psychologists have all conceptualised

Stories and narratives

Interwoven narratives: the crime, the investigation and

Stories presented in court – which make up the trial narrative – are in

The crime and investigative stories are highly interdependent; the

Figure 1 The crime, the investigation and trial narratives

The crime and investigation stories are represented in Figure 1 as

Trial by jury as narrative: some internal structural

At the level of macro-narrative, the trial by jury is, in many signiﬁcant

Table 3 Mapping Labovian narrative structures onto the trial narrative

Narrative Component Narrative Content Trial Equivalent

Orientation Participants, time, place, etc. Opening statements

Complicating Action Story events, what happened Witness

Evaluation Point of story Closing arguments

Resolution What ﬁnally happened Verdict