Questioning and answering strategies in Malaysian criminal proceedings: a corpus-based forensic discourse analysis

Abstract

Courtroom discourse is widely studied (Matoesian, 1993; Cotterill, 2003; Heffer, 2005; Shuy, 2006; Eades, 2008) in the forensic linguistics and law and language fields. This investigation extends existing research on courtroom questioning in a new setting, that is, Malaysia’s adversarial criminal courts. While Malaysia has a hybrid trial system, which is based on the Anglo-American system due to British colonialism, in 1995 it moved to a non-jury system with judges giving verdicts, providing an opportunity to examine continuing effects of a post-colonial context for lawyers’ discourse. This study examines courtroom questioning strategies used to convince the judge(s) to accept lawyers’ versions of events and also the power of answers to resists barristers’ power and control. A corpus-based forensic discourse analysis approach is used to investigate a pilot corpus (the Shipman trial) and then to investigate 16 criminal cases. These feature Bahasa Malaysia, Malaysian English and mixed codes, constituting a small, specialised Malaysian criminal trial corpus, the MAYCRIM corpus, collected from the Sessions and High Courts of Malaysia. The corpus-based analysis reveals interesting patterns of lawyer questioning and witness resistance. Probing questions, that is wh-questions and indirect can you questions paired with material and verbal ‘process types’ (Halliday, 1985; Halliday and Matthiessen, 2004) maximise witnesses’ productivity, while challenge questions, such as SAY-questions and invariant tag questions, coerce through personalisation and quoting strategies that face-threaten witnesses in cross-examination. Despite lacking polarity, invariant tag questions with do you agree, correct/betul, agree/setuju, particle tak/not, and do you know have the same potential to perform control and power as canonical tag questions. In response, witnesses demonstrate resistance via disagreement, correction, evasion and challenge, demonstrating that witnesses are able to overcome the power asymmetry that is particularly pronounced in cross-examination, though not without costs. A continuum of witnesses’ resistance is suggested for legal practitioners to understand how their questions affect witnesses and at the same time help to prepare their witnesses for courtroom examination. This study makes three original contributions to theory, methodology and practice: 1) to enhance the field of courtroom questioning and pragmatics 2) to propose a range of corpus search terms that are useful for investigating courtroom questioning and 3) with implications for legal practitioners in general, and for Malaysian legal counsels in particular, and where the findings can be a point of reference for legal counsels and legal educators.