February 09, 2007

More prosecutorial trick questions

In an earlier post I described how a prosecutor's questions helped a Hawaiian union business agent get  convicted of perjury. There I gave only four of the counts used against him. Here I provide two more counts. Remember that Steven Suyat was a high school educated Pidgin English speaker from the island of Molokai who was tried in the urban context of Honolulu. In my earlier post I described how Suyat would not be sucked into agreeing that unions organized contractors. In his way of thinking, unions organized workers, not cntractors. No matter. To the prosecutor this counted as perjury.

Now for counts five and six, both of which required him to define "scab." Again the counts were taken from Suyat's testimony as a witness in the trial of two other union representatives.

Count 5
Prosecutor: What does the word "scab" mean?
Suyat: I have no recollection.

Count 6
Prosecutor: You don't know what the word "scab" means?
Suyat: No.

Now surely Suyat knew and used the word, "scab," the same way that most unions do when they refer to workers who won't join the union, to union members who don't honor picket lines during labor strikes, to non-union workers hired to replace strikers, and to employees who agree to work for less than the union rate. In fact, this is how dictionaries define the word. So why did Suyat say that he didn't know what "scab" means?

When asked the meaning of a word, there are at least three ways to answer:
1. Give a dictionary definition
2. Give a personal definition
3. Give someone else's definition that you've heard

The prosecutor gave no indication that he wanted Suyat's personal definition of "scab." Being a dutiful citizen and desperately trying to comply with what he thought was wanted in the unfamiliar and terrifying context of the courtroom, Suyat answered, essentially, what he thought the question required -- that he couldn't recall any dictionary definitions he might have read. He had "no recollection" of such a definition and he was too frightened about being wrong to venture one of his own. Maybe the prosecutor actually understood this because in his immediately following question he referred to Suyat's notebook and asked him for his personal definition:

Prosecutor: So you don't remember what you meant by it when you put it down here?
Suyat: Well, yeah.
Prosecutor: Thank you. I have no further questions your honor.

The prosecutor illustrates two unfair language tricks here. First, he ignored the positive and negative concord rules of English. If a question is asked using positive words (containing no negatives such as "not" or "never"), a response of agreement is also made with positives. For example, if the question had been, "That happened, didn't it?" and the respondent wanted to agree that it happened, the answer of agreement would be "yes." But if the question was, "That didn't happen, did it?" the response of agreement would be "no." That is, positive questions are agreed to with positive answers and negative questions are ageed to with negative answers. The reverse is true when the respondent wants to disagree.

Here the prosecutor asked the question negatively ("you don't remember"), meaning that agreement with it would have to be couched with a negative, such as "no," meaning "I agree that I don't remember." But Suyat didn't say this here. His positive response, "Well, yeah," indicated that he indeed did remember what he meant when he wrote "scab" in his notebook. In other words, although he was unable to give a dictionary definition of "scab" in counts five and six, he certainly could give a personal definition when the prosecutor finally asked him if he had one. Of course, it would have been beneficial for him if he had answered more completely, "Well, yeah, sure I remember it," but people often don't do this, especially in contexts where every word they speak is subject to sharp scrutiny.

One question here might be whether Suyat really had contol of English negative and positive concord rules. The best evidence comes from his own speech in his testimony. There were many instances when he gave clear evidence that he could use English concord rules appropriately. The following is only one example:

Prosecutor: But that never happened with regard to supplies or anything? He never wanted to put up the picket line just to stop supplies from coming in?
Suyat: No, no, no.

Here the prosecutor asked the question negatively ("He never wanted to put up the picket lines"), meaning that agreement with it would have to be couched with a negative response. What Suyat's "No, no, no" indicated was, "I agree that he never wanted to put up picket lines just to stop supplies from coming in." In this, and in many other examples, the prosecutor just went right on, indicating that he accepted Suyat's ability to use English negative and concord rules appropriately in his answers. All but in Count 6, of course.

The second prosecutorial trick was to end this exchange with a "hit and run" strategy. I describe and illustrate the frequent use of this discourse strategy in my 2006 book, Creating Language Crimes (Oxford University Press). Undercover law enforcement officers who secretly tape record their targets sometimes introduce a topic that is potentially damaging to the target, then change the subject quickly, blocking the target from saying anything about it, especially when the response might include possibly exculpatory statements. In trials, lawyers for both sides frequently use the "hit and run" strategy when they ask their questions to witnesses. Often this gives the jury the impression that the lawyers want them to have, then the lawyer stops abruptly before any further explanation can be made. Since lawyers completely dominate courtroom exchanges, the witness doesn't have a chance to complain or clarify. In this case the prosecutor got what he hoped would convince the jury of the absurd notion that Suyat didn't know what he meant when he wrote "scab" in his own notebook. This was damaging for Suyat.

You might wonder where Suyat's attorney was during all of this. The simple fact was that he didn't have one. In the trial that led up to his charges of perjury, he was called by the prosecution as a hostile witness so he had no lawyer of his own who might have cared to clarify this during cross examination.

Posted by Roger Shuy at February 9, 2007 06:15 PM