How ‘courtroom talk’ disadvantages Aboriginal witnesses

Published 11 September 2008

justice.jpgA study by a University of New England linguist has revealed how methods of cross-examination used in Australian courtrooms can disadvantage Aboriginal defendants and witnesses.

Dr Diana Eades said her study – the first of its kind – examined “the ways in which courtroom talk is used to legitimise the overpolicing of Aboriginal people and to continue the neocolonial relationship of control over them”.

The study, recently published as a book titled Courtroom Talk and Neocolonial Control, focuses on the cross-examination – during a Brisbane courtroom hearing in 1995 – of three Aboriginal boys who were prosecution witnesses in the case of six police officers charged with their abduction.

“It shows how, by the use of propositions and assertions in cross-examination, the three boys were portrayed not as victims of police abuse, but in terms of difference, deviance, and delinquency,” Dr Eades said.

The book, which contains 98 extracts from the courtroom hearing, reveals that a pervasive strategy in the cross-examination of the boys (aged 13-15) was one of bullying and shouting until they finally agreed to the propositions being put to them. “Despite the obvious fact that the answers were given under great duress, and therefore not given freely, the legal process interpreted them literally,” Dr Eades said.

“Such examples,” she continued, “reveal one of the problematic assumptions that underlie courtroom rules of evidence: lawyers can take words or expressions from their cross-examination questions and attribute them to the witness. Even if the witness has given only a one-word answer – such as ‘Yes’ – to repeated and harassing questions, this answer can be replaced in the lawyer’s closing address with the words from the question, and then reported as if they were the witness’s own words.”

In an earlier book (Aboriginal English and the Law, Queensland Law Society, 1992), Dr Eades showed a number of ways in which mainstream methods of lawyer-client communication can cause problems when the client is an Aboriginal person. Courtroom Talk and Neocolonial Control (published by Mouton de Gruyter, Berlin) widens the perspective to the larger historical, social and political context of the ongoing struggles between Aboriginal people and the police.

“The legal process is meant to protect citizens from abuse such as that which might be inflicted by individual police officers,” Dr Eades said. “But this book exposes ways in which courtroom language can be manipulated and witnesses linguistically tricked.

“The book concludes by asking whether Aboriginal people can ever expect justice in cases of police abuse and, more broadly, whether we can expect an end to neocolonial control over Aboriginal people without far-reaching changes to courtroom rules of evidence.”