Page 316 - Handbooks of Applied Linguistics Communication Competence Language and Communication Problems Practical Solutions

294 Diana Eades

9. W: okay? You can’t get out of this [(Inaudible).

10. DC2: Now, Albert (2.7) His Worship’s told you to answer the question. Will
you or won’t you? (6.5) We have to take your silence as “no”, don’t
we? (2.5) Albert?
11. W.: (1.2) (p)Yes.

At this point in thirteen-year old Albert’s cross-examination, he has been on the
witness stand for close to two and a half hours, most of it being cross-examin-
ation. Defence counsel is constructing Albert as a liar, in relation to the way in
which he had reported the incident in question to the lawyers at Aboriginal
Legal Service (ALS). Most of the extract is a metapragmatic discussion of
whether or not Albert will answer the question in Turn 1. Albert insists, in
Turns 2, 4 and 6, that he does not want to answer the question asked in Turn 1,
and defence counsel and the magistrate assert (in Turns 3 and 8 respectively)
that this is not a question that he can ‘claim privilege on’. This refers to the rul-
ing (expressed to Albert six times by this stage) that a witness does not have to
answer any question that might incriminate him in relation to the commission of
a criminal offence. Much was made in the cross-examination of the three boys
of their criminal records (mainly for minor thefts). So, as many of the questions
asked about their ‘criminal activities’ the magistrate was obliged to pronounce
the warning about self-incrimination. The invocation of this right by a witness is
a tricky one, and it is hardly surprising that these young boys were unsure of
how and when to use this right. At this stage of his lengthy cross-examination,
Albert appears to be trying to invoke it as a way to avoid answering questions. It
is hardly surprising that this thirteen year old boy might see a question about
lying to a legal officer as having the same legal status and possible conse-
quences as a question about throwing rocks at a street light (although in fact, the
former is not a criminal offence, unless it occurs in a courtroom).
However, he is told that he can not avoid answering the question (about
whether he lied ‘to [the] faces’ of the ALS staff). But this is followed with a rid-
iculous question in Turn 10 – ‘Will you or won’t you?’. It is hardly surprising
that the witness uses a long silence at this point. The choice offered by this ques-
tion seems to contradict the assertion by both defence counsel and the magis-
trate that Albert does not have this choice! By this stage, it is clear that the cross-
examination has moved beyond incrimination and harassment, to control and
disciplining which appears to be at the very least confusing, and much more
likely, senseless. Having got the witness to this state of confused (and sense-
less?) subjugation, as well as exhaustion, defence counsel moves in with the
powerful assertion ‘We have to take your silence as “no”’. In this proposition,
defence counsel ignores widely available background knowledge which would
suggest other (non-incriminating) interpretations of the Aboriginal witness’s si-