Some Pragmatic Points of Description of Conducive Questioning in Courtroom Interrogation

The body of work on conducive questioning is indeed limited and far between. The reason for this is not far-fetched. Questions have been investigated as grammatical elements (Bolinger 1957, Quirk et al. 1985, Radford 2009). However, with the increasing research into discourse and its use of naturally occurring data, many more scholars have attempted to examine questions from different linguistic perspectives (Bublitz 1981, Strenstrom 1984, Tracy & Robles 2009). Bollinger (1957: 96) may be considered one of the earliest works on conducive questioning. Bolinger conceptualised a conducive question as one in which the speaker explicitly indicates a ‘preference for one R [response] rather than another, as opposed to a straight question where no preference is manifested’. The point to note in this definition is the word ‘preference’. It apparently lends a pragmatic point to the description of conducive questions. Elaborating on this concept, Neubauer (2006: 26) opines that conducive questions ‘are biased towards a positive or negative answer’. Neubauer’s description of conducive questioning actually follows Quirk’s et al. (1985: 76–78) declaration that such questions have ‘positive versus negative orientation’.

In examining conducive questioning, Quirk et al. (1985) focused on questions with yes/no responses. Though they used the term positive versus negative orientation another common term in the literature is positive or negative polarity. The questions that elicit these kinds of responses are structurally classified as polar questions namely yes/no questions proper, declarative questions and tag questions. According to Quirk et al. (1985: 76–78), the use of assertive forms generally indicates the preferred response a speaker expects. In other words, while assertive forms make questions conducive, non-assertive forms do not.

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In the examples above, ‘someone’, ‘already’, and ‘somewhere’ are assertive forms that show that these questions have a positive orientation. It is interesting to note that Quirk et al. (1985) left out wh-questions in their examination of conducive questioning. It must also be pointed out that they did not actually use the term ‘conducive’ in their explication of these forms of questioning. 

Bublitz (1981: 853) captures the inherent tendency of conducive questioning as transcending mere structural description. He opines that ‘conduciveness is a purely pragmatic feature but it interacts with such grammatical features as negation, affirmation and with prosody’. However, the application of Pragmatics in Bublitz’s study of conducive questions seems to rest on his notions of old and new assumptions as embedded in the questions. These notions were also explored by Quirk et al. (1985). Bublitz shows how a question can be primed as having two forms of assumptions which ordinarily are presuppositions (see Piazza 2002). In Bublitz’s analysis, the juxtaposition of these two assumptions determines the expected response to questions. Piazza (2002) elaborates on Bublitz’s model with more emphasis on the pragmatic import of conducive questioning. She identifies two types of conducive questions namely: the openly conducive questions; and the indirect conducive questions (light/subtle conduciveness). The second category is further divided into three sub-classes via questions expressing tension between the old and new assumptions; a question conjuring up an impossible reality and questions reinstating the questioner’s belief (Piazza 2002: 513–526).

Of particular interest to the present study is that Piazza’s work is situated in a specific institutional setting. The study focuses on academic discourse as such the interaction and text flow from naturally occurring data. Besides this, the analysis takes into account the relationship between the participants. According to Piazza (2002: 510), conducive questions are ‘the questions through which questioners try to push their beliefs and views onto their hearers. These kinds of questions are important manifestations of interactions that are characterised by asymmetry due to the imbalance of knowledge and authority between the participants.’ This, of course, introduces the pragmatic elements of power and dominance into the analysis since data is contextualised. Aligning with the need to have a holistic consideration of the context in which conducive questioning is analysed, Keevallik (2009: 140) notes that conduciveness does not only operate on the basis of ‘abstract grammatical possibility in an invented context but is discovered from the actual answers that the questions receive.’ This is the point of departure in this present paper.

Questioning is generally acknowledged as a discourse tool for the exercise of power in courtroom encounters (Luchjenbroers 1997, Monsefi 2012, Anowu 2017, Aina et al. 2018). Counsel or barristers are generally placed at a vantage position in courtroom interactions because they reserve the right to ask questions. In fact, unlike other institutions, it is only in the courts that lay participants or witnesses do not ask questions as is customary in interpersonal interactions of whichever kind. Court interrogation occurs during the examination phase of court trials and it usually consists of three stages: direct-examination cross-examination, and re-examinations. In this study, we shall focus on the cross-examination stage of courtroom trials. Neubauer (2006: 26–27) observes that conducive questions play a pivotal role in cross-examinations. She notes that the communicative terrain of the courtroom often ensures that conducive questions influence the decisions of the judges or jury:

Courtroom discourse in Nigeria has attracted varied interest from scholars in the field of law and language (Opeibi 2003, 2008, 2012; Anowu 2017; Aina et al. 2018; Anowu 2019, 2021). It must be pointed out from the outset that the Nigerian legal system is modelled after that of Britain by virtue of colonisation. It is therefore not surprising that the adversary system is practised in the country. Pre-colonial Nigeria, of course, had an entirely different system based on the cultural and religious practices of the various ethnic nationalities that peopled the vast kingdoms, empires and clans of the territory. For the people in the northern part, the sharia, an Islamic code of justice, was prevalent while arbitration was common in the southern of the country due to the cultural inclination of their kings, chiefs, leaders or elders (Lubeck 2011: 254–257, Akanbi et al. 2015: 200, Chukwuma 2023: 17).

The language of communication in Nigerian courts is varied based on the country’s multilingual setting. Generally, English language, the nation’s official language is used in the Supreme Court but the Federal Courts, Appeal Courts, High Courts as well as Magistrate or Customary Courts allow the use of local languages especially the predominant language in their areas of jurisdiction (Awonusi 2004: 78, Omoniyi 2004: 112). However, many of these courts also provide interpreters for easy translations during court proceedings. This socio-cultural cum linguistic background especially the fact that attorneys and witnesses operate as second-language users of English sometimes impedes understanding and cohesion. This affects the questioning or examination phase of trial proceedings sometimes resulting in the confusion of yes/no responses by witnesses. For instance, some witnesses say ‘yes’ when they mean ‘no’ and vice versa (Anowu 2019: 224–225). It is against this backdrop that we examine the deployment of conducive questions in Nigeria’s courtroom settings.

Wh-questions are not generally regarded as conducive perhaps because they do not elicit confirmation. They allow respondents to elaborate points or simply delve into a narration. In other words, they are not constraining. But Bollinger (1957) points out that some wh-questions tend to exhibit some form of conduciveness. Along this line, Bollinger identifies ‘rhetorical questions’, ‘suggestions for action’ and questions that are conducive by means of the ‘undesirable lexis’ (see Neubauer 2006: 50–51). While we align ourselves with Bollinger (1957), Luchjenbroers (1997) and Neubauer (2006) who have all argued that wh-questions can be conducive, we submit that this can also be accomplished through what we term ‘pragmatic repetition’. In courtroom interrogations, counsel sometimes lay emphasis on a particular point or issue by constantly repeating it in the form of a question. Of course, the repetition is a pointer to the fact that the witness has not yet provided the desired or expected answer. Thus, the repetition of the question becomes a pragmatic means or process of constraining the response of the witness in order to make it conform to counsel’s preferred answer. The conducive nature of this questioning strategy or pattern is accentuated by the fact that as Luchjenbroers (1997: 487) opines, ‘there is only one legitimate answer and legal professionals already know what it is.’ We shall examine this more elaborately with the extract below.

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This extract comes from CT 1, the civil case between an employee, the plaintiff, and his employer, a mobile telecommunication company. The employee has sued the company for allegedly using his photograph for advertisement or promotional purposes without compensating him. In this extract, counsel to the plaintiff cross-examines one of the witnesses called by the defendant’s legal team. The extract clearly shows how counsel tries to constrain the answer of the witness through the constant repetition of a wh-question thereby making it highly conducive.

The extract opens with counsel seeking to confirm via a declarative question the witness’ claim that the plaintiff was not ‘qualified for the campaign’, that is, the advertisement or promotional exercise (line 1). In his response to this question, the witness declares that he actually ‘lobbied’ on behalf of the plaintiff in order to get him involved in the promotional campaign. This apparently set the tone for the wh-question counsel poses to the witness in line 5—‘What is your interest?’ In all his utterances from lines 6 to 9, the witness fails to adduce any reasons that actually satisfy counsel as an answer to the question. Thus in line 10, counsel repeats the question but this time prefixing it with the phrase ‘I said’; This is a pragmatic signal that seeks to constrain the witness, by laying emphasis on the question that follows. Now seeming to get the direction of the question, the witness says the plaintiff informed him of his willingness to participate in the advertisement and he, in turn, decided to ensure that the plaintiff ‘benefit from it’. However, this answer still did not meet the counsel’s expectation thus necessitating another repetition in line 12.

A fourth repetition comes up in line 14 after the witness has declared that he ‘liked’ the plaintiff ‘as a person’. In reformulating the question in line 14, counsel slightly modifies it by introducing the word ‘private’, ‘What is your private interest?’ Then as though realising that counsel is hinging the question on the pecuniary gains that accrued to him for lobbying on behalf of the plaintiff, the witness flatly denies having any private interest in the matter. In line 16, counsel repeats the question couching it in the way he started off initially in line 5 when he first put the question to the witness but with a little elaboration. And the witness states unambiguously that he ‘liked’ the plaintiff.

It must be stressed here that the institutional setting in which the interlocutors find themselves contributed immensely to the effective deployment of conducive questions by counsel. In a courtroom setting, the urge to get preferred or desired answers that will enhance legal pleadings is an overarching discourse pursuit for cross-examiners. This pursuit is equally made easier by the fact that witnesses are institutionally compelled to provide answers, they have no leeway to circumvent questions. So the context of this discursive event explains why counsel could reformulate a wh-question five times (lines 5, 10, 12, 14 and 16) just to get a particular kind of response from the witness.

From the foregoing, it is quite clear that counsel intends his repetition of the wh-questions for pragmatic purposes. The repetitions which occur five times in roughly 17 utterances are clear indications that the witness is yet to give the preferred or expected answer. Counsel clearly desires an incriminating answer from the witness in order to advance his own legal pleadings but realising that he is unlikely to get this, he adopts the strategy of constantly repeating the same wh-question in various forms thereby making them appear as conducive questions.

Fact checking is perhaps unarguably one of the major advantages that wh-questions offer barristers or cross-examiners in courtroom witness examination proceedings. By using this type of question, counsel not only get details of the story but also clearly observe when there are inconsistencies in what witnesses say in court. Of course, the ability to point out inconsistencies in the account of any witnesses puts the testimony of such witnesses in jeopardy as the judges or jury are very likely to discountenance such testimonies. What is however worthy of note here is that tracing inconsistencies often requires the cross-examiner to constrain the witness to respond to questions in a particular or specific way. In CT 2 below, the counsel makes information-seeking questions constraining or conducive by constantly repeating a wh-question headed by the wh-word, ‘When’.

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In this section of the cross-examination of the witness on the case between the telecommunication company and its former employee, counsel seeks to impeach the testimony of the witness by noting inconsistency in the witness’ references to dates. This section begins with counsel trying to establish when the defendant left the company and when the advertisements in which he appeared as a model were used by the company. The thrust of the question could probably be to make the court see that the company used or continued to use the advertisements bearing the defendant’s image without compensating him even after he had disengaged from the organisation. Again, pragmatic repetition is employed to make the wh-question conducive. In this encounter of about 32 utterances, counsel used the wh-question word ‘when’ nine times (lines 1, 3, 5, 9, 13, 17, 21, 23 and 25). At first, counsel establishes from the witness that the defendant left the firm ‘sometime in April 2008’ (1–4) then he tries to find out the last meeting between the witness and the defendant (5) and, at this point, the issues of inconsistency with dates surfaced. Not satisfied with the witness’ response to the question, the counsel repeats in line 9, ‘... when was the last meeting held’ reformulating the earlier question in 5. The witness pleads forgetfulness when he says he could not ‘remember the exact date’ of his last meeting with the defendant but referenced an annual event that the organisation usually holds as a point of reference. At this point, counsel concludes that the witness is simply trying to feign ignorance since he has been churning out dates before this time, ‘You seemed to be very sure of your fact, suddenly you are getting loose of the fact’ (sic) (13). Then perhaps to indicate the reason for his dwelling on dates, counsel asks when the advertisements bearing the defendant’s pictures were used by the company. The witness fails to provide a direct answer but simply hazards a guess by saying, ‘... I think, late part of 2007 and early 2008.’ It is here that the conducive nature of wh-questions is once again made apparent. In order to resolve the issue of the witness’ seeming forgetfulness of dates, counsel resorts to repeating the question, ‘... when were they used?’ four times (lines 17, 21, 23 and 25) oscillating between when the photographs were ‘taken’ and when they were ‘used’ by the company. These pragmatic repetitions make the questions constraining as the witness is pressed to give an expected answer. The fact that counsel’s questioning strategy impacted the witness is visible in this exchange. From the moment the wh-questions become highly conducive, the witness begins to show signs of confusion and unpreparedness. For instance, in line 20, he pleads that he never realised the issues of dates were ‘going to come up’ and categorically says, ‘I never start taking note of date.’ Then perhaps latching on the fact that the witness was already showing signs of lack of co-ordination, counsel repeats the question in line 21 ‘When were the shoot taken?’ But in his confusion, the witness says, ‘In our office at No. 32 Adeola Odeku’, mentioning where the shoots were taken instead of when. Not ready to let go, counsel emphatically stresses his discourse goal as he elliptically repeats the question in line 23 by simply asking, When? The witness’ response, ‘I don’t know the date’ did not please counsel thus compelling him to repeat the question once again in line 25 ‘When were these shots used?’ Perhaps jolted by the torrents of repeated wh-questions, the witness eventually offers a categorical answer, ‘I started seeing them early 2008.’ Having secured a desired answer, counsel uses his evaluative comments to point out that the witness was not really consequential in this matter since he merely ‘lobbied’ for the defendant to be used for the promotion and thereafter played no significant role in the campaign. By this, counsel gains a two-prong victory. He successfully impeached the testimony of the witness and also showed that the witness was not a major decision maker in the organisation and so may not be in a position to speak for the company on why it has failed to compensate the defendant for using advertisements in which he featured as a model.

One of the hallmarks of the adversarial justice system is the question-and-answer sessions of the examination phase of court trials. Many researchers have established that counsel in cross-examination sessions usually prefer confirmation-seeking questions (Luchjenbroers 1997, Raymond 2003, Anowu 2017). Generally, confirmation-seeking questions are closed-ended questions which elicit a minimal yes or no response. They are made up of such question types as declarative questions, yes/no questions and tag questions. All of these question types are conducive in nature.

In courtroom interrogations, counsel generally aim at eliciting statements or responses that make clear the argument being advanced in the trial. This strategy involves getting the witness to make some admissions which when carefully considered help to project the pleadings of counsel. This is what we refer to as pre-meditated or pre-determined discourse goals. For instance, where the witness is made to agree to a set of claims that are basically valid in the normal course of events, counsel would have gained some points before the judge or jury because the witness has simply facilitated the argument of counsel. The same rule applies where counsel desires negative responses to a set of propositions. The important point here is that witnesses are compelled to agree with the discourse goals pursued by counsel through the deployment of conducive questions requiring a yes or no response. This is aptly illustrated in extract CT 3 below.

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The exchange above is an encounter between a respondent counsel and a PW in an election petition tribunal trial in Adamawa State, north-east Nigeria. Counsel’s overall discourse goal here is to impeach the credibility of the witness. More specifically, counsel generally attempts to pick holes in the deposition of the witness which also serves as his evidence-in-chief. He begins with a declarative question which references the 12th paragraph of the witness’ deposition where he avers that the election was ‘conducted in accordance with the election manual’. This statement suits counsel’s discourse goal because his task as a respondent counsel is to prove that the election was held in accordance with the country’s extant laws and without hitches. In seeking the witness’ confirmation of this statement as stated in his deposition, counsel deploys the reported speech marker, ‘you said’. This attributes the statement to the witness. The pragmatic import of the phrase ‘you said’ is such that the witness is confronted with his own statement and left to confirm whether that is exactly what he said. The expected answer here is definitely an affirmative one because a negative response would mean that the witness would be contradicting himself. Notice that the conduciveness of the question is achieved through the infusion of ‘you said’ which foregrounds reported speech. The conduciveness of the opening question is better appreciated when it is reformulated. Assuming the question reads ‘Was the election conducted in accordance with the election manual?’ The level of conduciveness would be quite minimal because the question does not reflect a preference for any answer. The witness can therefore answer either positively or negatively. But such is not the situation with regard to counsel’s first question in line 1 above. Here, the witness is obliged to say ‘yes’ (line 2) since the question is merely seeking to confirm a statement which he made in his deposition and by so doing he advances the discursive goal counsel seeks to accomplish in this cross-examination.

Now as if to seal the edge he has gained in this interaction, counsel presents the election manual as evident in the yes/no question in line 3. Though this question seems not to indicate any preference but it is indeed highly conducive. It is clear that the witness can only respond in the affirmative. This is because it is a continuation of the earlier texts in lines 1 and 2. By asking the witness to confirm whether the manual either held up or being pointed at by counsel is the same one the witness was referring to in his deposition, counsel obviously wants to close the fact that the election took place in accordance with the electoral guideline therefore the results are valid. Again, counsel secures his preferred answer, ‘yes’ (line 4), which is crucial because the witness was simply nullifying the basis of his appearance in the witness stand.

The next two questions in the extract, lines 5 and 7, follow the trend already set in 1 and 3. They are equally conducive but all with the aim of exploiting the loophole provided in the witness’ deposition. Counsel picks on a different topic in line 5. The question counsel puts to the witness here is whether what is contained in the witness’ deposition (line 1) are things that he himself witnessed or things that were reported to him. Going by the rule of courtroom examination, hearsay is not generally admissible as evidence therefore an answer with a positive polarity will certainly serve the interest of the cross-examiner. To accomplish this discourse goal, counsel deploys a declarative question prefixed with the discourse marker ‘so’. It is our argument here that the pragmatic import of this discourse marker triggers the conduciveness of this question. The use of ‘so’ in this context stirs the response to a positive polarity which is exactly what counsel desires here. The discourse maker seems to give an air of finality to the question thus making it read more like, ‘In conclusion, all that you stated in your deposition are mere hear say?’ Thus, this question is primed to produce a positive response which again will enhance counsel’s discourse goal. On the other hand, it is inconceivable that the witness will answer in the positive since no one would want to have their evidence shut down on the ground that they are based on hearsay. However, surprisingly, and perhaps due to ignorance of the rules of evidence, the witness gives an affirmative response and once again giving counsel an edge in this cross-examination.

The conduciveness of the last question in this extract (line 7) revolves round counsel’s use of the negative word ‘not’. While still pursuing the discourse goal of making the witness’ appearance in the witness box of no effect, counsel seeks to know whether the complaint brought by the witness occurred in his own polling unit that is where he actually voted. A declarative question is once more deployed here but the pragmatic significance of the word ‘not’ is very crucial. The emphatic nature of the utterance, ‘... was not challenged’ coupled with the imaginary infusion of an elliptical tag question, ‘was it’ makes the preferred response or answer highly negative. Of course, a negative response would further diminish the relevance of the evidence adduced to by this particular witness. The point here is that he probably has no business being in the witness stand since no complaints emanated from his polling station. This ties up with line 5 of this exchange where counsel raises the fact that the witness’ deposition is entirely based on hearsay which is generally inadmissible in courts (Anyebe 2019). Although the witness answers this question in the affirmative instead of the preferred negative response which the question anticipates by reason of its framing, it is quite glaring that his ‘yes’ is a confirmatory ‘no’. This is a reflection of the tendency among some Nigerian users of English to say ‘yes’ when they actually mean ‘no’ and vice versa (Daramola 2012). It is a sociolinguistic phenomenon flowing from the fact that the interlocutors use English as a second language.

In election petition tribunals such as the case under consideration in this section, establishing that rules were followed and that due process was adhered to is crucial to validating an election. To achieve this, counsel deploys a series of confirmatory questions all made conducive by the fact that they are laden with presuppositions (Belnap 1966, Hickey 1993, Ehrlich & Sidnell 2006). The basis of the presupposition is the shared knowledge of the election process which counsel exploits profusely. In this section (extract CT 4), we shall examine how counsel attempts to prove the authenticity of election results by stressing that due process was followed in the conduct of the election.

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The pragmatic tool counsel employed for the conduciveness of the questions in this sample is presupposition. This pragmatic tool shows that the interlocutors have shared knowledge. In this case, counsel seeks to exploit the shared knowledge on the due process involved in the collation of election results. The PW here is challenging the results of the election held in Adamawa State while counsel’s legal plead is to prove that the results are authentic. The use of presupposition commences from line 1 where counsel seeks to confirm whether the witness’ political party had agents in the 10 units that make up the electoral ward the petitioner is disputing. This question has a positive orientation because it is common knowledge that political parties usually assign representatives to both polling and collation centres in order to safeguard their interest. So counsel already knows the answer is yes. Next, following up on the presupposition deployed in the first question, counsel asks the witness whether his party’s agents witnessed the election process from commencement to the announcement of the results. Once more, counsel gets the desired positive answer (line 4). However, at this juncture, the witness begins to understand the strategy counsel is deploying so he quickly mitigates his affirmative answer by saying the agents stayed on to the end of the election in order get the copies of the results. Completely ignoring the extra comment by the witness, counsel moves to his third question (line 5) by asking whether the results (ballots) were taken to the collation centre in the ward for which he gets another affirmative response. Then the fourth question (line 7) still a declarative yes/no eliciting question seeks to confirm whether the results were actually collated at the collation centre which again prompts a yes response from the witness. The fifth question (line 9), a confirmation-seeking question like the other four, stresses that the witness’ collation agent actually witnessed the collation of the results to which the witness answers, ‘yes’ and adds ‘he was there’ for emphasis. In the final question (11), counsel moves away from the declarative questions but instead employs a yes/no question with the primary auxiliary verb ‘are’ serving as the head in this inversion. This produces a special effect of driving home the presuppositions counsel has deployed so far. By asking whether the witness is aware that the agents of his political party signed the result sheets after the results were collated, counsel again emphasises a presupposed act in the process of electioneering. The question simply points out the normal course of action or event in any decently organised election. Except where there are irregularities or disruptions, the question demands a positive response and this will nullify the basis of challenging the results of the election. The witness seems to know this so instead of responding in line with the positive orientation of counsel’s question, the simply says, ‘I don’t know.’ He avoids a yes or no response because the answer is obvious enough. Counsel’s exploit of presupposition that is the shared knowledge on the process of election made the confirmation seeking questions deployed in this extract highly conducive. Through this cross-examination, counsel proves that the election went well as and the responses from the witness himself corroborates that.