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## A question of control? Forms and functions of courtroom questioning in two different adversarial trial systems

Sune Sønderberg Mortensen Roskilde University

sunes@ruc.dk

## Abstract

Th is paper compares the questioning of witnesses and defendants in American and Danish courtroom interaction on the basis of one American and three Danish  criminal  trials.  A  total  of  780  questions  are  analysed  in  terms  of their morphosyntactic properties as well as speech act functions. Following a  general  discussion  of  courtroom  questioning  and  the  notions  of  coercion and control, as well as an outline of legal cultural diff  erences and similarities between  American  and  Danish  courtroom  interaction,  a  coding  system  is developed for the linguistic comparison, and initial quantitative results of the comparison are discussed. Particular attention is given to declarative questions and the 'communicative' speech act function, as the linguistic and interactional features of these are shown to be explored in quite diff  erent ways in accordance with the legal and cultural contexts in which the courtroom questioning takes place. 1

Keywords: Questioning, Morphosyntax, Courtroom interaction, Pragmatics, Legal cultures, Coercion, Control

## 1. Introduction

Nearly all literature relating to a court context, whether real or fi  ctional, recognizes  the  importance  of  questions  as  the  primary  means  of obtaining information from defendants, witnesses, and in fact all those who take the stand in a courtroom. (Harris 1984:5-6)

When studying questions as a linguistic and interactional phenomenon, it is almost as hard to ignore trial examinations as a prototypical site of questioning, as it is to ignore questioning when studying what goes on in a trial. Th is paper investigates  formal  and  functional  aspects  of  the  questions  asked  by  the lawyers and prosecutors in one American and three Danish criminal trials. While  courtroom  questioning  has  been  extensively  treated  from,  amongst others,  conversation  analytical  (e.g.  Atkinson  and  Drew  1979),  critical discourse analytical (e.g. Erhlich 2001) and forensic linguistic (e.g. Gibbons 2003) perspectives, only few studies off  er direct comparisons of courtroom questioning  in  different  countries  and  legal  cultures.  Such  comparative approaches  -  e.g.  Bednarek  (2014)  -  typically  contrast  the    (in)famous adversarial  practices  of  Anglo-Saxon  common  law  courts  with  the  less fl   amboyant, and less studied, inquisitorial trial practices of European civil law courts. However, Danish (and other Scandinavian) courts seem to diff  use this basic dichotomy as they resemble Anglo-Saxon adversarial courts in terms of formal organisation and participation structures, but lean closer to - and even  surpass  -  European  inquisitorialism  in  terms  of  relaxed  interactional atmosphere.

Th e direct comparison off  ered here of these two diff  erent approaches to adversarial legal practice is thus an attempt to shed light not only on particular linguistic  and  interactional  features  of  American  and  Danish  courtroom questioning, but also on their strategic and legal cultural underpinnings. As linguistic investigations of Danish courtroom questioning are so far virtually non-existent, the case study has a general explorative aim, yet also a particular interest  in  one  of  the  salient  traits  commonly  attributed  to  adversarial  courtroom questioning: lawyers' tactical use of specifi  c question types as means to control the interaction with their witnesses and, in eff  ect, the testimony they can off  er and the inferences that can be drawn from it by the judge and jurors listening. As the initial quantitative analysis points to intriguing diff  erences concerning especially one particular question type, viz: declarative questions - a question type commonly regarded as highly controlling - particular attention is given to declarative questions and their uses and functions in the trials.

## 2. Understanding courtroom questioning

## 2.1. Control and coercion through questioning

Ever  since  the  peculiarities  of  witness  examinations  became  a  focus  of interactional  analysis  (Danet  et  al.  1976,  Atkinson  1979,  Atkinson  and Drew 1979, Dunstan 1980), the constraining and potentially coercive force of questions has been a key area of research in courtroom language. While (typically) emphasising the importance of contextual and interactional factors, many  such  studies  explore  the  constraining  force  of  questions  as  partial refl  ections of their morphosyntactic properties (e.g. Danet and Bogoch 1980, Harris 1984, Woodbury 1984, Adelswärd et al. 1987, Gibbons 2003, Archer

2005, Mortensen 2018, Seuren 2019). From this perspective, several authors have proposed clines representing the degrees of control said to be exerted by diff  erent types of questions asked by lawyers to witnesses and defendants during trial, e.g.:

Four  basic  question  forms  predominate  in  American  courtrooms,  as refl  ected in our data: (1) declaratives (with or without what linguists call a  tag  at  the  end;  e.g.,  'Y ou  did  it,  didn't  you?');  (2) interrogative  yes/ no questions ('Did you do it?') or choice questions ('Did you arrive at nine or at ten o' clock?'); (3) interrogative-wh questions (who-whatwhere-when-why questions, as in 'What did you do that night?'); and (4) ' requestions ' , which may be interpreted as literal questions about the condition or ability of the hearer, or, more conventionally, as indirect requests for information (e.g., 'Could you tell us what happened that night?' One can either answer 'Yes, I could' , or go ahead and tell.). In the order just presented, these four question forms range from those which most constrain and control the witness (or at least aspire to do so),  to  those  which  least  constrain  him/her.  We  view  declaratives  as the most coercive, and, on cross-examination, as combative, since they assert more than they ask. (Danet and Bogoch 1980:43)

Some early studies, such as the work by Danet and Bogoch, were criticised for not looking beyond morphosyntax and taking the interactional nature of questioning into account, e.g.:

…  they  attempt  to  assert  a  simple  relationship  between  linguistic form and coercion, declaratives being stipulated as the most coercive questions,  interrogatives  as  slightly  less  so,  etcetera.  Th is  claim  does not survive a preliminary and cursory consideration of how recipients do  treat  the  diff  ering  question  forms  for  their  alleged  coerciveness. (Dunstan 1980:65)

While scholars continue discussing how to account for contextual, pragmatic, interactional  and  extra-linguistic  factors  in  courtroom  questioning  (and questioning in general, see e.g. Stivers 2010, Heinemann 2010), they share the basic assumption that the morphosyntax of questions somehow correlates with the degree or nature of interactional control exerted through the questions (Harris 1984, Schegloff   1984, Woodbury 1984, Adelswärd et al. 1987, BülowMoller  1992,  Luchjenbroers  1997,  Gibbons  2003,  Archer  2005,  Gibbons 2008,  Harris  2011,  Mortensen  2018,  Seuren  2019).  A  notable  outcome  of this approach is Archer's (2005) scalar model of courtroom question types, adapted from Woodbury (1984):

Figure 1: Continuum of control in question types (Archer 2005:79)

| Type of question                                                                                                             | Amount of control   | Conducivity   | Type of response question-type typically expects                                                                                                                                                          |
|------------------------------------------------------------------------------------------------------------------------------|---------------------|---------------|-----------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------|
| 1. Broad wh- 2. Narrow wh- 3. Alternative 4. Grammatical yes/no 5. Negative gram yes/no 6. Declarative 7. Tagged declarative |                     |               | - Open range - Naming of specific variable - Choice of answers restricted to 1 of 2 provided by questioner - Yes/no - Anticipated response, whether affirmative or negative - Confirmation of proposition |

Th e  examples  below,  taken  mainly  from  the  American  data  set  (which  is introduced in section 3.), briefl  y illustrate each of the question types mentioned in the model:

- (1) Broad wh -question

DFL 2

:  Okay. So, let's talk about what happened on August 19, 2015.

What were you doing that night? 3

DFW:  I was at home actually, and I received a call - had to be around 11:00 o' clock or so at night. And… [Narrative follows]

- (2) Narrow wh -question

DFL:

Roughly, what time of day was it?

DFW:  Midnight-ish, or what have you

- (3) Alternative question

DFL:

Do you consider yourself a 'fi  ght' person or a 'fl  ight' person?

DFW:  I beg your pardon?

- (4) Grammatical yes / no -question

DFL:

Did you tell them to get away from your property?

PRW:  I did

- (5) Negative grammatical yes / no -question 4

PRC: kunne du ikke mærke modstand i dine bevægelser

' couldn't you feel resistance in your movements'

DEF:

jeg kan ikke mærke øh jeg kan ikke mærke det fordi det gør rigtig ondt her

'I can't feel uh I can't feel it cause it hurts a lot here'

- (6) Declarative question
- (7) Tagged declarative question

DFL:

And, to your knowledge, he had no weapons with him?

PRW:  None that I saw

DFL:

But, he was leaning out of the truck, correct?

DFW:  Leaning out of the window

At a glance, Archer's (and Woodbury's) model resembles the kind of scalar account proposed by Danet and Bogoch (1980), as quoted above. However, in addition to off  ering a more fi  ne-grained classifi  cation of questions, one of its merits is the adoption of 'control' , rather than 'coercion' , as its central semantic variable. Many other authors prefer 'control' as well (see e.g. Eades 2000:168), while  the  reasons  for  this  are  never  clearly  addressed.  'Coercion' ,  in  most senses, implies a degree of unwillingness on the part of the coerced (e.g. www. dictionary.cambridge.org, www.collinsdictionary.com), which is not inherent in 'control' . Whether or not the respondent's unwillingness is actually assumed or suggested in studies of 'coercive' questioning is oft  en less than clear, since ' coercion' and 'control' (and other related terms) tend to be used 'more or less synonymously' (Eades 2000:168). In any case, the potential 'unwillingness' reading  muddles  the  distinction  between  describing  the  controlling  force of  particular  question  types  and  describing  how  the  exerted  control  may, in  particular  contexts,  undermine or support the stance and agenda of the respondent. Further, as Bülow-Moller (1992) and Aldridge and Luchjenbroers (2007) illustrate, questions may be coercive, in the sense of undermining or framing the witness against their will, through the sheer inferences they compel the judge and jury to make regarding the witness and their testimony, rather than  through  the  controlling  force  of  the  question  types  themselves.  Th us, the notion of 'coercion' may entail locating the analytical attention closer to the respondent, while 'control' arguably emphasises the semantic, pragmatic and interactional features of the questioning itself. Th at is, Archer's model '… helps us to highlight the amount of control an examiner may be attempting to exercise over the discourse… ' (Archer 2005:78)

Following Archer, what is being impacted by means of a particular question type is the discourse, including the repertoire of appropriate responses made available  to  the  respondent.  By  centring  the  notion  of  question  control  at the level of discourse, Archer deviates from Woodbury (1984), who refers to control less strictly as ' … the degree to which the questioner can impose his own interpretations on the evidence. ' (Woodbury 1984:199). Th is defi  nition, reminiscent of  the  understanding  of  'coercion'  discussed  above,  potentially confl  ates the controlling force of questions with the possible tactical benefi  ts the exerted control may lead to in the courtroom, contrary to Woodbury's explicit interest in '… keeping separate the illocutionary force and the intended

## Sune Sønderberg Mortensen

or  actual  perlocutionary  force  of  a  given  question . '  (Woodbury  1984:199). Discursive control, as realised through questioning, may be rightly conceived as a - to some extent scalable - semantic feature refl  ected in the morphosyntax of  various  question  forms.  Th e  possible  interactional,  social  and  strategic eff  ects realised through such controlling questions, which may in some cases be seen as coercive, are complex, context-bound features dependent not only on  the  discursive  constraints  exerted  by  the  question  type  itself,  but  also on e.g. the topic discussed and the sequential position of the question (e.g. Adelswärd et al. 1987, Archer 2005), the lexical framing devices employed (e.g. Gibbons 2003, Aldridge and Luchjenbroers 2007), the social and institutional relationship  between  questioner  and  respondent,  the  nature  of  the  case and, ultimately, the wider legal cultural (Damaška 1997, Rosen 2008) and (langua)cultural (Agar 1996, Risager 2005, Levisen 2012) context in which the trial takes place.

## 2.2. Comparative approaches to courtroom questioning

Many studies of courtroom questioning are concerned with how the uses of question types and questioning styles diff  er  in  particular  kinds  of  contexts and trial activities. For example, discussions oft  en involve diff  erences between the questioning styles employed in direct examination and cross-examination (Atkinson and Drew 1979, Danet and Bogoch 1980, Woodbury 1984, Archer 2005,  Gibbons  2008,  Bednarek  2014,  cf.  section  2.3.  below),  or  between courtroom questioning and other kinds of questioning or casual conversation (Atkinson  and  Drew  1979,  Atkinson  1992,  Gibbons  2003,  Heritage  and Clayman 2010). Diff  erences relating to various categories of cases have also received  attention,  e.g.  in  Danet  and  Bogoch  (1980)  and  Adelswärd  et  al. (1987), who investigate how questioning styles refl  ect the seriousness of the accusation. Bednarek (2014), as one of the only studies, compares the use of question types in witness examinations across two diff  erent legal systems and languages,  i.e.  the  adversarial  system  of  trial,  represented  by  an  American case, and the European inquisitorial system of trial, represented by a Polish case. No linguistic studies of Danish courtroom questioning exist, although questioning in a Danish courtroom context has been discussed from e.g. legal sociological,  psychological  and  rhetorical  perspectives  (Smith  1986,  Staff  e 2008, Beyer 2013). Other aspects of Danish courtroom interaction have been treated in Jacobsen (2002), Mortensen and Mortensen (2017) and Mortensen (2019), the latter comparing the use of interjections in American and Danish trial examinations, as refl  ections of legal cultural diff  erences. Th e present paper pursues this perspective further in another direction, comparing aspects of the questioning styles employed in American and Danish courtroom interaction.

2.3. Adversarial courtroom questioning in the United States and Denmark Th e legal tradition followed in the United States and other English-speaking countries is the common law tradition, where the adversarial system of trial is practiced, as opposed to the inquisitorial system of trial practiced in most of Continental Europe:

Adversarial and inquisitorial procedures are structured around diff  erent normative views of the trial.  Under  the  adversarial  ideal  the  law  is  a game, courts are where the contest takes place, and the goal of criminal procedure is to make sure the outcome is fair, even if the prosecution does not uncover the truth […] Under the inquisitorial ideal, the goal of the law is fact fi  nding, and the criminal trial is a search for truth. (Kahn 2004:13)

As  discussed  in  Anderson  (1992),  Doak,  Mcgourlay  and  Th omas  (2018) and  Mortensen  (2019),  the  Danish  legal  system  may  be  characterised  as a  hybrid  between  the  two  major  systems,  though  adversarial  in  essence due to its  structural  organisation.  Danish  courtrooms  adopt  an  adversarial participation  structure  similar  to  Anglo-Saxon  trial  settings.  Th is  involves, among  other  features,  opposing  advocates,  i.e.  prosecutors  and  defence lawyers actively representing their side of the case, and the recursive dialectic interplay between two modes of questioning known as direct examination or examination-in-chief  (Danish:  'afh øring')  and  cross-examination  (Danish: 'modafh   øring'). Th e two modes of questioning are characterised as follows by Danet and Bogoch, based on the American courtroom context:

Direct examination is the rehearsed questioning by attorneys of their witnesses,  while  cross-examination is  the  unrehearsed  questioning  of the other side's witnesses. Th e purpose of cross-examination is to test the credibility of the other side's witnesses and, if possible, to destroy or reveal inconsistencies and gaps in their testimony presented during direct examination. (Danet and Bogoch 1980:37) 5

American adversarial courtroom interaction is infamously harsh, formal and impersonal,  especially  during  cross-examination,  but  even  'friendly'  direct examination in the adversarial context is known to be formal and impersonal compared to most other kinds of conversation or interviewing.

Th e whole point of the exchange is to solicit a response that will inform the  jury,  who  are  watching  and  listening  and  will  eventually  pass judgment on the case. Th is state of aff  airs is confi  rmed and reinforced by the attorney's practice of not responding to the answers with 'oh' , or indeed with any kind of receipt object ( yeah , uh huh , etc.). (Heritage and Clayman 2010:175)

Th e  Danish  courtroom, on the other hand, while essentially adversarial, is characterised interactionally by an unaggressive, casual and even communal approach  to  fact-fi  nding,  reminiscent  of  inquisitorial  ideals  (Kæraa  2011, Doak, McGourlay and Th omas 2018, Mortensen 2019), further enforced, it would appear, by more general languacultural traits of 'Danishness' (Fredsted 2005, Levisen 2012). Mortensen (2019) illustrates how these diff  erent legal traditions  and  languacultural  norms  manifest  themselves  linguistically  in trial examinations through the ways in which Danish and American lawyers provide listener feedback in response to their witnesses' testimony:

… the Danish lawyer frames the defendant's contributions as generally new and informative, although he - and the rest of the court - is likely to know most of the details in advance. In the American examination, on  the  other  hand,  the  testimony  is  treated  not  so  much  as  actual information being exchanged but […] rather as artefacts, as it were, i.e. pieces of a story being recited and put to display. (Mortensen 2019:168)

In the following sections, I present the data and method for examining how the two diff  erent adversarial systems manage aspects of the questioning itself.

## 3. Data and method

## 3.1. American and Danish courtroom data

Th e  data  studied  are  gathered  from  one  American  criminal  trial  and  three Danish criminal trials, refl  ecting the fact that American courtroom questioning is already well-treated in the literature. Th us, the American data set may be seen as a control corpus to allow comparison with the more extensive Danish data set.

Th e American criminal trial - also referred to as US1 - took place at the Seattle Municipal Court, Washington in 2016, and concerns harassment, i.e. a misdemeanour-level off  ense. Th e offi cial court transcript constitutes the data from this trial. It was kindly provided to me by Th e Defender Association in Seattle.

Th e Danish criminal trials - individually referred to as DK1, DK2 and DK3 - took place at the Court of Frederiksberg, Copenhagen in 2014 (DK1 and DK2) and 2018 (DK3). Th ey all concern physical assault and are comparable to the American trial in terms of severity of the potential punishment. DK1 concerns  the  alleged  assault  on  a  parking  offi cer,  DK2  concerns  fi  ghting between neighbours, DK3 concerns the alleged assault on a security offi cer in a shopping mall. Audio recordings of the trials were automatically conducted by the court and, following the explicit consent of all individuals featured, kindly made  available  for  linguistic  research  purposes. 6 Th ese  audio  recordings, manually  transcribed  using  CLAN  transcription  soft  ware,  constitute  the Danish data.

For both the American and the Danish data set, only witness examinations by  prosecutors  and  defence  lawyers  have  been  included,  meaning  that  all interactions between prosecutors, lawyers and judges, and between judges and witnesses, have been left   out of the analysis. On this basis the total number of questions  treated  from  the  American  data  is  157,  spread  over  4,437  words spoken, while the larger Danish data set features 623 questions, spread over 35,097 words in total.

Furthermore, both data sets have been subcategorised into direct examinations and cross-examinations,  as  this  distinction  is  known  to  be  a potential explanatory factor for some of the variation in courtroom questioning styles (cf. section 2.2. above). Th us, 95 of the 157 questions in the American trial were asked during direct examinations and 62 were asked during crossexaminations. Correspondingly, the Danish data features 343 questions asked during  direct  examinations  and  280  asked  during  cross-examinations  (cf. appendix 4).

## 3.2. Coding and analytical procedure

In  order  to  systematically  compare  the  questioning  styles  employed  in  the American  and  the  Danish  trials,  I  combine  quantitative  and  qualitative analyses  of  the  forms  and  functions  of  the  questions  occurring  in  the  two data  sets.  For  the  quantitative  analysis  I  employ  a  general  question  coding framework  developed  and  discussed  in  sections  3.2.1.,  3.2.2.  and  3.2.3. below.  Th e  classifi  cation  features  an  adapted  version  of  Archer's  model  of morphosyntactic question types (cf.  Figure  1  above)  as  well  as  a  model  of speech  act  functions  applying  to  questions.  In  sections  4.1.,  4.2.  and  4.3., overall quantitative fi  ndings are presented and discussed, comparing salient questioning  patterns  of  the  American  and  Danish  data.  Th e  quantitative fi  ndings  have  not  been  tested  for  signifi  cance  but  are  used  heuristically  to inspire the qualitative analysis and discussion of particular aspects of the data following in section 4.4. I generally refer to appendices 1, 2, 3 and 4 for complete quantitative  overviews  of  the  questions  treated,  including  all  classifi  cations and cross-classifi  cations of question types and speech act functions in direct and cross-examinations. Data from each of the three Danish trials, DK1, DK2 and DK3, are presented in appendices 1, 2 and 3, respectively, while appendix 4 presents the data from US1 juxtaposed with the aggregated data from DK1, DK2 and DK3.

## 3.2.1. What counts as a question?

A fi  rst  step  in  the  coding  process  was  to  mark  up  all  questions  occurring in  the  two  data  sets.  I  generally  agree  with  Adelswärd  et  al. 's  (1987)  fairly encompassing notion of a 'courtroom question':

Note that in this  analysis  we  use  a  comprehensive, contextual overall defi  nition of 'question'; in eff  ect, all professionals' turns (in the dialogue phases of trials) were interpreted as questions to the defendant, unless such an interpretation was virtually excluded. Deferring questions […] are, however, not included. (Adelswärd et al. 1987:338)

However, treating questions simply as 'turns' in their entirety would not allow for manageable morphosyntactic classifi  cation of the questions, seeing that a questioning turn may feature several prefatory statements (e.g. Clayman and Heritage 2002) introducing the 'actual' question, e.g.:

## (8) Prefatory statements preceding question, DK2

DFL:  øh [NAME] øh jeg vil godt lige spørge lidt lige for at få øh øh lidt mere omkring baggrunden xxx det er også noget vi kommer tilbage til xxx personlige forhold med med men øh: øh hvor længe er det du har kendt øh [NAME]

'uh [NAME] uh I'd just like to ask a bit to get uh uh a little more regarding the background xxx it's also something we'll return to xxx personal conditions with with but uh: uh how long is it you've known uh [NAME]'

In order to single out the questions within the turns, I follow Archer's (2005) general  approach,  based  on  Stenström  (1988),  among  others,  and  take  a number of features into account in what is essentially a hermeneutic process of delimiting 'elicitation acts':

I will make use of the three levels that form the basis of [Stenström's, ed.] approach when identifying my own questions. Th at is to say, (i) the lexical, grammatical and prosodic aspect (i.e. form), (ii) the speech act aspect (i.e. force), and (iii) the discoursal aspect (i.e. discourse structure) (Archer 2005:52)

Stenström (1988) defi  nes an elicitation act broadly as ' … an utterance that may  elicit  an  R [i.e.  a  response,  ed.] … ' ,  covering  ' … not  only  requests  for information but also requests for confi  rmation and acknowledgment. My criteria for  R  function  are  placement  and  appropriateness… '  (Stenström  1988:308). Adopting this functionally broad, yet structurally constrained, understanding of questions, I include - unlike Adelswärd et al. - 'deferring questions' , i.e. ' … repair questions asking for repetition, confi  rmation or simple clarifi  cation of something contained in the interlocutor's preceding turn. ' (Adelswärd et al. 1987:328, repeated from the above quote), as these are indeed also elicitation functions. In fact, as will become clear, questions of this kind play an important role  in  explaining  some  of  the  central  diff  erences  between  the  questioning styles observed in the data.

## 3.2.2. Morphosyntactic classifi  cation

Each question occurring in the data was classifi  ed in terms of morphosyntactic form  as  well  as  speech  act  function.  Th e  morphosyntactic  coding  scheme employed  for  both  the  American  and  the  Danish  data  is  adapted  from Archer's model (cf. Figure 1 above). While the model is explicitly developed to  account  for  questioning  in  English,  it  can  be  applied  to  Danish  data  as well, since the question types available in Danish are more or less equivalent, morphosyntactically, to those of English (see Heinemann 2010, Stivers 2010, Hjulmand and Schwarz 2017). 7  While the classifi  cation, as illustrated in the following sections, is rooted in formal properties of the questions, most of the categories involve some degree of semantic and contextual judgement as well.

## Broad and narrow wh -questions

Although  the  Danish  equivalent  to wh -questions  feature  an hv -element instead of wh,  I  use wh -questions as a general term for the English as well as the Danish occurrences. I moreover adopt the rough distinction between those  asking  broadly  for  e.g.  descriptions,  narratives,  explanations,  etc.  oft  en introduced by e.g. how , why , what etc. (and Danish equivalents such as hvordan , hvorfor , hvad ) - and those asking for specifi  c pieces of information, oft  en  introduced by e.g. when , where , which , what (in  Danish e.g., hvornår , hvor , hvilke , hvad ).  Note that what / hvad is  mentioned in both categories to illustrate that the classifi  cation of some wh -questions as broad or narrow does not rely on their form alone, but involves lexical and contextual interpretation, e.g.:

- (9) hvad -question classifi  ed as broad, DK1 PRC:  øh men hvad er det der sker om eft  ermiddagen den [DATE]

(0.5) hvor du er på job

'uh but what is it that happens in the aft  ernoon on [DATE] (0.5) when you're at work'

- (10) hvad -question classifi  ed as narrow, DK2
2. PRC:  og hvad hvad hedder de to naboer til fornavn

'and what what are the fi  rst names of the two neighbours'

## Alternative questions

Alternative questions are questions through which the respondent is off  ered a ' choice of answers restricted to 1 of 2 provided by questioner ' (Archer 2005:79, cf. Figure 1), e.g.:

- (11)
- Alternative question, US1 DFL:  Is it like a SUV , or is it a truck? PRW: It's an SUV.

Alternative questions consist of two (or more) yes / no -questions coordinated by disjunction, and do not licence a confi  rmation or disconfi  rmation but '… a  response  consisting  of  one  of  the  alternatives  mentioned  in  the  question… ' (Archer 2005:49, see also Sadock 2012:107). A similar kind of alternative may be off  ered through declarative questions, e.g.:

## (12) Alternative declarative question, DK1

PRC:  ja jeg skal bare lige høre (.) parkeringsvagten tager fat (.) med sin højre hånd (.) eller med sin venstre hånd

'yes I' d just like to know (.) the parking offi cer grabs hold (.) with his right hand (.) or with his left   hand'

(1.3)

DFW: det er hans højre hånd

'it' s his right hand'

However,  only  the  prototypical  alternative  question,  featuring  subject-verb inversion, is treated as a category in this study, while the marginal declarative variant is assigned to the 'other/indeterminable' category (described below).

## Yes / no -questions

Rather than Archer's term 'grammatical yes/no-question' (which may lead to the misconception that some question types are not grammatical, or that this question type has a default status), I use the term ' yes / no -question' for inversion questions that license yes or no as default answers. I will not discuss this question type at length, but refer to example (4) above for illustration.

I will disregard Archers' variant 'negative grammatical yes/no-questions' (cf. example (5) above) as an individual category, as it is virtually non-existent in the data, and in principle hard to distinguish from regular yes / no -questions featuring e.g. 'inner negation' (Buring and Gunlogson 2000) or 'propositional negation' (Hansen and Heltoft   2011).

## Declarative questions

Like Archer, I distinguish between plain declarative questions and declarative questions with a fi  nal tag, cf. examples (6) and (7) above. While a questioning tag usually marks a declarative sentence unmistakably as a question, untagged declarative  questions  do  not  have  morphosyntactic  features  that  clearly identify them as questions. Some studies (e.g. Quirk et al. 1985, Huddleston and Pullum 2002) assume or argue that declarative questions can be identifi  ed prosodically, e.g.:

Th e declarative question is a type of question which is identical in form to  a  declarative,  except  for  the  fi  nal  rising  question  intonation.  It  is rather casual in tone:

You've got the explosive? ... (Quirk et al. 1985:814)

However,  systematic  investigations  indicate  that  rising  intonation  is  not  a consistent  feature  of  declarative  questions  and  cannot  be  the  sole  criterion for  identifying  them  (Geluykens  1988,  Grønnum  2005,  Heinemann  2010, Stivers  2010).  In  fact,  according  to  Grønnum  (2005),  Danish  declarative questions feature a fl  at intonation contour, at the most, while other question types display various degrees of falling intonation. Th us, since there are no obvious formal features to distinguish declarative questions from other kinds of declaratives, my classifi  cation is partly based on semantic and contextual interpretation, including the interactional behaviour of the respondents. As mentioned, I generally align with Adelswärd et al. 's notion that all contributions by prosecutors and lawyers can be understood as (parts of) questions, because questions are the only contributions allowed for them during examinations.

Moreover, it should be noted that declarative clauses, like many other kinds of sentential and non-sentential expressions, can also occur in backchanneling functions that do not constitute turns nor elicit answers, but encourage the respondent  to  continue  talking  (Deng  2009:114);  I  do  not  interpret  such occurrences as questions, and they are excluded from the analysis, e.g.:

- (13) Declaratives not included as questions, DK3

PRC:  okay så bare sådan at vi lige får det sådan helt øh i skåret ud i øh så der ikke er tvivl om hvad det er der sker øh ud fra fra dit synspunkt så så det der sker det er at I I I er på rulletrappen på vej op er det korrekt forstået

' okay so you know just so we get it completely uh nailed down uh so there's no doubt about what it is that happens uh from from your point of view so so what happens is that you you you're on the escalator going up is that correctly understood'

DEF: på hen på vej hen til rulletrappen

' on to on our way to the escalator'

PRC: I er på vej hen til rulletrappen

'you're on your way to the escalator'

DEF: idet jeg stiller stolen fra mig lige det der jeg stiller den fra mig så tager han fat i mig

'as I put the chair down right there when I put it down then he grabs hold of me'

PRC: så tager han fat i dig

- 'then he grabs hold of you'

DEF: og jeg ser ingen grund til at han tager fat i mig fordi jeg har stillet stolen fra mig og jeg er jo ikke på vej væk

'and I don't see any reason why he grabs hold of me because I've put down the chair and I'm obviously not going away'

PRC:  okay

' okay'

On the other hand, declaratives that repeat the respondent's statement may in other contexts function as questions, also known as echo questions, as they ' … echo the stimulus, what has just been said, with a view to questioning some aspect of it …' (Huddleston and Pullum 2002:855, cf. also Quirk et al. 1985, Noh 1998). Such echo questions are included as declarative questions and are recognised through the presence of an answer by the respondent, e.g.:

- (14)
- Declarative as echo question, DK1 DFW:  fordi der sker hele tiden noget nyt derude

'because there's something new going on all the time out there'

(1.2)

PRC: der sker hele tiden noget nyt derude

'there's something new going on all the time out there'

DFW:  hele tiden noget nyt derude ja

'something new all the time yes'

PRC: ja

'yes'

## Tag questions

A  questioning  tag  following  a  declarative  clause  marks  the  clause  as  a  tag question. Tags may vary in form between single words, fragments and full clauses, e.g.:

- (15) Tag question, single-word tag, DK1

DFL:

det er den dag ikke

<!-- formula-not-decoded -->

- Tag question, fragment tag, DK3 DFL:

og du kommer altså ned ad en rulletrappe eller hvad

'and so you're heading down an escalator or what'

PRW:

øh øh rullebånd ja f- ja

'um um travelator yes f- yes'

- (17) Tag question, full-clause tag, DK3

DFL: okay som jeg forstår dig så er det sådan at at han er ikke alene om at få dig ned på jorden er det rigtigt

' okay the way I understand you it is so that that he's not alone in getting you down to the ground is that right'

Especially  in  the  case  of  full  clauses,  determining  whether  they  are  to  be treated as tags or as separate utterances is an assessment hinging on semantic and contextual interpretation. While prosody would appear to be a relevant criterion, the fact that the American data merely consist of a court transcript,

- (16)

void  of  prosodic  evidence,  rules  out  such  an  approach.  Punctuation  and orthography  do  appear  to  represent,  to  some  extent,  the  transcriber's interpretations regarding potential tags, as the choices vary, even within single turns and sequences, e.g.:

- (18)
- (19)
- Transcription of potential tag questions, US1

PRC:  So, there were, by my count, four people in this car, correct? You, [NAME], your sister and your daughter. Correct?

- Transcription of potential tag questions, US1

PRC: Okay. And, that you knew that the defendant and your son's current girlfriend have two children, right?

PRW:  Yes.

PRC: Okay. And, your son's current girlfriend is [NAME]. Is that correct?

PRW:  Yes.

PRC:  And, on [DATE] 2015 when this incident occurred, you were aware that your son and the defendant didn't have a particularly good relationship, correct?

Ultimately,  however,  my  classifi  cation  does  not  rely  on  these  transcription features as decisive criteria, as it is impossible to know whether this kind of variation  is  due  to  conscious  interpretation  or  inconsistency.  Th us,  I  have classifi  ed  all  of  the  highlighted  questioning  elements  in  examples  (18)  and (19) above as tags attached to the preceding sentences, even though 'Correct?' and 'Is that correct?' are both represented by the transcriber as if they were separate utterances. Th is  classifi  cation  is  based  on  the  observation  that  the questioning  elements  refer  indisputably  to  the  accuracy  of  their  preceding statements and, thereby, eff  ectively override their assertive potential despite possible prosodic pauses before the tags.

## Other/indeterminable

Th e  fi  nal  morphosyntactic  category  contains  a  range  of  constructions  that are for various reasons not covered by the previous categories. Th ey include elliptical,  embedded,  combined  and  otherwise  syntactically  ambiguous questions, as well as imperative constructions, e.g.:

- (20) Elliptical question, DK1

DFL: er det en der fast passer (0.2) det område der

'is he someone who regularly manages (0.2) that area'

DFW:  det var han ja

'he was yes'

DFL:

det var han

'he was'

DFW:  ja

'yes'

DFL:

dagligt (0.3) ligefrem

' on a daily basis (0.3) even'

DFW:  han var der meget tit han var der fl  ere gange om dagen

'he was there very oft  en he was there several times a day'

- (21)  Embedded question, DK1

DFL: kan du: er du så tæt på at du kan høre om (0.1) der (0.6) udveksles bemærkninger ord mellem de to

' can you: are you close enough to hear (0.1) whether (0.6) comments words are exchanged between the two'

- 8 , DK1
- (22)  Combination of syntactic forms interpreted as one question DFL: hvorfor siger han det siger han det ind i en telefon

'why is he saying it is he saying it into a phone'

- (23)  Imperative 9 , US1

DFL: Go ahead and talk about what happened, just don't say anything about what [NAME] said.

## 3.2.3. Speech act classifi  cation

While  questions  are  in  many  speech  act  frameworks,  including  Searle's own (e.g. Searle 1976), treated as a special kind of directive speech act, this classifi  cation  has  been  shown to be simplistic and even inaccurate (see e.g. Levinson  1983:275,  Archer  2005:41ff  ,  Borchmann  2020,  this  issue,  Nielsen 2020, this issue, for discussions). Instead, as suggested in Mortensen (2018), I consider questioning not as a particular kind of speech act but rather as a partly grammaticalised interactional mode through which a range of speech act functions may be realised (see related discussion in Heim and Wiltschko 2020, this issue). Th is understanding of questions builds on the adaptation of Habermas' (1984) speech act theory proposed in Hansen and Heltoft   (2011):

Corresponding  to  the  four  speech  act  dimensions,  four  basic  speech act types can be distinguished:  communicatives,  constatives, representatives and regulatives. Th ey pair with each other in a way that will be elaborated below.

appropriateness representatives regulatives

understanding truth truthfulness communicatives constatives (Hansen and Heltoft   2011:53, my translation)

Some of the  speech  act  types  correspond  roughly  to  Searle's  speech  act  categories, in  that  constatives  canonically  correspond  to  assertives,  representatives (roughly) to expressives, and regulatives comprise directives and commissives, thus dealing with obligations and permissions applying to hearer or speaker (Hansen and Heltoft   2011:64). Yet, Hansen and Heltoft   diverge from Searle as they treat truth-oriented questions as constative speech acts, since they can be said to express uncertainty about the truth of a proposition (Hansen and Heltoft    2011:56, a view in line with e.g. Lyons 1977, Schrott 2000). Moreover, the category of communicatives has no apparent equivalent in Searle's taxonomy; communicative speech acts are metacommunicative acts that help the speaker and hearer to reach understanding, concerning e.g. the correct expression and perception of the linguistic code, the meaning of words or utterances, or the relevant inferences to be drawn (Hansen and Heltoft   2011:54ff  ).

On this basis, the questions in the data were classifi  ed according to their speech act functions, employing the categories constative questions, regulative questions, communicative questions  and other/indeterminable speech  act functions, to be illustrated below. Representative questions were not included as a category, as no apparent examples were found in the data, unsurprisingly. While  judgments,  evaluations  and  accusations  may  be  implicitly  conveyed through  courtroom  questioning  (Atkinson  and  Drew  1979,  Bülow-Moller 1992, Komter 1994, Heritage and Clayman 2010), overt expressions of personal opinions and feelings do not count as allowable contributions.

## Constative questions

Constative  questions  are  elicitations  concerning  the  truth  of  a  proposition -  expressed  by  e.g. yes / no -questions  or  tag  questions  -  or  elicitations  of  a particular piece of information that renders a proposition true - expressed by e.g. wh -questions:

- (24) Constative yes / no -question, US1 PRC: And, Ms. [NAME], are you currently married?
- (25) Constative tag question, US1 PRC: But, he was leaning out of the truck, correct?
- (26) Constative wh -question, US1 PRC: And, Ms. [NAME], what do you do for a living?

## Regulative questions

Regulative questions are questions that impose an obligation or permission on the respondent (or the questioner) to carry out some action, for example to talk. While they may in principle involve ordering - e.g. Answer the question! -they are typically requests of various kinds, expressed by e.g. yes / no -questions - also known as 'requestions' (Danet and Kermish 1978) - or declaratives or imperatives, e.g.:

- (27) Regulative yes / no

- -question, US1 Would you please introduce yourself to the jury and spell your last name for the record?

PRC:

- (28)

- Regulative declarative question, US1 can have a look at it

DFL: So, if you don't remember, I could provide this to you, and you

- (29)

- Regulative imperative question, US1

PRC: Mr. [NAME], please state your name and spell your last name for the jury

## Communicative questions

Communicative questions are metacommunicative elicitation acts related to the understanding or clarifi  cation of other utterances, or possible inferences from other utterances. Th e object utterances addressed in such metacommunicative questions may have been produced either by the questioner - in which case I refer to the questions as self-clarifi  cations - or by the respondent - in which case I  refer  to  them  as other-clarifi  cations .  Th ey  may be expressed through (partial)  repetition,  including  echo  questions  (cf.  3.2.2),  or  other  question types, with or without lexical items specifying the clarifying function:

(30) Communicative question, other-clarifi  cation, DK3 DEF: det kan jeg ikke det det det kan jeg ikke

'I can't I I I can't'

DFL:

det kan du ikke huske

'you don't remember'

DEF:

overhovedet ikke

'not at all'

- (31) Communicative questions, other-clarifi  cation followed by selfclarifi  cation, DK3

PRC: okay øh jeg skulle jeg forstå det sådan at den første spytklat rammer dig

' okay uh I should I understand it so that the fi  rst spit hits you'

PRW:  hvad for noget

'what'

PRC:

skulle jeg forstå det således at den første spytklat rammer dig

'should I understand it so that the fi  rst spit hits you'

Communicative questions as a category may be said to comprise both what is  known in the conversation analytical tradition as repair activities (Sacks, Schegloff   and Jeff  erson 1977, Dingemanse, Blythe and Dirksmeyer 2014) and formulations  (Heritage  and  Watson  1979,  Van  der  Houwen  and  Sliedrecht 2016, see also section 4.4.). Hence, simple clarifi  cation may or may not be the questioner's actual or main purpose of communicative questions, as they can  also  be  used  to  highlight,  summarise,  dispute  or  evaluate  their  object utterances for various purposes. Still, clarifi  cation  is  taken  here  to  be  their shared default function, even if only ostensive or staged.

Since communicative questions may be given a regulative speech act frame, double classifi  cation  is  possible  for  this  particular  speech  act  combination, e.g.:

- (32) Communicative + regulative question 10 , DK3 DFL: ja og det han siger til dig øh hvad er det

'yes and what he says to you uh what is that'

PRW:  det har jeg jo lige sagt derovre

'I just told you over there'

DFL: ja men prøv lige prøv lige at gentage det 'yes but just try just try and repeat it'

## Other/indeterminable

In some cases, assessing whether a question is to be classifi  ed as constative or communicative is fairly straightforward, as lexical, grammatical or sequential features narrow down the possible interpretations, whereas other questions are hard to classify, e.g.:

- (33) Question with clearly communicative speech act function, DK2 PRC: og du siger at at at at tiltalte [NAME] han øh han han står ligesom (0.8) over dig og har fat i dig

'and you say that that that that the defendant [NAME] he's um he's he's like (0.8) standing over you and holding on to you'

- (34) Question with other/indeterminable speech act function, DK2 PRC: og så falder [NAME] ligesom ned på jorden

'and then [NAME] sort of falls down on the ground'

- DEF: ja og da der er de andre kommet 'yes and at that time the others have arrived'

PRC: og så kommer der nogle naboer til

- 'and then some neighbours arrive'

DEF:

ja (0.9)

'yes'

PRC: øhm:  (1.0)  vil  det  sige  at  at  han  bliver  liggende  da  du  bliver overfaldet af de andre

'uhm: (1.0) does this mean that that he remains on the ground when you're being attacked by the others'

DEF:

<!-- formula-not-decoded -->

Examples (33) and (34) both feature metacommunicative verbs, but only the question in (33) is classifi  ed as a communicative question, as it clearly addresses -  and  asks  for  clarifi  cation  of  -  the  meaning  of  some  previous  utterance. In (34), vil  det  sige ' does  this  mean'  may refer either to the meaning of the defendant's utterances or to the logical implications of the unfolding events. Only in the former reading would the question qualify as communicative, and for this reason the question is classifi  ed as 'other/indeterminable' .

## 4. Analysis and discussion

Based  on  the  general  coding  of  questions  occurring  in  the  data,  and  the specifi  c classifi  cation of the questions into subtypes in terms of morphosyntax and speech act functions, I now go on to present and discuss some of the overall fi  ndings in sections 4.1., 4.2. and 4.3. below. Th ese fi  ndings lead to a more specifi  c discussion of declarative questions and their uses, following in section 4.4.

## 4.1. Question-talk ratio

As mentioned in section 3., the American data feature 157 questions out of a total of 4,437 words (cf. Table 1 below), which corresponds approximately to one question for every 28 words spoken. In the Danish data 623 questions occur  out  of  35,097  words  spoken,  corresponding  approximately  to  one question for every 56 words. Th us, from an overall perspective, the Danish trials  appear  to  be  twice  as  'talkative'  as  the  American  trial,  in  relation  to the purpose of eliciting evidence, which seems to refl  ect in a very basic way the characterisation of Danish courtroom interaction as quite informal (cf. section 2.3.).

## Words spoken Questions asked Words per question

Table 1: Question-talk ratios in the American and the Danish data

| American data   | 4,437          |   157 |   28.3 |
|-----------------|----------------|-------|--------|
| Counsel 11      | 2,453 (55.3%)  |       |   15.6 |
| Witnesses       | 1,984 (44.7%)  |       |   12.6 |
| Danish data     | 35,097         |   623 |   56.3 |
| Counsel         | 15,131 (43.1%) |       |   24.3 |
| Witnesses       | 19,966 (56.9%) |       |   32.0 |

Table 1 moreover shows that both counsel and witnesses contribute to the higher amount of talk per question in the Danish data. However, the most salient  diff  erence  is  found  in  the  contributions  by  witnesses,  as  the  Danish witnesses speak close to three times as many words for each question (32.0) as  the  American  witnesses  (12.6).  More  generally,  witnesses  dominate  the 'interactional fl  oor' in the Danish examinations (56.9%), unlike the American examinations,  where  counsel  speak  the  most  (55.3%).  Th ese  diff  erences  in response behaviour and distribution of talk are refl  ections of how the lawyers and prosecutors approach their questioning, and of the kinds of constraints their questioning imposes on the witnesses. In the following sections, I discuss the types and functions of questions occurring in the two data sets.

## 4.2. Distribution of morphosyntactic question types

For both data sets, the number of occurrences of each of the morphosyntactic question types was calculated as percentages of the total number of questions in  the  data.  Th us,  Figure  2  below  represents  the  relative  distribution  of morphosyntactic question types used in the American and the Danish trials.

Figure 2: Frequency distribution of morphosyntactic question types in the two data sets

<!-- image -->

A striking diff  erence between the American and the Danish data is the much higher frequency of declarative questions used in the Danish examinations. Moreover, the 'other/indeterminable' category is more extensively represented in the Danish data than in the American data (as briefl  y discussed in section 4.4.  below).  Apart  from  these  observations,  the  question  type  distributions seem fairly similar across the two data sets.

However, a more complex pattern emerges when we draw a distinction between  question  types  used  during  direct  and  cross-examinations,  as illustrated in Figure 3 below.

## Ques Ɵ on types in direct and cross-examina Ɵ ons

Figure 3: Frequency distributions of question types in direct and crossexaminations

<!-- image -->

Firstly, no declarative questions are used during direct examinations in the American trial, as opposed to the Danish trials, where declarative questions abound  in  both  modes  of  examination.  Secondly,  the  American  direct examinations are dominated by yes / no -questions and wh -questions, while the cross-examinations, in addition to the extensive use of declarative questions and yes / no -questions, feature signifi  cantly more tag questions, but no broad wh -questions.  Th ese  distributional  facts  are  not  surprising,  as  they  refl  ect well-known interactional  diff  erences  recognised  in  studies  of  Anglo-Saxon direct and cross-examination, e.g.:

Th e rules of evidence which apply to the diff  erent types of examination (examination-in-chief, cross-examination, and re-examination) clearly have implications for the kinds of questions which may be asked, and for the distribution of certain sequences: for example, the rules applying to examination-in-chief not only aff  ect the format in which questions may be put, but also result in the infrequency of sequences in which counsel challenge witnesses' evidence. (Atkinson and Drew 1979:35)

Indeed, a higher frequency of question types from the most controlling end of the continuum, i.e. tag questions and declarative questions, as well as a lower frequency of the least controlling question type, i.e. broad wh -questions, are expected in cross-examination, where witnesses (including defendants) will likely attempt to resist the questioner's agenda and to (re)assert their story:

In  the  adversarial  Anglo-American  criminal-judicial  system,  crossexamination  is essentially hostile. Attorneys test the veracity or credibility  of  the  evidence  being  given  by  witnesses  with  questions which are designed to discredit the other side's version of events, and instead to support his or her own side's case. (Drew 1992:470)

Th e Danish examinations, on the other hand, clearly stand out from the typical Anglo-Saxon adversarial picture, given the extensive similarity between the questioning styles adopted during the direct and the cross-examinations. Th is similarity  to  some  degree  echoes  a  characterisation  of  Swedish  courtroom interaction off  ered by Adelswärd et al. (1987):

Th e  whole  procedure  is  less  accusatorial  than  in  the  Anglo-Saxon system, and the diff  erence between examination and cross-examination, e.g. concerning types of questions, is not very salient, at least not in petty off  ence trials. (Adelswärd et al. 1987:316)

However, while the data concur in showing similarity between the Danish direct and cross-examinations, they do not clearly indicate that the Danish trials are 'less accusatorial' than the American trial. In fact, the Danish and the  American  cross-examinations  seem  fairly  alike  in  terms  of  controlling question types, with the exception of tag questions, as yes / no -questions and declarative questions are highly frequent in both.

Th e  high  frequency  of  declarative  questions  across  the  Danish  data is  surprising,  both in light of their total absence from the American direct examinations, 11 and in light of the relaxed and non-confrontational interactional style typically associated with Danish trial examinations. We can elaborate on these distributional facts by considering the speech act functions realised in the two data sets.

## 4.3. Distribution of speech act functions

When juxtaposing the speech act functions in the American and the Danish data,  still  distinguishing  between  direct  and  cross-examinations,  we  get  a pattern as illustrated in Figure 4 below:

## Speech act func Ɵ ons in direct and cross-examina Ɵ ons

Figure 4: Frequency distributions of speech act functions in direct and crossexaminations 13

<!-- image -->

Figure  4  generally  shows  that  the  Danish  lawyers  and  prosecutors  employ metacommunication  more  extensively  than  their  American  colleagues, especially when comparing direct examinations. It should be noted that the communicative  questions  are  mainly  other-clarifi  cations  across  the  data, while this is more salient in the Danish data (91%), compared to the American data (63%), cf. Appendix 4. Other-clarifi  cations are nearly absent from the American  direct  examinations. 14 In  other  words,  Danish  counsel  spend signifi  cantly more questions on clarifying (for various potential purposes, cf. section 3.2.3.) what their witnesses say, mean or (might be taken to) imply than American counsel. Constative questions are the most frequent speech act type across the data, but while they massively dominate the American direct examinations, their frequencies are signifi  cantly lower in the remaining data, where communicative questions take over to various degrees.

When cross-analysing speech act functions and morphosyntactic question types, we fi  nd that communicative questions, across the data, are primarily realised by declarative questions (59%), allegedly one of the most controlling question types.  In  order  to  understand  and  explain  this  correlation,  I  now focus the discussion on declarative questions, to illustrate how this controlling question type contributes to communicative and other speech act functions in the witness examinations.

## 4.4. Th e uses of declarative questions

Declarative  questions,  whether  discussed  separately  from  or  together  with tag  questions,  are  located  at  the  far  most  controlling  end  of  most  question type clines  (e.g.  those  of  Danet  and  Bogoch  1980,  Harris  1984,  Woodbury 1984, Gibbons 2003, Archer 2005). Since they '… assert more than they ask… ' (Danet  and  Bogoch  1980,  cf.  section  2.1.),  declarative  questions,  like  tag questions, can be of great value to prosecutors and defence lawyers in their attempt to ' … supply a particular prepared account of events to the judge (and jury). ' (Gibbons 2003:96). For this reason, most studies fi  nd that declarative questions, tagged and untagged, are best suited for, and occur most frequently in, cross-examination rather than direct examination (e.g. Danet and Bogoch 1980, Harris 1984, Woodbury 1984, Gibbons 2008, Seuren 2019). However, Adelswärd et al. (1987), based on Swedish data, give a diff  erent characterisation of declarative questions (referring to them, tagged and untagged, as Q-DECL):

Danet and Bogoch […] and Woodbury […] have both argued that […] Q-DECL is the most constraining type. Unlike these authors, we would argue that the status of the declarative question is actually ambiguous. While a Q-DECL may communicate that the questioner assumes the proposition  expressed  in  the  question  to  be  true  and  that,  therefore, the  question  can  be  responded  to  in  a  minimal  manner  (simple confi  rmation), it can also be interpreted as a rather conversation-like way  of  inviting  more  substantial  responses  from  one's  interlocutor. (Adelswärd et al. 1987:339)

Part of the reason for the 'ambiguous' status of declarative questions is hinted at  by  Woodbury, who observes that untagged declarative questions tend to address given information (Woodbury 1984:222), i.e. they are used, as Seuren (2019)  has  it,  ' … to  request  confi  rmation  on  information  that  is  already  in evidence . ' (Seuren 2019:355). Similarly, Mortensen (2018), from a functional grammatical  perspective, argues that untagged, unmodifi  ed declarative questions in Danish - but not in English - are inherently metacommunicative, i.e. they express communicative speech act functions (cf. section 3.2.2.). Th is is illustrated in example (35), where the prosecutor fi  rst asks the defendant for new information (i.e. a constative question), using a narrow wh -question, then restates the defendant's testimony for clarifi  cation, by means of a declarative question:

- (35) Declarative question expressing (other-clarifying) communicative speech act, DK2

PRC:  og hvor øh:: (0.3) hvis det var det var lykkedes [NAME] at at ramme dig med den der hånd (0.5) hvor havde han ramt dig henne

'and where uh:: (0.3) if [NAME] had succeeded in striking you with that hand (0.5) where would he had struck you'

DEF:  så ville han have ramt mig her på brystet

'then he would have struck me here in my chest'

PRC:  okay så det er et skub mod brystet vi taler om han forsøgte på ' okay so it's a push to the chest we're talking about him trying to do'

DEF:  ja ja ja

'yes yes yes'

In the excerpt, the word skub 'push' - a fairly mild representation of a physical aggression against the defendant - appears to be introduced by the prosecutor, perhaps to undermine the defendant's 'self-defence' narrative, but it  has  in fact been introduced by the defendant himself in earlier statements. Th us, the prosecutor's summary of the defendant's testimony is accurate, but the excerpt illustrates that declarative questions can be used for both manipulative and more  neutral  metacommunicative  purposes,  depending  on  the  context. Seuren (2019), focusing on direct examinations, describes a prototypical use of declarative questions as follows:

… the  prosecutor  designs  his  question  as  an  upshot  of  the  witness' answer by (a) repeating part of that answer, (b) articulating that these were her words, (c) asking his question using declarative word order and (d) prefacing it with so […] Th e prosecutor goes to great lengths to show that he is asking the witness to confi  rm something she said; these are not his words. (Seuren 2019:346)

As mentioned, in the present case study, no declarative questions are featured in  the  American  direct  examinations,  but  Seuren's  description  help  us understand  how  declarative  questions  are  oft  en  used  in  the  Danish  direct examinations, e.g.:

- (36)
- Declarative question in direct examination, DK3 PRC:   okay øhm er det din opfattelse at at at det var et øh bevidst

øh valg at spytte [NAME] i hovedet

' okay uhm is it your belief that that that it was a uh deliberate uh choice to spit [NAME] in his head'

PRW:  helt klart helt klart meget provokerende han råbte og skreg og trusler og spyttede så det det var fordi han var aggressiv og ja ' defi  nitely defi  nitely very provocative he was yelling and screaming and threats and spitting so it was because he was aggressive and yes'

PRC: godt så han havde en aggr- aggressiv fremtoning 'right so he had an aggr- aggressive appearance' PRW: ja det havde han 'yes he did'

Th us, in the Danish direct examinations declarative questions typically realise fairly  neutral  and  supportive  communicative  speech  acts,  as  their  main purposes are clarifi  cation, emphasis and elaboration.

In  cross-examinations,  on  the  other  hand,  declarative  questions  may be used for more manipulative purposes that are not in the interest of the witnesses  or  the  side  they  represent.  Adelswärd  et  al.  (1987)  discuss  this feature, associating declarative questions with the notion of (re)formulations coined by Heritage and Watson (1979):

What a dominant party characteristically does in a reformulation is to summarize aspects of what the interlocutor has just said, reformulate it  in  other  words,  draw  conclusions  from  it  and  very  oft  en  assign  an interpretation that has not been expressed by the interlocutor himself. […] In the trials, they are oft  en given the form of declarative questions. (Adelswärd et al. 1987:323)

Th e Danish cross-examinations feature several examples of this, e.g.:

- (37) Declarative questions in cross-examination, DK1

DFL:      [reading aloud from police report quoting the witness]

(1.0) har du forklaret sådan

'(1.0) have you said this'

PRW:

det tror jeg ikke jeg har forklaret

'I don't believe I've said that'

(1.0)

DFL: det tror du ikke på

'you don't believe in that'

PRW:     nej (0.3) jeg har formentlig forklaret (0.6) at jeg...

'no I've probably said (0.6) that I... '

[witness' alternative wording] (0.7)

DFL: så det jeg kan udlede det er politimanden der må have skrevet forkert

'so what I can deduce it is the policeman who must have written wrong'

## Sune Sønderberg Mortensen

PRW:

øh det må være min opfattelse (0.7) som jeg husker det nu

'uh that must be my perception (0.7) as I recall it now'

DFL:

okay

' okay'

In this excerpt, the witness dissociates himself from statements attributed to him by the police. When repeating the witness' negative response, the lawyer adds the preposition på 'in' ,  and  thereby  misrepresents  the  stance  taken  by the witness, changing it from moderate (negative) assessment into stubborn disbelief.  Th e  witness,  apparently  not  alert  to  this  subtle  reformulation, confi  rms  without hesitation and off  ers his own alternative account of what he said to the police. Th is prompts the lawyer to make another reformulation, accentuating the implication that the police offi cer in that case must be wrong. Th is implication is attributed to the witness, even though the lawyer is the one drawing it - 'these are not his words' , as Seuren has it (cf. the above quote). Th e reformulation moreover includes the slightly infantile and condescending lexemes politimanden 'the  policeman'  (rather  than  e.g. politibetjenten 'the police  offi cer')  and skrevet  forkert 'written  wrong' ,  thereby  ridiculing  the witness.  Th e  witness  once  again  confi  rms  the  reformulation,  assumingly without realising that he has now accepted being framed - ostensibly by his own words - as stubborn, irrational and infantile/simple-minded as well as disrespectful towards the police.

In  each  of  the  three  examples  above,  the  declarative  questions  -  as morphosyntactic  question  types  -  convey  the  same  core  meaning,  i.e.  the request  for  confi  rmation  of  a  particular  understanding  of  something  the respondent,  allegedly,  said  before.  Like  most  declarative  questions  they constitute  communicative  questions,  as  they  elicit  clarifi  cation,  or  at  least pretend to. Th ey illustrate how pragmatically versatile declarative questions are, which explains their omnipresence in the Danish witness examinations, both direct and cross-examinations.

Th e  puzzling  question  is,  then,  why  are  they  not  seen  as  a  valuable communicative resource in the American direct examinations? Since no  examples  are  off  ered  in  the  data,  we  can  turn  to  the  American  crossexaminations instead, where declarative questions are amply represented, e.g.:

- (38) Declarative questions in American cross-examination, US1

DFL:

Did you tell them to get away from your property?

PRW:

I did.

DFL:

Did they get away from your property?

PRW:

Aft  er shouting the threats at me.

DFL:

And, did you walk towards the vehicle?

PRW:     I walked towards the trunk of my car once -- yeah, I did walk towards the trunk of my car.

DFL:

Did you walk towards the Yukon?

PRW:

No.

DFL:

Did you ever walk towards the Yukon?

PRW:     You know what? I would have to be walking towards the Yukon  to go to my trunk.

DFL:

Okay. So, you did walk towards the Yukon?

[...]

DFL:

And, to your knowledge [NAME] never set foot on your property?

PRW:

No. He remained in the -- in the truck.

DFL:

And, to your knowledge, he had no weapons with him?

PRW:

None that I saw.

DFL:

And also, there's a gun in your household.

PRC:

Objection, Your Honor, relevance.

In this excerpt, the witness is questioned about core events of the case, i.e. the defendant harassing and threatening her on her property. Th e defence lawyer draws attention to the fact that the defendant eventually left   without hurting anyone, and tries to develop and sustain a narrative where the witness was never in real danger. He does this by construing her as powerful and agentive. When she fi  nally admits to have walked in the direction of the defendant's car  ('the  Yukon')  -  rather  than  e.g.  backing  away  from  the  danger  -  the defence lawyer uses a declarative question to (partially) repeat and thereby highlight her statement, as much as highlight the fact that she just changed her  testimony,  a  point  accentuated  though  the  contrastive  use  of did (cf. Raymond 2017). Th is is a communicative question, as it clearly addresses her previous statement,  to  secure  that  the  jury  understands,  takes  due  notice and draws the right inferences. Th e three ensuing declarative questions are, on the other hand, constative questions, as they do not signal any relation to previous utterances. Rather they present assumptions or knowledge, e.g. based  on  background  investigation,  which  the  lawyer  will  not  allow  the witness an opportunity to challenge. As discussed in Mortensen (2018), such constative use of (untagged, unmodifi  ed) declarative questions is hard, if not impossible,  to  realise  in  Danish,  but  appears  to  be  a  semantic  possibility in  English  (like  in  other  European  languages,  with  French  as  a  canonical example). Th is diff  erent meaning potential may be part of the reason why declarative questions come across as highly controlling and confrontational in the Anglo-Saxon courtroom context, and hence not immediately suitable for  direct  examinations.  In  the  Danish  courtroom  context,  even  though declarative  questions  have  the  potential  to  be  used  for  manipulative  and perhaps coercive purposes like in (37), classifying them as highly controlling questions on a scale does not adequately capture what they do interactionally.

Th   ey are indeed hard to resist - but this is not primarily due to the discursive constraints  imposed  by  their  morphosyntax  on  the  answer  type,  like  in the case of e.g. tag questions and yes / no -questions. Indeed, depending on the context it can be fairly unproblematic to answer a declarative question with elaboration or clarifi  cation rather than yes / no ,  while answering a tag question without explicitly confi  rming or disconfi  rming appears discursively incongruous, as illustrated in (39) below:

- (39) Declarative question and answer, followed by tag question and answer, DK2

PRC:      jeg skal først og fremmest (0.7) høre (0.3) om: øh: du kender tiltalte i forvejen

'I fi  rstly (0.7) want to hear (0.3) if: uh: you know the defendant beforehand'

(1.0)

DFW: hvem er tiltalte

'who is the defendant'

[Assumingly defendant is visually pointed out in court] nå (.) nej jeg kender ham ikke

DFW:

' oh (.) no I don't know him'

(0.5)

PRC:

du kender ham ikke

'you don't know him'

DFW:     han har været inde og reparere hans bil en gang jeg tror nok det er e- en eller to gange (0.2) fået lavet service på den men det er ikke (0.5) for nyligt

'he's been in to fi  x his car once I think it's once or twice (0.2) had service done on it but it's not (0.5) recently'

(0.3)

PRC:      men du ku- (0.2) men så kender du ham jo også lidt kan man sige ikke (.) det er en kunde

'but you cou- (0.2) but then you do know him a bit one might say right (.) he's a customer'

(0.2)

DFW:

jeg ka- jeg ka- ved ikke engang hvad han hedder

'I ca- I ca- don't even know his name'

(0.8)

PRC:

nej (0.7) men det er en (.) som har været kunde ved dig

'no (0.7) but it's someone (.) who has been a customer of yours'

DFW:

ja

'yes'

Th e defence witness, an auto mechanic, attempts to counter the prosecutor's notion that he knows the defendant beforehand, and the implied accusation that  he  might  therefore  be  biased  in  the  defendant's  favour.  Aft  er  simply disconfi  rming  the  prosecutor's  initial  question,  the  witness  answers  her follow-up  declarative  question  by  explaining  his  relation  to  the  defendant. While his explanation may certainly be questionable, it is not inappropriate as an answer to the question, as it clearly responds to the prosecutor's incredulity (see  related  discussion  of  echo  questions  expressing  incredulity  in  Archer 2020, this issue). His response to the ensuing tag question, on the other hand, attacks the argument rather than answering the question, succumbing, as it were, to the tag question's constraining force.

Th e exchange illustrates that both declarative questions and tag questions are powerful resources for steering the interaction in particular directions but that they diff  er not only in degrees of control but also in the manner of control. What appears to be declarative questions' secret weapon is that they, for  particular  strategic  uses,  off  er  the  ability  to  lure  untrained  or  off  -guard witnesses  into  confi  rming,  by  disguising  whatever  new  and  controversial information they may carry. As declarative questions invariably convey the sense of addressing information already in evidence, they invite respondents, rather  than  force  them,  to  treat  everything  contained  in  the  question  as something the respondent already said or implied anyway. In this respect, to briefl  y regress to the discussion in section 2.1. above, their coercive potential may be a more signifi  cant trait than their controlling force, at least in Danish.

Another, and possibly stronger, reason for the diff  erent status of declarative questions in American and Danish witness examinations is rooted more deeply in the legal cultures of the two countries. As discussed, the American adversarial courtroom culture entails, according to some commentators, treating law as a kind of game, where truth is a question of the most convincing narrative. Direct  examinations  are  meticulously  planned  and  rehearsed  to  win  the audience (i.e. the jury), and the witnesses' testimony is therefore rarely treated by counsel as new information in the ways new information is managed in everyday conversation. In a context like this, repeatedly asking for clarifi  cation - by means of e.g. declarative questions - is unnecessary, at best, and might even come across as a sign of poor preparation or insecurity concerning the legitimacy or quality of the testimony. Th e Danish legal culture, on the other hand, infl  uenced by the inquisitorial ideals of a sincere and communal search for  the  truth,  perhaps  combined  with  what  has  been  described  as  highly egalitarian values and 'strong cultural aversion towards violence and aggressive behaviour' (see discussion in Levisen 2012:3), is more inclined towards an informal, conversation- or interview-like questioning style. Th is diff  erence in formality even seems manifest in the 'other/indeterminable' question category, where syntactically ambiguous questions are twice as common in the Danish trials  as  in  the  more  composed American trial (cf. appendix 4 and section

4.4.). In this fairly loose interactional environment, metacommunication of all kinds, including asking for clarifi  cation, is embraced as natural, even if the underlying goals of the metacommunication, and the communication as such, are oft  en strategic and manipulative rather than idealistic.

## 5. Conclusion

I  have  compared  all  the  witness  examinations  in  one  American  and  three Danish  criminal  trials,  by  means  of  quantitative  as  well  as  qualitative analyses. Th e quantitative analyses are based on an extensive coding scheme, introduced,  developed  and  discussed  in  relation  to  the  actual  data  treated. Th e  coding  scheme  features  the  major  morphosyntactic  question  types  as well as the overall speech act functions potentially realised by a question. Th e most striking  result  of  the  quantitative  analysis  is  the  fact  that  the  Danish defence lawyers and prosecutors use declarative questions signifi  cantly more than  their  American  colleagues,  especially  when  direct  examinations  are compared. In stark contrast to the Danish direct examinations, which abound with  declarative  questions,  the  American  direct  examinations  feature  no occurrences of declarative questions at all; and although their complete absence may constitute an extreme case, the marked diff  erence between the American and Danish direct examinations clearly calls for linguistic, legal and cultural explanations. Th e diff  erence correlates to some extent with the distribution of  speech  act  functions,  as  the  study  moreover  fi  nds  that  communicative speech acts are prevalent across the Danish data and in the American crossexaminations, but virtually absent in the American direct examinations.

Analysing  contextualised  examples  from  the  Danish  as  well  as  the American  trials  illustrates  that  declarative  questions,  typically  realising communicative  speech  acts,  are  interactionally  versatile  and  a  valuable communicative resource, at least when discussed in relation to the Danish data. Th is may explain their extensive use in the Danish examinations. However, their  underrepresentation in the American data, I argue, may be linked to the observation that declarative questions appear to be used (also) for other, more directly confrontational purposes in the American data, perhaps partly due to a seemingly diff  erent meaning potential. In this connection, I suggest that declarative questions, in a Danish courtroom context, may not be a highly controlling question type as such.

Finally, I argue that legal - in addition to more general - cultural diff  erences between the United States and Denmark can also help explain the diff  erent distributions  of  declarative  questions,  as  the  Danish  hybridised  adversarial system of trial can more naturally incorporate metacommunication than the American prototype adversarial trial system.

Generally, the comparison contributes to a better understanding of the interactional mechanisms of courtroom questioning - from a Danish perspective by merely opening a topic that has been more or less neglected so far, and from a broader forensic linguistics perspective by shedding new light on one of the most dreaded question types in the adversarial courtroom.

Appendix 1: Quantitative overview, DK1

<!-- image -->

Appendix 2: Quantitative overview, DK2

<!-- image -->

## Appendix 3: Quantitative overview, DK3

<!-- image -->

## Appendix 4: Quantitative overview, US and DK data

<!-- image -->

## Appendix 5: Transcription conventions

Identifi  er

DFL:

Pause, measured in seconds

(0.2)

(.) indicates pause shorter than 0.1 seconds

Pause, US1 transcript

--

Prolonged vowel or consonant

uh: (more colons indicate greater prolongation)

Unfi  nished word

an aggr- aggressive appearance

Inaudible

xxx

Anonymised item

[NAME]

Contextual information

[A  ssumingly defendant is visually pointed out in court]

## Notes

- 1 I am grateful for the fi  nancial support given to this work by Th e Danish Council for  Independent Research: project ID DFF - 1321-00180. Also, I would like to thank the anonymous reviewer for insightful comments to a previous version of the paper.
- 2 In the example excerpts, defence lawyers are abbreviated DFL, defence witnesses DFW, prosecutors PRC, prosecution witnesses PRW and defendants DEF. Note that defendants are featured only in the Danish data. (In American trials it is quite common  for  defendants  not  to  give  live  testimony.)  For  general  transcription conventions, cf. appendix 5.
- 3 In  the  example  excerpts,  red  colour  indicates  utterances  or  words  intended  for particular analytical attention.
- 4 Th is example is taken from the Danish data as no occurrences of this question type were found in the American data. Th roughout the paper, English translations of Danish examples are displayed in grey colour.

- 5 More  specifi  cally,  direct  examination/examination-in-chief  -  is  the  'friendly' , constructive  questioning  of  same-side  witnesses,  i.e.  the  questioning  of  the defendant  by  the  defence  lawyer,  the  questioning  of  the  complainant  by  the prosecutor, or of any other witnesses called by the side conducting the questioning. Cross-examination  is  the  'hostile' ,  de(con)structive  questioning  of  opposing witnesses, i.e. the questioning of the defendant by the prosecutor, the questioning of the complainant by the defence lawyer, or of any other witnesses called by the opposing side. Typically, cross-examination follows direct examination, except for the  defendant's  examination,  which  is  initiated  by  the  prosecutor  (see  Cotterill 2003:128ff   for an extensive introduction and discussion).
- 6 DK1 has previously been treated, from a diff  erent perspective, in Mortensen and Mortensen (2017). DK3 was collected, transcribed and studied, also from other perspectives, by a student project group under my supervision, cf. Crone et al. (2018).
- 7 Bednarek (2014:184ff  ) straightforwardly compares the question types employed in her American and Polish data, on the basis of an English question typology off  ered by Quirk et al. (1985).
- 8 Combinations of syntactic forms are not invariantly classifi  ed as ' other/ indeterminable' , as parts of these are in some cases clearly the result of e.g. false starts, or belong to prefatory statements, not included in the actual question.
- 9 While  imperative  questions  are  not  accounted  for  in  Archer's  model,  they  are discussed  or  mentioned  in  several  other  studies  of  courtroom  questioning, including  Danet  and  Bogoch  (1980),  Bülow-Moller  (1992),  Seuren  (2019),  yet mostly in anecdotal terms and without clear relation to the more central question types. Since the data analysed here contain very few examples of imperatives, I do not treat them individually as a question type, but include them in the 'other/ indeterminable' category, cf. appendices 1, 2, 3 and 4.
- 10 Th e  possibility  of  double  classifi  cation  does  not  apply  to  constative  questions, as  they  are  mutually  exclusive  from  communicative  questions,  which  are metacommunicative as opposed to constatives, as well as from regulative questions, which impose obligations or permissions to act, as opposed to constatives.
- 11 'Counsel' refers collectively to prosecutors and defence lawyers.
- 12 It  should  be  noted  that  a  total  absence  of  declarative  questions  is  hardly representative of typical American direct examinations. Seuren (2019), studying direct  examinations  in  the  George  Zimmerman  trial  (featuring  a  total  of  649 questions), fi  nds a frequency of 11.4% declarative questions (Seuren 2019:344). Bednarek (2014), studying the O.J. Simpson criminal trial (featuring a total of 5,106 questions), fi  nds a frequency of 9.5% declarative questions in direct examinations (Bednarek  2014:94ff  ).  Still,  even  a  10-11%  frequency  of  declarative  questions would be very low compared to the Danish data.
- 13 Th e  minor  group  of  questions  classifi  ed  as  communicative  and  regulative  are counted and treated as communicative questions. In the data overviews off  ered in the appendices, occurrences of 'secondary' regulative functions are presented in superscript parentheses following the fi  gures for the communicative questions.

- 14 Th e  Danish  data  feature  220  other-clarifi  cations  out  of  242  communicative questions, i.e. 91%. Th e  American data feature 17 other-clarifi  cations out of 27 communicative  questions,  i.e.  63%.  Th e  Danish  direct  examinations  feature 113  other-clarifi  cations  out  of  128  communicative  questions,  i.e.  88%,  whereas the  American  direct  examinations  feature  just  1  other-clarifi  cation  out  of  7 communicative questions, i.e. 14%, cf. appendix 4.

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