The Counsel as Subject

Abstract

We have seen that counsel attempt to narrate to the jury through their own, usually cooperative, witnesses in examination-in-chief. In so doing, they help construct their particular narrative perspective on the case which they hope to convey to the jury. When faced with hostile witnesses in cross-examination, on the other hand, they cannot expect cooperation of any sort. In order to convey their perspective to the jury, then, they must either trap the witness into giving, or giving off, information which undermines their own testimony in examination-in-chief, or they must manage to suggest things directly to the jury through their own words in their initiations. Most of the quite extensive literature on cross-examination has focussed on the former macro-strategy. Such research, for example, has shown how question forms such as tag-questions can be very coercive and how other factors in the design of questions, such as presupposition and connotation, can profoundly influence the nature of the responses (Loftus 1979).