The piece of courtroom conversation discussed in this article is part of a transcript made from a video recording of a cross-examination of Antonio Di Pietro, the former leader of the group of Italian magistrates who carried out the Mani Puliti anti-corruption campaign in Milan between 1992 and 1995. Di Pietro later became the italian minister of Public Works shortly after the centre-left alliance, Ulivo (The Olive Tree) - led by Romano Prodi - gained power in Italy in April 1996. Di Pietro later resigned the post of Minister of Public Works, due to pending investigations into some of his actions while in his former role as magistrate during the Mani Puliti campaign.
This particular section of the cross-examination was broadcast on several national TV news programs in Italy while the proceedings were going on, and the rather curious and convoluted nature of this short conversation between the president of the tribunal and Di Pietro makes this an especially unusual and interesting piece of both technologically mediated, and thus essentially highly public, discourse.
Paul Drew (1992) has pointed out that the veracity, significance, relevance and interpretation of other kinds of evidence (for instance written statements, artefacts, photographs, eye-witness accounts etc.) in the Anglo-American "adversarial" legal system[1] must be tested by means of oral confrontation in situations such as the cross-examination. Drew characterises cross-examination in such an adversarial system as "essentially hostile". He continues: "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 case. When being cross-examined, witnesses are, of course, conscious of this purposefulness behind the questions they are asked. They are alive to the possibility that a question or series of questions may be intended to expose errors or inconsistencies in their evidence, and hence to challenge and undermine it. This awareness on the part of the witness is manifest in the guarded and defensive ways in which they answer certain questions." (Drew 1992, p. 470).
Drew also makes another point which seems to be of interest in this connection, namely that the talk between attorney and witness is designed to be heard, understood, and assessed by a group of non-speaking overhearers, namely the jury. In the present connection, we must allow that since the cross-examination proceedings were widely broadcast and dscussed in the Italian national press and media, this group of "non-speaking overhearers" (as it in fact will be for any court case which has a certain amount of media and press coverage), is much larger than the members of the tribunal, in that it also includes all of "political Italy" - i.e. all those people in Italy (and even possibly abroad) who might have some degree of interest in the outcome of this particular trial. A subsidiary, and important, sub-set of this larger "political Italy" is other members of the legal system in Italy who, since one of their peers is in the position of being cross-examined in an Italian court, will also have an interest in the outcome.
The conversational sequence under examination here begins with the president of the tribunal asking Di Pietro if he is aware of his right not to respond to cross-examination questioning, and is in summary basically one long sequence of negotiation where Di Pietro seems to be attempting to get the court to accept that he should be allowed to present his responses in written form, rather than giving real-time spoken answers to questions put by the public prosecutor or judge while the court is in session, something that the court is obviously not willing to accept, as will become clear from a closer examination of the sequence in question. Due to time and space constraints, the potentially important issue of why Di Pietro might actually have preferred to give a written, as opposed to spoken, version of his evidence or testimony will not be adressed in length here. Certainly one aspect that might play an important role here is the possibility with a written testimony of making numerous revisions of written documents away from the gaze of the "public eye", as opposed to the conversational situation where all "revisons" of what one is saying become much more immdiately salient (and thus in a courtroom context, potentially more damning) for all those taking part[2]. Additionally, seen in purely "conversational" terms, the introduction of a piece of written text into a discourse context like the courtroom will allow (assuming that there is actually a potential receptive audience for such a text in the given context) that one is able in a sense to "keep the floor" for a longer period of time than would normally be acceptable in spoken discourse, and to present a series of arguments organised in some kind of coherent fashion, which might be more difficult to do conversationally, since there will always be the chance of other actors raising objections while arguments are being presented orally.
Di Pietro's attempt to enter into a negotiation process is initiated already in the second line of the sequence of exchanges, where he replies in a highly non-standard way to the judge's initial question:
1. G: e-hfff lei ha facoltà di non rispondere all'esame. Intende
2. rispondere?
3. (1.7)
4. D: per rendere più chiaro il mio penserio signor presidente,
1. J: e-hff you have the right to not respond to the cross-examination. Do you
intend
2. to respond?
3. (1.7)
4. D: to make my thoughts quite clear Mr. President
To which the judge replies:
5. G: innanzitutto mi deve dire (.) se intende rispondere. 6. (...) 5. J: first of all you must tell me (.) if you intend to respond. 6. (...)
Looking at the first part of the sequence above, and given the kind of potential "overhearing audience" mentioned above, it may seem at first glance that Di Pietro right from the outset is intent on publicly implicitly challenging the legitimacy of the court's submission of a person of his social and political standing in relation to the legal system to a public cross-examination of this kind. Since Di Pietro is "who he is", he does not seem to feel himself bound by the relatively rigid conversational norms of the courtroom to the same degree that another, less well-known person might be, and he allows himself to attempt to negotiate openly what other persons in the same situation might attempt to do in a more defensive way.
One defensive method used by witnesses in order to not confirm a negative picture being painted by a cross-examining attorney is that of "not remembering". Claiming "I don't remember" actually avoids confirming what is proposed or implicit in the question, while at the same time avoiding actually disconfirming it. This does not directly challenge the version proposed by the examining attorney, but for the present neutralises that version (see Drew 1992, p. 481). Obviously Di Pietro does not intend to use this strategy, since he proceeds as if he has a lot to say about why he intends not to co-operate with the court - i.e. in the instance above, his not wishing to acceed to the current demand to merely provide a "yes" or "no" answer to the judge's question, coupled with his intent or willingness to explain in detail his reasons for not providing such an answer orally, in writing.
Another method used by witnesses to "correct" attorney's descriptions of themselves in an indirect way is to provide alternative descriptions. These do not generally contain overt markers of rejection or correction (see Drew 1992, p. 487). Corrections of descriptions can also be made by witnesses by means of substitution of central glosses of certain details made by an attorney in order to redefine the situation being described in a more positive light, seen from the witnesses' point of view (see Drew p.491 ff.). Finally, and in association with the last-mentioned strategy, certain details in the attorney's description can be contested by substitution of another definition of what details actually are important for describing the situation (see Drew p. 495 ff.)
In our case in hand, however, the most fundamental problem in this connection for Di Pietro as witness seems to be that no actual initial description of the what is actually under contention (i.e. that which might pertain to the question of Di Pietro's innocence or guilt) has actually been offered by the court, only that virtual description which might be implicit in the event of his subsequent refusal to submit to the cross-examination. In this situation he has actually only one normatively aceptable move to make, and that is to reply either "yes" or "no".
In courtroom discourse, there is normally a quite specialised speech-exchange system at work, with constraints on the type of speaking turn which witnesses and attorneys may produce, with "question" and "answer" turns being allocated respectively to attorney and witness (Drew 1992, p. 477; see also Atkinson & Drew 1979). If we now turn our attention to the judge's initial statement where he explains how Di Pietro, as prospective cross-examinee, has a legal right not to respond to any further quesioning, we can see above that it is tagged with a simple yes-no question "Intende rispondere?" ("Do you intend to respond?"). This formulation neither requires nor implies that any form of elaborated response is necessary, or indeed will be sanctioned, in this particular connection. Di Pietro chooses however to avoid taking up on this tag question by completely ignoring it and thus obliquely beginning his set of conversational moves to negotiate the possibility of him providing a written form of response.
In doing so, he is of course implicitly casting doubt on the ability of this particular conversational genre - especially in the light of how it has actually begun - to reveal publicly what he considers his "true" motives for not co-operating with the court in the sense of submitting to an oral cross-examination. By answering the strongly normatively coded request from the judge with an opening utterance of "per rendere più chiaro il mio penserio signor presidente" (" to make my thoughts quite clear Mr. President") Di Pietro is able to avoid, for a while at least, silencing his own voice, and at the same time, to imply for all those watching and listening that he believes there may be something more to be said about his silence, should it actually be forced into being by the court, than the implied guilt that may otherwise normally be affixed to a choice of non-co-operation with the court at that time. The judge in his turn maintains his initial stance and reiterates that Di Pietro first must obey the implications of his yes-no tag question, and commit himself one way or another to responding or not.
In many ways the whole experience of the cross-examination situation represents a kind of double-bind situation for Di Pietro, who as an experienced magistrate and public prosecutor will obviously be intimately familiar (and probably more so than most witnesses ever will be) with the structure and nature of courtroom discourse, and as a political figure fully aware of the possible media impact of the negative implications that may be involved in him refusing to respond to questioning. At the same time he is in a situation where he is formally bound by the norms of discourse of the court to take a stand on this particular issue from the outset, and within this normative framework he has apparently little or no degrees of freedom in relation to the possibility of negotiation.
Interestingly enough, at the same time he seems to be attempting to maximise what may be referred to as the role-based developmental potential implicit in the situation - as there normally will be in all types of conversational environments - i.e. for the potential for possible renegotiation and reconfiguration of the respective social and cultural roles and positions of the involved participants, perhaps with lasting effects on the dynamics of influence and power in the social or cultural field in question after the event.
Michael Halliday (1984) has characterised this developmental potential of conversation in terms of what he calls complementarity and congruence. Conversation in this kind of framework is construed at its most general level as an ongoing process of commodity exchange involving two variables: the nature of the commodity being exchanged, and the social and cultural roles that are defined by the exchange process. The commodities involved may be information or goods-&-services (cf. Ervin-Tripp 1964). To quote Halliday: "The distinction between goods-&-services is theoretically a very fundamental one, despite the fact that there will be many tokens - actual speech events - of an intermediate or a complex kind. Unlike goods-&services, which are non-verbal commodities, information is a "commodity" which is brought into being only through language (or perhaps other semiotic systems). In the case of goods-&-services, the exchange of symbols helps to bring about the exchange; but the two are distinct processes, the one being a means to the other. In the case of information, on the other hand, the exchange of symbols actually constitutes the exchange; there is only one process, and we are simply looking at two aspects of it - the intention, and the manifestation." (Halliday 1984, p. 11)
With regard to the complimentarity of role apportionation and exchange, Halliday develops two types of complementary roles, tied to the notions of giving and demanding. Exchange-initiating roles are those taken on by the speaker, while responding roles are assigned by the speaker to the addressee and taken on by the adressee when he or she becomes the speaker in his or her turn. As Halliday puts it: "If I am giving, you are called on to accept: if I am demanding, you are called on to give." (Halliday 1984, p. 12)
With regard to congruence, this has to do with those linguistic realizations that may be regarded as typical - those that would generally be selected in the absence of any good reason for selecting another one. To use the exchange above between Di Pietro and the judge as an example, the replies "yes" or "no" would be considered highly congruent in relation to the question posed by the judge initially as to whether or not Di Pietro was prepared to respond to the cross-examination. Other responses are possible, even non-verbal response types such as a shake or nod of the head, or alternative verbal responses such as "I do" or "I do not", "you bet" or "you can't count on it, no", but these would not be considered the most congruent in this particular context. In this sense than, Di Pietro's actual response "per rendere più chiaro il mio penserio signor presidente" ("to make my thoughts quite clear Mr. President") is highly non-congruent given the normative framework of its particular situation of utterance and context of situation. The interesting point here is of course why Di Pietro actually selected this particular form of response in this particular situation from all those possible response forms, both congruent and non-congruent, that might have been available to him.
In the courtroom what is being exchanged ("the commodity") is essentially information, although in the case of expert testimonies there may also an exchange of goods-&-services. What however is of most interest in this particular conection is the issue of the management of the various communicative roles being apportioned and being exchanged as the discourse unfolds.
Seen in relation to the small snippet of conversation above, the judge with his tag question "Intende rispondere?" ("Do you intend to respond?") is assuming the role of exchange initiator, however, with the informational exchange in question presumed to be of a strict sort, requiring merely a "yes" or "no" answer from Di Pietro. Simultaneously, Di Pietro is being assigned a responding role, where the implicit assumption of this role in this particular context is the giving of one of the two above-mentioned responses (or more or less congruent varients of these). His response "per rendere più chiaro il mio penserio signor presidente" ("to make my thoughts quite clear Mr. President") is, as mentioned above highly non-congruent, and in fact does not apportion a role of responding to the judge, but rather a role of potential information receiver or listener, while Di Pietro retains the role of exchange initiator, since he obviously gives the impression of having more to say than merely "yes" or "no". The judge does not however accept this reapportioning of their respective conversational roles, but replies with "innanzitutto mi deve dire (.) se intende rispondere." ("first of all you must tell me (.) if you intend to respond."), thus reasserting his previous role of exchange initiator and placing Di Pietro again in the role of respondee.
After this first rebuttal follows the perhaps most interesting piece of the conversation, where Di Pietro again reassumes the role of exchange initiator, rather than respondee and selects the structurally rather odd formulation: "intendo (1.0) esprimere (.) la mia dichiarazione di riposta." (" I intend (1.0) to express (.) my declaration of response."). It is interesting to note here that there is a delay of one second between "I intend" and "to express", followed by a shorter pause before "my declaration of response", which might possibly be interpreted as reflecting the high degree of cognitive dissonance one would imagine being created by the double-bind nature of the whole situation for Di Pietro referred to previously.
At this stage it seems appropriate to go a bit further and introduce the concept of types of normative change. Berge (1993) distinguishes between three distinct types of ways in which textual norm systems change. The first kind of normative change occurs through what is called express normative prescription. An example of this kind of change might be where normative models determined by some external authority are implemented within the school system (acceptable textual genres or prescriptive grammars), providing clearly defined sets of rules (we might also call them "shall-norms") for how certain types of activities should be carried out. The main objective of this kind of process of normative change is more generally speaking, that those who are involved in some process or other shall learn to perform a task, or behave, in a way that is evaluated as socio-culturally acceptable in the particular kind of social or cultural field in question. In the courtroom, shall-norms will generally be inscribed as the written laws and regulations which determine which functions the day to day business and discourse of the courtroom shall have in society, and how they shall actually be carried out.
The same types of objectives apply to the second type of process of normative change which is known as norm socialisation: As a process it is characterised by a kind of heuristic, trial-and-error strategy, whereby participants develop meanings about things actually function or normally "go on" in some particular social or cultural field, and test out these nascent understandings against the existing (but not necessarily explicitly expressed) behavioural and communicational norms (we might also call these "is-norms", or with Aristotle, "doxa") that regulate the discourses of other participants in the field in question. A paradigmatic example of this kind of process of normative change might be that which is experienced by a person learning a foreign language while living in the country in question by trying to learn how to interact with people who live there in their own language. In the courtroom, this kind of normative change will often be manifested in the various kinds of correctives given by the court for inappropriate behaviour on the part of attorneys or witnesses which go against the unwritten rules of how one generally behaves there.
The third type of process of normative change is called, with reference to Kant's constitutive rules, norm constitution ; and is the most profound form of normative change, since it contributes to transforming both the cultural or social field in question, its communicative goals, and the ways in which one commuincates (its communicative functions). This kind of process of normative change is also the one which takes longest time to become fully realised - normally a generation or so. Normative change of this kind will generally change the ways in which people do things in everyday life; the various ways in which they construe and categorise the world around them. On the planes of culture and society, normative change of this kind will generally lead to the establishment and development of new institutions. Berge also refers to this as paradigmatic normative change, a type of normative change that becomes the source of new institutions, for instance in modernist art, whereby the unique "I" seeks to create completely unique texts. Uniqueness is often sought in opposition to established norms, and innovation is often linked with influential individuals. It is also often interpreted as a revolutionary activity. (Berge 1993, p. 225).
Importantly, paradigmatic norm constitution of this kind cannot be said to have have happened completely before the norm systems developed by the innovator or innovators in question have become institutionalised to such a degree that these new norm systems, together with their associated communicative goals, interactional and textual norms and communicational functions, actually come to affect the further development of the systems of norms currently operative in the sectors of culture or society they originally were developed in opposition to.
If we re-examine the sequence above in the light of norm-system change and negotiation, it seems clear that what is going on here is a a more or less unsuccessful attempt by Di Pietro to initiate the third type of norm-system change; i.e. norm constitution. The norm system brought under negotiation here being one related to certain kinds of practices and their associated communicative functions and semiotic codes which are implicit in conventional courtroom discourse and its associated "shall-" and "is-norms" - concerned with the management of the rights of witnesses to remain silent in court and the subsequent possible public implications of such behaviour. To use the metaphor of the unique "I" seeking to create completely unique texts, Di Pietro seems to desire to change the norm systems of courtroom discourse to allow individuals to remain silent, while at the same time being able to submit evidence to the court in form of a written statement specifying in detail why they have chosen to remain silent. This is indeed an example of a "unique "I"" seeking to create a "completely unique text" within the highly conservative socio-cultural context that the Italian legal system represents, and as such, this particular activity proves of course to be highly contentional when it is sought instantiated by one, albeit influential individual, in relation to the actual sets of "shall"-norms and "is"-norms currently in operation, as can be seen from the growing exasperation of both the judge and the public prosecutor in the transcript.
Interestingly enough, however, Di Pietro actually does manage right up to the very end of the conversational sequence to avoid directly answering with a clear "yes" or "no" the question posed initially by the judge in line 1 and reiterated again in line 31 as:
31. G: [sì ] o no dottor Di Pietro. 31. J: [yes ] or no Doctor Di Pietro.
Which ultimately prompts Di Pietro to arrive at the following formulation:
40. D: era stato molto:- .hh era stato molto chiar-=>è stato molto
41. chiaro signor presidente<. .hh E io intendo motivare il perché
42. non intendo rispondere.
40. D: you were extremely:- .hh you were extremely clear-=>you have been
extremely
41. clear Mr. president<. .hh and I intend to motivate the reason why
42. I do not intend to respond.
at which point the judge shakes his head and orders the court adjourned.
It is interesting to note, too, that linguistically speaking the second part of Di Pietro's response "io intendo motivare il perché non intendo rispondere" ("I intend to motivate the reason why I do not intend to respond") is constructed by means of a subordinate "why"-clause and that its propositional structure is such that the presuppositional "why" actually implies the truth - or at least the validity - of what is being qualified by this presuppositional "why" (see Eco & Violi 1987, p. 2), namely his final words "non intendo rispondere" ("I do not intend to respond"). This is of course not functionally or illocutionarily the same as his actually saying "no", and Di Pietro's answer cannot by any stretch of the imagination be considered as given in a form congruent to the judge's "yes or no" question immediately prior to it. In this particular case however, the judge seems to have decided that it is at least close enough to warrent the court for the moment taking it as representing a congruent "no" from Di Pietro's side.
The question of who actually "won" this particular confrontation cannot, and probably ought not, be adressed here; this being for one thing by no means obvious within a longer time perspective, since the public "jury" of "non-speaking overhearers" in this particular case is both very large and highly dispersed thoughout the whole of Italy. As such, the "jury" is, metaphorically speaking at least, still "out" with regard to this particular case, as indeed seems to be the case for many such publicly conducted trials in Italy with strong social and political overtones.
As a closing comment it seems appropriate to point out that it would appear that at least certain actors in courtroom conversations, even with strongly normatively defined limitations - in terms of "shall-" and "is-norms" - on their freedom of expression, seem able to some extent to work towards maximising the conversational dynamics of the situation to their own advantage. There are though, probably not many other people in Italy than Antonio Di Pietro, who finding themselves in the same kind of situation, would actually attempt to begin a public process with the goal of rewriting the basic system of norms for communication in cross-examinations in Italian public tribunals.
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