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The general observation in the data of the present study was that more of the various subtypes of Tag Questions occurred in cross examination as compared to direct examination (cf. Figures 1 to 5). An analysis of Tag Questions in cross examination led to the conclusion that in this phase of trial such questions were mainly targeted at controlling witnesses. The following are some examples that show how Tag Questions achieved the function of witness control in cross examination. Example 2.4 below is drawn from cross examination in a civil suit in which an electricity distribution company has been sued to compensate a boy who had sustained serious burns from some high voltage power lines.

Example 2.4: DS1Case01CE

C2: Baada ya hio ajali watu wa K__ Power walikuja pale, si ndio?

After that accident personnel from K__ Power come there, isn’t that so?

W: Walikuja.

They came.

C2: Wakafanya nini?

What did they do?

W: Sasa walikuja- unajua hio ni mambo ya stima. Sijui walifanya nini.

Now they came- you know that has to do with electricity. I don’t know what they did.

C2: Lakini uliona wakiangalia hizo vikingi?

But you saw them inspecting those poles?

W: Walikuja, wengine walipanda juu ya hizo vikingi. Sijui walifanya nini. Mimi nilikuwa nashugulika na mambo ya mtoto.

They came, some of them went up those poles. I don’t know what they did. I was busy with the child.

C2: Na pia mbeleni uliona watu wa Power walikuwa wakija pale?

And even there before personnel from Power used to come there?

W: Masaa ya jioni siku hiyo [wali-]

The evening hours of that day they-

C2: [Sio siku] ya ajali. Hapo mbeleni ulikuwa unawaona wakija routine inspection, si ndio?

Not on the day of the accident.There before you used to see them come for routine inspection, isn’t that true?

W: Ee, wanakujanga, naona hizo magari zao.

Ee, they usually come, I see their vehicles.

C2: Wanakujanga. Na wana kuja after how long?

From the line of questioning in example 2.4, it would seem that the counsel’s line of defence is to attempt to shift blame from the company by showing its personnel not only responded promptly to the particular accident that is the subject of litigation but also the said personnel made regular maintenance checks on the power lines, so the company cannot be said to have been negligent. In the first Tag Question, counsel asserts that the personnel from the power company came to the site of the accident and uses the tag ‘isn’t that so?’ to get the witness to confirm this assertion. But what could be more damaging to the plaintiff’s case is the second Tag Question in the exchange. It contains the proposition that personnel from the power utility company regularly came to conduct routine inspections on the power lines, a proposition that originates from the defence counsel but the witness is asked to confirm through the tag ‘isn’t that true?’ The affirmative response by the witness can thus be taken to be a confirmation of the said proposition, something that the examining counsel emphasizes by repeating the witness’s response before formulating the next question.

In the same case, (cf. 3.4 below) the defence counsel seeks to show weakness in the witness’s claim that the power lines or the poles supporting them were ‘bending’ and this is what led to the accident. Through Tag Questions, the lawyer seeks to show a contrast between the witness’s claim and the reality on the ground for the time the power lines had been in that place.

Example 3.4: DS1Case01CE

C2: Kwa hivyo nataka ujue mtoto alishabisha ajali kwa sababu yakucheza na wire za stima, kuziguza na pipe ya aluminum. Na pia wewe ni responsible sababu umesema haukuwa unamsupervise kwa shamba na hukuwahi kumuonya juu ya hatari za kucheza na wire za stima. Hiyo si ni ukweli?

So I want you to know the child caused the accident because of playing with electricity wires, touching them with an aluminum pipe. And even you are responsible because youhave said you were not supervising him and you have never warned him of the

dangers ofplaying with electricity wires. Is that not true?

W: Hapana hakuwa ana [cheza ni-]

No he was not playing-

C2: [Kuna mtu] mwingine amechomeka na hizo wire hapo?

Has anyone else been burnt by those wires there?

W: Iko wengi zimechoma [tangu-]

There are many people they have burnt since-

C2: Unaweza kututajia mmoja amechomeka kwa shamba yako?

Can you name for us one who got burnt in your farm?

W: Sio kwa shamba yangu [lakini-]

Not in my farm but-

C2: [Kwa hivyo] kwa shamba yako hizo wire unasema zimebend hazijawahi choma mtu, si dio? Hapo kwa shamba yako.

So in your farm those wires you are saying have bent have never burnt anyone, isn’t

that so?There in your farm.

W: Ndio.

Yes.

C2: Na umesema zimekaa hapo muda mrefu, kama miaka ngapi?

And you have said they have been there for a long time. Like how many years?

W: Ziliwekwa 70s.

They were put in the 70s.

C2: Kwa hivyo over thirty years wire zimekaa hapo kwa shamba na hazijachoma mtu, si ndio?

So over thirty years the wires have been there on the farm and they have not burnt anyone, isn’t that so?

The exchange in example 3.4 starts with a series of statements by the counsel that seem to serve the function of implicating blame on the witness for the accident because he was not supervising his son (the plaintiff) as he was changing irrigation pipes in the farm and for not having warned the son on the dangers of ‘playing’ with electricity. As such, the plaintiff, the counsel argues, caused the accident by touching the electricity wires using an aluminum pipe. The repeated use of the expression ‘playing with electricity wires’ by the defence counsel is

significant. This is because throughout the cross examination, the lawyer uses the pragmatic strategy of vocabulary landscaping (cf. 5.5.5) by repeatedly using various expressions in the discourse that imply the plaintiff was playing with the electricity wires. A possible reason for this could be an attempt to construct a defence by shifting blame for the accident from the power utility company to the plaintiff. The Tag Question ‘Is that not true?’ seeks to get the witness to confirm all the assertions the counsel has made and also the version of the facts the counsel had been building in the whole case. Further, the assertion by the witness that many people have suffered similar injuries is discredited using Tag Questions that constrain the witness response to affirming assertions in the preceding statement. The witness is forced to admit that no other person has sustained injuries from the wires passing through his farm despite the fact that the wires have been there for over thirty years. This contrasts with the witness’s earlier assertion that the said wires were bending and hence posed a danger to all.

Following the observation by Quirk and Greenbaum (1973) that the statement in Tag Questions ‘expresses an assumption, and the question an expectation’ (p. 194), we can account for how the counsel is able to make the witness’s responses affirm a set of facts that are detrimental to his case. With regard to the assumption in the preceding statement, the expectation behind a negatively formulated tag is a ‘yes’ response, while the expectation behind a positively formulated tag is a ‘no’ response. Thus the confirmatory negative Tag Questions in examples 2.4 and 3.4

require that the witness positively affirms the assumptions that counsel has embedded in the preceding statement. The counsel’s ability to control the witness is further reinforced by factors beyond the syntax of Tag Questions. Cross examination is a discursive event (Fairclough, 1992) and thus the production and interpretation of what is said must take into account the institutional practices at play. Such practices include the fact that turn order, turn size and turn type are, to a large extent, pre-allocated in favour of the counsel: the counsel asks questions and witness answers the questions, and the answers’ content and length are to an extent determined by the question type (Matoesia, 1993). This is seen subsequent to the first Tag Question in example 3.4 where the witness attempts to resist affirming the lawyer’s assumptions in the statements preceding the tag. The counsel controls the witness’s turn by interrupting him mid-sentence and asks another question. On their part, witnesses do not have such control over the content or length of turns by counsel.

From these examples in the data we could, therefore, deduce that the use of Tag Questions in cross examination by counsel demonstrates a perpetuation of the status quo by strengthening the unequal power relations between participants in a trial not only on the basis of the different phases of trial but also on the basis of unequal access to discourse resources by the participants.

Although it was observed that lay litigants in the study sample did not use as many Tag Questions in cross examination as did the counsel, some pro se litigants still did manage to use Tag Questions to constrain responses by witnesses and thus force concession to propositions contained in the preceding statements as examples 4.4(a)-(b) and 4.5 illustrate.

Example 4.4: DS2Case02CE

(a) Ac2: Hii chuma unasema inavunja kifuli. Unajuaje?

This metal bar you are saying it breaks padlocks. How do you know?

W: Ndio mnaitumia. Hata polisi walisema ni nyumba nyingi sana W_____ mmevunja hivyo.

That is how you use it. Even the police said that there are many houses in

W____ youhave broken like that.

Ac2: Kwa hivyo hiyo maneno yote unasema niyakuambiwa na polisi, si ndio?

So all the things you are saying you were told by the police, isn’t that so?

W: Walisema na hata kwangu mlivunja hivyo.

They said and even my place you broke it like that.

(b) Ac2: Kwa hivyo tuseme wewe ushahidi wako wote ni mambo uliambiwa na polisi kunihusu, si ndio?

So we can say all your evidence is about what the police told you about me, isn’t that so?

W: Ee.

The accused challenges the validity of the witness’s testimony through the two Tag Questions in example 4.4(a)-(b) by showing it to be hearsay. In the courtroom setting, the rules of procedure require witnesses to give first hand evidence as opposed to information that they received from secondary parties (Conley & O’Barr, 1990). The witness in 4.4(a) has asserted that the accused persons broke the padlocks on the door to gain access to her premises and in direct examination had identified a metal bar she was shown by the prosecutor to be the one used to break the padlocks. Her assertion is based on the police having told her that that was how many houses had been broken into, not from having

witnessed the accused persons using the metal bar. The accused person, as the examiner, points out that what she has to say is only based on what she was told and the witness cannot but affirm this. Such an affirmation could negatively impacts on her whole testimony by showing it to be based on hearsay.

In addition, pro se litigants were also observed to embed propositions, in statements preceding the Tag Question characterizing events in ways that were not the witness’s and through Tag Questions made witnesses agree to such characterizations. Example 5.4 illustrates such use.

Example 5.4: DS2Case13CE

Ac3: Na sasa uliwezaje kuona mtu ambaye amekushika na ako nyuma?

And now how were you able to see the person holding you and he is behind?

W: Katika ile hali ya maumivu na [kung’ang’ana-]

In that state of pain and struggling-

Ac3: [Jibu swali langu.] Mtu alikufinya akiwa pande gani?

Answer my question. The person squeezed you being on which side?

W: Ulikuwa nyuma, [sasa-]

You were behind, now-

Ac3: [Na] uliambia mahakama ulikuwa confused, ulipoteza fahamu haukujua kitu inaendelea, si ndio?

And you told the court you were confused, you lost consciousness and you did not know what was happening, isn’t it?

W: Mimi nilikuwa confused because ulikuwa [umenishika-]

I was confused because you were grabbing-

Ac3: [Haukuwa] unaelewa kitu inaendelea?

You did not understand what was happening?

W: Sikuwa naelewa nini inaendelea.

I wasn’t comprehending what was happening.

Ac3: Kwa hivyo hungeweza kuona nani amekushika?

So you couldn’t see who was holding you?

Though the witness had earlier characterized his state after the violent robbery attack as one of ‘shock’ and ‘confusion’ there is nowhere in the preceding transcript (cf. Appendix 2) he says he lost consciousness. Yet this is the assertion

the examiner embeds into the statement preceding the tag ‘You told the court…you lost consciousness…, isn’t it? But not getting a ‘yes’ response to the negative tag, the defendant them picks up the word ‘confused’ that was used by the witness. The examiner asserts, in a Declarative Question, that the witness did not comprehend what was going on to which the witness agrees. The likely intention of the examiner becomes clear in the following question which is prefaced with a ‘so’ summariser which is another controlling device (cf. 5.3.1 and 5.5.2). In this case, the ‘so’ summariser is used to arrive at what the accused wants to show as the logical conclusion; if the witness did not understand what was happening because he had lost consciousness then there is no way he could have seen who had grabbed him.

Tag Questions are a major source of asymmetry in courtroom discourse as one party is coerced by the use of questions that highly constrain the range of responses given. It needs to be noted that Tag Questions usually demand for minimal Yes/No responses. Their disproportionate use in cross examination is thus typical of the discourse goals of this phase of trial; namely to ask questions that seek to discredit witnesses and their testimony and yet allow witnesses little room to maneuver in terms of giving elaborations that could well work against the view of facts the questioner seeks to advance. The high frequency of Tag Questions during cross examination in our data confirms earlier findings by different scholars. In her Australian data, Luchjenbroers (1993) found about 7.3%

of the Tag Questions being used in cross examination and 2.3% in direct examination and concluded that despite the low incidence of Tag Questions in general, their higher incidence in cross examination affirms the combative nature of this phase of trial. Even more in line with the present study, which compares the use of question types between counsel and pro se litigants, Tkačuková (2010) asserted that ‘the most striking difference between counsel and the pro se litigants is in the occurrence of Tag Questions’ (p. 47) with the former using Tag Questions more than the latter.