“More deadly than the male”: Classifying female witnesses in trial advocacy handbooks
Goodwin, Jill Tomasson
“You will always approach [the female witness] as if she were a wild animal ready to tear you if she could get near enough.”
Richard Harris 1879.
“A woman witness is off times death to the cross-examiner.” Asher Cornelius 1929. “If ever Kipling’s warning to mankind, `that the female of the species is more deadly than the male,’ becomes an actuality in this work-a-day world, it is in the courtroom. There she is deadly.” Daniel J. Gillen 1965.
“Counsel should be extra careful in assessing the female witness’ demeanour and responses to lead-up questions as they may signal the danger that is coming. If there is any doubt whatsoever about asking the question don’t.” Earl J. Levy 1994.
Taken from four advocacy advice texts, the above quotations span one hundred and fifteen years and three countries: Britain, Canada, and the United States. Virtually all the hundreds of trial advocacy handbooks, including advice books on cross-examination, are written by male lawyers for male lawyers. Most include sections on `the female witness,’ typically framed in negative terms: openly misogynistic in such older texts as Richard Harris’s (1879); less so in recent texts such as Earl Levy’s (1994). For contemporary scholars of law and literature, these texts constitute a significant body of gendered legal artifacts, offering, I think, an interesting view into everyday legal discourse, and, in particular, its linguistic, rhetorical, and ideological dimensions. As linguistic constructs, these advocacy texts use language to initiate, structure, and sustain gendered social relationships (Schulz, 73). As rhetorical constructs, they provide advice that is meant to persuade advisees-in this case, junior lawyers and law students-that cross-examining women is dangerous, that advisees need special expertise to do so, and that the advisors and their handbooks can provide just such expertise. And as ideological constructs, they presuppose, reproduce, and naturalize asymmetrical social relationships (Spender 175) among the primary textual roles: namely, among advisors, advisees, and women witnesses, the so-called “objects of advice.”
Common to all three discursive dimensions-and central to the argument of this paper-is the concept of classification. Advocacy advice books are intense sites of division, categorization, and exclusion. Linguistically, classifications are grammatical constructs, operating at the level of syntactic and semantic relation, relations which set out desirable male and female behaviors in the courtroom. Rhetorically, classifications are symbolic action. That is, they persuade male readers to adopt a set of categories that operate, in the courtroom world, as strategies of inclusion and exclusion, strategies which, in particular, include male lawyers and exclude female witnesses. And ideologically, classifications are naturalized and circulated dividing practices, which, in the case of the advice texts, favor the interests of male lawyers over the interests of others, particularly of female witnesses.
To examine these dimensions, I divide the paper into three sections. In the first two, I focus on linguistic issues. Specifically, I focus on what I call “propositiona”‘ and “figural” classifications, which are embedded in the androcentric language the male writers use to classify female witnesses. Both kinds of classifications employ what Robert Hodge and Gunther Kress call grammatical “relationals” and “actionals” (Language 120), which manifest themselves in the advice texts through the grammatical structure and rhetorical-ideological function of assertions and conditionals, metaphors and narratives. In the third section, I link these linguistic issues to rhetoric and to what I call “gendered ideology,” arguing that the classification of female witnesses constructs-or more properly “orchestrates” (Bourdieu 471)-power relations between the classifiers and the classified, between male lawyers and female witnesses. And in the concluding section, I attempt to explain the highly interested motivation behind classifying female witnesses in trial advocacy handbooks. By offering a critical reading of these texts, then, I hope to invite other scholars to analyze, and legal practitioners to question, the gendered assumptions and ideological effect of authorized legal advice.
I: PROPOSITIONAL CLASSIFICATIONS: ASSERTIONS AND CONDITIONALS
Language is not neutral. It does not passively transmit ideas. Rather, it shapes them, constructing social reality, an “interpretive lens” through which we see the world (Frye 2). As feminist linguist Dale Spender points out, “human beings cannot impartially describe the universe because in order to describe it they must first have a classification system. But, paradoxically, once they have that classification system, once they have a language, they can see only certain arbitrary things” (139). More particularly, she argues, “we are required to classify the world on the premise that the standard or normal human being is a male one” (3).
In the advocacy advice texts, male advice writers construct a classification system which promotes “certain arbitrary things” for their readers. First, witnesses can, and should, be categorized into various types, based on such criteria as age (children and the elderly); race- “the nations of India, by the subjects of the Czar, and by many of the peasantry in Ireland” (Taylor 70); and character traits-“the lying witness,” “the flippant witness,” “the smart aleck,” and so on.1 Second, witnesses can, and should, be categorized because they are non-standard humans-that is, non-male-singled out by their sex as the “female” witness. Within this division by sex, male advice writers also classify the female witness by behavior, comparing her, to her detriment, with children and men. These classifications take the form of what I call “propositions”: a broad class of classifications that purport to describe the social world “as it is.” Propositional classifications employ literal language, are factual in orientation, and are presented as statements meant to be upheld.
Assertions as Relationals
In the advice texts, propositional classifications can take the form of assertions: statements that categorize participants according to some attribute or attributes. Specifically, assertions are grammatical relationals, relating nouns to predicate adjectives in a process of attribution, as in “Jane [participant] is [predicate] tall [predicate adjective as attribute].” Assertions tend to fix participants by ascribing to them some specified set of qualities. In advocacy advice texts, assertions about female witnesses tend to draw upon a number of prejudicial attributions (my italics):
Women, like children, are prone to exaggeration. (Bailey, Techniques 103)2[Women] are more emotional. (Busch 293)3 [Women] are evasive. (Appleman, Preparations 303)4 [Women] are more tenacious of their ideas. (Busch 293)5 [A woman] is usually more facile and resourceful in her replies. (Cornelius 139)6
To deconstruct these assertions, I propose to look at each grammatical component as it occurs in the process of relation: the noun, “women,” the forms of the verb, “to be,” and the attributions themselves. First, these assertions classify female witnesses as “women.” As Edwin Schur points out, such “classificatory status tends to displace alternative criteria of personal worth” (31). In the place of individuality and individual worth, these assertions underscore the similarity of female witnesses by the single variable of their sex, forcing individual women into a homogeneous and indistinguishable group (Eisenstein 38), one which is wholly distinct from the male advice writers and readers. In this way, Gordon Allport argues, “women are viewed as a wholly different species from men” (33). This differentiation polarizes the sexes into two antithetical groups, “us” and “them,” creating what Allport calls “ingroups” and “out-groups,” by which “with half of mankind (his own sex) the male may feel an in-group solidarity, with the other half, an irreconcilable conflict” (33). Second, thus categorized, female witnesses become objects for consideration, frozen, by the verb “to be,” into a more or less permanent state of existence. This state is always a negative one: female witnesses are overemphatic in verbal and emotional expression (being “prone to exaggeration,” and “more emotional”); they are unstraightforward in thought and expression (being “evasive,” and “facile and resourceful”); and they are unreasonably persistent in expression (being “tenacious”). Equally, as a verb of essence, “to be” indicates the most essential attributes of its noun, “women”: thus, the most salient qualities of female witnesses are a propensity for exaggeration, emotion, evasiveness, facileness, and tenacity.
Third, these “female” attributes not only deny female witnesses individuality, but also stigmatize them. As Judith Long Laws argues, “being female carries a stigma in and of itself, independent of other attributes with which it may be hyphenated” (4). Thus, such attributes as “an exaggerating female witness” or “an emotional female witness” label and stigmatize female witnesses doubly: first, they isolate the witness’s sex (female), and second, they magnify either her socially distasteful behaviors (evasiveness, which men do exhibit) or the distasteful behaviors associated with her sex (emotionalism, which men do not exhibit). As Michael Apple points out, labels stigmatize people as deviant, deficient, inferior, and perhaps more importantly, govern how those who label can treat these constructed “others” (135). In our case, advocacy advice labels invite their readers, first, to perceive female witnesses as a particular kind of witness-a problem witness-and second, to treat them as though all female witnesses will act in accordance with their essence: replying in a facile and resourceful manner, presenting ideas tenaciously, acting evasively, and so on.
Moreover, many attributive assertions employ comparisons to underscore the deviant, deficient qualities of female witnesses. Based on the “prototypic division” of male and female (Spender 6), assertions make comparisons by way of a “covert taxonomy” (Kress and van Leeuwen 81), or a tacit ranking. The pair of male and female is linked so that the first serves as the standard against which the second is judged deficient, following what Spender calls the “semantic rule” of “male-as-norm” (3). In the example, “women are more emotional,” the comparison is covert. That is, the male term is the unmarked, understood “male-as-norm,” and must be inferred, while the subordinate, female, term is marked and highlighted by its negativity. Presented as description, and, therefore, as common sense, such comparisons construct a hierarchy of judgment, in which pairs of antithetical terms line up. Being “more emotional,” “more tenacious,” and “more facile” lines up with, and explicitly modifies “women”; being less emotional, tenacious, and facile lines up with, and implicitly modifies “men.” In regular linguistic practice, Julia Stanley has noted that women are characterized as “less” than men, as “minus males,” and thus occupy a “negative semantic space”: “females are defined traditionally as `non males’ since males are the standard of comparison for the entire species, and women are the beings who contrast with them” (29). In other words, women generally have “less” attached to their attributes-“less intelligent, less objective, less competent” (Young-Eisendrath 155), for example. In the advice books, however, “more” still means “less” than men, precisely because the comparative, “more,” emphasizes and intensifies what is classified as undesirable courtroom behavior. Thus, males are assumed to be more desirable as witnesses because they exhibit less or none of the problematic, undesirable behaviors of female witnesses.
Conditionals as Transactive Actionals
In advocacy advice texts, male writers use a second kind of propositional classification, one which categorizes what normally happens between male lawyers and female witnesses. These classifications present themselves in the form of “transactive actionals” (Hodge and Kress, Language 120), grammatical structures which connect two agents by one process: usually one agent causes the action and the other is affected by it (8). In the advice texts, actionals play out the “incipient act” of attitude (Burke, Grammar 236), attitudes which male advice writers construct through their assertions about female witnesses, and by which they direct male readers to particular courses of action regarding female witnesses. Thus, relationals and actionals are functionally connected: because female witnesses are a particular way (assertions), male lawyers must interact with them in a particular way, to control them and the outcome of the cross-examination (actionals).
Advice normally stipulates a useful course of action, one that, in the advice texts, adequately responds to the crisis of cross-examining a female witness. These useful actions often take the form of conditional statements which mark the temporal shift from problem to solution, crisis to response, situation to action. Expressed through an if-then structure, one form of the conditional outlines common occurrences. In the action of cross-examination, these common-occurrence constructions set out, and thus classify, what a female witness often does. Signaled through the present tense verb in the “if” clause, the subordinate clause functions to describe the condition under which the male in trouble”:[I]f you are confronted by an acting witness who deliberately uses tears to gain [jury] sympathy. your aim is to use methods designed to avoid them, so that you will not be blamed for them if they fall. (Keeton 141, my italics)
Ostensibly, this conditional provides a friendly warning to the male lawyer “avoid [her tears], so that you will not be blamed for them if they fall.” However, by delineating the actions of the female witness in the present tense, this conditional simultaneously asserts that female witnesses commonly cry during cross-examination.7 It establishes this action as normal, frequent, and usual for female witnesses. Schur points out that in our gender system “women’s actions are regularly dismissed as being the results of their `emotionalism”‘ (54-55). Thus, by using this already gendered “norm,” male advice writers can label female witnesses’ tears as deviant on two counts. First, they can classify crying as the “wrong” emotional response (Schur 55) for courtroom behavior; second, they can classify it as a manipulative use of emotion, “to gain [jury] sympathy.” Like the attributes which label and stigmatize, then, the action of crying labels and stigmatizes women as problem witnesses.
As advice structures, conditionals also need to highlight a specific course of action to redress the “unfortunate consequences” of the inappropriate behaviors of female witnesses. To do so, the advice texts employ another kind of conditional, one which constructs a possible/ future, rather than a regular/ present, occurrence. The male lawyer’s action is commonly outlined by a “then” consequent clause-“if you’re in trouble, then you should do x to the female witness”-and expressed through a “should” (or understood “should”) modal:[I]f the crying is such as to interfere materially with her answering . . . [then you should] suggest to the court that you will not object to interruption of your cross-examination by a short recess if the witness desires it and the court considers it appropriate. (Keeton 141, my italics)
Here, the “if’ antecedent clauses outline the one agent (the understood “female witness”) and the action (“crying”), characterized as the urgency or trouble to be redressed. Note, however, that Keeton characterizes the “typical” emotional response in this possible-situation conditional as extreme: “the crying is such as to interfere materially with her answering.” This male writer outlines a situation in which the female witness-already condemned for the gendered action of crying-acts in an even more deviant fashion as the hysterical woman. The “then” consequent clause suggests an ameliorating action that is open to the affected agent, the male lawyer (designated by “you”). Note that, by contrast, the male lawyer can take advantage of the gender norms attached to men: interrupt the cross-examination to acknowledge the hysteria, suggest a short recess to calm the deviant action, and make these suggestions conditional on the female witness’s desire and the court’s desire to appear considerate and helpful.
As advice structures, conditionals are designed to persuade the advisee that the proposed course of action is both possible and desirable. Advised actions are considered possible if they are general, typical, and applicable; desirable, if they lead to positive, advantageous outcomes. Advocacy-advice conditionals demonstrate both features. The if-then structure tends to delineate generalized characters in typical situations: a female witness bursting into tears, for instance. The if-then structure also promises that for every problem there is a solution, for every action made by the female witness there is an efficacious counter move for the male lawyer. In short, the very grammatical structure of the conditional construction-the lock-step of antecedent-consequent-contributes to the overall persuasive message: that male lawyers can control and maintain power over female witnesses during cross-examination.
To sum up, then. In the advice texts, propositional classifications exhibit what Allport identifies as “two basic ingredients” of “antifeminism”: “gross overgeneralization” and “denigration” (34). Classifying by assertion, for example, grossly overgeneralizes female witnesses by grouping them by their sex and then denigrates female witnesses by attributing to them undesirable courtroom behaviors. Likewise, classifying by conditionals, by common or possible actions, grossly overgeneralizes the range of behaviors of female witnesses and then denigrates them through negatively characterization. Both kinds of propositional classifications, then, partake of what Schur calls a systematic “objectification of women,” which exhibits six general characteristics: women are responded to primarily as female; women are seen as “all alike”; women are presented as an inessential Other, inactive, and objectlike; as subordinates, women can be studied, converted into “cases”; women can be ignored, dismissed, trivialized; and women are evaluated exclusively by their impact on men (33). In short, by objectifying the female witness, the advocacy advice texts implicitly direct male lawyers to treat female witnesses in a depersonalized, standardized, and objectified manner. As Schur argues, when a group has classificatory status, “others may claim license-implicitly if not explicitly-to treat stigmatized individuals in exploitative and degrading ways” (31). To see how male lawyers are encouraged to degrade female witnesses, we need only look to such advice as that offered by Francis Wellman:
If the witness happens to be a woman, and at the close of her testimony inchief it seems that she will be more than a match for the cross-examiner, it often works like a charm on the jury to practice upon her what maybe styled the silent cross-examination. Rise suddenly as if you intend to cross-examine. The witness will turn a determined face toward you, preparatory to demolishing you with her first answer. This is the signal for you to hesitate a moment. Look her over good naturedly as if you were in doubt whether it would be worthwhile to question her-and sit down. It can be done by a good actor in such a manner as to be equivalent to saying to the jury, “what’s the use? She is only a woman. ” (Cross-Examination 127, my italics)
II. FIGURAL CLASSIFICATIONS: SIMILES, METAPHORS, AND NARRATIVES
In the advice texts, what I call “figural” classification is the opposite, and complementary, form of the propositional classification: where propositional classifications are literal statements, figural classifications are non-literal ones; where propositionals ascribe truth values on the basis of a direct correspondence between a statement and the world of reference, figurals circumvent truth value per se, focusing, instead, on the “truth” of internally coherent patterns ascribed to possible worlds of play, fiction, and the imaginary; and where propositionals classify overtly, and thus clearly mark ideological interest, figurals classify covertly, leaving ideological interest largely unmarked. Like propositionals, however, figural classifications express themselves both through relationals (similes and metaphors) and actionals (narratives). Moreover, the relation of similes and metaphors to narrative is much the same as that between assertions and conditionals: figures of speech “engender” attitudes in the implied reader, which, when expanded, form extensive narratives about how male lawyers and female witnesses do, and should, interact with each other.
Similes and Metaphors as Relationals
In the advice texts, classification can take the form of similes and metaphors. Like assertions, they are grammatical relationals. But unlike assertions, which relate nouns to predicate adjectives to make a statement about attribution, similes and metaphors relate nouns to other nouns seemingly to make statements about identity. Specifically, they present themselves as “equative” relationals (Hodge and Kress, Language 120), appearing to identify, or make equivalent, two nouns in an “a is the identity of b” relation, as in “Jane is my sister.” However, common sense tells us that the metaphor, “Juliet is the sun,” is not equative: Juliet is not, literally, a gaseous ball of exploding helium some ninety-three million miles from the Earth. Similarly, the statement, “a woman witness is off times death” (Cornelius 138), cannot literally be true. To make it make sense, we must shift our interpretive codes, invoking connotative rather than denotative meanings, and thus reframing the statement so that it is implicitly understood to mean “a is like b” in some respects. This likeness makes figurative equatives function very much like assertions, which attribute qualities to participants: “a woman witness is like death because she is destructive” (attribute). To make the statement make sense, we must also know which attributes to select for consideration, like “destructive,” and which ones to deflect, like “eternal.”
Advocacy advice texts, and especially such older texts as Richard Harris’s (1879) and Asher Cornelius’s (1929), use similes and metaphors to classify female witnesses (my italics):
You will always approach her as if she were a wild animal ready to tear you if she could get near enough. (Harris 76)[She is] not unlike a fencer making an overreaching thrust. (77) You will have observed that your opponent has driven this splendid creature with a bearing rein. (77)
You might just as well try to convince a street mongrel that barking is done away with, as attempt to persuade her that she ought not to be quite so positive. (91)
A woman witness is off times death to the cross-examiner. (Cornelius 138) It is only the obvious vixen who stands on almost an equal basis with men when facing the cross-examiner. (138)
Yes, the cross-examination of a woman has been the rock upon which many a trial lawyer has wrecked his case. (139)
They use every weapon in their armory, smiles, coquetry, shrugs, sauciness, and . . . tears. (139)
Like assertions, many of these similes and metaphors use the verb “to be” to classify and fix implicit attributes of female witnesses. These nouns-as-attributes can be grouped into three classes: wild animals, warriors, and inanimate forces. As a wild animal, the female witness is an untamed horse (“splendid creature”), a stray dog (“street mongrel”), a she-fox (“vixen”).8 As a warrior, the female witness is “a fencer,” a combatant who uses (a “material process” of action, Kress and van Leeuwen 66) the negative feminine “armory” of “smiles, coquetry, shrugs, sauciness, and tears” as “weapons.” And as an inanimate force, the female witness is a “rock” and “death.”
Of the many metaphors and similes, one appears more often than any other in contemporary texts: the female witness as death. Most popular in its comparative form, “more deadly,” and enduring, perhaps, for its literary distinction, this metaphor has been borrowed from Rudyard Kipling’s poem, “The Female of the Species,” the first line of which reads “the female of the species is more deadly than the male” (see also Busch 293; Gillen 51; Heller 302). This metaphor classifies female witnesses by an implicit attributive process requiring a series of semantic transformations. That is, these transformations enact a complex act of selection and deflection, of choosing some attributes and disregarding others, an act which naturalizes the negative deadliness of the female witness. For example, in the animal kingdom, “more deadly” could be equated with “more powerful,” that is, with “more worthy of respect,” as in the statement, a lion is more deadly than a gazelle. But in this instance, the attribute “more deadly” seems to be aligned with “more likely to turn on you without provocation,” more irrationally aggressive. Thus, in the courtroom, the female witness is less human than the male witness because she is less rational.
By contrast, the similes and metaphors which describe male lawyers are universally positive. Striking both for their longevity-from Harris (1879) to Optua and Goldberg (1982)-and for their consistency, these metaphors fall under a single class: the male lawyer as knight. Examples include: You must demolish her, my friend. There’s a life-and-death struggle in the cross-examination and you must win. (Harris 74) An advocate needs also undaunted courage and resolute energy in attack or defense. (Wellman, Day in Court 37)
Yes, he is brave indeed who engages in such combat with a woman. (Cornelius 139)
Have your armor in good shape and your visor down, otherwise you may be the most seriously wounded when the combat is over. (Cornelius 139)
It is often said that the strongest weapon in the armory of the advocate is the gift of speech. (Optua 16)
We become trial lawyers to conquer. (Goldberg 271)
These metaphors differ from those reserved for women witnesses in two noteworthy ways. First, the relational “is,” used to categorize female witnesses negatively, categorizes male lawyers positively, as in the attribution “he is brave,” or describes a positive possessive attribution, as in “the strongest weapon” “is the gift of speech.” Second, metaphoric verbs of action, such as “demolish,” “win,” “engages in . .combat,”and “conquer,” replace the female witness’s negative relationals of essence, as in “she is emotional.” These activities of battling carry positive, heroic attributes-very much unlike those of the female witness, who employs passive, negative mannerisms, such as shrugs and tears.
Clearly, metaphors create social and discursive domains which, as Gunther Kress points out, “entail certain assumed, taken-for-granted and therefore more or less implicit knowledge” (Linguistic 70). Furthermore, the ubiquitous action of metaphor “is one force in the discursive and ideological process of `naturalizing’ the social, of turning that which is problematic into the obvious” (72-73). And, not surprisingly, metaphorical activity “occurs at sites of difference, in struggles over power, whenever an attempt is made to assimilate an event into one ideological system” (71). In the advice books, then, a great number of stereotypes about women and men-about who they are, how they should act and interact, what they should desire-are reproduced by stock identifications (men as heroes, knights, warriors; women as animals, natural forces, death) and are simply assumed as given, taken for granted. Similarly, these figures inscribe-and by inscribing, naturalize-power relations among the groups being stereotyped: principally, that women in general, and female witnesses in particular, are untrustworthy and irrational, and thus require male dominance and control. Obviously, such figures harbor multiple “sites of difference” and “struggles over power,” ranging from the contest of power between female witnesses and male lawyers during cross-examination, to the contest of power, generally, between women and men in society. As Schur summarizes it, “if femaleness itself poses some kind of threat, then it becomes all the more important to keep it under control. Male fears of this sort, furthermore, heighten the tendency to think of women in categorical terms, and to emphasize their supposedly fearful biological characteristics” (45).
Narratives as Actionals
Metaphor operates on every level of language, from the “smallest phonological features” to the “largest textual/ generic units” (Kress 70). For this reason, the implicit grammatical-actional pattern of agents, actions, and goals underpinning many metaphors operates, as well, on larger discursive scales, including that of narrative. That is, metaphors project narrative constructions, complete with characters, time, processes, possible obstacles and conflicts, outcomes, and so on. Like conditionals, narratives contain actions and temporal constructions, but, unlike conditionals the content is not propositional but fictional. Narratives propose a storied, figured world for our consideration, not arguments to be assented to or refuted.
A number of feminist scholars have challenged the androcentrism of narratives generally as they pervade our culture. Clearly demarcated roles, linear plotlines, and clear-cut processes and resolutions, they point out, belie ideological interest. As Rachel DuPlessis writes: “narrative in the most general terms is a version of, or a special expression of, ideology; representations by which we construct and accept values and institutions” (x). This interest, then, is clearly gendered. “Culture is male,” writes Joanna Russ, “our literary myths are for heroes, not heroines” (18). Narrative characterization, for example, limits the roles and attributes of women, who are “found to be a snare, an obstacle, a magic power, or a prize” (Gergen, “Life” 130), so that “if He is the subject of the story, She must be the object…. He is the actor; she is acted upon” (131). Narratives, therefore, function as an ideological “interpretative lens” by which the world is categorized, its contents labeled, and its participants circumscribed: “by this ideology–regardless of lived experiencewomen can find their ‘identities’ only in terms set out by specifically sexual expectations” (Frye 2). Similarly, narrative action and resolution have come under scrutiny and critique. The “male paradigm” of action, for example, displays the “need to make events into story, to make something happen, to be `on the make,’ in hot pursuit” (Randall 143). And the resolutions of such actions invariably mark the need for closure, to turn process into product, to hide away contradiction: “one of the great moments of ideological negotiation in any work occurs in the choice of a resolution for the various services it provides” (DuPlessis 3). Such resolutions also delimit the trajectories, or future possibilities men and women are taught to imagine for themselves: “to the extent that narratives are gendered, furnishing different structures of meaning for men as opposed to women, so do they contribute to cultural patterns that differentiate between the genders and prescribe both what is likely and unlikely during a lifetime” (Gergen, “Gendered” 193).
From a feminist perspective, we may wish even to critique narratological models which clearly draw from, and are connected to, androcentric narratives. However, precisely because advocacy-advice texts employ male-centered characters, plot lines, and outcomes, narratologists can usefully isolate and underscore these patterns. Vladamir Propp, for instance, asserts that in the grammatical-actional construction of narratives, characters, or agents, are functional (32). That is, certain actions and events proceed based on the kind of agents present. These functional roles combine to form typical narrative patterns: agents are “subjects” which “seek” (a narrative function) “objects” (goals or states), who have been sent by “senders” (a social power embodied in an important character or institution), are assisted by “helpers” (agents which help overcome difficulties), threatened by “opponents” (agents or forces which oppose the subject’s goal), and bestow benefits upon a “receiver” of the “object” (an agent which may or may not be the subject) (Greimas 107-09). The advice texts follow the Greimasian pattern, which we can overlay with feminist observations: male lawyers are always the narrative subjects, or “heroes” (Russ 18); female witnesses, the subject’s opponents, or “objects” (Gergen, “Life” 130); and the object, winning the cross-examination, making “something happen” (Randall 143). More obliquely, the sender is the law; the helpers, the legal infrastructure (including advocacy advice); and the receiver, the subject-lawyer and his client.
The similes and metaphors whose attributes, as we have seen, construct roles for female witnesses and male lawyers, embed very particular and consistent narrative patterns, patterns which feminist critics have exposed as gendered. For example, the metaphor, “the cross-examination of a woman has been the rock upon which many a lawyer has wrecked his case,” emplots the following narrative: the seaman (subject/ male lawyer) seeks a safe shore (object/ victory in cross-examination) but whose ship (legal case) is wrecked by a rock (opponent/ female witness). The implied helper is advocacy advice itself. Here, the role of the female witness as rock-opponent dictates the narrative outcome of failure, which Mieke Bal calls a process of deterioration (22). The female witness functions negatively, as an alazon, or blocking character, whose primary role is to complicate or thwart the progress of the hero, the male lawyer. The closure of this “plot,” then, makes what DuPlessis has called an “ideological” choice, one which is clearly gendered.
However, this metaphor-narrative is unusual in the advice texts. Most figures stop short of narrative resolution, preferring instead cautionary tales to underscore rhetorical urgency. Take the metaphor, “Have your armor in good shape and your visor down, otherwise you may be the most seriously wounded when the combat is over.” The knight (subject/ male lawyer) seeks to win in combat (object/ victory in cross-examination) against his (understood) enemy (opponent/female witness). He has not lost, and thus no process of deterioration has occurred. Instead, he is advised that his armor and visor (helpers/ case preparation, legal training, legal infrastructure, and so on) must be in good shape (organized, professional, focused) or he may be the most seriously wounded (experience deterioration). Should he have his armor and visor prepared, however, the male lawyer will experience a “resultant improvement” (Bal 22) and defeat the female witness in the battle of cross-examination. This resolution takes into itself what many feminist writers isolate as the fundamental building blocks of androcentric narratives: male and female as opponents; male as superior, female as subordinate; and male as victor-hero and female as victim-villain. As Frye points out, “a male-dominant sexual ideology threatens to encode women as objects in paradigmatic plots,” which she calls “narrative entrapment” (6).
In summary, then, similes, metaphors, and narratives are potent linguistic forms because they avoid setting up propositions, establishing instead patterns of formal coherence which are meant to be entertained rather than argued for. As such, they are unlike the literal statements of assertions and conditionals: they need not defend their truth value, because, as figurative, they are constructed so that they simultaneously “are” and “are not,” true and not true. This ambivalence is one of the sources of their pleasure as language and fictional structures-the play with words, meaning, and truth value. However, this very play allows figurals to hide their classificatory function, to naturalize structures in such a way that their rhetorical activity is simply overlooked. Nevertheless, as figural classifications, similes, metaphors, and narratives “orchestrate,” to use Pierre Bourdieu’s term (471), through selection and deflection, the depiction of experience in ideologically-interested ways. They deploy figurative categories-cross-examination as a life-and-death struggle in which female witnesses as wild animals and male lawyers as knights engage in mortal combat-to project a world ordered to favor the male lawyer and to disenfranchise the female witness.
III. CLASSIFIERS, THE CLASSIFIED, AND CLASSIFICATIONS
As Hodge and Kress point out, classification underpins language and thought (Language 62). As language users, we connect concepts to other concepts by using linguistic classifications: we learn classifications-“male” and “female,” for example-and we learn through classifications that “male” and “female” are different. Thus, classifying is a social act: an act, because categories are never simply given, but must be made and remade; social, because this making takes place within human communities, themselves structured by prevailing classificatory practices. As such, classification presupposes classifiers: social agents who have the institutional power to differentiate objects in the social world, and, especially, the power to differentiate between those agents whose boundaries count-that is, whose way of dividing up reality must be attended to or acted upon-and those whose boundaries do not. To reproduce and thus perpetuate their classifications, classifiers must have access to the production regime-namely, the “rules oriented to producers, specifying what meanings they can produce, how and to whom” (Hodge and Kress, Semiotics 266).
Classifiers and the Classified as Rhetorical
In the legal profession, advocacy advice texts disseminate the messages of those who have the power of production, and consequently, who can influence the beliefs and behaviors of others through rhetorical means. By “rhetoric,” I mean “the use of words by human agents to form attitudes or to induce actions in other human agents” (Burke, Rhetoric 41). Rhetorical texts are both responsive and addressive; that is, they emerge out of, and are designed to affect changes within, a larger social situation. Following Lloyd Bitzer, I define the “rhetorical situation” as comprised of three elements: first, a “controlling exigence,” where “exigence” refers to “an imperfection marked by urgency” which is “capable of positive modification”; second, “constraints,” those factors that influence “the decision and action needed to modify the exigence”; and third, an audience or a readership comprising “only those persons capable of being influenced by discourse and of being mediators of change” (7).
As “human agents,” male advice-text writers set out “to form attitudes [and] induce actions in other human agents”: male advice readers. Within this rhetorical situation, Bitzer’s first element-the controlling exigence-correlates with the general need of inexperienced male lawyers for advice about advocacy procedures and strategies, and, in this case, about principles for successfully cross-examining female witnesses. The “imperfection” of the exigence is the threat of unsuccessful cross-examination. The “urgency” is the male lawyer’s need to win court cases. And the “positive modification” is the set of consistently useful advice and guidelines for successfully cross-examining female witnesses. Bitzer’s second element (“constraints”) is the limits of the solutions offered by the advice, where the solutions must be both general enough to apply to a variety of situations but specific enough to address the lawyer’s real-world problems. Together, the controlling exigence and its constraint constitute the raison d’etre, the rhetorical motive, of the advice texts.
The third element-the audience or readership-presupposes a male writer who, through the text, attempts to construct a relationship of goodwill with the male reader. Reader-response critics identify and divide the roles of writer and reader into extra-textual and textual identities. Extra-textually, real writers and readers are flesh-and-blood men who, for our purposes, actually write and read advocacy advice texts, and thus are linked, socially, in these acts. Textually, the language points to “implied” or “ideal” writers and readers (Booth 8), not living people but hypothetical, abstract figures who are postulated by, and exist within, the text. These implied writers and readers invite real writers and readers to take up particular roles, and, in this instance, to relate socially as producers and receivers of classifications about witnessesas “classifiers”-or, more benignly, as advocacy advisors and advisees. The implied advisors, for example, are constructed textually as successful, senior, male trial lawyers who desire to initiate junior, male members of the profession: as F. Lee Bailey says, “a well-seasoned lawyer has an obligation to his young colleagues to pass on to them the knowledge and insights he has gathered over his years of practice” (Fundamentals v). If real readers accept this construction of the implied writer, they will likely admire, even revere, the ethos of “a well-seasoned lawyer” who feels obliged to utilize his courtroom expertise in the service of other, less experienced lawyers.
Likewise, these texts construct implied advisees as men who study and practice trial law, who wish to master advocacy, and who are identified in the texts as “you” and “he” or “his.” They often assume or aspire to the same characteristics and attributes that the implied writer attributes to himself: for example, “imperturbable self-possession” (Palmer 146), “the gift of speech,” “a sound knowledge of human nature,” “a clear head,” “good memory,” “strong common sense,” “aptitude of analysis and arrangement” (Optua 1416), “the healthy frame capable of enduring the long-continued exertion of mind and body,” and “perception, keenness of observation, clearness and quickness of comprehension” (Wellman, Court 25, 33). Given this positive construction of male lawyers, the implied advisees are disposed to accept their aspirations as signs of apprenticeship, and are more likely to want to identify themselves not only with the attributes of the advisor (including classifier), but also with his opinions (including his classifications). In other words, the male advisee becomes a willing audience for the persuasion of the advisor, a reader whom Bitzer describes is a person “capable of being influenced by discourse” (7).
Part of the persuasive impact of the advice texts, then, derives from the social relation between the implied writer and implied reader as privileged members of the production regime, as those whose boundaries count, including, of course, their classifications of witnesses. This social relation is one of gendered and professional identification, of male trial lawyers who appreciate the tribulations and triumphs of the courtroom. It demonstrates what Hodge and Kress call “solidarity” (Language 157), which blurs the many differences, antagonisms, and conflicts of interest that real lawyers experience among themselves. It is further enhanced by an opposite, yet complementary, social relation shared by the implied male writer and male reader: a relation of “power over” (156) the female witness during cross-examination, one which features the male lawyer in a superior, dominating position over the inferior, submissive female witness, and one in which the interests of the male lawyer oppose those of the female witness so that difference and antagonism emerge. In other words, the implied advisor and advisee share the knowledge of their power to classify, and to employ classifications in the courtroom, a power which is conferred upon the advisee in his textual construction as a “mediator of change” (Bitzer 7).
Setting up a triangle of social relation, the advice texts construct female witnesses as objects of advice, as witnesses classified by the stigmatized feature of their sex, and by particular, negative attributes. In short, they are “the classified” member of the triad, the one who does not write about herself. As Marie Maclean defines them, women are also “excluded readers,” “highly ambiguous spectators who, either by reason of such authorial prohibition as `this book, this performance is intended for men/ women alone’ or by reason of social convention or legislation, should not be present or are discouraged from being present, at the performance, just as they are from reading the text” (38). Although the advice books do not expressly prohibit real women readers, they discourage this readership in two ways, both gendered: by classifying the implied subjects of advice as clearly male and characterizing them in flattering terms, and by classifying the objects of advice as clearly female and characterizing them in highly unflattering terms. Advocacy advice books are clearly about the female witness, not for her.
In summary, then, “classifiers” and “the classified” are rhetorical constructs; that is, they are textual roles which are meant to persuade real male lawyers and law students that they are junior members of the elite production regime, that their boundaries count, and that the classifications about themselves and about women witnesses reflect reality. Constructed overtly by the propositional-and covertly by the figural-classifications of female witnesses, these textual roles initiate, structure, and sustain social divisions and exclusions, including those surrounding gender (male and female), legal expertise (lawyers and witnesses), and access to the production regime (as classifiers and the classified). Specifically, they use the grammatical relationals of assertion and metaphor to heighten the rhetorical urgency, or threat, that male lawyers must redress in successful cross-examination. This supposed threat, moreover, calls for the actionals of the conditionals and narrative to provide the lawyer with useful countermeasures, strategies by which he can reassert control, and therefore, maintain power over, female witnesses.
Classifications and Classifying as Gendered Ideology
Pierre Bourdieu calls this kind of rhetorical-linguistic activity “the orchestration of categories,” an activity which, he argues, is ideological:
the orchestration of categories of perception of the social world, which, being adjusted to the divisions of the established order (and thereby to the interests of those who dominate it) and common to all minds structured in accordance with those structures, present [sic] every appearance of objective necessity. (471)
Embedded in this argument is a number of propositions. First, all members in a given social formation partake in the “orchestration of categories of perception of the social world.” In the social formation of the legal profession, social agents such as writers and readers of advice texts “orchestrate,” or construct, the categories of “classifiers” and “classifieds” to create boundaries in their “social world.” Second, social agents use “the orchestration of categories. . . common to all minds structured in accordance with those structures.” That is, advice texts readers and writers share basic perceptual schemes, “common to all minds,” that operate within and organize the legal profession. These schemes are socially constructed and commonly expressed in pairs of antithetical adjectives (468), which, in advocacy advice texts, include such basic schemes as “classifiers” and “classifieds.” Third, social agents orchestrate categories “to the divisions of the established order.” In this case, lawyers assign to themselves expert-and to witnesses, lay-status to reflect and reinforce the established order of the courtroom. Fourth, “those who dominate” the established order orchestrate categories to reflect and reinforce their interests. Within the class-divided courtroom, those who dominate, such as lawyers, use classification to select and deflect social elements in the social in a way that favors their social position and disregards or dismisses those of dominated groups, such as witnesses. And fifth, having been adjusted, the orchestration of categories “present[s] every appearance of objective necessity.” That is, social agents, such as advice-texts writers and readers, “forget” the arbitrariness of their own classifications (471), and interact in the social world of the courtroom as if their classifications were natural and commonsensical.
To make use of Bourdieu’s clearly ideological notion of “the orchestration of categories,” however, we need to incorporate a feminist perspective. Joanne Frye, for instance, connects classification by gender with the power interests of the dominant ideology:
male and female are perceived a polar opposites; male is equated with general human capacity; female is defined in terms of relational capacities and expressiveness. By this ideology-regardless of lived experience-women can find their “identities” only in terms set out by specifically sexual expectations, and such terms preclude them from agency and autonomy, qualities reserved for men and for the “generally human.” (2)
Likewise, Schur argues that the systematic “inferiorization” of women has traditionally such consequences as the “partial ‘segregation’ of women in a separate women’s `sphere,’ the discouragement of aspirations and restriction of opportunities, the consistent subjection to objectifying treatment in ordinary interaction, and so on” (37). Certainly in the social formation of the legal profession, Frye’s and Schur’s observations hold true. To take just one report on gender bias in the law, the Report of the Vew York Task Force on Women in the Courts (1986) documents a pervasive denial of justice to women. In many substantive areas, women litigants experience discriminatory treatment (domestic violence, rape, economic rights, child support and custody); women attorneys are not treated with the “same dignity and respect as male attorneys” by judges, attorneys, and court personnel”; and women generally “are addressed in familiar terms and are subject to comments about personal appearance, remarks and conduct that degrade them, and verbal or physical sexual advances” (145). Certainly, the language of the law contributes to women’s difficulties. As Katherine de Jong argues, the connections between “male domination, language, and legal formulations” (120) reinforce women’s “inferior status”: the use of neutral language in drafting legislation-‘he’ and `person`-“makes women invisible, obscures the unequal impact of the law, and makes it even more difficult for women to frame equality claims” (132).
These difficulties are exacerbated if they are not acknowledged in the training that lawyers receive in such books as advocacy advice texts. To return to Bourdieu’s orchestration of categories, and to apply it to the advice texts through a feminist perspective, we can see: first, that in the predominantly male “social formation” of the legal profession, male advice-text writers and readers “orchestrate” “categories of perception of the social world” to exclude females. Second, they employ “the basic perceptual scheme” of “male” and “female” imported from the larger “cultural ideology” to classify and stigmatize females. Third, the “divisions of the established order” in the courtroom distinguish both by professional expertise-expert lawyer and lay witness-and by sex. Fourth, male lawyers whose “interests” “dominate” the established order orchestrate categories to reflect and reinforce gendered interests, interests which place women in a subordinate position. And fifth, by constructing the perception of a gendered courtroom, male lawyers ensure that the gendered orchestration of categories presents every appearance of objective necessity.
Classifications and the act of classifying in advocacy advice texts, then, express a gendered ideology. Linguistically, the relationals of assertion and metaphor set up grammatically opposing classifications which favor male lawyers: the essential verb “to be” ascribes positive attributes to male lawyers (“brave,” for example) and negative ones to female witnesses (“evasive,” “emotional,” “wild animal,” “death”). Likewise, the actionals of conditionals and narrative create sets of opposing classificatory actions and roles which equally favor male lawyers: the verbs of action depict male lawyers battling heroically (“demolish,” “win,” “conquer,”) and female witnesses deceitfully (“tears,” “shrugs,” “sauciness”); and the narrative roles of knight and courtier characterize the male lawyer as adept and sensitive to the politics of the courtroom, while the roles of damsel and vixen characterize the female witness as petulant and untrustworthy. In the narrative world of the courtroom, then, male lawyers have access to narrative roles which justify their actions against female witnesses. We generally accept these actions, however suspect, because the story of cross-examination sanctions them. Likewise, the act of classifying is gendered, ideological, and rhetorical, action which, too, favors male lawyers. Only male lawyers classify; female witnesses cannot. Male lawyers define the content of the rhetorical situation of the courtroom, a situation in which the urgency and crisis is the female witness, and the positive modification of it is the justifiable actions against her. The act of classifying, then, is an asymmetrical activity, open only to male lawyers as the dominant group, and one which presupposes, reproduces, and naturalizes the asymmetrical social relations constructed by classifications.
CONCLUSION: CONSTRAINTS, DOUBLE BINDS, AND MOTIVES OF CLASSIFICATION
To conclude this paper, I return to Bitzer’s notion of the rhetorical situation, primarily to ask the question: why do advocacy advice texts devote so many linguistic, rhetorical, and ideological resources to classifying female witnesses? As we have seen, the advice texts define the primary rhetorical situation as the trial, and, in this instance, cross-examination. Within this situation, the exigency, marked by urgency, is the need of male lawyers to cross-examine the female witness successfully; that is, to ensure that she gives useful testimony and that she does not undermine their line of questioning or, more generally, their case. Given, however, that this exigency can apply to any witness, why does the female witness pose such a threat?
Male lawyers know that social attitudes, including attitudes about women, operate in the courtroom. Male lawyers know, too, that when witnesses, like women, have, traditionally, little social power, they become, under certain conditions, objects of sentimentality. And male lawyers know that sentimentality can be one of the primary “constraints” (Bitzer 7) upon their cross-examination of female witnesses: sentimentality informs the attitudes of jurors, who evaluate not only the facts of the case but also the interactions between lawyers and witnesses. Advocacy advice texts are filled with comments about the reactions of jurors, and, interestingly, contemporary texts characterize this reaction with the same chivalric metaphors that earlier texts employ to characterize male lawyers and female witnesses:
The age of chivalry still has its influence on the reactions of jurors, and the rule of courtesy applies with even greater force in cross-examination of women than as to men. (Keeton 140)
Traditional chivalry and the presence in most states of women on juries, counsel that the cross-examination of any woman be conducted considerately and with courtesy and tact. (Busch 474)
Care must be taken to be exceedingly courteous and polite, even under great provocation. The jury has a chivalrous attitude toward women if they are attractive and a sympathetic attitude if they are elderly or plain Janes, and if you drive a woman witness to tears, you are a brute. (Gazan 396-97) Chivalry is not dead. Male jurors would resent a direct chastity attack …. It should be noted once more that the jury instinctively identifies with a witness or lay individual, and the lawyer who abuses a lay person is a spiritual bully from the point of view of a lay juror. (Owen 62-63)
In addition, there is generally the feeling that chivalry requires the exercise of the utmost courtesy toward the female of the species, however much she may exaggerate, prevaricate, or color her testimony. Any display of a lack of such chivalry, it has been felt, will inflame the jurors to a point where they will judge the cross-examiner a brute and find against his client. (Appleman, Preparation 303)
Here, the advice texts delineate a triangle of courtroom relationships: (1) jurors as chivalric defenders of (2) damsel-like female witnesses against (3) unchivalrous male lawyers. They underscore the criteria jurors use to categorize female witnesses as damsels: by looks (“attractive,” “elderly,” “plain Janes”) or by position (“a witness or lay individual”). They argue that jurors have greater tolerance for the behavior of the female witness (“however much she may exaggerate, prevaricate, or color her testimony”) than for the male lawyer (“a lack of such chivalry . . . will inflame the jurors”). And they warn lawyers about the dire consequences of violating the jurors’ code of chivalry (“the jurors . . . will judge the cross-examiner a brute and find against his client”). Together, these details define the salient features of the constraint of sentimentality under which male lawyers question female witnesses.
Moreover, advocacy advice presumes that female witnesses intuit and will use this constraint as a source of power against male lawyers during crossexamination. That is, the texts imply that female witnesses use the jurors’ doubled expectations of the male lawyer-that he must exercise both his professional duty as a lawyer and his gendered duty as a man-against him as double binds.9 As we have seen, the female witness evades direct questions, exaggerates testimony, holds tenaciously onto her ideas, and so on, and when the male lawyer challenges her, she resorts to crocodile tears so that jurors sympathize with her and condemn the male lawyer. The double bind, then: the male lawyer is damned if he challenges her because she will cry, and he will be blamed, and damned if he lets her evade questions, exaggerate testimony, and so on, because he will lose the cross-examination.
To expose the female witness’ double binds, and, equally, to double bind her, advocacy advice texts pull on the doubled narrative role of the male lawyer as knightly warrior and courtier. To expose her double binds, for example, such advisors as Keeton counsel male lawyers to ask for “a short recess” for the tearful witness (141). Here, the male lawyer looks like a courtier because he overtly defers to the distressed female witness, treating her as a damsel, and, simultaneously, he spars with her as a warrior, forcing her hand should she be crying false tears. Or when Gazan advises male lawyers to “be the courteous gentleman” with an exaggerating female witness (396), the male lawyer looks like a courtier because he questions her politely and simultaneously battles with her as a warrior because he exposes her false testimony. Likewise, to double bind the female witness, such advisors as Wellman counsel male lawyers to employ the same narrative roles as a courtroom strategy. 10 For example, when receiving a “don’t remember” answer, the male lawyer proceeds in “slow stages,” courteously, to question the female witness about “matters remotely connected with the important fact,” and then, as a warrior, he leads her “nearer and nearer by successive approaches” to the ultimate double bind: either to tell him “what she had intended to conceal” or “openly commit perjury” (123). In short, the doubled roles as courtier and warrior solve two related problems for the male lawyer: first, he meets the doubled expectations of the jurors as “warring” lawyer and “courteous” gentleman. Second, he exposes the double binds of the female witness, double binding her if need be, to ensure his own successful cross-examination.
Overtly, then, advocacy advice texts are motivated to explain the doublebinding behavior of female witnesses, and to advise novice lawyers about how to avoid the double binds and achieve success in cross-examination. By classifying female witnesses, the texts employ assertions, conditionals, similes, metaphors, and narratives to label the power play of double binds as a feminine pathology of duplicity. Assertions, for instance, stigmatize the female witness with the socially negative qualities of emotionalism, exaggeration, evasiveness, qualities which are figured as deadly. Conditionals argue that these essential qualities are the basis for the double binds of giving false testimony and crying when caught out, duplicitous actions which are fictionalized in narratives as vixen-like behaviors.
Covertly, however, the texts are motivated in quite a different way. They promote a “paranoia of symmetry” (Wilden 112), a delusion, if you will, that female witnesses have a symmetrical, or corresponding, power and influence. Where male lawyers derive their power and influence from the institutional recognition as professional legal experts, female witnesses derive equal but opposite power and influence from broadly-held social sympathies. So whereas male lawyers need to circulate advice through formal structures, such as handbooks, women witnesses need only rely on the jurors’ prejudice. But the perfect symmetry of these beliefs is purely imagined. Traditionally, male lawyers have much more power and influence as legal experts than female witnesses as lay courtroom members: they have training in trial advocacy, construct the overarching theory of the case, control the direction of questioning during cross-examination, and interpret the testimony of all witnesses, including female witnesses. More accurately, then, the relationship between female witnesses and male lawyers is one of asymmetry and complementarity, in which the former are the inferior, and the latter, the superior measure of power.
Unsupported by fact, then, this pretense of symmetry is highly motivated. It fosters the idea that women are duplicitous by nature and dangerous in action and, therefore, sanctions the machinery of advice. It hides the duplicity in the lawyer’s narrative roles of courtier and warrior and makes invisible the male lawyer’s ability to double bind the female witness. It drives all the presumptions related to advice, naturalizing the need for, and the course of action proposed by, such advice. And finally, and most importantly perhaps, this pretense of symmetry reproduces and perpetuates, through its system of classifications, the social relationships of inequality and asymmetry between lawyers and witnesses, men and women, in the courtroom.
1 Most advocacy advice texts classify witnesses by character trait. Richard Harris (1879) divides one chapter into fifteen classes of witnesses, among them: the lying witness, the flippant witness, the dogged witness, the hesitating witness, the nervous witness, the humorous witness, the cunning witness (xxi). A recent text (1994) by Earl Levy cites fifteen types of witness in his chapter as well, among them: the lying witness, the honest witness, the mistaken witness, the biased witness, the vain witness (xi).
2 Other examples include: “this proneness to exaggerate [is] a feminine weakness” (Taylor 71); “it might be easier to induce [female witnesses] to exaggerate” (Bailey, Techniques 191); “chivalry requires the exercise of the utmost courtesy toward the female of the species, however much she may exaggerate” (Appleman, Preparation 303); “many women, hard pressed by cross-examination fac[e] exposure as an exaggerator” (Gazan 396); “mothers frequently exaggerate injuries to children” (Appleman, Cross 30).
3 Other examples include: “if a female witness becomes highly emotional in an attempt to appeal to the jury, remain unmoved” (Bailey, Fundamentals 332). Tears are the most frequently cited examples of emotional display: “There is ever present the possibility of the witness’ resorting to tears” (Goldstein 1935, 506; 1984, ch 19, 35); “And, of course, as a last resort, she can always cry if the cross-examiner is too rough with her” (Heller 303); “the drama of her plea, the tears, the swoon, the natural inclination of men may be swayed” (Gillen 53); “if a woman starts to sniffle, it is well to state an exception into the record” (Appleman, Cross 32); “And there are other ways to handle the weeper” (Appleman, Preparation 305).
4 Other examples include: “[female witnesses] are more given to evasion and better at it than men” (Busch 293); “the biggest danger on cross-examination of any female witness is her evasiveness and refusal to answer a question directly” (Appleman, Prepa
ration 303); “a clever woman will repeatedly evade a direct answer to a damaging question” (Cornelius 139); “women are quite prone to evade a direct answer” (Goldstein 1935, 406; 1984, ch 19, 35); “an intelligent woman will very often be evasive. She will avoid making a direct answer to a damaging question” (Bailey, Techniques 191; Fundamentals 332).
5 Other examples include: “their memories, being less loaded with matters of business, are usually more tenacious” (Taylor 71); “a woman will hold to her view of a case more tenaciously than a man” (Heller 302); “[women] are also stubborn. You will have difficulty trying to induce them to qualify their testimony” (Bailey,Techniques 191); “they are more difficult than men to move from a position they have expressed” (168); “it is usually very difficult to make the woman unsay anything she has said” (Harris 90). 6 Other examples include: “[women] are resourceful in their capacity for ingenious explanation” (Appleman, Preparation 303); “many women are pretty flippant in their testimony” (Appleman, Cross 32).
7 In the advice texts, crying seems to be the most powerful weapon a female witness has against the male lawyer. Consequently, it is the most frequently discussed aspect of female emotionalism. For citations in other texts, see note 2. 8 Judge Gillen cites turn-of-the-century trial lawyer Rufus Choate to introduce a wild animal metaphor: “the moment you begin to cross-examine one of them, instead of being bitten by one rattlesnake, you are bitten by a whole barrelful.” (53) 9 For an extended discussion on double binds, see Wilden,96-112. 10 In Reproducing Rape, Gregory Matoesian argues that a defense lawyer’s crossexamination of a female rape victim often “creates a no-win, double-bind situation” (231):
the defense attorney depicts the victim as too dependent, confused, and emotional to produce credible testimony, yet simultaneously and within the very same line of questioning, portrays her as cold, calculating, and rational, as someone maliciously motivated to obtain a conviction against the defendant. (227) The female witness faces a double-binding choice: to be characterized either as ineffective and helpless or, conversely, as effective, but as manipulative and calculating. If she chooses to submit to the lawyer’s control, she will be categorized as “too dependent, confused, and emotional to produce credible testimony,” and she and her testimony will be dismissed. If she chooses to resist, she will be categorized as “cold, calculating, and rational, as someone maliciously motivated to obtain a conviction against the defendant.” and she and her testimony will be sustzect.
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Tomasson Goodwin is associate professor of Speech Communication at the University of Waterloo. She has published articles on opening statements in Mosaic and on expert legal reports in the Journal of Business and Technical Communication.
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