Justin Southworth
4.20.11
Engl 455
Presupposition in the Courtroom
The use of presuppositions is commonplace in everyday life, from interactions with friends and families to newspaper headlines. By assuming certain background information to be true, we can add brevity to our utterance as opposed to the much more verbose task of establishing said background information. Often this information is non-controversial, but it is not uncommon for the background information being presupposed to have no basis in fact. This often occurs in the courtroom, when a lawyer asks a witness a question in which the lawyer presupposes incorrect background information to be true. The witness, then, has to correct the incorrect presupposition, lest (s)he be misrepresented before the court. This allows for the possibility of lawyers using presuppositions in order to manipulate the appearance of the witness before the court in their favor.
All discourses discussed are part of The Crime in New York 1850-1950 digitation project. The first discourse to be analyzed is the court case The People vs. Charles Winters in which the defendant, Charles Winters, is on trial for Assault in the first degree. The first witness called to the stand is LuLu Winters, the wife of Charles Winters and the victim of the assault, who testifies that Mr. Winters was an abusive husband and their marriage had many troubles. The context of this first series of questions is Mrs. Winters is being questioned by the defense lawyer, Jacob Lasker, Esq., about her interactions with a man named Thaddeus Walker, whom was introduced to her by her husband in Hopewell, Virginia.
(1) Q. Now, how well did you know Mr. Thaddeus Walker?
A. Well, I didn't know him so well.
Q. Well, you knew him well enough to live with him, didn't you?
A. No, sir, never, I haven't lived with him at all.
In (1), Mr. Lasker asks whether Mrs. Winters knew Mr. Walker well enough to live with him, presupposing that she had lived with Mr. Walker. Mrs. Winters, having not lived with Mr. Walker, responds by denying the presupposition that she had lived with Mr. Walker. Mr. Lasker, here is trying to imply that Mrs. Winters also has some fault for the trouble in her marriage, by presupposing some sort of infidelity committed by Mrs. Winters, despite no infidelity occurred.
After a little more questioning on the matter reveals that there was a fight between Mr. Winters and Mr. Walker, apparently over Mrs. Winters. The question is then asked about when this fight took place and when she was married.
(2) Q. You hadn't been married six months before you started to flirt with Walker, and to walk about town with him?
A. I wasn't flirting with the fellow. I only knew him because my husband introduced me to him. They were working together.
In (2) the question is asked of Mrs. Winters about the duration of her marriage prior to the presupposed flirting. The use of this presupposition gives rise to an accusation of infidelity on Mrs. Winters part. Mrs. Winters answers by saying that she did not flirt with Mr. Walker, there by denying the presupposition put forth by Mr. Lasker.
A later witness for the defense, Leonard Vouvia, during the cross-examination by the attorney for The People, John Cardone, is inquired on the party which Mr. Winters attended the night of the incident. After Mr. Vouvia establishes that he saw the defendant when he arrived, played cards with him, and saw him as he was leaving, is inquired about others whom he saw and talks about the other people who were there. After which Mr. Cardone returns to a question about the defendant.
(3) Q. Well, you don't mean to tell this jury that you kept your eye on the defendant from 10:30 up to 3:15, until you left?
A. I don't say I was watching him all the time. I wouldn't dare to say I kept my eyes right on him, but I saw him when I came in and when I went out, and I saw him while I was there.
Mr. Cardone's question is asking whether he means to tell the jury 'p', where 'p' is the presupposition that he kept his eye on the defendant from 10:30 up to 3:15, until he left. Mr. Cardone is attempting to make it seem as though the Mr. Vouvia has said he kept his eyes on Mr. Winters the whole night, while he was aware of the other people there, thereby making his testimony contradictory. Mr. Vouvia counters this by saying that he did not say that and would not dare to say that he did, only that he saw Mr. Winters at many times during the party.
The second discourse to be looked at is the trial The People of the State of New York vs. Henry Moore, in which Henry Moore is indicted with Murder in the First Degree of Joseph Madden on December 10th, 1911. Called on behalf of the people is Edward John Larkin, Stepbrother of Joseph Madden. On the night of the murder, Mr. Larkin was collecting tickets to a ball. The witness is asked by the lawyer for the defense, A. Harowitz, Esq., about what he, Mr. Larkin, was doing earlier in the day.
(4) Q. And, as a matter of fact, did you, Gardner and Shore and some other members of the social club went around that neighborhood and compelled people to buy tickets for that ball?
A. Didn't compel them.
Mr. Harowitz presupposes that the witness and those with him were compelling people to buy tickets as they went around a certain neighborhood. Using the word compel implies that the witness was manipulating people into buying the tickets by force or by making them feel obliged in some way, thus suggesting something negative about the witness's character. The witness denies part the presupposition that he was compelling people to buy the tickets. Had he simply answered "no" he would have been denying that they went to the neighborhood, to which they did in fact go.
Later, being questioned on the events of that night, Mr. Larkin is asked about a detail in his testimony for the events of that night. The detail concerns the revolvers used to shoot the witness's stepbrother.
(5) Q. And you refresh your memory now, although you testified at the time that Moore grabbed the gun that was in Walsh's hand, you now want to tell this jury that Moore pulled a gun from his own pocket?
A. I said he had a gun in his hand.
Mr. Harowitz presupposes that Mr. Larkin had testified that Moore had taken the gun from Walsh and then asks whether the witness wants the jury to hear the presupposition that he is saying Moor pulled a gun from his own pocket. The lawyer is attempting to make the witness's answers appear to be contradictory. The witness answers that he said that Moore had a gun in his hand, denying the presuppositions of what he had previously said and what he was wanting the jury to hear at that moment.
A short time later the witness is asked about his where-abouts at the time of the shooting.
(6) Q. Now, Larkin, as a matter of fact, don't you know at the time of this shooting you were in the dace hall?
A. I was at the head of the steps.
Q. Don't you know, at the time of this shooting, you were in the back of that dance hall, sitting on a bench, where people were dancing?
A. I was at the head of the stairs.
In each of these questions the Mr. Harowitz uses the verb "know" to presuppose that Mr. Larkin was in the dance hall at the time of the shooting by questioning the witness's knowledge of that night and not the fact of his location at the time of the shooting. With each of these the witness states that he was at the head of the stairs and not in the back of the dancehall.
The witness was then asked a series of questions, all dealing with a man named Joseph Sonner. The witness is asked about Sonner's location that night, as well as any interactions the two may have had. He is finally asked, once again, about the tickets which he had sold.
(7) Q. Sonner is one of the men you did not compel to take a ticket?
A. I didn't compel anybody to take tickets.
In (7), the witness is asked a question which once again presupposes that he was compelling some people to take tickets. This is a presupposition which Mr. Larkin has already denied and following in suit denies once more.
The next witness called is Thomas Francis Shore, a witness on behalf of the people. In the cross examination by Mr. Harowitz, he is questioned on an affidavit which the witness gave several days after the shooting in which he mentions that he saw Walsh leave with Moore.
(8) Q. You did not tell him that you knew Moore?
A. No, I said I never knew Moore; I never met him before.
In (8), the lawyer presupposes that the witness knew Moore by using the factive "tell." The witness denies the presupposition by saying that he said he never knew Moore, which was previously asserted by the witness, who said that the only reason he knew Moore's name was that the District Attorney had used Moore's name as the person with whom Walsh left.
One of the witnesses for the defense, Patrick J. Cunningham, is called to stand to testify on the events of that night. He is questioned on the fight itself, as he was there as a witness to it. It is drawn to the attention of the court that there were several other men where this fight took place and Mr. Cunningham is asked about their place in the altercation.
(9) Q. You don't know what part they took in this affair?
A. They did not take any part in the fight.
The lawyer on behalf of the people, Mr. Isidor Wasservogel, Esq., is presupposing in her question, that the others who were around participated in the fight. Mr. Cunningham denies this presupposition by saying that these men did not participate in the fight.
Hugh M. Corrigan served as a witness on behalf of the defense. During the cross examination by Mr. Wasservogel, he is questioned on the place where the shooting took place. Mr. Wasservogel inquires as to the size of the hallway in which Mr. Corrigan was standing when he saw the body of the deceased and then when he first saw Mr. Larkin.
(10) Q. Can you say that when you were standing near the body you saw Larkin come from where?
A. I was standing, going out. I was not near the body; I was just going past the door to the bannisters, and I turned and seen Mr. Larkin coming out.
In (10) Mr. Wasservogel presupposes that the witness was near the body when he saw Mr. Larkin. Mr. Corrigan denies that he was near the body, but goes ahead with and answer for the question of where Mr. Larkin was coming from.
The third discorse to be analyzed is The People of The State of New York vs. James Kearney, Joseph Schubert, and Philip Silver; the three defendants are indicted with robbery in the first degree. The first witness to be called is Lawrence Mulligan, the man who was robbed by the defendants. In the cross examination by Louis A. Cuvillier, Esq., the attorney for the defense, Mr. Mulligan is asked questions molding his account of the night in question.
(11) Q. Now you testified on direct examination that you had your money in your right hand trousers pocket?
A. Yes, sir.
Q. And that is the only place you had it?
A. Well, when I had --
Q. Oh, didn't you?
The Court: He is trying to answer you.
A. About three o'clock I took these eight dollars out of my pants pocket and put it in my shirt pocket.
Q. About what time?
A. About three o'clock.
Q. That Morning?
A. Yes
Q. Now you testified on direct examination and on cross examination that you were intoxicated and you didn't know what you were doing?
A. Not at that time, sir.
In (11), the presupposition is in the last question asked to the witness. Mr. Cuvillier asks about what he had testified in earlier examination, presupposing that Mr. Mulligan was intoxicated and didn't know what he was doing at the time, which would, in effect, make the witness seem unreliable. Mr. Mulligan answers by saying that at that time he was not intoxicated nor oblivious to what he was doing, thus denying the presupposition.
Using presuppositions which have no basis in fact in courtroom examinations, lawyers can attempt to manipulate the apparent character of the witness. They can presuppose information which makes the witness's character appear to questionable or makes the witness's testimonies seem contradictory. A majority of the time, these presuppositions are noticed by the witness or the court and are corrected with information which does have basis in fact.
References
"The Crime in New York 1850-1950 Digitization Project." Lloyd Sealy Library Homepage. Web. 20 Apr. 2011. <http://www.lib.jjay.cuny.edu/crimeinny/trials/list_transcripts.php>.
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