A framework for the analysis of mitigation in courts: Toward a theory of mitigation

Mitigation plays an important role in various social activities. It involves emotional, strategic, and pragmatic processing. This paper presents an activity-based framework for empirical discourse analysis of mitigation in public environments such as Swedish and Bulgarian courtroom examinations. Mitigation is defined as a pragmatic, cognitive, and linguistic behavior whose main purpose is to reduce vulnerability. The suggested framework consists of defense processes, which involve mitigating argumentation lines, discourse moves, and communication acts. Mitigation functions are described in terms of the participants’ actions and goals separately from politeness strategies. The study finds recognizable repetitive mitigation patterns of moves and acts across languages and legal systems, which realize, e.g. admissions as prolepses, denials as corrective counter-attacks, volunteered utterances as indications of witness rehearsals, etc. The witnesses’ tendency to volunteer information even on behalf of their own credibility indicates that they favor pro-party testimonies. Despite the objective judicial role of the prosecutor or judge and/or despite the examiners accommodating style, the verbal behavior of the witnesses exhibits constant anticipation of danger. Thus, mitigation in court functions as a strategy for coping with disagreement and conflict by facing it, anticipating it, and/or accepting it. Mitigation modifies not only illocutionary force but also discourse plans, mental models, social contexts, and (in courts) even personal fates.