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Tuesday, June 24, 2008

Presidential Debates as Trials

Charles Collier (Florida) has an interesting essay in Yale's Pocket Part arguing that presidential debates ought to be conducted like jury trials--candidates, the parties/advocates, question one another and give answers presenting their best cases; a moderator serves as judge to ensure questions are asked and answered and procedures are followed; and We the People serve as the jury, deciding, based on what we have heard, which party we believe would be better in the Oval Office.

It is a neat idea, grounded in the basic recognition that trials and political debates (as well as political campaigns and public debate more generally) both are adversary processes designed to lead to the discovery of some "truth." But implementing such a proposal raises some interesting questions and thoughts about the role of the rules of evidence.

First is whether to impose rules of evidence on this debate process? Will (and should) there be limits (often content-based) on what can be asked or discussed? Second, somewhat related, is whether to regulate how questions are asked. If congressional questions tell us anything, it is that elected officials and politicians are not good at asking questions designed to elicit meaningful information; they are good at making long, convoluted, often-grandstanding speeches with questions tacked on as afterthoughts. Now maybe that is the idea here--each candidate talks about what she thinks on a subject, then asks her opponent(s) a question on that subject and we go back and forth. But do we get more out of it if questions must be narrow and focused, a la questions asked of a witness at trial or at least of an advocate at oral argument? I rarely see any meaningful information elicited from witnesses in congressional hearings.

This new debate process may call into question some of the basic rationales for the rules of evidence. If we do not want or need such rigid and often content-based rules in political debates, there is at least a question of why we should impose them in jury trials, given that both processes are aimed at a similar goal (accepting some form of the Marketplace of Ideas Theory of the First Amendment). If we trust the voting-public "jury" to filter through irrelevant or inflammatory information, why not trust juries to do the same? (Sherry Colb considers this question in a different context). This differential treatment of public/political debate and trial has been on my scholarly to-do list for a couple of years. Collier's essay provides a new angle to think about the question.

Posted by Howard Wasserman on June 24, 2008 at 07:39 AM in Article Spotlight, Current Affairs | Permalink


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