I sat there in court for six days listening while the evidence built up. Everybody sounded so positive, you know. I began to get a peculiar feeling about this trial. I mean, nothing is that positive. There’s a lot of questions I’d have liked to ask. I don’t know, maybe they wouldn’t have meant anything but… I began to get the feeling that the defense counsel wasn’t conducting a thorough enough cross-examination. I mean, he let too many things go by… little things.
“Twelve Angry Men” – Reginald Rose
When under fire, there is a tendency for the modern politician to tell us all that if only they were given “clear air” and a better chance to present their case to the public, they could win in the court of public opinion.
If only the media was less obstructive. If only other news didn’t distract from their core message. If only their staff were more coordinated and their colleagues more committed.
The road to election defeat is paved with “if onlys”.
To be fair, the blame-shifters and also-rans do have one thing right. In politics, at least in advanced democracies, campaigns are fought in the Court of Public Opinion.
As in a criminal court case, there are opening arguments; these are each party’s attempt to strategically “frame” the coming competition in the terms that most suit them in the Court of Public Opinion. Then the main game begins, with an extended period of tactical questioning and cross-examination in a bid to discredit the other side’s case, while bolstering the credibility of one’s own.
Each jury member assesses the performances made in the Court before going away to cast their ballots.
But what role does the media play in this exchange? Are journalists – as disgruntled or defeated politicians are wont to complain – merely a bunch of unwelcome intruders in the Court, drowning out or distracting from the otherwise compelling arguments they are putting to the jury?
The British media has repeatedly been accused of behaving this way towards Jeremy Corbyn, the avowed “democratic socialist” who was endorsed as leader of the British Labour Party in September, with an historic majority of members’ votes. Even the BBC was accused of bias, with more than 50,000 people signing an online petition complaining that the leader was always described as “left-wing”.
At the other end of the political spectrum, dismayed Republicans in the United States complain that their lack-lustre performance in the polls is because the media is giving all the coverage to celebrity right-winger Donald Trump’s histrionics.
As always, the truth – in politics, in court and in life – is far more complicated. A trial involves a much broader and more diverse cast of players than merely the prosecution, the defence and the jury. And it is more than simply a series of rhetorical flourishes designed to win over the jury; the prosecution of a case is actually governed by, one; complex evidentiary rules and two; procedural processes with which the competing parties must effectively comply. Otherwise, the hearing may as well be played out in the town square.
Similarly, any politician who has an expectation that they should be able to spruik, unfiltered, to the mass public, is kidding themselves. And they are delusional if they think the public “jury” assesses them on their words alone anyway.
Framing the debate is still important, and rhetorical prowess is always a good skill to have on the hustings; I’d rather be advising a candidate who is comfortable debating a point than one who can’t string two words together.
But it is not enough. More than ever, as voters have become more media-savvy, and more adept at deconstructing “political-speak”, we are entering a period of evidentiary politics.
What does that mean? Put simply, I have noticed in recent campaigns a re-weighting in the Court of Public Opinion; away from assessing a leader on the rhetorical case he or she presents – the “big picture” or “vision” they have for a state or country – but on the credibility and weight of the evidence they present to prove they can deliver on their promises, and that their opponent cannot and will not deliver on theirs.
Beyond facts and figures
Critically, that credibility is not just assessed through facts and figures, although hard numbers still matter, especially when they represent jobs created, extra hospital beds made available, or growth generated.
The modern public also looks for competence. Jury members assess how effectively and adeptly a candidate behaves within the courtroom – how well they know the procedural rules of the game – and, importantly, how professional they are with the court officers present.
I would argue that, far from being a distraction or intrusion, the media have a legitimate role in the Court of Public Opinion. The public know and expect them to be part of the process and they expect to hear their voices. This doesn’t mean they will always agree with the journalists and commentators. But here’s the kicker: they will still expect the candidates prosecuting their cases to be able to deal with those players.
Similarly, they assess the opposing leaders according to how well they manage their respective teams. No matter how well a leader might be able to present a narrative in their opening arguments, if they are constantly caught out because their team is not prepared, or because objections against them are repeatedly sustained, then they will fail.
Such was the case with former Australian Prime Minister Tony Abbott, who was capable of presenting a strong rhetorical case, but became overwhelmed by the procedural complexities of getting things done in the Court of Public Opinion. Like Julia Gillard and Kevin Rudd before him, Abbott also became fatally distracted by the “objections, your honour!” of the media.
Similarly, Corbyn’s predecessor as Labour leader, Ed Miliband, presented a strong narrative that failed the evidentiary test; he could not convince the jury of British voters that he could deliver meaningfully on his promises.
While the electoral system is vastly different in the US, the same may prove true with Trump, as he proceeds through the primaries. What began as colourful and entertaining rhetoric for some, may fail the evidence based phase when more committed voters engage.
So the evidence, and how you present it, and the media, and how you deal with them, are as important to the jury as the narrative you seek to weave.
It is a lesson Australian Opposition leader Bill Shorten learned the hard way this week, when he visited a supermarket to accuse the Turnbull Government of planning to raise the GST.
But in the absence of any “smoking gun” evidence to support that claim, Shorten was left with a wet lettuce instead. When the jury witnesses these sorts of sideshows, their confidence in the competence of a leader begins to wane. Or at the very least, as in the iconic courtroom drama “Twelve Angry Men”, they begin to raise doubts.
“Listen, when these fellas don’t ask questions it’s because they know the answers already and they figure they’ll be hurt.”
“Maybe. It’s also possible for a lawyer to be just plain stupid, isn’t it? I mean, it’s possible.”