Did you hear the latest news from the courts? They’re overhauling the rules for legal arguments in front of a jury. The rules for lawyers will be much looser. Want to ask a witness an irrelevant question? One that lacks foundation? One that the witness has already answered, but you didn’t like the answer? Want to skip the questions and just testify to the courtroom on behalf of your side? Go right ahead!
The other side can object, of course, and the objections will be noted for the record. But then the questioning, or testifying, can go on as if nothing happened.
Badgering the witness? Go for it! Hearsay? No problem! Lay witness testifying about a subject he has no expertise in? Let the jury beware!
Expert witnesses also need no particular qualifications any more. If the witnesses are good enough for one side, they’re good enough for the court. It’s strictly He said, She said, from here on out. The court will not attempt to instruct the jurors regarding which witnesses are credible or have genuine expertise. Jurors will be on their own regarding whom to believe.
OK, relax. I’m just kidding. This isn’t going to happen. But if it did, it would be a disaster. Lawyers would race to the bottom to use underhanded tricks to con jurors onto their side. Truth and evidence would largely go out the window. It’s widely known that the legal rules of evidence and argument are there to prevent just such a disaster, and there is no massive wrecking ball on the horizon headed toward destroying these rules.
OK, don’t relax. Indeed, low-grade panic would be appropriate. This isn’t going to happen to the courts, but it has already happened to the press. The mainstream US print, radio, and TV media, with the exception of a few open partisans, treat “objectivity” as if it demanded a courtroom without any rules. More precisely, with only one rule: that “both sides” will get a chance to speak. And never mind how the number of sides gets magically reduced to two. Journalists have become stenographers or videographers. Fact checking is relegated to a special segment, if it exists at all. And news outlets are embarrassed if some important figures are found to be stating falsehoods on a regular basis, especially if that looks “unbalanced”.
In recent years there has been a lot of well justified hand-wringing about our post-truth society. “How did we get here?” authors ask. To me the mystery is rather: why did it take so long?
(Hat tip: Brian Leiter for the courts analogy.)