No, Don't Broadcast the Trump Trials

A little learning is a dangerous thing;
Drink deep, or taste not the Pierian spring
-Alexander Pope

A departure from our regular programming for a discussion of trial procedure and television broadcasts.

Televised trials happens from time to time in the US, especially for high profile ones - like OJ Simpson's murder trial, or the recent civil trial between Amber Heard and Johnny Depp.

They don't go well. In short, the public attention taints the proceedings, forces the litigants, lawyers, and even the judge to attend to public optics in a way that they ordinarily wouldn't, and facilitates vast misrepresentations of the proceedings in the public eye.

Televising a trial involving a presidential candidate - and one that's so notoriously a media hog as Donald Trump - would invite the same phenomenon, and do incredible damage to both the trial itself and the court more generally.

Background: The Open Court Principle

Court proceedings are usually open to the public. There are exceptions, but for the most part anyone can walk into a civil or criminal trial and sit and watch from the gallery. For the most part, anyone can ask for copies of documents in a court file.

Except for the occasional law student, you don't usually see uninvolved people in the gallery during a run-of-the-mill trial if there's no publicity surrounding it.

But the openness is important nonetheless: We conduct most legal proceedings in an open setting, not behind closed doors, to promote transparency and confidence in how the system runs. The public is allowed to watch - but they're not supposed to affect it at all.

In concept, it's kind of like the fourth wall in theatre: You imagine that the characters on the stage are in a room where they don't perceive the audience, and they act as if the audience doesn't exist, but the audience gets to watch from behind the invisible fourth wall.

However, as a general rule this hasn't extended to televising proceedings. In Canada, very few courts have public broadcasts. Historically, you had to show up in person to watch a proceeding. The days of virtual and hybrid hearings have forced evolution in this, but even then you still need to actually sign into the court's virtual hearing software, and you're not allowed to rebroadcast it, record it, etc.

This may seem arbitrary and arcane. It isn't.

Trials Are Boring - and that's a good thing

With certain exceptions, watching a trial is usually like watching paint dry. It's not what you see on TV - a lot of boring procedural stuff about admitting documents into evidence, etc.

Cross-examinations can be a bit more dynamic, because it's the central confrontational part of the trial. And legal arguments can be...mixed. Because you need to walk the judge through your authorities and through the parts of the record you're relying on, and that can be pretty dull, but at the same time you want to structure the argument itself in a rhetorically compelling way.

And there are limits on the kinds of evidence you can admit, and the kinds of arguments you can make.

Lawyers are obsessed with 'relevance', in a narrow and strict sense that most people don't really understand.

For example: If I'm suing you for defrauding me in a business transaction, and I try to enter evidence that you blackmailed your ex-girlfriend with revenge porn...the judge is going to say no. The average non-lawyer watching from the gallery is going to think that this is super important stuff: If you did that to your ex, that makes you a bad and untrustworthy person, and it's far more likely that you defrauded me. Right?

But no, whether you may have victimized somebody else, at some other time, in some different way, doesn't really bear on the question of whether I suffered an actionable wrong at your hands.

Trials are about whether a defendant committed specific crimes, torts, breaches of contract, or other actionable conduct. They are NOT about whether the defendant is just generally a bad guy, and my attempts to bring in salacious evidence just to tarnish your reputation will not be well received in court.

Likewise, while lawyers have some latitude for rhetoric, they aren't allowed to make misrepresentations, they aren't allowed to be uncivil, they aren't allowed to make allegations or intimations without some good faith basis. Hyperbolic language and over-the-top theatrics are frowned upon. A trial is supposed to be conducted civilly: Each side presents their admissible evidence, witnesses get cross-examined, and then lawyers explain why, on applicable legal principles, the case they've led should get the result they want.

Public Attention Changes the Dynamics

Once a trial attracts significant media scrutiny, that dynamic shifts.

This phenomenon predates television. Consider the Scopes Monkey Trial of 1925, litigated by William Jennings Bryan for the prosecution and Clarence Darrow for the defence, where CLARENCE DARROW CROSS-EXAMINED WILLIAM JENNINGS BRYAN. (Inherit the Wind took some artistic license with that trial, but *that* part is REAL.)

The whole trial was more a publicity stunt than a legal event in the first place, attracting a full media circus, including the always-entertaining musings of H.L. Mencken. Darrow's sarcasm - nearly landing him in a cell for contempt - was almost certainly about playing to the media in the gallery, as opposed to any effort to convince the judge or jury of anything. The whole trial did nothing but make a mockery of the system.

Scopes lost the trial, appealed, and lost most of the appeal, except for a technical problem in how the sentence was determined, and the Supreme Court of Tennessee gave a strong recommendation to the Attorney General NOT to retry the "bizarre case" at all.

The reality is that, with too much publicity, it becomes more difficult to ignore the noise on the other side of the fourth wall. At minimum, judges and parties need to be more concerned about optics. In an otherwise unpublicized trial, you can put sensitive records and evidence into the court file without too much worry about anyone ever actually digging them out, but once there's public attention, parties become more alive to the impact of that publicity outside the trial, and how a party's legal postures might affect their public standing - among people who don't really understand the significance of those postures.

Everyone wants to be represented favourably in public attention. That's true of lawyers and judges, and the parties themselves. It's not exclusive to a person like Trump. And so how you approach the trial can shift based on public attention. Instead of trying to present - as a lawyer or witness - in a way that best communicates to the judge and/or jury (which is the expectation of the court, and the best way to maintain the integrity of the process), to varying extents you're certainly going to preen for the media.

So sensational publicity is bad. Television makes it worse. In the OJ Simpson trial, Judge Ito is said to have become obsessed with the media coverage of him. That's not conducive to good judgment, because sometimes the legally appropriate resolution to an issue is not the one that will be popular, favourably portrayed, or even broadly understood in the media.

The open court principle is important to transparency, but public perception is not supposed to influence trial processes or outcomes. A trial judge should not concern him- or herself with whether the general public will agree with, or even understand, why a given decision was made.

And the internet (and social media in particular)...is devastating, as the recent Depp/Heard defamation trial illustrates.

Court Video Clips Are Fodder for Propagandists

As I mentioned, trials are long and mostly-boring. We expect judges, jurors, and lawyers to pay attention throughout, even when it gets dull.

We have no comparable expectations for the general public, with notoriously short attention spans that have led to a large social media ecosystem of SHORT video clips.

The Depp/Heard trial played out significantly on social media, and particularly on TikTok, with short excerpts proliferating that were said to make specific points relevant to the trial. So someone who 'followed' the trial via TikTok would have seen DOZENS of clips ranging from 15 seconds to three minutes, and would be left with an impression that they'd seen a lot of the trial.

Except they didn't. If your average TikTok is 2 minutes, and you've seen thirty different clips from the trial, then you've watched an hour of the trial. Over six weeks, that trial likely took something between 150-200 hours. Even a prolific TikTok viewer only saw a tiny fraction of the overall trial, and probably did not see much of the physical/documentary evidence that was led.

There's a reason why a trial like that takes six weeks, and not merely an hour or so. Because for both sides to fully lead their case, to be understood by an attentive judge and jury, simply takes longer.

And, even more importantly, the clips you would have seen are a skewed representation of the trial, for several reasons. In any high-profile trial, social media will tend to show any given viewer one side of the trial more than others, showing more of the evidence that helps one side and hurts the other, more commentaries that support the one side (whether from legal experts or armchair lawyers on TikTok), giving the viewer the impression that the evidence and public consensus are one-sided, when they aren't necessarily. This is in part because of the 'echo chamber' phenomenon of social media, where algorithms tend to feed you clips that align with what they think you already believe.

In the case of the Depp/Heard trial, the narrative you saw would have almost certainly been one that supported Depp and attacked Heard - because there were concerted efforts behind the scenes to promote that narrative on social media.

The Depp/Heard trial became a lightning rod for the "men's rights" movement, attracting a lot of attention among far-right groups seeking to advance a narrative of women lying about sexual abuse. One right-wing outlet was reported to have spent tens of thousands of dollars boosting articles, commentaries, and clips that advanced the anti-Heard narrative. Even progressives I know were convinced by the social media narrative, indignant at Heard's exploitation of the "MeToo" movement.

I didn't watch the whole trial start-to-finish. I don't have a strong opinion about the merits of Depp's claim or Heard's counterclaim. But what I can say for certain is that the people who made hashtags like "amberheardisapsychopath" trend on social media did so without a full appreciation of the facts or evidence. (Also, with a jury that wasn't sequestered, it's hard to see how a pronounced social media 'consensus', artificial or not, wouldn't at least have a subconscious impact on the jurors.)

In any trial of any length, you're likely to find clips that favour one side or another. The point is that both sides get to lead their case, poke whatever holes they can in the other side's case, and make their arguments - and after hearing both sides in their entirety, we hope and expect the court to make a decision that takes into case all the evidence.

But it's really easy to decontextualize parts of a trial. What may seem like a compelling piece of evidence on examination in chief may, upon cross-examination, turn out not to be so significant. What seems like a powerful impeachment in cross-examination may be defused by a clarifying question in redirect. There can be evidence that kind of looks like a smoking gun, but only if you omit the context surrounding it.

So if I have a platform, and an agenda to want my audience to believe one side over another, all I have to do is propagate clips showing my side in the best light, and showing the other side in the worst light, and omit all the other parts of the evidence that may (a) reduce their effect or (b) show the other side of the issue.

With vast numbers of Americans getting their 'news' through social media video clips these days, it's entirely feasible that vast numbers of people on the American right would see only the exculpatory evidence and pro-Trump commentaries, and none of the evidence that actually incriminates him or undermines the exculpatory evidence he may lead. That's millions - potentially tens of millions - of Americans 'following' the trial who would come firmly to the conclusion that Trump's innocence is established.

If the court actually hearing the evidence (i.e. all of it) were to nonetheless convict, that crowd would be very receptive to allegations of corruption. Which, in today's political ecosystem, would be virtually inevitable.

It's hard to imagine anything more dangerous to public confidence in the courts than equipping a defendant like Trump with the ability to bolster his attacks on the court with selective and skewed clips from the proceeding itself.

Conclusion

The Trump trials are going to be a bit of a circus. There's no way around it. But broadcasting it would make it so much worse, turning a courtroom into a campaign stop, with unlimited free publicity for Trump - and, as we've seen, Trump embodies the expression that there's no such thing as 'bad publicity' - while drowning out every other aspect of democratic discourse about the primaries and election campaigns.

While there's superficial appeal to giving the 'unfiltered' trial to Americans, the reality is that the vast majority of Americans will inevitably get it through a filter. Most people don't have the luxury of watching a weeks-long trial start-to-finish for themselves.

The difference between a televised trial and a non-televised trial is that, in the latter, the filter is mostly 'professional journalists and commentators'; in the former, the filter can be basically anyone with a TikTok account and an agenda - and you can count on Trump's side (whether directly/indirectly from Trump, or others who are invested in his political success) pouring massive amounts of money into promoting the most favourable possible perspectives of the trial.

The result would be toxic to the trial itself, to public confidence in the justice system, and to American democracy on the whole.