On Election Day, We're the Jury

E-mail Lis

Imagine you’re a juror in an assault case. The prosecution seeks to introduce evidence that the accused ran toward the victim shouting, “I’m going to knock you over the head! Also, I belong to a weird cult that worships violence!”

Assuming you believe this statement was made, you might simultaneously draw two ideas from it. One might be that the defendant was guilty of assault — but the other might be that anyone belonging to a weird cult deserves to be punished, regardless of whether the prosecution has proven its case.

This is the essence of Rule 403 from the Federal Rules of Evidence, the rule regarding “unfair prejudice.” The rule gives judges the power to exclude evidence when its usefulness would be substantially outweighed by its potential to cause unfair prejudice in the minds of jurors. Under this rule, a judge would likely disallow the part of the statement about the cult because of its potential to take the jury’s mind off the issue at hand — that is, whether or not the defendant is guilty of assault.

Now, apply the “unfair prejudice” rule to Election Day. Whom do you plan to vote for — the Godless, America-hating, tax-loving, latte-drinking liberals, or the fanatical, lying, slow-witted, cowboy conservatives? And while you’re mulling that over, where do you stand on Iraq — do you think we should “cut and run,” or “stay and pay?”

Such uncivil discourse would hardly pass muster in a respectable court of law, but in the court of public opinion, this tends to be the way “evidence” is presented — with below-the belt name-calling and overly simplistic catch phrases.

Wouldn’t it be interesting if the “unfair prejudice” rule could be applied to the public square? For example, in Fahrenheit 9/11, when Michael Moore grafted the faces of the Bush administration onto the title shots from the old television western Bonanza, he was doing more than just going for a cheap laugh — he was firing-up the “prejudices” of his base by exploiting a widely held stereotype of conservatives as “shoot ’em up cowboys.” (Just try Googling “conservative cowboy,” and you will get over 3 million hits.)

In a similar vein, when Ann Coulter says things like, “Even fanatical Muslim terrorists don’t hate America like liberals do," she reinforces the prejudices of her followers by tapping into another divisive stereotype. (Again, just try Googling “liberals hate America,” and you will get more than 6 million hits.) In a court of law, a conscientious judge would almost certainly disallow such testimony on “unfair prejudice” grounds.

Where such stereotypes come from is anyone’s guess. Republican president Abraham Lincoln’s legendary stovepipe hat was anything but cowboy-like — and no one ever accused Democrat F.D.R. of “hating America” as he led it through the Great Depression and World War II.

Ultimately, the “unfair prejudice” rule is designed to keep such tactics to a minimum. As history has shown, half-truths, lies, and distortions have a way of bringing out the worst in people. Censored magazines and stage-managed news reports were staples of the Kremlin during the cold war. Nazi propaganda that likened Jews to sewer rats helped to lay the groundwork for the Holocaust.

More recently, prejudicial rhetoric has been used to incite much of the Arab world, and whether it has stemmed from bigoted clerics, news outlets, children’s textbooks, or other sources, the impact has been profound. According to a recent report by the Pew Research Center, a majority of citizens in Indonesia, Turkey, Egypt, and Jordan — countries considered among the more enlightened quarters of the Muslim world — still do not believe that Arabs perpetrated the attacks of 9/1l.

Ironically, the “information age” may be making us more vulnerable to being swayed by our preconceptions. “There have always been zealots and conspiracy theorists at the fringes of society,” Eric Effron of The Week commented, “But thanks to the Internet, it’s now a snap to find a community of like-minded believers to reinforce your delusions.”

Regardless, as Election Day draws near, we, as electoral “jurors,” have a lot to deliberate over. Iraq, terrorism, education, the economy, the environment, health care, and foreign oil dependence provide just some of the challenges facing lawmakers in the days ahead. With the stakes this high and the vitriol this heated, we might do well to remember the rule about “unfair prejudice” — to recommit ourselves to filtering out the noise and rendering our verdicts based solely on the facts.

The purveyors of spin, like Jack Nicholson’s character in A Few Good Men may think we “can’t handle the truth.” When we enter the voting booth this November, let’s show them that we can.

Lis Wiehl joined FOX News Channel as a legal analyst in October 2001. She is currently a professor of law at the New York Law School. Wiehl received her undergraduate degree from Barnard College in 1983 and received her Master of Arts in Literature from the University of Queensland in 1985. In addition, she earned her Juris Doctor from Harvard Law School in 1987. To read the rest of Lis's bio, click here.