By Dr. Ken Broda Bahm:
Regular readers know this blog frequently focuses on the principle that social science matters in litigation. Knowing about public opinion and psychology helps the persuader understand and adapt to the audience. But, going further than that, social science also frequently finds its way into the court’s decisions, particularly when a court steps beyond the law’s formalism to more broadly consider the social implications and truths underlying the controversies before it. At the U.S. Supreme Court level, social science-driven amicus curiae briefs have played important roles in landmark cases like Brown v. Board of Education of Topeka on the effects of segregated schooling, helping the judges determine at that time that “separate” was not, in fact, “equal.” In cases like that, the Supreme Court’s reliance on social science is often justified based on the Court’s quasi-legislative role in making national policy. But the relevance of social science applies at the trial court as well, where there are factual questions that bear chiefly on the case at hand.
One example of such a question that a trial court needs to answer is whether pretrial publicity is going to deprive a given litigant of the right to a fair trial in a particular venue. A recent article in The Jury Expert (Daftary-Kapur, Penrod, O’Connor, 2014), builds a case for taking the social science on that question more seriously. By comparing a laboratory simulation on the biasing effects of publicity to a more realistic ‘shadow jury’ investigation on the same case, the authors are able to argue that the different methods point to the same conclusion: Pretrial publicity introduces a persistent bias that influences the result. In a response published along with the article, I note a few areas where the presentation of these research results should be adapted in order to address court’s reluctance to rely on this kind of data. The exchange provides a reminder to litigators seeking to use social science to buttress motions to the court: Instead of treating these citations as matters of fact, treat them as arguments. While they obviously need to be factually true as well, what matters as much, or more, is that the explanation should strategically address the court’s likely objections or natural reluctance to use social science. This post considers the issue and provides a few reminders on framing your social science for the bench.
Social Science in the Courtroom
There is already a wide body of scholarship focusing on the role of social science in informing court opinions. Much of it is focused on the legal relevance and the implications of a court’s reliance on these so-called ‘extra-judicial’ factors. And courts do not consider these findings in isolation. For example, one article (Rublin, 2011) notes that there is a combination effect: When there is settled social science and widespread public opinion, the court is likely to move (e.g., school integration and gay rights), but where either is lacking, (e.g., death penalty), then the social science is less likely to be convincing. That same author in 2011 prophetically noted, “If the Supreme Court were to hear a case on gay marriage, a national consensus on the issue would be more outcome determinative than settled social science.”
Social science research finds its way into opinions in a variety of contexts. In criminal cases it factors into disputes over application of the death penalty, juvenile criminal responsibility, racial disparities in sentencing, eyewitness identifications and a number of other issues. In civil cases, social science research is a staple in trademark and trade dress consumer confusion cases, and also has a clear role in disputes over the value and reliability of oral voir dire, the effectiveness of limiting and curative instructions, as well as the influence of pretrial publicity.
What to Address When You Cite Social Science Research
The scholarship on the legal role of social science has focused on theory and the judge’s role in accepting or rejecting the science, and less on the lawyer’s role in offering and framing that research. Indeed, such arguments are often coming in the form of amicus curiae from the social scientists themselves, and not from the attorneys. But to my mind, there is no good reason why attorneys should not be more willing to cite social science when it is on point and helpful to a judge’s decision. There are, however, a few ways the social science citations work a little differently than the law and the facts that a lawyer is used to citing.
Here are four simple questions that a litigator ought to ask about the social science being cited:
How Do They Know? Citing social science is not like citing precedent: It is not the fact of an opinion, but the basis for one that matters. Because judges are less likely to be versed in evaluating social science, that basis (data, methods, conclusions) ought to be made as clear as possible. As Amy Rublin (2011) noted in her analysis, “It is not merely the number of studies supporting a proposition that matters, but also the cohesiveness of their findings and soundness of their methodology.”
Is There Consensus? “”Uncertain social science,” Amy Rublin also noted, “may push the Court away from using social science.” Justice Scalia put it perfectly in his dissent in Roper v. Simmons, “Given the nuances of scientific methodology and conflicting views, courts — which can only consider the limited evidence on the record before them — are ill equipped to determine which view of science is the right one.” That means that judges will use the heuristic of ‘settled’ or ‘uncontested’ opinion within the field as a shortcut.
Who Else Has Relied on It? Social science is different from legal precedent, but the power of a prior example still matters. If there are similar circumstances where the social science finding has been used, it helps to reference those. Even beyond legal cases, if other government agencies, for example, have used these kinds of findings, that will be worth noting as well. As Rublin’s discussion demonstrates, it is not just the data and the conclusions of social science that matters, it is also the science’s ability to indicate a settled opinion.
What Interest Is Being Served? Focusing on the ‘interests’ underlying social science may sound like it is at odds with the neutrality that should define science. After all, science, even when it is ‘social,’ should still be factual. But the interest at stake still matters. The question, for example, could be “What interests are served in relying on the social science facts and not just on the inaccurate prior beliefs in this case?” Looking at the question of pretrial publicity, setting aside an exaggerated faith in jurors’ promise to follow instructions and, instead, looking at the empirical effects of pretrial publicity generally and in an individual case, serves a clear interest: a fair trial. Make sure the values underlying the science are made explicit.
Like law, social science is an epistemology – a way of knowing something — but with its own structure, terms, and frames of reference. Noting that language difference, it helps lawyers to be at least a little bit bilingual.
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Other Posts on Briefing:
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Daftary-Kapur, T., Penrod, S., O’Connor, M. (2014). Are Lab Studies on PTP Generalizable?: An Examination of PTP Effects Using a Shadow Jury Paradigm. The Jury Expert 26:2 (May).
Rublin, A. (2011). The Role of Social Science in Judicial Decision Making: How Gay Rights Advocates Can Learn From Integration and Capital Punishment Case Law. Duke Journal of Gender Law & Policy, 19(1). URL: http://scholarship.law.duke.edu/cgi/viewcontent.cgi?article=1197&context=djglp
Image Credit: Connie Ma, Flickr Creative Commons