Social Science

Social Science The increasing role of the courts in law and policy making has significant implications for the interaction of law and science. Even trial courts often require the assistance of science to decide a particular case. This need for science is still greater when litigation involving policy issues reaches the appellate level. Law and science, however, are rather unequal partners in the forensic enterprise. While law needs science considerably more than science needs the law, law controls the terms of the relationship. Science can participate in formal dispute resolution only at the invitation of the law and the interaction of the two disciplines takes place in legal territory and is conducted according to the principles and rules of the law. The only real choice scientists have is to participate or not.

Adjudication requires legal and factual determinations. The former is the province of the law; the latter is not. Through the testimony of lay (direct) or expert witnesses, litigants present evidence regarding the factual issues of the case. Lay witnesses testify on the basis of their personal knowledge of the relevant facts. Expert witnesses testify on the basis of their command of a general body of knowledge and/or the conduct of case‐oriented, special‐purpose inquiries.

Scientists, as expert witnesses, provide two types of testimony, one regarding case facts (adjudicative facts), the other scientific generalizations (legislative facts). Giving evidence about a defendant's blood type in a contested paternity case is an example of the former. Testifying about the differential application of the death penalty is an example of the latter (see Race Discrimination and the Death Penalty).

Many scientists are willing to assist the courts, but their testimony is not always welcome or well used. The record of the U.S. Supreme Court and other appellate courts shows non‐use and misuse of scientific evidence at least as often as proper utilization. The fault does not always lie with the courts. Sometimes the evidence is flawed or incoherent; sometimes no evidence is available. Sometimes neither the litigants nor the court know where to find the relevant evidence. They may not even realize that it is available or, even, that it is needed.

Often the adversarial process gets in the way of a clear and full presentation of the best available scientific evidence. The tactics of cross‐examination—ad hominem attacks, witness bullying, cutting answers short, deliberate deception and setting traps—are designed to confuse, discredit, and embarrass witnesses (who, of course, are unable to fight back), when their testimony cannot be otherwise refuted. Adversarial procedures do not seek truth but partisan advantage.

Scientists tend to misunderstand the primary purpose of the law. The objective is to resolve disputes, not to establish the truth. Scientists are committed to objective fact finding. Objectivity consists of neutrality and autonomy. Neutrality means that the scholar's own preferences will not influence the results of his work. Autonomy means that the preferences of outside agencies will not have such an influence. Of course, objectivity is a goal that is not always reached. In the forensic context, the greater threat is to autonomy. Attorneys want to win. Understandably, they tend to nudge their experts toward partisanship.

A number of procedural and structural reforms have been suggested to improve the interaction of law and science and to make scientific findings more correctly and more readily available to the courts—beginning, perhaps, with the “Brandeis brief.” These range from “science clerks” to panels of experts to assist judges and to special masters and monitors to supervise the development of scientific evidence and testimony. A greater use of courts of special jurisdiction and, even, “science courts” has also been advocated. Few such reforms have yet been tried or adopted, though some of them are authorized under current rules, for example, the appointment of special masters. In any case, judges should consider taking a more active role in assuring complete and accurate presentation of relevant evidence. The courts should also consider developing new (nonadversarial) procedures to test the validity of scientific evidence.

The special characteristics of social science deserve attention. The law's failure to use the findings of the social sciences has often been rationalized by pointing to the “softness” of these disciplines—in contrast to the “hardness” of the physical sciences and the “certainty” of the law. Both comparisons are less persuasive than might appear at first.

As regards scientific “hardness,” all scientific generalizations are probabilistic. No scientific discipline generates “absolutes.” It is a serious error to confuse the deductive certainties of mathematics with the inductive probabilities of science—as did Justice Felix Frankfurter, when he refused to accept psychological evidence because such evidence lacked “mathematical certainty” (Brown v. Board of Education, 1954).

As regards the “certainty” of the law, a reasonably close inspection exposes the fictitious nature of this claim. To believe that judges simply can deduce decisions from case law, statutes, and general principles—that two equally competent judges would necessarily arrive at the same decision—requires considerable blindness to the realities of the law: 5‐to‐4 decisions, reversals, overrulings, judge‐shopping, and the politics of judicial appointments.

The real problem is not the “softness” or the “uncertainty” of social science evidence. Rather, it is the way in which such evidence is introduced, processed, and tested. At the bottom of it all may well be the law's great reluctance to deal with the unaccustomed and unfamiliar.

Bibliography

Saul M. Kassin and Lawrence S. Wrightsman, eds., The Psychology of Evidence and Trial Procedure (1985).
Richard Lempert and and Joseph Sanders , An Invitation to Law and Social Science (1986).
Peter W. Sperlich , Social Science Evidence in the Courts: Reaching Beyond the Adversary Process, Judicature 63 (1980): 280–289.

Peter W. Sperlich