The American Psychological Association's amicus curiae brief inPrice Waterhouse v. Hopkins

The use of amicus curiae briefs to inform the courts about the scientific literature requires merging scientific and legal perspectives. A brief submitted by the APA inPrice Waterhouse v. Hopkins (1989) demonstrates how the values of the legal system can predominate over the values of science. The brief differed from a scientific review in three ways: (1) selective use of theories only when they supported the brief's position, (2) acceptance of Hopkins's contention concerning disputed facts, and (3) incomplete representation of the empirical literature. This article examines four of the main arguments in the brief. Half of the 33 studies cited in the brief for these arguments offered no support for the brief's position. In addition, the brief made no mention of a substantial body of research (78 studies) that directly contradicts these arguments.The authors would like to thank Ralph Alexander, Terri Baumgardner, Dennis Doverspike, Rick DeShon, Jan Dorsett, Lynn Kahney, Paul Levy, Robert Lord, Karen Maher, Marty Murphy, Jackie Szmania, and Linda Subich for their comments.     

Improving APA science translation amicus briefs

This commentary uses APA's brief inPrice Waterhouse v. Hopkins to examine a number of issues concerning such briefs submitted to appellate courts: What are the purposes of APA's science translation briefs? What role conflicts emerge between legal advocates and empirical scientists? In what ways are these exacerbated or lessened by the respective duties of advocates and scientists? In what ways may the conflicts be compelled by differences between legal and empirical questions? How adequate are Brandeis briefs as a tool for communicating empirical research findings to appellate courts? Are any of the usual adversarial protections maintained? What is the question the court might look to the brief, and to the field, to answer? What is the role for meta-analyses? For what interests might APA as an amicus advocate? In addition to organizational self-interest and the public interest, does it ever make sense to advocate, in a purported science translation brief, on behalf of an ultimate issue in the case or for one of the parties to the litigation? To these difficult problems, I suggest a potentially simple solution.     

Social science data and the APA

The wisdom of the American Psychological Association's submitting amicus briefs to affect social or legal policy is questioned by an analysis of the brief claimed to be a strong example of the effective use of social science data in the public policy arena; namely, the APA brief (Bersoff & Ogden, 1987) inLockhart v. McCree (1986). The data relied upon in the brief do not appear to support the assertions based upon them, and other data are adduced to develop the critique. It is concluded that it is mischievous for the Association to address itself to the courts by generalizing a data base well beyond its useful limits: The adversarial and scientific methods of establishing truth are in several respects antithetical.     

The Effects of British and American Trial Procedures on the Quality of Juror Decision-Making

Compared to American trial procedures, British procedures provide a less distracting environment in which jurors can process trial evidence. Relying on theories of persuasion, it was predicted that jurors viewing British procedures would be less affected by extra-evidentiary cues and would be more sensitive to evidence strength variations than jurors in American trials. Participants (N = 245) viewed a mock trial in which trial procedure, judge's nonverbal behavior, and evidence strength were varied. Participants judged the British procedures to be more civil and fair than American procedures but were less likely to find for the plaintiff. Although jurors recalled more trial facts when they viewed British procedures, they were not more sensitive to variations in evidence strength. There was some evidence that British procedures may increase the influence of judge's nonverbal behavior on juror judgments. The relative benefits of different trial procedures are discussed.     

The utility of sex offender registration: a research note†

ABSTRACT

Sex offender registries are one of the more hotly debated and polarising topics in criminology. Registries are generally perceived as valuable by the public, legislators, and law enforcement. However, academics and treatment providers have largely remained critical, arguing registries are costly and ineffective. Continued support despite these claims has led some scholars to suggest that proponents are unaware of evidence, indifferent to science, and perhaps driven by emotions. Yet this conclusion denies important facts. First, statistical evidence shows that registrants are at far higher risk of committing a sex crime than the general public. Second, high-quality empirical research suggests that enacting registries is associated with significant decreases in sex offences. Third, there is prima facie evidence that registration has assisted in police investigations and prevented sexual crimes. Recognising these arguments is likely an important step towards improving the quality of debate, science, and policy on registration.     

Context Effects in Forensic Entomology and Use of Sequential Unmasking in Casework

Context effects are pervasive in forensic science, and are being recognized by a growing number of disciplines as a threat to objectivity. Cognitive processes can be affected by extraneous context information, and many proactive scientists are therefore introducing context‐minimizing systems into their laboratories. Forensic entomologists are also subject to context effects, both in the processes they undertake (e.g., evidence collection) and decisions they make (e.g., whether an invertebrate taxon is found in a certain geographic area). We stratify the risk of bias into low, medium, and high for the decisions and processes undertaken by forensic entomologists, and propose that knowledge of the time the deceased was last seen alive is the most potentially biasing piece of information for forensic entomologists. Sequential unmasking is identified as the best system for minimizing context information, illustrated with the results of a casework trial (n = 19) using this approach in Victoria, Australia.     

Can Jurors Recognize Missing Control Groups,Confounds, and Experimenter Bias in Psychological Science?

This study examined the ability of jury-eligible community members (N = 248) to detect internal validity threats in psychological science presented during a trial. Participants read a case summary in which an expert testified about a study that varied in internal validity (valid, missing control group, confound, and experimenter bias) and ecological validity (high, low). Ratings of expert evidence quality and expert credibility were higher for the valid versus missing control group versions only. Internal validity did not influence verdict or ratings of plaintiff credibility and no differences emerged as a function of ecological validity. Expert evidence quality, expert credibility, and plaintiff credibility were positively correlated with verdict. Implications for the scientific reasoning literature and for trials containing psychological science are discussed.     

Identifying and measuring juror pre-trial bias for forensic evidence: development and validation of the Forensic Evidence Evaluation Bias Scale

Abstract

Previous research has provided support for the impact of juror pre-trial bias on judicial decision making, particularly in cases where the evidence presented at trial is of weak or ambiguous probative value. In an effort to identify whether a pre-trial bias for forensic evidence exists, the Forensic Evidence Evaluation Bias Scale (FEEBS) was developed and tested. The results of a principal components analysis suggested that two distinct constructs were being measured, corresponding to a pro-prosecution and pro-defence bias toward forensic evidence. In a second validation study, scores on these two subscales were compared with other existing juror bias measures (Juror Bias Scale and Belief in a Just World) and in a mock juror decision making task only the pro-prosecution subscale of the FEEBS predicted the perceived strength of forensic evidence. A partial mediation model is presented which explains the relationship between this bias and verdict preferences. The implications of this potential juror bias are discussed in the context of real juries, the CSI Effect (which refers to anecdotal claims that jurors are biased by the popularity of fictional representations of forensic science on television) and peremptory challenges, as well as future research directions.     

Predicting juvenile delinquency: A review of correlates and a confirmation by recent research based on an integrated theoretical model

This study is an exploration of the effects of setting cases for trial in a court that permits jury trials for juveniles. Although few cases actually go to trial, cases set for trial have an impact on juveniles and the court. The study reported here is based on data from a study of 710 youths upon whom delinquency petitions were filed in a suburban court in 1980. Of these youths, 94 had cases set for trial and 7 actually went to trial.

The first part of the article gives a brief historical perspective on the juvenile right to jury trial, discusses why defense attorneys set cases to trial, and describes some of the difficulties in measuring the impact of jury trials. The second part reports on the impact of trial setting in “Suburban Court” on case outcomes and case processing time. A partial correlation analysis shows that there is no significant association between setting a case for trial and either adjudication or final disposition, even when other factors are held constant. Setting a case for trial has a significant association with long case processing times, however. Cases set for trial take almost twice as long as other cases to move from filing to adjudication.     

To tell what we know or wait for Godot?

The evidence that death-qualified jurors are more likely than excluded jurors to convict is consistent, robust, and directly relevant to the issues of representativeness and conviction proneness that were before the Supreme Court inLockhart v. McCree. There are exactly the circumstances in which anamicus brief from the APA is most appropriate. In science the search for knowledge is never complete; to keep silent until our understanding is perfect is to keep silent forever.     

Free press and fair trial: The role of behavioral research

The growth of mass media has complicated the relatioship between the courts and the media. Free press and fair trial rights are kept in balance by the use of judicial restraints and remedies such asvoir dire, change of venue, and gag orders. This balance has shifted back and forth during the past two decades. Current case law and legal codes are inconsistent and provide insufficient guidance to judges in their use of restraints and remedies. Nor is there a body of empirical research on the impact of news coverage and juror behavior capable of informing the courts at this time. In this paper, we review and critically assess the empirical social science literature as it pertains to the legal issues involving free press and fair trial. We argue that carefully conducted empirical research could provide important information to the courts. We suggest research directions and methodological caveats to increase legal relevance and scientific validity.     

The entrapment defense

Most American jurisdictions follow either asubjective or anobjective approach to the entrapment defense. In order to test some of the differences between the two approaches, student jurors viewed a videotaped cocaine trial and were presented with either subjective test or objective test instructions. The admission of prior conviction evidence was also varied. The jurors deliberated, returned a verdict, and then completed a questionnaire that measured their understanding of the instructions and trial facts. Results show that, first, juror comprehension of the principal features of the objective test is very poor. It is suggested that an effort be made to simplify instructions describing the objective test. Should simplification not improve comprehension, it is argued that the judge, not the jury, should decide the entrapment defense when the objective test is used. Second, admission of a prior conviction has a significant impact on verdicts in the subjective test condition, but not in the objective test condition. This finding suggests that the subjective test instructions are effective in encouraging jurors to use prior convictions as evidence of guilt. The content of the objective test instruction may also account for part of the difference in impact. Jurors in the objective test condition were instructed not to take the defendant's predisposition into account, and a substantial minority of the jurors under-stood this aspect of the instruction.     

Confidence inflation in eyewitnesses: Seeing is not believing

Purpose. Confidence inflation in eyewitnesses obscures a useful cue to identification accuracy and affects evaluations of eyewitnesses (e.g., Bradfield & McQuiston, 2004; Jones, Williams, & Brewer, 2008). We examine whether sensitivity to confidence inflation evidence is enhanced by seeing a videotape of the identification procedure. Methods. Participants (N= 131) watched a videotaped trial in which the witness's original confidence statement was presented as part of a previously recorded videotaped identification procedure or read by the witness at trial. In addition, the witness's identification confidence was either consistently high or low at the time of the identification and high at the trial (i.e., it was inflated). Results. Significant interactions demonstrated that confidence inflation evidence factored into judgments of the eyewitness and defendant guilt more strongly in the videotape condition compared with the read condition. Conclusions. The present results support recommendations to collect immediate confidence reports and videotape identification procedures. Using videotape evidence may help innocent defendants convince jurors that the eyewitness's identification is not accurate.     

Judicial use of social science research

American courts use social science research in three distinct ways: to make law, to determine facts, and to provide context. In this article, we review and critique the approaches that courts have traditionally taken to dealing with each form of social research. We also summarize and integrate a body of work offering a different perspective that treats law-making research associal authority, fact-finding research associal fact, and context-providing research associal framework. We end by proposing a coherent sequence of steps that courts should take when confronted with an empirical question about human behavior.This article was prepared under the auspices of the Task Force on Judicial and Regulatory Decisionmaking of the Carnegie Commission on Science, Technology, and Government. The views expressed are those of the authors rather than of the Task Force or the Commission. We are grateful to David Z. Beckler, Associate Director, for his comments. Requests for reprints should be sent to either author at the School of Law, University of Virginia, Charlottesville, VA 22901.     

Litigant Status and Trial Court Appeal Mobilization

The advantages held by haves over have nots in litigation have long fascinated scholars, with a long line of research revealing that litigant status often affects litigant resources, experience, and chances of overall success from trial courts to appellate courts. What has received considerably less attention, however, is how this status affects the decision to appeal. Bringing a new perspective to this important area holding implications for the shape and content of the judicial hierarchy, this study analyzes the decision of the losing federal district court litigant to appeal to the US courts of appeals. Utilizing an original database containing a sample of federal district court civil cases decided between 2000 and 2004, the results indicate, as predicted, that litigant status differentials affect whether there will be an appeal. This influence is further magnified when conditioned upon the relative costs of the appeal. These findings provide one of the first detailed examinations of litigant status and appeals coming from US trial courts and, simultaneously, offer the first empirical evidence to date that business litigants, like previously known government parties, are advantaged over individuals when deciding whether to appeal.     

The normative foundation of social science in law revisited: A reply to melton

Conclusion The primary thrust of Melton's argument is that opposition by organized psychology to the Bork nomination would have been consistent with the jurisprudential philosophy on which social science in law, as a scholarly movement, is based (p. 317). If APA is to justify opposition to Bork or future Supreme Court nominations (e.g., Souter), there should be a clearly identified normative foundation that directly leads to such advocacy. A stance based partly upon scholarship thatimplies reverence for constitutional values and partly upon preambles and principles of an ethical code is too slender a reed from which to cast APA's institutional support for a Supreme Court candidate. When such a stance is adopted, APA unfortunately becomes one of an increasing number of organizations attempting to influence political decisions by claiming allegiance to values consistent with democracy.Advocacy based on a normative foundation of social science in law jurisprudence could be justified by APA if, and only if, (a) there is an identifiable SSL jurisprudence, (b) there is consensus on the values underlying such a jurisprudence, and (c) adherence to these values argues against the nomination of Bork or others (e.g., Souter) to the Supreme Court. Because these conditions currently cannot be met, organized opposition to Supreme Court nominations cannot be justified on a normative foundation of SSL jurisprudence.Editor's Note: This issue marks the introduction of theComments section. Readers are invited to submit brief comments on articles published in this journal.     

Jurors' Use of Hearsay Evidence: The Effects of Type and Timing of Instructions

To examine the effects of curative judicial instructions on jurors' perceptions of hearsay testimony, mock jurors (N = 180) were exposed to one of six versions of a trial that included proprosecution hearsay evidence accompanied by either disregard or limiting instructions, presented either immediately after the hearsay, at the end of the trial, or at both of these times. Also included were control conditions in which (1) the information was presented as nonhearsay (first-hand), (2) no hearsay was presented, or (3) the hearsay was presented without instructions. Results indicated that neither the hearsay nor the instructions, regardless of their form or timing, affected verdicts. In fact, findings revealed that participants may have disregarded the hearsay regardless of instructions heard. There was some evidence to suggest, however, that evaluations of other admissible evidence presented by the hearsay witness were negatively affected.     

Validation of the factor structure and predictive validity of the Forensic Evidence Evaluation Bias Scale for robbery and sexual assault trial scenarios

In order to investigate the role of pre-trial attitudes about forensic science in juror decision-making, a previous study demonstrated the predictive validity of the Forensic Evidence Evaluation Bias Scale (FEEBS), using a murder trial scenario, which featured ambiguous prosecution DNA evidence. The current study validates the FEEBS using two new crime types and the conditions include a manipulation of the presence of DNA evidence in the trial scenario. The FEEBS successfully predicted mock jurors' perceptions of the probative value of DNA evidence for both robbery and sexual assault trials. The two subscales of the FEEBS were demonstrated to have different predictive ability depending on the presence or absence of DNA evidence. A confirmatory factor analytic technique was used to validate the underlying two-factor structure of the FEEBS, as previously proposed. These results are discussed with reference to the CSI Effect literature, and the potential for improvement to less empirically supported voir dire questioning techniques.     

The over-citation of Daubert in forensic anthropology

The 1993 US Supreme Court decision Daubert v. Merrell Dow Pharmaceuticals, Inc. presented new guidance for the judicial assessment of expert witness evidence and testimony in the determination of admissibility. Despite the rarity of admissibility challenges to forensic anthropology evidence, Daubert is frequently cited in published forensic anthropology research. This study undertook a qualitative thematic analysis of forensic anthropology articles published in the Journal of Forensic Sciences to assess why authors continue to cite Daubert and express concerns over potential exclusion. The results show a significant increase in the number of articles that cite legal admissibility standards over time (p < 0.001). Authors frequently cite these standards to contextualize their results within the Daubert framework or to justify the need for their research. Notably, many articles present Daubert as a constraining force, misinterpreting the guidelines as rigid criteria or that they require methods to be strictly quantitative. However, Daubert was intended to be a flexible tool for judges—not a standard or instruction for scientists. While it was reasonable to reflect on the scientific rigor of methods in the wake of the Daubert decision, a new perspective is warranted in which forensic anthropologists shift their focus from trying to “satisfy” admissibility guidelines to adopting quality assurance measures that minimize error and ensure confidence in analytical results, and developing and using methods that are grounded in good science—which is important regardless of whether or not the results are ever the subject of a trial.     

Applied difficulties of conditions for bail pending trial and institutional solutions

In the domain of bail pending trial in China, there is a deep-cutting tension in bail pending trial between the practical conditions in judicial practice and the legal conditions established by legal authorities. Based on the data and information collected, this article investigates the conditions of bail pending trial in the aspects of rules and facts, and looks for an institutional solution to reconstruct the system of bail pending trial that can realize the interaction between the facts and rules. __________ Translated from Susongfa Lilun Yu Shijian 诉讼法理论与实践 (Theory and Practice of Procedure Law), 2005, (9): 374–382