Social science in Supreme Court criminal cases and briefs: The actual and potential contribution of social scientists as amici curiae.

Abstract

This article describes citations of social science research evidence in 200 criminal cases decided by the Supreme Court and in the briefs filed by the parties and amici curiae in these cases. It also examines the uses of social science authorities in samples of Supreme Court exclusionary rule and jury decisionmaking cases, and accompanying briefs. The correspondence between the social science references cited in the decisions and the briefs is used as one measure of the brief-writers' contributions to the Court's use of social science materials, and related contributions of the brief-writers are explored, as well. The justices appeared to locate the majority of social science references cited in their opinions witlhout assistance from the briefs, and thus also presumably attempted to evaluate the research evidence on their own. Individuals and organizations with scientific expertise rarely filed amicus briefs in these cases, which may help explain why the Court so frequently was without assistance in locating or examining research evidence. It is suggested that the appellate judiciary's informed use of social science materials would be promoted if more social scientists, and their professional organizations, participated as amici curiae in cases presenting social fact issues within their competence.A number of criminal cases recently decided by the United States Supreme Court * An earlier version of this article was presented at the 1987 meeting of the American Society of Criminology in Montreal, Quebec. My thanks go to Professor Stephen L. Wasby for his extremely helpful suggestions concerning this article, and to the reviewers and editor of Law and Human Behavior, who commented upon the article after its submission. I, of course, am solely responsible for oversights or errors that may have occurred. Requests for reprints and other correspondence should be sent to the author, School

Attorney beliefs concerning scientific evidence and expert witness credibility

“…Criminal cases often present issues of social fact, defined by Acker (1990) as "general, empirical propositions about social events or relationships that may be instrumental to legal rule-making" (p. 25-26). For the purposes of the current study, social science research includes empirical findings from a number of scientific disciplines, including psychology and sociology.…”

Social science in supreme court death penalty cases: Citation practices and their implications

“…The mean number of lines of discussion per social science citation (3.8) and the proportion of the discussion composed of quotes (12.9%) tend to be lower in these cases than in the Court's criminal cases generally (4.2 lines discussion per citation, and 25.9% of discussion quoted), and in decisions involving the exclusionary rule (6.2 lines per citation, and 20.8% quoted) and juries (5.7 lines per citation, and 10.9% quoted) (Acker 1987(Acker , 1990b. The justices previously have been charged with using social science citations as little more than window dressing to support their predetermined conclusions of law (Rosenblum 1978;Sperlich 1980b;Zeisel and Diamond 1974 rough objective indicators of the significance of social science authorities in the decision of death penalty cases suggest similarly that the justices may be guided more by normative considerations than by empirical information in their decisions regarding capital punishment.…”

“…The use of social science in the different kinds of opinions in the death penalty cases coincides more closely with the pattern in the Court's jury decisions, where only 16 percent of the social science citations and 6.2 percent of the related discussion appeared in majority decisions. Only four of the seven jury cases studied were decided by majority opinion, and Justice Blackmun's extraordinary use of social science in his plurality opinion in Ballew v. Georgia (1978) dwarfed the use of social science in the other jury decisions (Acker 1987(Acker , 1990a(Acker , 1990b. The fact that social science evidence was cited overwhelmingly in death penalty opinions which did not reflect holdings of the Court adds support to the thesis that research evidence has had a relatively minor direct impact on capital punishment doctrine.…”

“…There is a remarkable stability in the justices' practice of relegating social science citations to the footnotes of opinions: 83 percent of social science authorities were cited in the footnotes in a sample of 240 Supreme Court criminal cases decided between 1959 and 1988 (Acker 1990b); 85.9 percent of social science citations appeared in footnotes in a sample of the Court's Fourth Amendment exclusionary rule decisions; and 85.0 percent were found in the footnotes in a series of the Court's jury cases (Acker 1987). These figures confirm the common perception that social science citations ascend only rarely from the footnotes to the text of Supreme Court opinions (Grofman and Scarrow 1980:121).…”

“…Social science research evidence presumably can be useful in helping to inform the justices about "social fact" issues of this nature (Davis 1942;Marvell 1978:139;Sperlich 1980a) or in serving as the "social authority" Walker 1986, 1988;Walker and Monahan 1987) in support of their conclusions about such matters. Examining these cases also allows comparisons to be made between the Court's citation of social science authorities in capital punishment decisions and in other Supreme Court cases that I have analyzed, namely a random sample of 240 criminal cases decided between the 1958 and the 1987 Terms of Court (Acker 1990a(Acker , 1990b, jury decisions, and cases involving the Fourth Amendment exclusionary rule (Acker 1990a).…”