Social Science and the Courts:
The Role of Amicus Curiae Briefs
Ronald Roesch(1) Stephen L. Golding
Simon Fraser University University of Utah
Valerie P. Hans N. Dickon Reppucci
University of Delaware University of Virginia
Running Head: Amicus Curiae Briefs
* Authors' Note: Requests for reprints should be sent to Ronald Roesch, 936 Peace Portal Drive, P.O. Box 8014-153, Blaine, WA, 98230. The authors wish to thank James Ogloff, Kathy Roesch, and Claudia Worrell for their comments on an earlier draft.
Abstract
Social scientists have increasingly become involved in the submission of amicus curiae or "friend of the court" briefs in legal cases being decided by state and federal courts. This increase has triggered considerable debate about the use of briefs to communicate relevant social science research. This article evaluates the strengths and weaknesses of various methods of summarizing social science research for the courts. It also reviews the procedures for submitting briefs developed by the American Psychology-Law Society which, in collaboration with the American Psychological Association, has submitted its first brief in Maryland v. Craig, a case recently decided by the U. S. Supreme Court.
Social Science and the Courts:
The Role of Amicus Curiae Briefs
Social scientists have become increasingly involved in the submission of amicus curiae or "friend of the court" briefs to the courts (Acker, 1990; Tremper, 1987). Such briefs summarize research relevant to a particular legal case, describing implications for legal issues before a court. Social science briefs have been submitted in a number of recent cases, including those on the death penalty (Lockhart v. McCree, 1986; Bersoff, 1987), gay rights (Watkins v. United States Army, 1988; Melton, 1989), abortion (Thornburgh v. American College of Physician and Surgeons, 1986; Interdivisional Committee on Adolescent Abortion, 1987), jury size (Ballew v. Georgia, 1978; Tanke & Tanke, 1979), prediction of dangerousness (Barefoot v. Estelle, 1983), and rights of mentally ill individuals (City of Cleburne v. Cleburne Living Center, Inc., 1985; Melton & Garrison, 1987).
This issue of Law and Human Behavior provides an opportunity to discuss and debate the participation of social scientists in amicus briefs. A year ago, the American Psychology-Law Society (AP-LS), initiated a pro bono brief project in which it collaborates with the American Psychological Association (APA) in preparing briefs. The first such brief was filed in Craig v. Maryland (1990), a U.S. Supreme Court case involving courtroom testimony of child witnesses. Introducing a new feature of Law and Human Behavior, we are pleased to publish this brief in its entirety, along with commentary on the Court's decision (Goodman, Levine, & Melton, 1991). This issue of the journal also includes an Adversary Forum in which Rogers Elliott and Phoebe Ellsworth debate the role of social science briefs in the context of death penalty cases.
The participation of social scientists in amicus briefs has raised numerous important and complex issues in the scholarly community. There has been a long-standing debate about the appropriate role for social scientists with respect to public policy (see Reppucci, 1985). Should social scientists limit themselves to conducting and publishing their research and leave it to others to apply their research findings? Or do they have an ethical obligation to assist the courts and other social groups in matters relating to their expertise? If an activist role for social scientists is appropriate, what are the comparative advantages of brief writing, expert testimony, and other mechanisms of approaching the courts?
By publishing the Craig brief and the articles in this issue, we hope to facilitate open scholarly discussion about the brief process. We invite comments from readers on any aspect of this process, from the general propriety of amicus briefs to specific conclusions and inferences drawn from any particular brief. The editor will be review comments, but expects that, space permitting, all of them will be published so that a range of opinion and discussion is aired. We hope that publication of these briefs and commentary encourages substantive debate about how the research findings of our field are best communicated to the courts.
Social science impact on the legal system
Social science research might influence court decisions in a number of ways. At one end of the continuum, researchers take no active role in directly communicating their research results to the judiciary -- research findings are published, usually in scientific journals, and may find their way into legal decisions if judges cite them as secondary sources for their opinions. Ellsworth and Getman (1986) argue that the greatest impact of social science findings may occur when research findings are so widely disseminated and accepted in the community at large that judges consider them to be truisms. At the other end of the continuum, research is brought directly to the attention of the courts in formal briefs prepared for particular cases. Obviously, this requires more active and direct participation by individuals and organizations.
Although it has been argued that there is a growing influence of social science in law (Levine & Howe, 1985), measuring the impact of social science research is a particularly difficult problem. Impact studies rely primarily on citation counts for an indication of whether the courts have used such research in their opinions. Counts of social science articles cited in legal decisions may possibly underrepresent the influence of research because judges may be reluctant to cite empirical research even when it influenced their opinions (Tremper, 1987). Further, as Hafemeister and Melton (1987) point out, "Citations may be mere makeweight or post hoc rationalizations for views originating from other, unexpressed sources" (p. 33). It may also be that judges cite or rely on a brief when the brief supports their position and ignore it when it does not.
Given their legal training, judges are, of course, more inclined to cite legal precedent in their opinions. In a study of the Supreme Court's use of social science research in children's cases, Hafemeister and Melton (1987) found that judges most often cite prior legal opinions to substantiate an opinion, a conclusion also reached in similar citation studies (e.g., Tremper, 1987). When secondary social science sources were cited, they were typically ones published in legal periodicals or government reports. Hafemeister and Melton conclude that researchers who want their results to reach the courts should publish in law reviews, participate in government and organizational task forces, and contribute to state-of-the-art reviews and briefs by professional organizations.
It may also be that judges do not rely on social science research because of the substantial differences in the disciplines of law and social science. Haney (1980) contrasts the two disciplines and points to differences in "styles and methods of reasoning, proof, and justification used in psychology and law" (p. 158). Because judges are trained in the law and are generally unfamiliar with psychology's research methodology and statistics, they are naturally more inclined to rely on legal scholarship and precedent when they make their decisions. The differences in training and approaches to scholarship make communication between the two disciplines difficult. However, the increase in the number of social scientists with degrees in both law and psychology (Roesch, Grisso, & Poythress, 1985; Tomkins & Ogloff, 1990), the introduction of social science courses in law schools (Monahan & Walker; see review by Slobogin, 1991), and the hiring of psychologists in law schools (Melton, Monahan, & Saks, 1987) may lessen the gap.
The Use of Expert Testimony
Some argue that expert testimony in the court may be the best way to introduce social science evidence because it allows the court to determine the direct relevancy of the testimony, it allows experts to educate triers of fact with respect to complex scientific debates and literature, and it allows the court to evaluate the evidence subject to cross-examination (see Tremper, 1987, for a review). At the same time, the use of adversary experts to convey scientific findings presents a number of problems (e.g., Chesler, Sanders, & Kalmuss, 1988; Fienberg, 1989; McCloskey, Egeth, & McKenna, 1986; Saks, 1990; Vidmar & Schuller, 1989). Among other things, scholars question the ability of individual scientists to present accurate and unbiased summaries of the scientific literature under the pressures of an adversary system that encourages partisan presentations of research literature (Saks, 1990). Critics also express doubts about the ability of judges (see Fienberg, 1989) and juries (see Vidmar & Schuller, 1989) to interpret and weigh scientific evidence presented by individual experts within an adversarial format. The advocacy role played by many expert witnesses may also have weakened the value of such testimony (and briefs as well) in the eyes of the court (see Bazelon, 1982). Undoubtedly, courtroom battles of the experts has reduced the credibility of psychological research in the eyes of many judges as well as the public. When experts disagree, the courts may decide that the best course is to simply ignore their testimony. These problems with expert testimony may be mitigated in several ways. First, the courts could use their authority to appoint a panel of experts. Second, the increasing prevalence of social science courses in law school curricula should have the effect of increasing social science sophistication in the legal community. Finally, the dissemination of specialty guidelines such as those developed by AP-LS (Golding, Grisso, Shapiro, & Weissman, 1990) may increase the rigor of cross-examination and the quality of the testimony offered to the courts.
The Use of Briefs
Briefs can supplement or take the place of expert witnesses as a method for communicating a body of research findings to the courts. This is perhaps more true with appellate courts since trial courts make limited use of briefs, traditionally relying on expert testimony. Briefs may have an advantage over expert testimony because they are usually prepared by several individuals, they are reviewed by official groups or organizations1, and their sources are documented. Also, brief writers are not paid for their work, unlike experts who are hired by one side or the other to testify in court. Consequently, the courts may have more confidence that the brief represents the field as a whole.
Briefs draw conclusions from a body of research studies with conditions that vary by time, place, experimenter, sample, experimental manipulation, and other variables. When these multiple experiments produce results consistent with a particular inference, convergent validity can be established, as Ellsworth (1991) points out in her article in this issue of Law and Human Behavior. Problems can arise when the results of multiple experiments are divergent or when the inferences to be made are not clear-cut. In this case, the brief writers' task is more difficult, and the resulting brief may be more controversial.2
As is the case in most scientific inquiries, the methodology used in a particular study, the analysis of the data, and the conclusions and inferences drawn are often subject to the criticism of other researchers. In short, there is often dispute about the validity of a particular study or even a series of studies. In Frye v. United States (1923), a widely recognized standard for the admissibility of expert testimony in court, the court held that the "scientific principle or discovery...must be sufficiently established to have gained scientific acceptance in the particular field in which it belongs" (p. 1014). Recent changes in the Federal Rules of Evidence (1984, Rule 702), which applies to federal courts and some state courts, creates a standard that is broader than Frye, allowing evidence from individuals with specialized knowledge who can assist the trier of fact. This may eliminate some of the problems that result from the Frye standard, because, as demonstrated by the debate contained in the Adversary Forum in this issue, scientific acceptance of a particular conclusion drawn from a body of research can be difficult to determine. Courts frequently rely on the statements of a small number of expert witnesses to assess consensus, often resulting in a situation in which two experts reach different conclusions about whether a particular finding is well established. Rarely are surveys of experts such as the one conducted by Kassin, Ellsworth, and Smith (1989) on eyewitness research available, but they can be useful to the courts in determining the degree of consensus among researchers about specific findings and conclusions drawn from a body of research. Kassin et al. are careful to note, however, that even with this information there are problems with using consensus as the sole criterion of admissability. Nevertheless, surveys of experts can provide important data that could be included in briefs and other court communications.
Of course, criticism and debate are at the heart of the scientific enterprise. However, whereas social scientists see this as essential, the courts may interpret it as an indication of the weakness of the research evidence. Consequently, judges may be reluctant to base decisions, even in part, on social science research. Judges may also decide against using research because, as Faigman (1989) points out, "the concern arises that explicit reliance on social science research might lead to the undercutting of some legal rules if subsequent studies contradict the earlier studies first used to establish the rule" (p. 1042). Faigman maintains there are at least two reasons why this should not be a deterrent to the use of social science research by the courts. First, such research is never the sole foundation of a legal decision. Second, the fact that results may fluctuate over time does not invalidate prior research. Rather, it may simply reflect real changes in individuals, groups, or societal conditions. Indeed, some changes may be the direct result of legal decisions that have affected the lives of individuals and consequently changed their attitudes or behavior.
Monahan and Walker (1988; see also Walker & Monahan, 1988) offer a creative proposal that could effectively address concerns about the limits of social science research. They propose that research should be treated as legal precedent in much the same way that case law is regarded, subject to the normal reviews of evidence law. Under their proposal, social scientists would have a limited role as expert witnesses. Rather, they would "collaborate with attorneys on the production of written briefs that would be the primary vehicle by which the parties present empirical research" (p. 471).
The Advocacy versus Science Translation Role for Briefs
Briefs may also be analyzed along a continuum. At one end is a science translation brief, which is intended to be an objective summary of a body of research. At the other end is an advocacy brief, which takes a position on some legal or public policy issue. Whereas some briefs may attempt to be neutral in their portrayal of a body of literature, many are more adversarial in nature. Indeed, some have argued that adversarial briefs represent the predominant method (see Tremper, 1987, for a review), a perception that may lead judges to regard briefs as suspect. AP-LS has decided to follow the science translation model as closely as possible. However, we would argue that all briefs must evaluate and interpret research, so the distinction between science translation and advocacy briefs may often be blurred. Although it is a laudable goal to strive to represent objectively a body of research, even a science translation brief will reflect the knowledge, perspectives, and values of the brief writers.
Melton and Saks (1990) discuss the difficulties in deciding how much interpretation versus summary a brief should contain:
Either alternative can end up misleading a reader, especially a law reader, which is what the judges are when they read these kinds of briefs. The solution, we think, is in approaching the writing with an honest desire to share with the courts a faithful picture of the available psychological knowledge, and to interpret the research only to the extent that doing so will clarify its meaning. (p. 5)
To the extent, of course, that briefs depart from a straight summary of the research and offer more evaluative and interpretive commentary, they may be the target of criticism from social scientists with differing views of what conclusions can be drawn from the research. We believe that this controversy is inevitable because there will invariably be some disagreement among social scientists about the conclusions to be drawn from a body of research. In preparing briefs, social scientists should strive to ensure, at a minimum, that briefs represent a consensual view of social scientists (i.e, what would most experts in the field conclude). When appropriate, the briefs should make explicit alternative interpretations and opposing perspectives. This would be in keeping with Bazelon's (1982) urgent call for disclosure by social scientists.
Death Penalty as a Case in Point
The use of amicus briefs, with specific reference to the recent involvement of APA in death penalty cases, is the topic debated in the Adversary Forum in this issue. In Lockhart v. McCree (1986), the U.S. Supreme Court rejected the validity and legal relevance of the social science data presented by expert evidence and in an APA brief (see Bersoff, 1987; Elliott, 1990; Ellsworth, 1988). Both Ellsworth (1988) and Thompson (1989) argue that the McCree decision is poorly reasoned and unconvincing in its analysis of the social science evidence and of the legal issue of jury impartiality, and they posit that the Justices did not understand how to use social science research. Thompson (1989) comments that the Justices may have assumed that a study is unworthy of consideration unless its design rules out all possible confounds and alternative explanations -- an assumption he refers to as "the myth of the definitive study." This incorrect assumption derives from a failure to appreciate the concept of convergent validity as it applies to an accumulation of studies (Ellsworth, 1991) and also to understand the reality that most changes in procedure (e.g., in medical practice) are based on much less definitive results than those normally reported in highly regarded professional research journals (Rosenthal, 1990).
Thompson goes on to argue that the Court's decision may have rested on pragmatic rather than legal foundations. Legal realists maintain that this is often the case. In McCree, the Court may have approached the issue of death qualification pragmatically, balancing the perceived costs of eliminating death qualification against the increased protection of defendants' rights that would have been afforded by the remedy sought in McCree. More cynically, as Thompson suggests, the decision may have been influenced by a desire to avoid reversing over 1,500 convictions of defendants tried by death-qualified juries.
It is clear that other factors may influence a court decision and that briefs are simply one potential contribution to the case at hand. There will be times when social scientists will be frustrated that they did not have greater influence, as in the McCree case, and there will be other times when their influence will be more substantial, as in the Craig case. Diamond (1989), for example, encourages psychologists to focus on the "trouble cases," cases where legal doctrine does not provide the court with clear guidance. She maintains that the courts are likely to be more receptive to social science research in these cases than in other cases where legal doctrines are settled.
Of course, the fact that social scientists can be jubilant or disappointed over the outcome of a case in which a brief has been filed implies that brief writers do have a position and desire a particular outcome. We do not quarrel with this, but simply believe that it supports our earlier point that a truly neutral brief is an elusive if not an impossible goal. In some sense, the distinction between a science translation brief and an advocacy brief is arbitrary, and it is often not readily apparent where on the continuum a particular brief belongs. It is possible to be scientific without being neutral, to be objective yet form an opinion about the implications of the research. If the data warrant a particular conclusion, then it may be reasonable for brief writers to advocate for a legal decision that would reflect the knowledge gained from the research.
Pro Bono Amicus Brief Project
As noted earlier in this article, AP-LS has initiated a project in which it will participate in writing amicus briefs in collaboration with APA. The AP-LS Executive Committee appointed the Pro Bono Amicus Committee3 whose primary responsibility is to identify topics for which briefs might be appropriate.4 Brief topics can come to the attention of the committee from a variety of sources, including U.S. Law Week reports on cases that have been granted certiorari, newspaper stories, calls from division members or state associations, or calls from APA or one of its directorates. Once a potential case is identified, the committee consults with APA's Executive Office and the Public Interest Directorate. The purpose of these consultations is to (a) obtain an initial measure of APA's interest in the case, (b) start APA's review process through the Committee on Legal Issues (CoLI), and (c) obtain suggestions from APA divisions regarding individuals with expertise who could become the principal brief writers. The decision to write a brief requires the consent of a number of individuals and committees. These include the Pro Bono Amicus Committee, the president of AP-LS and the division's executive committee, and several groups and individuals within the APA structure, including CoLI, the Board of Directors, and its inhouse and outside legal counsel. Finally, the committee must find individuals who are willing to write the brief, usually within a tight time frame. As a practical matter, if any of the above disapproves of a brief, it will not be written.
When all parties agree to prepare a brief, the task of writing it falls to the substantive experts selected by the committee, along with one or two members of the committee who participate in writing the brief. The committee wants the briefs to be written in science translation style, providing a summary of empirical research or psychological theory that addresses an issue salient to a case to be heard in state or federal appellate courts. The committee views briefs as a method of providing knowledge and information to the courts.
One innovation established by the committee is what it refers to as plain label briefs. The main difficulty in preparing briefs for cases that are already being considered by a court is that time pressures limit the amount of consultation and feedback before a brief is submitted. Typically, the writers only have a few weeks to prepare the brief. One way of avoiding the problems created by this time pressure is to draft some briefs before actual cases are being considered by the court. Topics would be selected that are likely to come before one court or another in the near future. Such briefs can be developed and reviewed by more people than is feasible when a brief must be filed quickly. When an actual case arises, the plain label brief would be updated and edited to fit the particular case. When possible, Law and Human Behavior will publish plain label briefs, allowing readers of the journal to have input into subsequent drafts of a brief before it is actually filed in a particular case.
Concluding Comments
We began this article with a comment that the number of social science briefs has been steadily increasing. Nevertheless, the percentage of cases in which such briefs are filed is quite low. The vast majority of state and federal court decisions do not benefit from briefs even in cases in which social science research might be highly relevant. AP-LS has initiated a brief submission process in an effort to stimulate more communication with the courts. The involvement of AP-LS and APA in amicus briefs has been debated by many scholars. Elliott (1991) raises two fundamental questions about the practice of brief submission by APA. First, are the data sufficiently valid to warrant their communication to the court?, and second, can briefs communicate the research results adequately? Ellsworth (1991) points out that the first issue must be addressed in the context of a specific case and the answer will vary from case to case. Clearly, we need to be able to recognize when the empirical evidence is weak or inconclusive so that we do not submit briefs that overstate scientific authority, as Gardner, Scherer, and Tester (1989) caution. The second issue relates to a more general question about the value of briefs as a method of summarizing and communicating social science research. It is important to keep these two issues separate in order to assess the role of briefs generally as well as the adequacy of a specific brief. We are publishing the Craig brief as an example of a specific case involvement and we invite readers to review it in the context of the questions and issues raised by several authors in this issue of Law and Human Behavior. We also invite comments on more general issues concerning the process of communicating social science research to the judiciary.
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Footnotes
1 Critics might argue that in reality there is little review because of time constraints, so it is not always possible to get broad input.
2 Indeed, some scholars reject the possibility that social science research has much to offer. For example, Gergen (1982) takes a dim view of the amount of knowledge generated by social science. He argues that social science has no clear and dependable product, and research findings are often ambiguous and susceptible to alternative explanations. Gergen suggests that social psychological research is primarily a historical inquiry, documenting fluctuating, non-repeating social facts, thus preventing an accumulation of knowledge about principles of human behavior or interaction.
3 The current members of the committee are Gary Melton and Michael Saks, co-chairs, Peter Blanck, Patricia Falk, Clark Stanton, and Richard Wiener.
4 The material for this section was drawn from a report prepared by Gary Melton and Michael Saks (1990), and from personal communications from the committee co-chairs.
1. *.