CRJ Social Science in Law Fall 2002 Study Guide 3 Dr. Karu Hangawatte

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1 CRJ Social Science in Law Fall 2002 Study Guide 3 Dr. Karu Hangawatte Chapter 4 Social Science Used to Make Law Section 1 Distinguish legislative facts from adjudicative facts p.181 Legislative Facts deal with assumptions underlying law. They affect many parties besides the litigants. Example: Empirical facts discussed by Brandeis in his brief in Muller v. Oregon. These facts can be presented on appeal rather than at trial, and in writing rather than by witnesses. Adjudicative facts affect only the litigants before the court. Findings of fact are not included in the stare decisis doctrine, and are not binding on those who are not party to the dispute before the court. They comprise the res judicata. However, when a legal conclusion/decision is founded upon empirical assumptions, then those assumptions may become undisputable de facto conclusions of law. Courts cannot take judicial notice of legislative facts (p.183, Note1). Kenneth Culp Davis (p.184) says that the Supreme Court is baffled on how to handle legislative facts, and suggests that the Congress must create a professional research service to deal with empirical facts. However, his proposal has not been received with any enthusiasm by court. Discuss the merits and liabilities of his proposal. You may use the Supreme Court s handling of legislative (empirical) facts in cases that we have discussed in class to support your arguments. Some cases that you may use as examples are Wolff v. Colorado, Brown v. Board of Education, McCleskey v. Kemp, and Mississipi University v. Hogan. Section 2 In Plessy v. Ferguson (p.186), the legislative fact assumption is that segregation is not a badge of inferiority, rather the colored race chooses to put that construction upon it. Note that Deutscher and Chein study (p.188) was published 52 years after Plessy. Note the methodologies used in this study and Clark and Clark study on p.189. The doll choice methodology is called projective testing because the subject is supposed to project his/her feelings onto the doll.

2 Can you say why Clark (pp ) did not single out school segregation? In a society where virtually everything was segregated, it was impossible to isolate the effect of school segregation. In Brown v. Board of Education the court says that the law was changing because the legislative facts underlying it had changed. Those facts were not known to the Plessy court. Brown relied on legislative facts, not adjudicative facts. Therefore, its holding is not limited to Kansas. Read Cahn s argument on p.198. He argues that behavioral sciences are young and susceptible to change, and therefore unreliable. What about law? The law changes, too. Is the law therefore unreliable? Do social scientists agree on the wisdom of the social science statement submitted in Brown? Read pp for the answer. Read Mississippi University of Women v. Hogan (p.211). Study the facts and the court s decision in that case. Read notes 1-4 on pages What is the rational basis test? What is the strict scrutiny standard? What is compelling interest? How do these concepts relate to fundamental rights? Do they increase the chances of admissibility of social empirical or scientific evidence in courts? How? Also, study the VMI case on pages New York v. Ferber (p.240). What is the basis for the court s decision that states can regulate child pornography? Study the five points stated by Justice White. The Sixth Amendment: Juries and Witnesses State three Sixth Amendment issues that have implicated social science research (p.249). 1. Minimum size of jury 2. Whether capital juries are impartial 3. Whether videotaped testimony violates the defendant s rights to confrontation. Size of Jury Read Williams v. Florida (p.250) and Colgrove v. Battin (p.252) - Court finds that social science is useful in analyzing the function of the jury. Examine the issues and the court s decision as well as the bases including social science for the decisions in these cases. What is a confound? (pp ). Is there right to a jury of 12 members or a unanimous jury decision in the states? Can a state jury consist of one member? What are the reasons for your answers?

3 Death-Qualified Juries What is a bifurcated or a split trial? (p.271) Study Witherspoon v. Illinois (p.272). The court opened the door for social science research in this case. In Grigsby (p.274) the trial court accepted the research done (Ellsworth study) in response to Witherspoon, and in Lockhart the Supreme Court regretted its invitation to social scientists in Witherspoon. What are the reasons given by the Supreme Court for its decision in Lockhart? What are Witherspoon excludables? Read the article by Samuel Gross on p.288. Videotaped Testimony This type of testimony is allowed primarily in child molestation cases. Why? State v. Jarzbek Study the court s reasoning on p.292. Study the facts and the decision in this case. Maryland v. Craig (pp ) Does the Sixth Amendment give an absolute right to face-to-face confrontation? What was the majority decision of the Supreme Court in this case? Can a child testify by one-way closed circuit television? If so, under what circumstances and why? 8 th Amendment: The Death Penalty Social scientific evidence does not show conclusively whether the death penalty deters or not. The National Academy of Sciences report on p.302 concludes that there is no useful evidence on the deterrent effect of capital punishment. In Furman v. Georgia (p.296), Justice Marshall considers Thorsten Sellin s study on the deterrent effect of death penalty. According to Sellin does the death penalty deter? Also, according to him would the abolition/reintroduction of the death penalty have an effect on the homicide rates? (p.297). According to Justice Marshall what are the problems with his study? Have the proponents of the abolition of the death penalty proved nondeterrence beyond a reasonable doubt? According to the Supreme Court death penalty per se is not cruel and unusual (Gregg v. Georgia). It can be cruel and unusual if : 1. it is not proportionate to the crime (Coker v. Georgia death for rape), or 2. it is arbitrarily and discriminatorily imposed (Furman v. Georgia). The introduction of the bifurcated system took away the arbitrariness by enabling the juries to address the mitigating factors during the penalty phase.

4 Does Justice Marshall in Gregg v. Georgia agree with the findings of the Ehrlich study? What did Ehrlich study attempt to show? What are the grounds on which it is criticized? (Pp ) In McCleskey v. Kemp (p.304) the Supreme Court considered whether the death penalty is cruel and unusual because it is discriminatorily imposed on black defendants whose victims have been white. The court examined the Baldus study. Although the court assumed that the study was valid it denied McCleskey s claim anyway. Why? What was the methodology of Baldus study? What are the findings of that study? (Pp ). Justice Powell urged the court not to hear McCleskey case because: 1. it was hard to know what to make of statistics, and 2. no study can take into account all of the individual circumstances that judges and juries consider in death penalty cases as they are fact-specific to each defendant. Section 3 The Exclusionary Rule The exclusionary rule is a judicially created rule by the Supreme Court in Weeks v. U.S. It excludes illegally obtained evidence from criminal trials. In Wolf v. Colorado (p.321) the Supreme Court did its own empirical research (p.322). Did Justice Frankfurter use valid data to support his conclusion? In Mapp v. Ohio (p.324) the court extended the exclusionary rule to the states. U.S. v. Leon (p.325) The good faith doctrine. Read Justice Blackmun s concurring opinion on p It is the most forceful endorsement of social science in any Supreme Court opinion. In Novembrino (p.333) the defendant urged the New Jersey Supreme Court to preclude recognition of the good faith doctrine. The state argued that it must be recognized. What evidence did they offer to support their arguments? (Pp ). Tort Liability Social science has been used to bear on the question of foreseeability. (P.345) Zink v. Whelan (P.345) and Hill v. Yaskin (p.347) The degree of negligence of a motorcar operator. What was the issue? What was the conclusion? How did social science influence each decision? Dramshop liability In McClellan v. Tottenhoff (p.350) the Wyoming Supreme Court held that a liquor store could be liable for selling alcohol to a minor who later became

5 intoxicated and caused a fatal collision. The court used statistics showing that many fatal crashes involved alcohol and that in nearly one-fourth of the cases the driver was a minor. Social Authority Read this entire section (pp ). What do Monahan and Walker propose? What assumptions/arguments do they make to support their proposal?