THE SOCIAL SCIENTIST AS an EXPERT WITNESS* Ar.Nold M
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University of Minnesota Law School Scholarship Repository Minnesota Law Review 1956 The oS cial Scientist as an Expert Witness Arnold M. Rose Follow this and additional works at: https://scholarship.law.umn.edu/mlr Part of the Law Commons Recommended Citation Rose, Arnold M., "The ocS ial Scientist as an Expert Witness" (1956). Minnesota Law Review. 856. https://scholarship.law.umn.edu/mlr/856 This Article is brought to you for free and open access by the University of Minnesota Law School. It has been accepted for inclusion in Minnesota Law Review collection by an authorized administrator of the Scholarship Repository. For more information, please contact [email protected]. THE SOCIAL SCIENTIST AS AN EXPERT WITNESS* Ar.NoLD M. RosE** There-is a possibility that social scientists will increasingly be used in the future as expert witnesses in court cases of several kinds, and therefore some exploration is needed as to the kinds of service the social scientists can provide, and as to their limitations as expert witnesses. Louisell' has made a most constructive start on this discussion in relation.fo the work of psychologists. Calm, 2 also a lawyer, has analyzed the social science testimony in the school segregation cases, and, while his article is most thoughtful, he has made a number of statements which represent to the social scientists a serious misunderstanding of their work. The present article, written by a sociologist, will seek to contribute to the dis- cussion by: (1) analyzing the characteristics of the social sciences insofar as they are pertinent to providing expert testimony; (2) suggesting the limitations of social science testimony; (3) indicat- ing at least some of the areas of legal cases in which social science testimony has already been used and other areas in which it might well be used, (4) specifying how the methodology of social science differs from the traditional methodology of lawyers and judges, and indicate how the former may be used to supplement the latter; (5) suggesting some attitudes which lawyers and judges should have toward social scientists when they provide expert testimony in order to get the most value from their services. Since a thorough treatment of all of the above subjects cannot be achieved within the confines of a single article, this piece should be regarded as part of a continuing effort to discover the optimal relationship between law and the social sciences rather than as a definitive study. The field is too nebulous to permit a definitive study, and when the latter can be accomplished it will not be done by a sociologist work- ing by himself. This writer's particular qualifications for contribut- ing to the discussion consist of a single experience as an expert witness, participation in preparing some of the briefs in the school segregation cases, and a long interest in the relation of law to the social sciences.3 *This paper was prepared while the author mas engaged on a Rockefeller Foundation research grant Appreciation is expressed to the Foundation and to Professors David Louisell and Monrad Paulsen of the University of Minne- sota Law School for an advance reading of the paper. **Professor of Sociology, University of Minnesota. 1. Louisell, The Psychologist in Today's Legal World, 39 Minn. L. Rev. 235 (1955). 2. Cahin, Jurisprudence,30 N. Y. U. L. Rev. 150 (1955). 3. The writer is also author of Problems in the Sociology of Lau, and Law Enforcement, 6 Journal of Legal Educ. 191 (1953), and co-outhor of MINNESOTA LAW REVIEW [Vol. 40:205 Herein "social sciences" means those theoretical disciplines which seek to understand and predict human behavior in terms of general principles empirically tested. This includes-in aim if not in achievement-most of sociology, psychology, anthropology, political science, economics and parts of psychiatry, history, and law itself. It does not include the study of particular cases for the purpose of handling them in some way, hence most of psychiatry, clinical psy- chology, accounting and other business school subjects, social work, and law are excluded. It also does not include the study of par- ticular cases for the purposes of understanding these cases as spe- cial events in their own right, hence much of history and law are excluded. Of the fields mentioned, psychiatry,4 social work, account- ing, law (of course), and perhaps history (in cases where the "intent of the legislature" is in question) have been used extensive- ly in providing expert testimony But these are not social sciences in our definition, and hence may have led to some misunderstand- ing as to the role the social sciences can play in court cases. Of the social sciences proper only economics seems to have been used extensively, and therefore will not be dealt with further except to cite a case in which it was pertinent, so as to provide an illustration of its similarity to other possible social science testimony In Morton Salt Co. v. Suppinger,5 the patentee was licensing a salt-vending machine and requiring the purchase of the salt tablets at the same time. The courts have held this illegal on the ground that the patentee is attempting to extend his monopoly beyond the area which has been granted to him. Economists pointed out that the only monopoly power the patentee has before and after the tie-in is based on the monopoly power of the patent (that is, on the machine, not the salt) If the monopoly power of the patentee is strong enough to compel the purchase of salt by the licensee, it would also be strong enough to compel the licensee to pay more for the license to use the salt-vending machine. Thus there are no economic consequences for the patentee or the licensee or the con- Does the Pumshment Fit the Crime? A Study ii Social Evaluation, 61 Amer- ican Journal of Sociology 247 (1955) 4. A good recent summary of the problems in the relationship between psychiatry and the law appears in Guttmacher and Weihofen, Psychiatry and the Law (1952). For a consideration of the even more recent Durham case (214 F 2d 862 (D.C. Cir. 1954)), consult the proceedings of the conference on Insainty and the Law held at the University of Chicago, February 28, 1955, and, Schiele and Paulsen, Psychiatric Evidence in Legal Tests of Insanity, 26 Bulletin of the University of Minnesota Hospitals and Minnesota Medical Foundation 325 (1955). 5. 314 U. S. 488 (1942). This case was brought to the writer's atten- tion by Levi, Four Talks on Legal Education, 1, 34 (University of Chicago Law School 1952). 195 SOCIAL SCIENTIST sumer because of the tie-in requirement, although other wholesalers of salt are hurt. The testimony of economists in cases involving anti-trust legislation, licensing, taxation, labor law, corporations, and trade regulations seems to be widely used and accepted in the courts.6 While the general nature of economists' testimony is rele- vant here, main consideration will be given to case material from the testimony of sociologists, psychologists, and other social scientists where there seems to be questioning among lawyers regarding its pertinence and reliability. The relevance of social science findings to court cases will have to be ascertained, case by case, by perspicacious lawyers. As yet, according to Louisell, "there seem to be few cases and little recent discussion directly concerned with the psychologist (or any social scientist) functioning as an expert witness himself. we search in- vain for any substantial analysis . of the psychologist function- ing as an expert witness."17 Louisell, who has scoured the literature, mentions only two reports of cases" of psychologists presenting expert testimony other than of a clinical kind, and one of these is a case which he reports in extenso himself. Both of the cases cited by Louisell involve public opinion surveys done by competent psy- chologists--one regarding the meaning of a commercial advertise- ment to an average reader and the other involving the question as to whether the patrons of a certain- theater regarded it as a "neigh- borhood theater" or as one which attracted them as a downtown theater would.° The latter case may'0 be used to illustrate how an opinion sur- vey-to do which psychologists and sociologists have developed special techniques of research -differs from the usual methods of the lawyer. The theater was suing the distributor for treating it as a neighborhood theater rather than as a city-wide theater in the dis- tribution of films. The theater was located outside the downtown area. A university psychologist was hired to make a survey of the patrons to determine two things; (1) the geographic distribution of 6. Levi, op. cit. stpranote 5, at 7, 47 7 Louisell, stpranote 1, at 236, 238. -8. United States v. 38 Dozen Bottles, 114 F Supp. 461 (D. Minn. 1953); Robbinsdale Amusement Co. v. Warner Bros. Pictures Distributing Corp., Civil No. 4584 (4th Div. Minneapolis). 9. Lomsell, supra nofe 1, at 249-250. Discussion of other uses of public opinion surveys may be found in Waterbury, Opmnion Suveys itn Ciil Litigation, 17 Public Opinion Quarterly 71 (1953) ; Kennedy, Law and the Courts, The Polls and Public Opinion 92-108 (Meier and Saunders 1949); Sylvester, Consumer Polls as Evidence in Unfair Trade Cases, 20 Geo. Wash. L. Rev. 211 (1951). 10. Robbinsdale Amusement Co. v. Warner Bros. -Pictures Dist. Corp., Civil No. 4584 (4th Div. Minneapolis). MINNESOTA LAW REVIEW [Vol. 40:205 the patrons to ascertain if they were from the immediate neighbor- hood or from all over the city, (2) the attitudes of the patrons as to whether they would be willing to pay "downtoNn prices" for first- run films usually shown only at downtown theaters.