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21 Hamline L. Rev. 287 (1997-1998)
Social Science in the Courtroom: Expert Testimony and Battered Women

handle is hein.journals/hamlrv21 and id is 297 raw text is: SOCIAL SCIENCE IN THE COURTROOM: EXPERT TESTIMONY AND BATTERED WOMEN Allison Morsel I. INTRODUCTION Soft science,' pseudoscience,3 junk science,'4 have invaded the courtroom under the guise of expert testimony, cry the critics. Who are these critics? They are the opponents of social science research that does not fit into the quantifiable model of the scientific method. They oppose the use of other social science methods even though these methods have long been established as part of the disciplines arsenal to understanding human behav- ior. For example, social scientists employ a wide variety of techniques in order to gain insight into human behavior, including surveys, case studies, naturalistic observation, as well as experiments.' These critics term all but experimentation as soft science, however, and believe it should not be allowed in the court room.6 They contend that all other ways of understanding human behavior are merely anecdotal with no more substance than the belief the earth is flat.7 These other methods for obtaining data, however, are substantive enough to be derived from knowl- edge, skill, experience, training or education which is how Federal Rule of Evidence 702 describes the qualifications of an expert witness.' Moreover, the method of experimentation in the explication of human behavior is subject to just as many claims of subjectivity as any other meth- odologies performed by the social scientist because true expertise in human behavior cannot exist with certitude.' It is precisely because of the difficulty I. B.A. 1991 University of California at Berkeley; M.A. 1993 in Marriage, Family and Child Therapy, Phillips Gradu- ate Institute; J.D. Candidate May 1998, University of California, Hastings College of the Law. The author would like to thank Dean Eileen Scallen for her advice on this article, as well as J. Scott Grant, Lisa Eunson and Kathryn Davis for providing sugges- tions on earlier drafts. The author would also like to thank Professor David Faigman for the debates on this subject which helped her form arguments. 2. See Stephen J. Morse, The Misbegotten Marriage of Sojt Psychology and Bad Law, 14 LAW & HUM. BEHAV. 595 (1990). The author of this Article is not related to Professor Morse. 3. See David L. Faigman, The Syndromatic Lawyer Syndrome: A Psychological Theory of Evidentiary Munificence, 67 U. COLO. L. REV. 817, 818 (1996). 4. PETER W. HUBER, GALILEO'S REVENGE: JUNK SCIENCE IN THE COURTROOM (1993). 5. See DOUGLAs A. BERNSTEIN ET AL., PSYCHOLOGY, 17-23 (2d ed. 1991). See infra Part Ill for an explanation of the advantages and disadvantages of the different methods and how each method informs and strengthens the other in order to form the basis of expert knowledge. 6. See Morse, supra note 2, at 595. In his article, Professor Morse challenges Professor Charles Ewing's proposal for a psychological self-defense for battered women. Morse dismisses research on battered woman by calling it unacceptably soft sci- ence. Id. See also Faigman, supra note 3, at 817-18. Professor Faigman satirizes the court's acceptance of expert testimony on psychological syndromes by making up his own syndrome: The syndromatic lawyer syndrome (SLS) refers to a malady suffered by lawyers, judges, and espe- cially, legal academics .... In the second stage, sufferers invite, encourage or demand answers to the empirical questions posed in the first stage from scientists, pseudoscientists, and virtually anyone else sporting an advanced degree (it need not be too advanced) in one of the dozens of the psychology- related specialties .... In effect, SLS sufferers substitute facile pseudoscientific musings for difficult, often controversial, arguments on substantive law. Id. 7. See David L. Faigman & Amy Wright, The Battered Woman Syndrome in the Age ofSeience 39 ARIZ. L. REV. 67, 106(1997). 8. See FED. R. EVID. 702. 9. See discussion of interpretive social science infra note II. See also infra notes 128-36 and accompanying text.

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