Thursday, December 31, 2009

Review articles (2005) on Daubert standard and role of social science in death penalty cases

Annual Review of Law and Social Science
Vol. 1: 105-130 (Volume publication date December 2005)
First published online as a Review in Advance on June 28, 2005


Michael J. Saks 1 and David L. Faigman 2
1 College of Law and Department of Psychology, Arizona State University, Tempe, Arizona 85287; 2 Hastings College of the Law, University of California, San Francisco, California 94102; email:,
Abstract: Daubert stands for a trilogy of Supreme Court cases as well as revisions of the Federal Rules of Evidence. Together they represent American law's most recent effort to filter expert evidence offered at trial. This review begins by placing the Daubert trilogy in the context of earlier judicial efforts to solve the screening problem, which began well before the twentieth century, and then provides a brief explication of evidence law under Daubert. Next, we discuss several aspects of the jurisprudence of expert evidence: its connection to debates in the philosophy of science, the practical legal problems courts are trying to solve, and procedural implications. Then we review and discuss varied impacts of Daubert: changes in law, marked increases in cases and scholarship relating to expert evidence, and research examining judicial gatekeeping under Daubert (civil defendants appear to benefit greatly and criminal defendants hardly at all). We conclude by offering several predictions and prescriptions for the future of expert evidence.

Annual Review of Law and Social Science
Vol. 1: 151-170 (Volume publication date December 2005)
First published online as a Review in Advance on June 30, 2005

THE DEATH PENALTY MEETS SOCIAL SCIENCE: Deterrence and Jury Behavior Under New Scrutiny (click here to view)

Robert Weisberg
Stanford University, School of Law, Stanford, California 94305; email:
Abstract: Social science has long played a role in examining the efficacy and fairness of the death penalty. Empirical studies of the deterrent effect of capital punishment were cited by the Supreme Court in its landmark cases in the 1970s; most notable was the 1975 Isaac Ehrlich study, which used multivariate regression analysis and purported to show a significant marginal deterrent effect over life imprisonment, but which was soon roundly criticized for methodological flaws. Decades later, new econometric studies have emerged, using panel data techniques, that report striking findings of marginal deterrence, even up to 18 lives saved per execution. Yet the cycle of debate continues, as these new studies face criticism for omitting key potential variables and for the potential distorting effect of one anomalously high-executing state (Texas). Meanwhile, other empiricists, relying mainly on survey questionnaires, have taken a fresh look at the human dynamics of death penalty trials, especially the attitudes and personal background factors that influence capital jurors.

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