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Law, Probability and Risk Advance Access published online on August 21, 2009
Law, Probability and Risk, doi:10.1093/lpr/mgp020
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© The Author [2009]. Published by Oxford University Press. All rights reserved.

The limits of social framework evidence

John Monahan{dagger}

John S. Shannon Distinguished Professor of Law, University of Virginia School of Law, 580 Massie Road, Charlottesville, VA 22903-1738, USA

Laurens Walker

T. Munford Boyd Professor of Law, University of Virginia School of Law, 580 Massie Road, Charlottesville, VA 22903-1738, USA

Gregory Mitchell

Daniel Caplin Professor of Law, University of Virginia School of Law, 580 Massie Road, Charlottesville, VA 22903-1738, USA

{dagger} Email: jtm9p{at}virginia.edu

Received on 17 June 2009. Revised on 9 July 2009. Accepted on 10 July 2009.


  Abstract

An important debate is brewing over the proper scope of expert witness testimony that purports to summarize general social science evidence to provide context for the factfinder to decide case-specific questions. In a recent article, we argued that experts who provide this ‘social framework’ testimony should be restricted from making any linkages between general social science research findings and specific case questions unless such linkages are supported by scientifically reliable methods and principles. A response to our article by Professors Hart and Secunda argued that experts should be given much more latitude to match the facts of a particular case to findings from social science research. In this paper, we show that Hart and Secunda mischaracterized our arguments for restricting the scope of social framework evidence, ignored the actual practices of experts who are providing the expert opinions that we question, and misconstrued the motivations behind and likely implications of our arguments. We encourage courts to reject the approach that Hart and Secunda advocate, which would permit both plaintiff and defense experts to link general research to specific cases through nothing other than the expert's subjective judgments and intuition.

Keywords: social frameworks; employment discrimination; gender discrimination; expert witnesses; scientific evidence; Dukes v. Wal-Mart


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