Research Paper Topics for Law of Evidence

Research Paper Topics for Law of Evidence- The Law of Evidence is a fundamental pillar of the legal system that governs the admissibility, presentation, and evaluation of evidence in court proceedings. As a multifaceted field, it offers ample opportunities for research and analysis. This article aims to provide a comprehensive list of research paper topics that can delve into various aspects of the Law of Evidence, shedding light on crucial issues, emerging trends, and evolving practices.

  • The Admissibility of Digital Evidence: Challenges and Future Implications
  • The Role of Expert Witnesses in the Law of Evidence: A Comparative Analysis
  • The Impact of DNA Evidence on Criminal Investigations and Courtroom Proceedings
  • The Use of Forensic Science in Establishing Identity: A Critical Examination
  • The Admissibility and Reliability of Eyewitness Testimony in Criminal Trials
  • The Privilege against Self-Incrimination: Balancing Individual Rights and the Interests of Justice
  • The Role of Hearsay Evidence in Modern Legal Systems: A Comparative Study
  • The Use of Surveillance Technology in Criminal Investigations: Legal and Ethical Considerations
  • The Admissibility of Polygraph and Brainwave Technologies as Evidence in Court
  • The Intersection of Law and Neuroscience: Implications for the Law of Evidence
  • The Impact of Social Media Evidence on Legal Proceedings: Privacy and Authentication Issues
  • The Role of Character Evidence in Criminal Trials: Relevance, Admissibility, and Policy Considerations
  • The Use of Statistical and Probabilistic Evidence in Court: Challenges and Limitations
  • The Admissibility of Confessions and Statements Obtained under Interrogation: The Role of Police Tactics and Human Rights
  • The Use of Expert Testimony in Cases of Mental Health and Insanity: Challenges and Best Practices

The Law of Evidence encompasses a wide range of intriguing research topics that delve into the core principles, evolving practices, and contemporary challenges in the field. By exploring these research paper topics, scholars and legal practitioners can contribute to the advancement of evidentiary rules, enhance the administration of justice, and foster a deeper understanding of the intricate dynamics of evidence in legal proceedings.

These topics cover various aspects of the law of evidence and can serve as a starting point for your research paper. Remember to narrow down your focus and tailor the topic to your specific interests or jurisdiction if necessary.

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Evidence Research Guide

Getting started.

  • Texts & Treatises
  • Blogs & Current Awareness
  • Congressional & Government Resources

Primary Law Sources: Federal Rules of Evidence

The Federal Rules of Evidence themselves are available from a variety of sources, both in print and online.

For a list of sources, in addition to resources for  cases and legislative history  research, refer to our  Federal Court Rules Research Guide .

Electronic Resource Collections

  • Evidence Texts & Treatises on Westlaw
  • Evidence Resources on Lexis Advance Includes both primary and secondary materials.

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About This Guide

This guide is focused on the Federal Rules of Evidence and related material.  We recommend starting your research with secondary sources such as evidence law texts & treatises or legal encyclopedias . 

For information on state rules of evidence , please refer to the "Statutes and Legislation" page of our research guide for  any particular state ; state rules of evidence will generally be found in that state's statutory code.

The following are some good places to begin your research, especially if you are new to this area of law.  For a list of treatises and links to treatise collections, see the Texts, Treatises, & In-Depth Resources  page of this guide.

If you are not familiar with what secondary sources are, or if you need to begin with a more basic secondary source that can provide you with an introductory overview of your topic (such as a  legal encyclopedia ) you may want to begin with our  Secondary Sources Research Guide  or our  Secondary Sources Tutorial .

  • Evidence: An Overview (Cornell Legal Information Institute) Provides a basic introductory overview of evidence including links to related statutes, judicial decisions, conventions and treaties, and key Internet sources.
  • Federal Practice and Procedure (Wright & Miller) A multi-volume treatise covering all aspects of federal civil, criminal and appellate procedure, including rules of procedure and evidence. It provides extensive rule-by-rule discussion, with copious references to cases and other materials. It is also available on Westlaw .

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The Oxford Handbook of Empirical Legal Research

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The Oxford Handbook of Empirical Legal Research

28 Evidence Law

Gary Edmond is Professor of Law in the School of Law and Centre for Interdisciplinary Studies of Law at the University of New South Wales.

David Hamer is Associate Professor in Evidence and Proof at the Sydney Law School, University of Sydney.

  • Published: 18 September 2012
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This article reviews contemporary response to several contrasting strands of recent empirical work. It begins with discussing the scope and rationale of evidence law. Experimental studies on eyewitness memory and testimony illustrate the potential value of empirical studies to the practice of investigations, prosecutions, and appeals. This article discusses several lines of empirical inquiry employing diverse methodologies, experiments, surveys, and approaches and reviews their limitations, and implications and significance for the understanding and practice of law. Many of the contributions from empirical legal studies are provisional and their precise value for practice is uncertain or ambiguous, but they raise important issues worthy of serious consideration. By identifying problems with eyewitness evidence and the limitations of many of the forensic sciences, and in many other ways, empirical and experimental studies have substantially outpaced legal experience. Indifference to empirical legal study is likely to reduce the social legitimacy of legal institutions.

Introduction   652

Evidence Law in the “ Rationalist Tradition” 653

Scope of evidence law 653

Rationale of evidence law 654

Diverse Empirical Studies   656

The exclusion and admission of hearsay 656

Expert opinion evidence 661

Subjective probability and human inference 666

Discussion   669

Abstraction from trial environment 669

Specificity of conditions, generalizability of conclusions 670

Factual uncertainty and the benchmark problem 671

Competing goals and values 672

Bigger pictures 673

Rationalist and Empiricist Legacies 674

I. Introduction

“E vidence law,” as a “subject suitable to be treated as a unified field of regulation and of study,” is a product of the Anglo-American adversarial tradition (Damaška, 1997 : 109). Continental civil law systems have fewer rules of evidence, and these tend to be associated with specific bodies of substantive law. While Anglo-American evidence law is broadly accepted as a relatively discrete domain, it is generally viewed as “labyrinthine” and “dishevelled,” “l argely ununified and scattered, existing for disparate and sometimes conflicting reasons … a mixture of astonishing judicial achievements and sterile, inconvenient disasters” (Damaška, 1997 : 10–11; Heydon, 1984 : 3).

There are many unanswered questions about evidence law, concerning its historical development, its various purposes, and the interrelation between its diverse components and other areas of legal and non-legal practice. Most, if not all, invite empirical inquiry. And yet, notwithstanding that evidence law is itself concerned with evidence and proof and is generally supposed to have developed in a “rationalist tradition” (Twining, 2006 : 75), legal practice and evidence scholarship have been remarkably indifferent, and even hostile, to empirical study and evidence-based proposals for reform. Political expediency and the experience of legal practitioners, especially the judiciary, appear to be more important than scholarly attempts to understand evidence law in terms of its legal and social context(s).

Rather than providing a comprehensive account of empirical studies pertaining to evidence law, our goal here is to present a brief review and contemporary response to several contrasting strands of recent empirical work. We begin by setting the scene with an outline of the scope and rationale of evidence law.

II. Evidence Law in the “ Rationalist Tradition”

A. scope of evidence law.

To varying degrees evidence law regulates the admissibility and presentation of evidence and fact-finding at trial. The trial is a highly formalized system of empirical enquiry, operating within a prescribed procedural framework. In a jury trial, the jury is responsible for fact-finding while the judge determines the applicable law. In the absence of a jury the judge is responsible for legal and factual decisions. Jury trials are becoming increasingly rare, though a notional bifurcation between the tribunal of law and tribunal of fact remains.

In the adversarial tradition the parties identify the areas of factual dispute, and decide what evidence to make available to the court. At trial the plaintiff or prosecutor presents her case first, and then, if there is a case to answer, the defendant makes his case. Most evidence takes the form of witness responses to questions directed by the parties, though the traditional preference for oral evidence is in decline, as documentary evidence and “paper trials” become more prevalent, most conspicuously in civil litigation without juries. Those few disputes which are not abandoned or negotiated are generally litigated through a single continuous trial. While jury decisions, incorporating factual reasoning and the application of law to facts, are left unexplained, in many jurisdictions judges provide reasons for interlocutory decisions and their verdicts.

The trial judge should only admit evidence that is relevant to a fact in issue and survives exclusionary rules, such as those pertaining to hearsay, opinion, bad character, propensity, and so on. Evidence that is otherwise admissible may nevertheless be excluded as a matter of judicial discretion, for example, due to the risk of unfair prejudice to the defendant, or the public policy against obtaining evidence in certain ways (such as through physical coercion). Litigants, witnesses, and interested parties may also be able to prevent the admission of evidence by the exercise of legal professional privilege, the privilege against self-incrimination, and public interest immunity.

Once all of the evidence has been tendered, the judge will instruct the jury as to how it can be used. In a judge-only trial interlocutory decisions and instructions often form part of the written judgment. While evidence law is concerned primarily with admissibility rather than weight, some types of evidence—such as eyewitness identification and the testimony of prison informants—give rise to special concerns and the fact-finder will be directed to exercise special caution. The trial judge also instructs the jury on the burden of proof. Generally, the state (or prosecution) must prove a defendant's guilt beyond reasonable doubt, and a civil plaintiff must prove liability on the balance of probabilities (or preponderance of evidence).

Appeals are frequently focused on the (mis)application of rules of evidence (and practice), usually the admission of inadmissible evidence and/or the exclusion of admissible evidence. Appeals on matters of fact are more restricted, though possible where the evidence does not support the verdict or some new (or “fresh”) evidence emerges after the verdict or appeal.

B. Rationale of evidence law

Evidence law, as the foregoing discussion indicates, consists of a mass of rules and exceptions, many of which confer choices, discretions or require particular actions. Whether they can be coherently accommodated within a single theoretical framework is open to question. Most scholars have viewed evidence law as being concerned with “rational methods of determining questions of fact,” in which a central goal is to “maximize accuracy in fact-determination”(Twining, 2006 : 76). Jurists have debated how accuracy is best achieved, and the relative weight to be assigned to sometimes competing goals—such as efficiency, due process, and accuracy—though, these debates have been conducted almost entirely within this shared rationalist tradition.

One major ongoing debate concerns freedom of proof (Twining, 2006 : 43–4;Stein, 2005 : 107–16). Factual inquiries in other spheres of endeavor are not governed by formal rules, so why are legal disputes governed by rules of evidence? In the Anglo-American legal tradition evidence law (along with the choices and discretions it confers) now exerts far greater influence on practice than in most other legal traditions (Damaška 1997 : 19–20; cf. Gluckman, 1955 ), routinely excluding evidence on various grounds. As early as the turn of the nineteenth century Jeremy Bentham ( 1843 : VII, 24) forcefully opposed this approach: “Evidence is the basis of justice: to exclude evidence is to exclude justice.”

Various justifications have been offered for Anglo-American exclusionary rules. One is provided by the “best evidence” rationale (e.g., Gilbert, and Nance)—encouraging the parties to uncover and provide stronger alternatives to the excluded evidence. Exceptions to exclusionary rules are frequently grounded in necessity—particularly the absence of alternative evidence. But this reveals a potential weakness with handing responsibility for gathering and presenting evidence to the parties. Understandably, parties consider utility as well as reliability. Why then are parties afforded so much control? This freedom reflects the Anglo-American perception of the trial, not only as a vehicle for the pursuit of truth and justice, but also as a means of socially legitimate conflict resolution (Damaška, 1997 : 110–11; Tyler, 1990 ).

Another common explanation for exclusionary rules focuses on the position of the jury as fact-finder (e.g., Thayer, 1898 and Wigmore, 1940 ). Evidence is excluded because of the danger that the jury will improperly value it. This, of course, immediately raises supplementary concerns. If lay juries cannot be trusted with the evaluation of evidence, then why should they be used as fact-finders? Persistence with the jury might suggest it serves several functions, including a celebrated form of participatory democracy and a means to disseminate social norms (Damaška, 1997 : 29). However, the jury's ability to handle complex evidence and the effects of popular beliefs and culture (exemplified in high-rating television shows such as “CSI: Crime Scene Investigation”) remain controversial (Cole and Dioso-Villa, 2009 ).

Both the jury's role and the scope of exclusionary rules have tended to diminish over time. The general trend has been in the direction of free proof. However, in recent years several scholars have resisted this trend, either questioning the attribution of some putatively proper value to the evidence (e.g., Edmond) or seeking to demonstrate the importance of values other than accuracy (Ho, 2008 ;Stein, 2005 : 133).

III. Diverse Empirical Studies

Empirical research is being undertaken in many areas of evidence law. Perhaps the most influential body of work has been directed toward eyewitness evidence (e.g., identification evidence), in part, perhaps, because it involves a neat factual issue with few normative complications (Park and Saks, 2006 : 960, 973).

Experimental studies on eyewitness memory and testimony illustrate the potential value of empirical studies to the practice of investigations, prosecutions and appeals. Of scholarly interest for more than a century, from the 1970s psychologists, such as Elizabeth Loftus and Gary Wells, began to conduct systematic experiments on the ability of people to remember things, particularly past events and the identity of persons of interest. Subsequent research focused on how the conditions of observation and investigative processes might influence (and compromise) memory and on ways of improving investigative procedures so as to minimize risks of contamination, suggestion, and displacement.

This research has exerted a positive influence on the ways police, trial and appellate courts respond to identification evidence, although the substantial and convergent results of numerous experimental studies have not been fully implemented (Park and Saks, 2006 : 960–4). Most jurisdictions routinely allow investigators and others to subvert protections designed to enhance the reliability of eyewitness testimony, and retain practices and directions that are antiquated in terms of empirical research and mainstream academic consensus (Wells and Quinlivan, 2009 ). Further, in many jurisdictions, psychologists are not permitted to explain to fact-finders the general problems with identification evidence or known problems with particular practices or specific circumstances. And yet research on wrongful convictions demonstrates that even in sexual assault cases, where the eyewitness often has a relatively good opportunity to observe the offender at close proximity, mistaken eyewitness identification is notorious (see Figure 3 ).

The reluctance to engage with empirical legal studies is an issue to which we will return. In the remainder of this section we report on research in three domains more fraught than eyewitness memory, namely hearsay, expert evidence, and probabilistic reasoning. The studies discussed below illustrate great diversity in empirical research styles, the types of scholars involved, the mix with theory and data, the socio-political implications, and the scope the research creates for intervention and change.

A. The exclusion and admission of hearsay

Ordinarily, witnesses give sworn testimony about their observations, and are available for cross-examination. The hearsay witness, however, testifies as to what someone else (the “declarant”) has said about her observations. Relative to ordinary evidence, hearsay evidence involves at least one additional step, making the fact-finder more remote from the event under consideration (Figure 1 ). The traditional bases for exclusion are that the declarant's out-of-court statement is not under oath and the declarant is unavailable for cross-examination.

Thompson and Pathak's  1999: 457) “hearsay chain”

Thompson and Pathak's   1999 : 457) “hearsay chain”

Damaška ( 1997 : 1), a comparativist, describes the hearsay rule as “so bizarre [as to] occupy one of the most forbidding corners of the entire Anglo-American legal structure.” The stringency of the historical rule has been tempered by numerous exceptions, but these have added complexity to legal practice. The modern rule, as Rakos and Landsman ( 1992 : 668) report, “remains an amalgam of concerns about juror competence, cross-examination, and fairness.”

Most of the empirical work on hearsay has been carried out by psychologists. Following Hugo Munsterberg's, On the Witness Stand (1908),Hutchins and Slesinger (1928) drew upon the psychological literature to question the rule's scientific legitimacy. However, with few exceptions, only in the last two decades have experimental psychologists and lawyers approached hearsay rules and evidence in ways that transcend historical and doctrinal approaches or attempts to make extant psychological knowledge accessible to a legal audience (McGough, 1999 : 487). Here, we review recent experimental research relating to mock juror assessment of hearsay evidence and related work focused on the hearsay evidence of children.

1. Mock juror responses to hearsay evidence

The first experimental studies endeavored to determine whether jurors overvalue hearsay evidence. In the early 1990s, Rakos and Landsman systematically manipulated the strength of hearsay testimony across versions of a trial transcript pertaining to a prosecution for theft and compared the mock juror responses. They concluded that the “mere introduction of hearsay testimony may not disproportionately influence juror decisions” (Rakos and Landsman, 1992 : 664).

Miene, Park, and Borgida drew similar conclusions. They compared responses to combinations of circumstantial, hearsay and eyewitness testimony using a video simulation of a theft trial. The eyewitness and hearsay witness provided virtually identical evidence, and participants in the hearsay condition received cautionary instructions. These researchers found that participants in the hearsay condition were less likely to produce a guilty verdict and rated the hearsay testimony as less important, influential, and reliable than those responding to eyewitness evidence. This led the investigators to question one of the major rationales for the exclusionary rule: “the data from this study suggests that hearsay as a form of testimony is not overvalued by jurors, as some legal scholars have suggested” (Miene et al., 1992 : 699).

Kovera, Park, and Penrod also expressed confidence in juror abilities, at least in relation to hearsay. Their mock jurors were “more sceptical of the value and reliability of hearsay testimony than of eyewitness testimony” and, further, gave more weight to hearsay testimony when there was a short delay (one day) as opposed to a longer delay (one week) (Kovera et al., 1992 : 719). However, these mock jurors, also exposed to eyewitness identification evidence, were apparently insensitive to its limitations, particularly the corrosive effects of delay.

In contrast, Paglia and Schuller 1998 formed a less favorable view of juror reasoning. Participants in their experiments used hearsay evidence in ways that were inconsistent with judicial instructions included in the audio recording of a mock trial. Regardless of their form and timing, cautionary instructions about prosecution hearsay evidence exerted little discernible impact on the decisions. In an earlier study, focused on exculpatory hearsay provided through an expert witness, Schuller ( 1995 : 359) found that the participants had difficulty ignoring hearsay evidence even when instructed to do so.

2. Persuasiveness and reliability of children's statements

A prominent strand of hearsay research focuses on out-of-court declarations by children. This type of hearsay, common where sexual assault is alleged, is of interest for a number of reasons. Early reports may be valuable as the memory of children is especially vulnerable to influence and degradation. Concerns also arise about child complainants being traumatized by testifying in court in the presence of the alleged perpetrator (Buck et al., 2004 ). More broadly, there is widespread social concern about pedophilia, but relatively low rates of complaint, prosecution, and conviction. In this environment, many jurisdictions have made special provision to admit the out-of-court statements of children, and researchers have sought to understand their potential effects (McGough, 1999 ).

Initially research focused on the believability of hearsay evidence and whether jurors might convict in cases of alleged sexual assault where the child complainant does not testify. In an experiment using a fictional summary of a child sexual assault trial, Golding, Sanchez, and Sego found that the child complainant's testimony was considered more believable than the child's complaint presented as hearsay. Nevertheless, the hearsay evidence seemed to influence “conviction” decisions and the authors concluded that “it may not be necessary for the alleged victim to testify on her own behalf for the defendant to be judged culpable” (Golding et al., 1997 : 318).

Subsequent research considered the identity and status of the hearsay witness. Using a “highly realistic” video of a sexual assault trial, Ross, Lindsay, and Marsil concluded that the persuasiveness of child testimony in hearsay form depended upon the identity of the hearsay witness. Apart from one condition, where the hearsay witness was the mother of the complainant—embroiled in a “heated divorce” with the alleged perpetrator—the child's testimony was “significantly less likely to produce ‘guilty votes’ ” than the evidence of the mother, the child's doctor and teacher (Ross et al., 1999 : 450–1). Studying the effects of the ages of the complainant and the hearsay witness, Golding, Alexander, and Stewart (1999) found that mock jurors split along gender lines, with women generally more likely to accept the hearsay evidence of assault.

So far, the studies in this subsection have focused on the persuasiveness of hearsay evidence. Another strand is concerned with reliability and the competence of jurors. Pathak and Thompson 1999 sought to address a limitation with the studies by Rakos and Landsman 1992 , Miene et al. ( 1992 ), and Kovera et al. ( 1992 ). These earlier studies had concluded that “hearsay is unlikely to be overvalued,” yet they did not include an “objective or normative standard against which to compare [mock] jurors' evaluations.” Pathak and Thompson sought to test “people's inferences about the reliability of hearsay evidence in circumstances that allowed the actual reliability of the evidence to be objectively verified” (1999: 373). They contrived a situation where they covertly controlled a (child) witness's experiences of a mock janitor's behavior and elicited an account through questioning.

Following a complaint, children are usually interviewed by social workers, police, or other professionals. Pathak and Thompson's experiments considered how hearsay is evaluated depending on whether the child is interviewed in a suggestive or neutral manner. They concluded that mock jurors failed to take sufficient account of suggestive questioning:

Although the videotaped “hearsay witnesses” commented on the suggestiveness of the interrogations with the child, the “jurors” did not realize that the suggestive interrogations had a greater influence on children's reports than the neutral interrogations (Pathak and Thompson, 1999 : 381).

Where there is no video or audio recording, the hearsay testimony of the interviewer, along with any notes, may be the only “record” of such exchanges. As Warren and Woodall 1999 : 356) explain, “to properly evaluate a child's statements presented through hearsay, jurors and fact finders need to hear not only what the child said (the gist of the interview), but how it was said (a verbatim account including specific questions and answers).” They found that while interviewers recalled the gist of interviews accurately, they incorrectly recounted the use of open-ended questions even when they made extensive use of specific and leading questions. Further, “[e]ven immediately after an interview, important content was omitted from hearsay accounts, and the majority of the verbatim information (specific wording and content of questions and answers) was lost” (Warren and Woodall, 1999 : 369). Their conclusion: “asking adults to recreate the structure of their conversations or interviews with children after the fact (i.e. during courtroom testimony) is risky” (ibid: 365).

These preliminary results prompted further investigation. Warren, Nunez, Keeney, Buck, and Smith compared the impact on mock jurors of: (1) a video of an interview with a child; (2) the interviewer providing a verbatim account of the interview; and (3) the interviewer providing the gist of the interaction. Participants rated the credibility of the adult gist witness “higher than that of the verbatim witness or child witness, and the verbatim witness was rated as significantly more credible than the child” (Warren et al., 2002 : 852; cf. Golding et al., 1997 ). Gist evidence was perceived as less suggestive, more spontaneous and more open-ended. Counterintuitively, the greater the displacement of the interview from the testimony, the more persuasive it seems to have been (Warren et al., 2002 : 850–1). Results such as these led Buck, Warren, and Brigham to suggest that the use of video or a transcript would provide “a better compromise between protecting the child and the rights of the defendant than the use of testimony by a hearsay witness” (Buck et al., 2004 : 618–20).

Finally, one of the most recent studies examined “the veracity of children's accurate, unintentionally false, or intentionally false eyewitness reports” (Goodman et al., 2006 : 368). Like the study by Pathak and Thompson, it was undertaken in circumstances where the child's experience it was controlled. Young children reported being touched on the stomach, nose, or neck by a “defendant.” Some children who had not been touched during the play session were instructed to falsely claim that they had been. Comparisons were drawn between mock juror responses to live testimony, video of forensic interviews with a social worker, and the social worker testifying about what the child had said during the interview.

The conclusions might be considered disconcerting:

First, this study demonstrates, quite provocatively, that children coached to lie can maintain that lie in the face of repeated questions. In fact, children who were instructed to “fool” the interviewer (and the others in the mock trial) were often more consistent in their claims than children who really had been touched. … Second, our results indicate that adults, when faced with the task of determining whether unauthorized touching of a child occurred, were poor at distinguishing whether a particular child was lying or telling the truth. Furthermore, adults' abilities were neither helped nor hindered, for the most part, by seeing the child live or on videotape, or by hearing a social worker recount what the child said. … Third, [mock] jurors relied on predictable aspects of the children's accounts when making judgments about the veracity of the allegations … jurors tend to use witness consistency as an indicator of accurate statements. However, … ironically it was the liars—not the truth-tellers—who were more consistent, particularly in the two hearsay conditions (Goodman et al., 2006 : 390–1).

B. Expert opinion evidence

Opinion evidence is also subject to exclusion. As far as practically possible, witnesses should describe their sensory perceptions in concrete factual terms, without the overlay of interpretation or opinion. A very important exception to this exclusionary orientation is opinion evidence provided by experts. Where, by reason of “specialized knowledge,” a witness can provide a relevant opinion that is beyond the ken of the average juror, that opinion may be admissible.

Until quite recently the most important empirical work on experts was primarily qualitative or historical (e.g., Jasanoff, Jones, and Golan). Case studies, and a few surveys, examined the roles of expert evidence in public inquiries (e.g., Wynne), litigation clusters (e.g., Schuck, Green, and Sanders); miscarriages of justice (e.g., Nobles and Schiff; Dwyer, Neufeld, and Scheck; and Gross); civil litigation (e.g., Shuman, Champagne, and Whittaker); and civil justice procedures such as court-appointed experts and concurrent evidence (e.g., Cecil and Willging, and Edmond). Scholars, such as Monahan and Walker, were influential in documenting the legal uses of social scientific evidence. Empirical research, particularly quantitative work, has increased in recent years as long-standing concerns about partisanship, expense, comprehension and reliability have become more prominent, particularly in response to social and legal developments in the United States.

1. Admissibility decision-making in the United States

One important strand of empirical research has focused on the impact of the U.S. Supreme Court's Daubert v. Merrell Dow Pharmaceuticals, Inc . (1993) decision. Daubert was an appeal over the admissibility standard for expert evidence under the Federal Rules of Evidence (1975). There, the Court explained that scientific evidence must be both “relevant and reliable” and emphasized the trial judge's gate-keeping responsibility. The majority provided four criteria to help trial judges determine the reliability of scientific evidence. The criteria are whether the theory or technique: (1) has been tested (referring to Karl Popper's notion of “falsifiability”); (2) has been published and/or peer-reviewed; (3) has a known or potential rate of error; and (4) is “generally accepted” in the relevant specialist community. The last of these was drawn from Frye v. United States (1923).

Frequency with which reliability was addressed and evidence was found unreliable.

Frequency with which reliability was addressed and evidence was found unreliable.

Reprinted with permission from Dixon and Gill ( 2002 : 273).

In the aftermath of Daubert , Dixon and Gill examined 399 decisions issued in civil proceedings between 1980 and 1999. Starting in the early 1990s the number of challenges to the reliability and admissibility of expert evidence began to rise (Figure 2 ). They concluded that the “standards for reliability have tightened” and judges “have become more watchful gatekeepers” against expert evidence proffered by plaintiffs.

The number of successful challenges began to decline after 1996–1997 which Dixon and Gill thought might be attributable to changes in the behavior of lawyers and parties as they gradually “tailored the evidence … to the new standards” (Dixon and Gill, 2002 : 299).

These findings were generally consistent with the results of investigations by Krafka et al. ( 2002 ). These scholars surveyed federal district court judges in 1991 (responses = 335) and 1998 (responses = 303) about their most recent experience with expert evidence in a civil case. More judges excluded expert evidence in 1998 (41 of cases) than in 1991 (25%). There was also an increased use of pre-trial admissibility hearings (that became known as Daubert hearings). Just over half of the judges reported using pre-trial hearings in 1991 whereas more than three-quarters reported using Daubert hearings in 1998 (p. 327 ).

Interestingly, Krafka et al. found that the actual Daubert criteria did not seem to play an important role in these developments:

Judges who excluded testimony in the recent survey did so most often because it was not relevant, the witness was not qualified, or the testimony would not have assisted the trier of fact. These reasons are similar to the reasons most frequently cited by judges in 1991, and they do not reflect the factors cited in Daubert (Krafka et al., 2002 : 330).

Further insights into the impact of Daubert were provided by Cheng and Yoon 2005 . They examined the rate at which defendants removed cases from state to federal courts in tort and product liability suits—which are usually dependent on expert evidence. Daubert is binding on all federal courts, but only some state courts. A higher rate of removal from non- Daubert states (e.g., Frye jurisdictions) than from Daubert states would suggest that defendants thought they had a greater chance of excluding plaintiffs' expert evidence under Daubert . Cheng and Yoon ( 2005 : 503) found that the difference was not statistically significant, and inferred that “debates about the practical merits and drawbacks of adopting a Frye versus a Daubert standard are largely superfluous.” This was not to deny that Daubert had an impact, but its exclusionary influence seems to extend to non- Daubert jurisdictions: “[T]he power of the Supreme Court's decision was not so much in its formal doctrinal test, but rather in its ability to create greater awareness of the problems of junk science” (Cheng and Yoon, 2005 : 503; Harris 2008 ).

2. The forensic “sciences ”

Most of the admissibility studies have focused on civil litigation. However, a study of criminal appellate decisions between 1988 and 1998 suggests that Daubert may have exerted a more limited impact on criminal proceedings. Groscup et al. ( 2002 ) observed more “discussion” of expert evidence in judgments after Daubert , but no change in the proportion of evidence excluded in criminal proceedings. These researchers also noted the “mysterious … lack of discussion” of the Daubert criteria, particularly “falsifiability, peer review, and error rates” (p. 353 ).

The “exclusionary ethos” associated with civil proceedings does not seem to have been applied, and certainly not with the same level of rigor, to forensic science evidence produced and relied upon by the state. Studies of commonly admitted forensic science techniques—including fingerprint, voice, image, bite mark, hair, and footprint comparisons, document examination, blood spatter analysis and so on—reveal that: most have not been validated; error rates are often unknown; “expert” witnesses are often poorly educated (relative to research scientists); systemic bias and exaggeration are ubiquitous; and limitations and problems, even if known, are not always disclosed or explained during criminal proceedings (Saks and Koehler, 2005 ).

A recent review of institutionalized forensic sciences by the U.S. National Academy of Sciences (NAS) lamented that:

With the exception of nuclear DNA analysis … no forensic method has been rigorously shown to have the capacity to consistently, and with a high degree of certainty, demonstrate a connection between evidence and a specific individual or source (NAS, 2009 : 5). Figure 3 Open in new tab Download slide Analysis of incriminating evidence in DNA exoneration cases Reprinted with permission from Saks and Faigman ( 2008 : 172)

Reviews, such as those associated with Innocence Projects (Figure 3 ), suggest that mistaken or misleading forensic science evidence is a feature in many wrongful convictions (Garrett and Neufeld, 2009 ; Findley, 2008 ).

Several psychologists, lawyers, and scientists, responding to these disturbing revelations, have characterized the identification sciences as the “nonscience forensic sciences” (Saks and Faigman, 2008 : 149).

3. Surveys of judicial understanding of “science”

The focus on admissibility standards in recent decades has also generated interest in judicial understanding of the Daubert criteria. One explanation for the ostensible lack of engagement is provided by Gatowski, Dobbin, and their colleagues.

Gatowski et al. (2001) surveyed hundreds of judges about the Daubert criteria. They asked questions designed to elicit information about judicial understanding of falsification (“Falsif.”), error rates (“ER”), peer review and publication (“PR/ Pub.”) and general acceptance (“GA”). The results, presented in Figure 4 , led them to conclude:

[M]ost judges have a questionable level of understanding with respect to the basic concepts of science, or of most Daubert guidelines and their underlying scientific meaning, with the concepts of falsifiability and error rate particularly problematic for many judges (Dobbin et al., 2007 : 13).

Such results are often used to ground reforms, particularly proposals based on judicial re-education, although their implications for fact-finders are less clear.

“Understanding × Guideline”

“Understanding × Guideline”

Reprinted from Gatowski et al. ( 2001 : 445) with kind permission from Springer Science+Business Media.

4. (Reflexive) interventions in the “fingerprint wars ”

One interesting aspect of the controversy over the forensic sciences (and judicial scientific literacy) emerged out of recent contributions from post-Kuhnian Science & Technology Studies (STS). STS scholars form part of a scholarly tradition that values qualitative empirical investigation of what scientists, doctors and engineers actually do. On the basis of laboratory (and other workplace and institutional) studies they have concluded that scientists do not adhere, in any simple way, to a prescriptive scientific method doctrine (such as falsification) and are not consistently constrained by universal norms (such as disinterestedness and skepticism).

STS has much to say about law-science interactions (e.g., Jasanoff, 2008 ). Simon Cole's work on fingerprints is of particular interest in the present context. Cole has produced impressive scholarly accounts of problems with individualization, validation, and the social organization of fingerprint examiners. He has also appeared as an expert witness, contesting the admissibility and probative value of fingerprint evidence. Through a commentary on his participation in a Daubert hearing, Cole and Michael Lynch explored some of the dilemmas encountered when an STS scholar is confronted with a challenge to the admissibility of his own expert evidence (Lynch and Cole, 2005 ).

In People v. Hyatt (2001) Cole had to carefully negotiate questions about his expertise and interventions. Did it matter, for example, that he was not a fingerprint examiner? Was he a scientist or something else (such as historian, sociologist, or meta-expert)? What were the practical and theoretical difficulties involved in demarcating between genuine science and fingerprint evidence? Was it appropriate for an STS scholar to embrace the Daubert criteria in order to impugn fingerprint evidence? What are the practical limits of epistemic radicalism? And, could tacit knowledge and experience (central to many STS analyses) be used to excuse limitations with fingerprint identification? Resolving these and other dilemmas raised a series of tricky practical and theoretical issues.

Cole, whose opinion evidence has been admitted in other cases, approached his performance as an expert witness pragmatically. Nevertheless, the judge in Hyatt excluded his opinion evidence as “junk science” while admitting the impugned fingerprint evidence. This pejorative rejection provided ammunitionfor Cole's detractors in the continuing controversy over the reliability of fingerprint evidence. Discussing his ongoing “participation” more recently,Cole 2009 questioned the generalizability of particular experiences in court, stressed the protracted nature of the “campaign” to improve fingerprint evidence and placed his activities in the context of broader criticisms of the forensic sciences. Reflexively, and defensively, Cole also explained that exclusion and not “winning” in a Daubert hearing (or trial) cannot simply be equated with “failure.” The exclusion of his opinions in Hyatt , for example, may have actually discredited the judiciary and the institutionalized forensic sciences, thereby consolidating support and allies in the ongoing campaign (e.g., NAS, 2009 ). Cole's ( 2009 : 135) work demonstrates the difficulty of intervening to effect legal change and confirms that judgments about interventions can be just as “difficult and ambiguous” as the interventions themselves.

C. Subjective probability and human inference

The studies discussed in sub-sections A and B concern the operation of exclusionary rules. However, once evidence is admitted, fact-finders are largely unconstrained as to how it is used. This raises empirical and normative questions about how human inference operates and its accuracy.

Considerable research has been undertaken in this area over the last few decades. In experiments conducted by Daniel Kahneman, Amos Tversky, and others (e.g., Gilovich et al., 2002 ) the probabilistic reasoning of participants was found to depart from that prescribed by Bayes's Theorem—a rule of probability theory which provides a means by which a prior probability assessment can be updated to take account of the impact of additional evidence. Investigators suggested that, rather than reasoning probabilistically, humans may employ a limited number of inference mechanisms or “heuristics,” which sometimes produce a “bias.” Gerd Gigerenzer and others responded to the negative implications of the “heuristics and biases” (H&B) studies by emphasizing the ecological rationality of heuristics. For Gigerenzer and his colleagues, heuristics operate effectively—often more effectively than the “normative” Bayesian methods of the H&B researchers—in the environments in which they are typically employed (Gigerenzer and Selten, 2001 ; for legal implications, see Saks and Kidd, 1980 ; Gigerenzer and Engel, 2006 ).

Another significant contribution is Pennington and Hastie's “story model” of juror decision-making (1992). This descriptive model encompasses the juror's various tasks at trial, from the hearing of evidence right through to the selection of a verdict. According to the fact-finding component of the model, the juror settles upon a version of facts by organizing the evidence into one or more stories. The acceptability of a particular story is governed by a set of certainty principles, such as coverage, coherence and uniqueness.

Here we focus upon a strand of research informed by the H&B endeavors and connected with the story model. This work, inaugurated by Gary Wells 1992 , investigates the relationship between fact-finders' subjective probability assessments and liability verdicts.

Wells's experiments all took a similar form. In the first experiment, for example, participants were given the following information. A woman is suing the Blue Bus Company (BBC) for having caused the death of her dog. It was killed by the reckless driving of a bus driver. The woman is color blind. Only two bus companies use that road. BBC runs 80 of the buses on the road and the Grey Bus Company (GBC) runs the other 20. Wells's second experiment contained the same basic information except that the volume-of-traffic data was replaced with the evidence of a weigh-station attendant. He logged a blue bus passing along the road just before the accident, but his log entries are only 80 accurate. In both the volume-of-traffic and weigh-station-attendant versions, most participants said there was an 80 probability that the dog was hit by a blue bus. This would appear to satisfy the civil standard of proof requiring a “preponderance of probabilities.” However, whereas a clear majority of participants would hold BBC “liable” in the weigh-station-attendant version (67.1 ), very few participants would on the basis of the volume-of-traffic data (8.2).

Wells conducted further experiments with slight variations in order to understand why a high subjective probability was viewed as an insufficient basis for liability in certain situations. He tested the hypothesis that fact-finders have a preference for causally strong evidence by replacing volume-of-traffic data with accident statistics. The bus company that is involved in more accidents may, for example, have poorer drivers, which may be the explanation for the occurrence of this particular accident. However, with this evidence most participants were still not prepared to make a finding of liability. The hypothesis that jurors were concerned with distributional fairness was also rejected A verdict based upon the volume-of-traffic data would blame all the accidents on the company that happened to run the majority of buses along the route. Instead, the participants were given forensic evidence that tire tracks on the dog matched 8 out of 10 of BBC's buses, but only 2 out of 10 of GBC's buses. Utilizing this kind of evidence, a company's liability would tend to be in proportion with the company's involvement in accidents. Participants arrived at a “correct” probability assessment but remained reluctant to assign liability.

Wells's final experiment again involved matching tire tracks. On this occasion, the forensic witness testified that the technique is 80 reliable, and expressed his belief that the dog was run over by a BBC bus. In this tire-track-belief version most participants were prepared to attribute liability to BBC. Wells explained these results in terms of a preference for “bidirectional” evidence: “in order for evidence to have a significant impact on people's verdict preferences, one's hypothetical belief about the ultimate fact must affect one's belief about the evidence” (1992: 746). Only in the weigh-station-attendant and tire-track-belief variations would the fact that a GBC bus hit the dog invalidate the evidence. The evidence in the other variations, although making it more likely that a BBC bus hit the dog, is consistent with it having been a GBC bus.

Two groups of investigators subsequently confirmed the “Wells effect” but questioned Wells' fact-to-evidence hypothesis. Niedermeier et al. ( 1999 : 534) suggested that it attributed to participants a “rather complex process” for dealing with the evidence. Sykes and Johnson ( 1999 : 201) suggested that Wells's hypothesis “constitutes more of an analytical description of the phenomenon than a theoretical account of why it occurs.” Both groups sought an alternative and simpler explanation for the “Wells effect.” Experiments led to the rejection of an obvious possibility-that participants would prefer to base a finding of BBC's liability on the professed belief of a witness rather than statistical data (Sykes and Johnson, 1999 : 204, 208; Niedermeier et al., 1999 : 536).

Ultimately, both groups advanced similar explanations for the “Wells effect.” Niedermeier et al. suggested that participants may be less prepared to hold BBC liable where they can “more easily think of or about an alternative scenario in which [BBC] is not liable” (1999: 537). Sykes and Johnson contended that participants would be less prepared to believe an event where it is “relatively easy … to imagine an alternative … and to regard this alternative as a plausible scenario” (Sykes and Johnson, 1999 : 202). The evidence in all versions supports an 80 probability of BBC's liability but the evidence in the tire-track, accident-statistics, and volume-of-traffic versions expressly refers to the possibility of GBC liability, and therefore allows the creation of a scenario where a GBC bus hit the dog.

While the investigators identified a connection between their hypothesis and the “story model” of Pennington and Hastie, it should be noted that the present hypothesis is concerned with the ease or difficulty of imagining the “alternative scenario” or “counterfactual” rather than the liability scenario itself (Sykes and Johnson, 1999 : 205; Niedermeier et al., 1999 : 540 fn 5). For Sykes and Johnson, the decisive factor is “the difficulty of mutating [the liability scenario] into the alternative possibility involving the grey bus” (Sykes and Johnson, 1999 : 210).

One additional point is worth mentioning. Wells suggested that his experiments revealed a situation where the participants' subjective probabilities were “statistically correct” (1992: 739), unlike those in the H&B research, but participants were reluctant to find liability on this basis. Sykes and Johnson questioned this interpretation, explaining that “there may be a difference between calculated probability estimations based on participants' understanding of the rules of probability, and measures affecting participants' ‘gut feeling’, or subjective sense of the likelihood of an event” (1999: 201). To test this, Sykes and Johnson asked participants to record both the “probability” that the bus was blue, and “how certain they felt … [based] on intuition or their ‘gut feeling’ ” (p. 204 ). They found that, unlike “probability,” “[s]ubjective certainty was … significantly affected by evidence form, and … was a significant mediator of liability” (p. 209 ). This suggests a stronger link with the H&B work: the divergence between the subjective certainty and statistical probability might be viewed as a “bias.”

IV. Discussion

Having briefly reviewed several lines of empirical inquiry employing diverse methodologies—experiments, surveys, quantitative and qualitative approaches—we now discuss some of their limitations, and their implications and significance for the understanding and practice of law.

A. Abstraction from trial environment

Research on juror reasoning relied upon experiments that were, in various ways, abstracted from the trial environment, thereby raising issues of ecological validity. Do real jurors, for example, behave like the “mock jurors” of the experiments? And, do the experiments resemble real world trials. Much of the information in the hearsay and human inference studies was presented via written summaries, audio and video recordings or, at best, via live actors. (An exception is Goodman et al.'s (2006) experiments where, in one variation, children reported their actual experiences to mock jurors.) The presentation of evidence in such forms is questionable, and particularly problematic in relation to hearsay, because the rule is directed toward providing fact-finders with first-hand accounts. In some of the studies, the “non-hearsay evidence” was, strictly speaking, hearsay, while the “hearsay evidence” was actually hearsay upon hearsay.

A related problem is that the participants tended to be provided with a single piece of evidence in isolation. The subjective probability studies were, in part, concerned with the impact of naked statistical evidence on fact-finders. However, it is questionable whether any piece of evidence can be truly naked. As Sykes and Johnson observed, “our study does not assess whether the effects for our manipulation may be attenuated by other factors that exist in the information-rich forum of an actual trial” (1999: 211). And, here we should not overlook procedures and strategy as well as other evidence.

Many of the hearsay studies compared mock-juror responses to hearsay evidence with their responses to the observer/declarant's testimony with essentially the same content. But this misses another significant epistemic effect of the hearsay rule. By requiring the actual observer of the events to testify (rather than someone who merely heard about them), it may be possible to obtain further detail, particularly through cross-examination. This additional testimony may be relevant both to the events in issue and the declarant's credibility. As far as the comparison between hearsay evidence and declarant testimony is concerned, this additional testimony may confer a greater epistemic advantage to the fact-finder than the declarant's oath or demeanor.

B. Specificity of conditions, generalizability of conclusions

An empirical experiment inevitably involves a quite specific set of conditions raising a question as to the generalizability of any conclusions from that experiment. Of course, variations can be introduced through further experiments. Across the hearsay studies, for example, variations included: different ages of declarants and hearsay witnesses; different types of relationships between declarants and hearsay witnesses; differences in the status and experience of the hearsay witness; differences in whether mock jurors reached decisions individually or in groups; differences in the gender of mock jurors; differences in the nature of the experience leading to the declaration; different types of “crime”—whether theft, innocent touching, or sexual assault; differences in procedure—whether the hearsay witness (or declarant) was cross-examined; whether there was other evidence; and whether the evidence was presented by the state or the defense. However, it is not obvious that the experimental results are sufficiently consistent, coherent, or robust to provide a solid basis for drawing generalizations and conclusions justifying specific hearsay reforms with application to real world litigation.

Even where the studies do seem to identify potential problems with current rules and assumptions, as with the suggestibility of children or the recollection of interviewing techniques, questions remain about the precise implications for practice. Should we, for example, insist on recorded interviews with children at the earliest opportunity? If so, what happens when interviews are not recorded? Should we allow expert witnesses (e.g., the psychologists) to explain potential problems to fact-finders at trial? If so, should they be required to adhere strictly to the results of published studies or allowed to extrapolate? Should Daubert play a role? Would recourse to experimental psychologists as expert witnesses make any difference? And, how should the lengthening of trials, the added costs, and greater complexity in evidence (and judicial directions) be factored in?

Significantly, the “high degree of convergence” in empirical research as to the dangers of eyewitness testimony (Park and Saks, 2006 : 960) may be exceptional, as may be the relative clarity of the procedural prescriptions flowing from this research. Empirical legal studies often present as many questions as answers. And, proposals for law reform—such as additional judicial education—are often simplistic or naïve in political, sociological, and institutional terms.

C. Factual uncertainty and the benchmark problem

Evidence law is an institutionalized (and socially contingent) response to the inherent difficulty of arriving at an accurate version of past events. It is rare that the factual accuracy of inferences can be assessed, let alone the extent to which accuracy is advanced by particular evidentiary principles. Not insignificantly, DNA profiling, particularly when it provides the basis for exonerations, has enabled some verdicts to be benchmarked against the accused's actual innocence. Regrettably, interventions by Innocence Projects give criminal justice systems few grounds for complacency. Many wrongful convictions had, prior to DNA-based exoneration, survived multiple appeals and re-trials.

The benchmarking issue also arises for empirical researchers seeking to assess the epistemic value of an evidentiary rule, type of evidence or verdict. A number of the studies sought to draw normative conclusions about the accuracy with which human fact-finders handled particular types of evidence. The earlier hearsay studies concluded that mock jurors appropriately discounted hearsay evidence. Yet, in most of the experiments the “accuracy” of the hearsay evidence was unknown and unknowable—there was no benchmark, as the ultimate factual question was fictitious. Some investigators sought to respond to this issue by basing their experiment on real events. One study, for example, began with the staging of the actual event—an adult touching (or not touching) a child (Goodman et al., 2006 ). For obvious reasons, there are limits to the degree of realism that can be introduced to such experiments.

Some of the accounts of human inference have looked to Bayesian probability theory rather than objective fact as a benchmark. The H&B researchers, in particular, labeled departure from the calculus of probability, and Bayes's Theorem in particular, as a “bias.” Wells and others, in conducting their subjective probability experiments, were more concerned with developing a descriptive model. However, their work, revealing a similar departure, also implies that human reasoning in conditions of uncertainty is suboptimal. Perhaps there is a role for evidence law to intervene and address empirically-identified biases (Saks and Kidd, 1980 ).

An immediate difficulty with this proposal is that the Bayesian norm is highly contentious. Several legal commentators agree that “naked statistical evidence” provides an inadequate basis for liability. For them, a high probability figure must be supported by sufficient weight, detail and/or resilience (Stein, 2005 : 120; Ho, 2008 : 166). If a high base-rate probability is sufficient, what incentive is there to seek more specific evidence? And yet, subject to resource considerations, the enterprise of juridical proof is founded on the assumption that the more evidence the better. This preference underlies Benthamite criticisms of the exclusionary rules and, sometimes, their justifications. Recall that the hearsay rule can be rationalized on the basis that it increases the quality and quantity of evidence available to the fact-finder.

As noted in Section II, in recent decades Bentham's free-proof position has come to predominate, albeit indirectly. Daubert's tightening of admissibility requirements for expert evidence in civil proceedings represents something of an anomaly shaped by institutional pressures and socio-economic impressions and beliefs (more below).

D. Competing goals and values

A further issue arising from the empirical studies is the tendency to focus predominantly on the goal of factual accuracy. Prescriptions derived from the studies may provide benefits in this particular area, but these need to be weighed against potential costs elsewhere. Factual accuracy may be the primary goal of evidence law, but it is certainly not the only goal (e.g., Twining, 2006 : 76; Ho, 2008 : 339). Rules dealing with the dangers of eyewitness evidence may fall fairly squarely under the accuracy heading, but principle may implicate other goals. Depriving the fact-finder of probative evidence, via the hearsay rule may, on balance, be preferable to denying the opposing party the right to confront an accuser. The remoteness and lack of detail of hearsay or naked statistical evidence may make verdicts reliant upon them unfocused and impersonal, and hinder the effective expression of norms. A verdict based upon inaccessible or incomprehensible expert opinion may present similar problems.

It may be that the primacy of factual accuracy is such that many of these arguments can ultimately be dismissed. Our point, however, is that they cannot be ignored or disregarded altogether because concern about factual accuracy underpins only some of the goals, values and assumptions shaping rules of evidence and legal practice.

E. Bigger pictures

Empirical research and attendant legal reform should be sensitive to broader socio-political considerations and theory. STS perspectives, for example, may help to expand the focus from rules, processes and simplistic images of expertise to interests, institutions and social processes.

The majority in Daubert , for instance, supported its first criterion with reference to the work of Popper and Carl Hempel. The juxtaposition of these two irreconcilable philosophical accounts, and their eclectic combination with other, more sociological criteria (e.g., peer review and general acceptance), not only renders the Supreme Court's philosophical understanding open to doubt, but raises questions about the epistemological legitimacy of its admissibility jurisprudence (Haack, 2001 ). Yet, in their survey of judicial understanding of Daubert , Gatowski et al. based their assessments on folk versions of falsifiability and abstract questions rather than studying what judges in situ actually do. In Figure 4 the lines between understanding, misunderstanding and uncertainty are not merely blurred but conceptually suspect. Judicial responses to a survey instrument were assessed against idealized, and philosophically inflected, representations of science rather than empirical studies of actual scientific practice (see also Freckelton et al., 1999 ; cf. Edmond, 2005 ).

STS perspectives encourage us to ask: If Daubert does not represent a neutral vision of science, why were the particular criteria favored? And, are the criteria well suited to determining the admissibility of expert evidence in civil and criminal proceedings? Answers to such questions might help us to understand why Daubert and “gate-keeping” seem to have achieved such symbolic significance even though their conceptualizations of science and expertise appear simplistic, philosophically flawed and under-utilized.

One way to interpret the Supreme Court's admissibility jurisprudence is as a response to perceived problems with civil litigation, especially litigation “explosions,” “junk science,” excessive damages awards, and resulting deleterious economic effects (Haltom and McCann, 2004 ). Vigorous gate-keeping is a less overtly political intervention than changes to substantive tort or product liability laws and policies. Daubert provided judges with a means of regulating civil claims deemed “unworthy,” ideologically as much as factually, while publicly affirming their commitment to factual accuracy, the Seventh Amendment and the rule of law (Finley, 1999 ).

This more speculative reading of Daubert also brings trends in the criminal sphere into sharper relief. Trial and appellate judges have been relatively unresponsive to defense attempts to impugn incriminating scientific evidence. Expert evidence favoring the compensation of plaintiffs has been held to higher standards than forensic science evidence implicating defendants in criminal activities. This seems to reflect, directly and/or indirectly, socio-economic, and ideological concerns about excessive litigation as well, as the perceived need for more severe crime control.

There is obvious value in trying to integrate quantitative studies, and even surveys, into a more hermeneutic synthesis. These kinds of meta-analyses, while tentative and controvertible, generate new understandings and testable theories as well as questions about current practice and reform. They suggest, for example, that improving judicial scientific literacy might not be particularly effective. Confronted with a civil justice system purportedly “in crisis,” U.S. judges would probably have operationalized any admissibility standard more aggressively. If we reflect on admissibility trends (recall Figure 2 ) we find that in civil cases federal judges began to exclude expert evidence more proactively before Daubert , and practice in Frye jurisdictions was almost indistinguishable.

More critical approaches to expertise help to release scholars from slavish adherence to the descriptively dubious Daubert criteria, as well as polemical concepts like “junk science.” STS-inflected approaches allow for admissibility criteria to be indexed to the kinds of principles, values, and outcomes to which particular institutions and societies aspire. If, for example, we claim to value the presumption of innocence, fairness, and factual accuracy, then we should be more interested in the reliability of forensic science techniques. Rather than disguising our policy-political preferences in terms of appeals to purportedly proper definitions of science, demonizing the evidence of opponents as “junk science” or invoking long-standing practice (as with fingerprint evidence), it might be preferable to formulate strategic models of science and expertise based on explicit policy preferences and principle.

V. Rationalist and Empiricist Legacies

Most of those operating in the rationalist tradition have invoked or exploited the experiential and pragmatic nature of evidence and evidence law, though without much engagement or interest in empirical study. This is almost as true of legal scholars as it is of legal practitioners and judges (Park, 2003 ). Years spent in legal practice (or scholarship), so it is thought, gives practitioners and judges privileged exposure to both the real world and human nature .

While it might be fair to say that many of the contributions from empirical legal studies are provisional and their precise value for practice is uncertain or ambiguous, it would be equally unfair to suggest that they did not raise important issues worthy of serious consideration (Park and Saks, 2006 ). Moreover, by identifying problems with eyewitness evidence and the limitations of many of the forensic sciences, and in many other ways, empirical and experimental studies have substantially outpaced and repeatedly embarrassed legal experience . Nevertheless, in most jurisdictions judges have responded even to mature research traditions at best superficially and, at worst, with disdain shored up by complacent reference to collective experience or legal exceptionalism.

The obdurate indifference of lawyers, judges and policy-makers to empirical research on evidence law seems misguided (Leiter and Allen, 2001 ). It is difficult to know how to promote more principled and empirically calibrated approaches to evidence and proof. One response might be to encourage the most attentive and influential legal practitioners to participate in qualitative and quantitative forms of inquiry. The complexity and diversity of legal practice, along with its relative inaccessibility, makes multi-disciplinary investigation with research teams composed of empirical scholars and theorists, as well as lawyers and judges, a potentially productive, if practically and methodologically awkward, means of facilitating relevant real world research with direct bearing on practice (Edmond et al., 2009 ). It might also serve to remind us that law reform and empirical research should be related and ongoing.

Sir Francis Bacon (1561–1626), an early proponent of experimental natural philosophy and sometime Lord Chancellor of England, reputedly died from pneumonia after endeavoring to preserve the flesh of fowls with snow. Most of those involved with evidence law, particularly our lawyers, judges, and evidence scholars, seem to have taken more from Bacon's empirically induced fate than from his experimentally oriented philosophy. Perhaps ironically, commitment to legal experience places modern Anglo-American judges in a position similar to the Aristotelian schoolmen Bacon railed against. Unabated, indifference to empirical legal study is likely to reduce the social legitimacy of our legal institutions and undermine the fairness and accuracy of their rules, processes, and results.

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  • v.6(6); 2021

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Identifying data for the empirical assessment of law (IDEAL): a realist approach to research gaps on the health effects of abortion law

Scott burris.

1 Center for Public Health Law Research, Beasley School of Law, Temple University, Philadelphia, Pennsylvania, USA

Adrienne R Ghorashi

Lindsay foster cloud, rachel rebouché, patty skuster.

2 Ipas, Chapel Hill, North Carolina, USA

Antonella Lavelanet

3 Department of Sexual and Reproductive Health and Research and UNDP-UNFPA-UNICEF-WHO-World Bank Special Programme of Research, Development and Research Training in Human Reproduction (HRP), World Health Organization, Geneve, GE, Switzerland

Associated Data

bmjgh-2021-005120supp001.pdf

All data relevant to the study are included in the article or uploaded as supplementary information.

Reproductive rights have been the focus of United Nations consensus documents, a priority for agencies like the WHO, and the subject of judgments issued by national and international courts. Human rights approaches have galvanised abortion law reform across numerous countries, but human rights analysis is not designed to empirically assess how legal provisions regulating abortion shape the actual delivery of abortion services and outcomes. Reliable empirical measurement of the health and social effects of abortion regulation is vital input for policymakers and public health guidance for abortion policy and practice, but research focused explicitly on assessing the health effects of abortion law and policy is limited at the global level. This paper describes a method for Identifying Data for the Empirical Assessment of Law (IDEAL), to assess potential health effects of abortion regulations. The approach was applied to six critical legal interventions: mandatory waiting periods, third-party authorisation, gestational limits, criminalisation, provider restrictions and conscientious objection. The IDEAL process allowed researchers to link legal interventions and processes that have not been investigated fully in empirical research to processes and outcomes that have been more thoroughly studied. To the extent these links are both transparent and plausible, using IDEAL to make them explicit allows both researchers and policy stakeholders to make better informed assessments and guidance related to abortion law. The IDEAL method also identifies gaps in scientific research. Given the importance of law to public health generally, the utility of IDEAL is not limited to abortion law.

Summary box

  • Law is an important influence on health, including via the accessibility of abortion services, but too often the health effects of laws and legal practices are not rigorously evaluated.
  • Reliable empirical measurement of the effects of abortion regulation is vital input for policymakers and public health guidance for abortion policy and practice, but research assessing the health effects of abortion law and policy is limited at the global level.
  • This paper reports on the use of a new method -- Identifying Data for the Empirical Assessment of Law (IDEAL) – that deploys causal modeling to link abortion laws that have not been adequately evaluated in empirical research to abortion processes and outcomes that have been more thoroughly studied.
  • IDEAL can help both researchers and policy stakeholders to make better-informed assessments and produce stronger guidance related to abortion and other important areas of law, while also identifying gaps in scientific research.

Since the mid-1990s, reproductive rights have been the focus of United Nations consensus documents, a priority for the WHO, and the subject of judgments of national and international courts. With 25 million unsafe abortions each year, 1 an increasing number of international bodies have supported legalisation of abortion and the elimination of legal impediments as essential to the protection of women’s rights to equality, non-discrimination, liberty, health, autonomy and freedom from violence. 2 International human rights bodies have explicitly called on States to ensure that abortion services are available, accessible and of good quality. 3 Human rights law also requires that abortion laws are evidence-based and proportionate; thus, states must assess how legal provisions regulating abortion affect abortion services and outcomes.

Reliable empirical measurement of the health and social effects of abortion regulation is vital input for policy-makers and essential for developing public health guidance for abortion policy and practice. 4 WHO’s evidence-based guideline development process uses an INTEGRATE framework to assess the impacts of all kinds of health interventions. 5 The balance of health benefits and harms, human rights and sociocultural acceptability, health equity, equality and non-discrimination, societal implications, financial and economic factors, and feasibility and health system elements are all considered. Empirical research focused on the health effects of abortion law and policy is limited at the global level. More such research is urgently needed, but, in the meantime, existing research on better-studied aspects of abortion can shed empirical light on the effects of abortion laws and provide important practical insights for policy.

This paper describes a method developed by the authors, Identifying Data for the Empirical Assessment of Law (IDEAL), to locate evidence on health effects of abortion regulations in existing research that does not explicitly focus on law. Consistent with the WHO definition of health, ‘health effects’ in this project encompassed the full range of physical, mental and socioeconomic outcomes relevant to well-being. In the service of a ‘realist’ policy evaluation approach, 6 7 the IDEAL method posits a ‘programme theory’ for each law, in the form of a causal logic model setting out events and outcomes that may plausibly occur assuming key facts that can and should be investigated in future research: that the law is uniformly enforced, as written, within and across different jurisdictions, and that the healthcare providers and individuals whose conduct is regulated by the law know about and understand the rules. In general, popular knowledge of the precise requirements of law is imperfect, and law as implemented can be very different than law on the books, so the models are stating a theory about causal processes that would occur under specified conditions, not offering generalisable findings about how law actually operates in any particular jurisdiction. Their value lies in identifying evidence that can be useful in making tentative inferences about legal effects in the absence of direct evidence, and in pointing to important research questions. In the absence of direct evidence, the IDEAL process can also serve a precautionary role, by identifying non-trivial legal health risks that legislators should consider when enacting or amending abortion laws.

This work was commissioned as part of the WHO update to the Safe Abortion: Technical and Policy Guidance for Health Systems . 8 The approach was applied to six legal interventions contained in the WHO’s Global Abortion Policy Database, 9 and identified as critical for review by participants in a technical consultation held by WHO in preparation for the update to the guidelines: mandatory waiting periods, third-party authorisation (including parental involvement, spousal consent and additional approval in cases of sexual assault), gestational limits, criminalisation, provider restrictions and ‘conscientious objection’ (also known as ‘conscientious refusal’). Currently, WHO guidelines make no recommendations related to these legal interventions, but describe them as regulatory and policy barriers that may influence access to timely, safe abortion care. 8

Development of the ideal process

Research assessing the health effects of legal interventions has often been important in guiding public health policy, but remains relatively rare for many topics, including reproductive health. 10–12 Abortion laws, like other legal interventions, operate in a complex and context-dependent manner, with multiple components that may be non-linear in their effects. 13 Most research studies assessing the effects of law on abortion-related outcomes investigate small populations in single jurisdictions, differ in their definitions of key variables, are subject to design limitations, and focus on the USA. 11 14–16 IDEAL was intended to support the development of evidence-based guidelines and practices by identifying social science and epidemiological evidence related to abortion that does not explicitly address law, but can nonetheless enhance the understanding of legal effects and identify priority research topics. The challenge posed for the WHO guideline development process was to identify such evidence and provide a transparent, credible explanation for its relevance to an assessment of legal effects.

The research team of academics, lawyers, reproductive health experts and law students developed a three-step process. Step 1 identified empirical research that was designed to assess health effects of abortion laws. The team conducted a rapid scan to retrieve such research on the six types of law included in this project. Search terms for parental involvement laws included minor, abortion, parental consent, judicial bypass and law . A legal researcher and student researchers independently performed searches in the PubMed database. Each PubMed search was supplemented by a Google search for grey literature. References returned in the search results were reviewed for additional relevant studies. For parental consent, researchers identified 20 individual studies and reviews that explicitly evaluated effects of parental involvement laws on abortion processes or outcomes.

Step 2 developed causal logic models for the six types of legal interventions on abortion to display plausible pathways from the implementation of the restriction to health and socioeconomic outcomes. 6 17 The research team drew on the studies retrieved in step 1 to design the causal models based on sociolegal theory and processes and effects of law identified in that research. Four ‘common pathways’ appeared repeatedly within these causal models: delayed abortion, increased costs, unintended childbirth and legally prohibited abortion. These common pathways were modelled separately to capture greater detail.

Step 3 used the models as a guide to conduct a second rapid scan. This step aimed to identify non-legal studies investigating whether the processes and outcomes posited in the models do, in fact, occur, and with what frequency, severity or consequence. This evidence, in turn, would support plausible inferences of causality for practical policy and guideline development purposes. 7 18

Practical insights: evidence of plausible legal effects

When few studies directly link laws to health or other outcomes, causal modelling is an expeditious way to identify data that measures the effects of processes that law requires or will influence, if implemented as written. We were able to retrieve sufficient evidence to support the development of models for each of the legal interventions included in the study and identify research that illuminated processes (like delay in abortion services) and outcomes (like increasing risk of complications with gestational age) that could result from laws’ application. Table 1 reports selected results for the six legal interventions. For each type of law, table 1 lists the main causal pathways and outcomes we hypothesised based on our research, and provides examples of non-legal research illuminating the pathways we identified. The studies referenced in table 1 were selected as representative of the IDEAL results on the particular abortion restriction, but the list is not exhaustive and reflects limitations of the scan we conducted and the relevant literature generally. Causal models for all the included laws, and additional studies identified by the IDEAL process, appear in the online supplement to this article ( online supplemental file ). To demonstrate the application of the IDEAL method, we present here detailed findings on parental involvement laws.

Causal pathways linking legal regulations of abortion to plausibly related outcomes and relevant research

Supplementary data

The parental involvement model.

Parental involvement laws in 51 countries require a minor to notify one or both parents and/or obtain their consent before they can lawfully obtain an abortion. 9 These laws typically also provide for an alternative approval process involving judges or other persons, which we will refer to as a ‘bypass’. Studies directly addressing the impact of parental involvement laws, primarily in US settings, 16 pointed to several generic causal pathways from the implementation of mandatory parental involvement for minors’ abortion to health outcomes. See figure 1 .

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Object name is bmjgh-2021-005120f01.jpg

Parental involvement law.

Pathway A depicts the options for the pregnant minor: parental involvement as required, a bypass if permitted, or non-compliance. The choice may be influenced by such factors as the relationship with the parents, the practical need for assistance, or fear of the parental reaction. 19 Pathway B depicts a minor notifying a parent, which can clear the minor’s path to obtaining an abortion or lead to a decision to proceed with the pregnancy. The model also depicts the impact of parental involvement on the health and socioeconomic well-being of the minor, drawing on evidence of parental involvement’s possible positive effects 19 20 and its potential to produce intrafamilial conflict and other negative consequences for the minor. 21 22 Such conflict may lead to the minor experiencing an undesired pregnancy that proceeds to childbirth or a legally prohibited abortion, or seeking judicial authorisation where available.

Pathway C represents a minor’s decision to pursue a legal alternative to parental consent or notification, such as seeking judicial approval of an abortion. Accessibility of this option is mediated by the complexity of the alternative process and availability of legal or other assistance services. 23 24 Some minors may be unable to complete the process, shifting to the parental involvement or non-compliance pathways. 25–27 Should the alternative procedure not lead to a lawful abortion, the minor may give birth, obtain a legally prohibited abortion or shift to the parental involvement pathway. Pathway D represents the minor’s non-compliance with the parental involvement law, leading to an unintended birth, legally prohibited abortion or an abortion in another jurisdiction.

The causal model shown in figure 1 was derived from primarily qualitative and survey-based studies that explored how parental involvement influenced minors’ abortion choices and trajectories. Studies of health outcomes directly testing effects of law were almost entirely missing, but the model in figure 1 makes the connection between observed behaviour related to the law and a set of common pathways with known health and social consequences. These, as shown in figure 1 , include obtaining a legally prohibited abortion, unintended childbirth, delay in obtaining an abortion, and increased cost.

The delayed abortion model

Figure 2 expands the model in figure 1 to link parental involvement law to evidence of the effects of delayed abortion. Parental involvement laws are associated with delay in receiving abortion services. 16 Pathway A connects legal delay to epidemiological evidence of the rising risk of maternal mortality as gestational age increases 28 ; although the absolute risk is quite low, the increase in relative risk has been reported to be as high as 38% for each additional week of gestation. 29 By causing the use of more expensive surgical or medical procedures at later gestations, or the unintended birth of a child, delay can also increase costs (pathways B). Travel to a different location where law provides access to abortion is a well-identified way to overcome legal barriers of all kinds, and can also occasion delay and additional cost. 30

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Delayed abortion.

The unintended childbirth model

Figure 3 connects parental involvement laws to well-identified negative health and socioeconomic outcomes of unintended childbirth. Pathway A shows law’s logical connection to the known risks of poorer health outcomes in adolescents carrying an unintended pregnancy to term. 31–34 Poorer maternal health outcomes may arise from socially mediated unhealthy pregnancy behaviour and lack of access to prenatal care for adolescents. 32 Additional documented negative health effects for pregnant individuals and their families may include lower socioeconomic status and increased risk of abuse (pathway B). Even a healthy pregnancy and birth may entail increased risk of intimate partner violence, financial distress and lower educational attainment. 35–37 Both pathways reflect the increased costs associated with carrying an unwanted pregnancy to term.

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Unintended childbirth.

The Legally Prohibited Abortion Model

Figure 4 connects parental involvement laws to the processes and outcomes related to a legally prohibited abortion. Pathway A describes a pregnant individual who does not qualify for a legal abortion but is able to obtain a safe abortion outside of legal requirements. A self-managed abortion by a person who has the necessary information, properly using the combination of mifepristone and misoprostol, is considered to be a safe abortion. The social and abortion service-delivery environment, including the availability of willing providers, 38 39 availability of quality medicines, 40 and patient socioeconomic status (SES) may influence whether abortion may be safely obtained outside the law. 41

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Legally prohibited abortion.

Pathway B depicts a pregnant individual’s resort to a less-safe or least-safe abortion. 1 Abortion stigma is a mediating factor and may influence an individual’s decision to obtain abortion outside of legal requirements and, along with legal penalties, deter them from seeking appropriate care for complications. 42–46 In both pathways, the individual may be faced with prosecution for violating abortion law, delayed care and increased costs.

The increased costs model

Cost of an abortion can be a significant barrier to obtaining care and can exacerbate negative health and socioeconomic outcomes for the pregnant individual and their family. In figure 5 , pathway A links the impact of legal, clinical and logistical factors depicted in other models on the costs associated with obtaining abortion. The impact of cost is mediated by demographic factors such as SES, marital status and geographical location, as well as insurance coverage. 47 As shown in pathway B, increased financial cost may not preclude obtaining a lawful abortion, but may entail financial and related stress for the individual. Pathway C depicts inability to obtain an abortion because of cost leading to unintended childbirth or an abortion outside legal parameters. Unintended pregnancy and childbirth can lead to more costs linked to providing necessities for raising a child as well as costs associated with carrying the pregnancy to term, including complications during childbirth such as low birth weight, premature birth, and/or maternal morbidity and mortality. Surmounting the barriers imposed by higher costs may cause delay in obtaining an abortion.

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Object name is bmjgh-2021-005120f05.jpg

Increased cost.

Although parental involvement and other abortion laws can and should be assessed based on their conformity with human rights norms, such an analysis does not in itself provide empirical data on the actual effects of laws and the manner of their implementation. Our study demonstrates that existing studies of good quality can potentially support evidence-based guidance for policy. Strong evidence of the negative health effects of delayed access to care and adolescent health risks points to the importance of expediting or removing legal procedures for parental involvement in minors’ abortion. Recognising that adding law-related costs to abortion care can have disparate health impact highlights the potential link between abortion laws and health inequities. The relevance of well-known risks of legally prohibited abortion are relevant to understanding the possible links between law, delayed care, intrafamilial conflict, and a minor’s inability or unwillingness to pursue legal options. Evidence that undesired childbirth is harmful to both parent and child points to gaps in research on whether parental involvement laws compromise minor’s preferences for parenthood. Thus, results of the IDEAL study have also informed the WHO guideline-development process by populating a research agenda on legal effects and in areas for which legal effects are unclear.

Considering the potential impact of abortion laws on health, studies designed to rigorously evaluate the implementation and effects of abortion restrictions across the globe are too limited. In most countries, there has been no evaluation of these laws’ negative, positive or neutral health implications. Even in the USA, the evidence base often does not parse out health outcomes or disparities associated with legal barriers for specific populations. 48 However, existing high-quality studies demonstrate that rigorous research on legal effects is possible. 49 50

The IDEAL method attempts to create an objective framework for crystallising the various influences and consequences attributable to the impact of specific abortion restrictions, leading to the identification of untapped scientific evidence on plausible effects of the law. The framework itself can be applied to a specific law of a country or a subnational jurisdiction, and across topics and fields, where the evaluation of laws and policies is lacking or could otherwise benefit from a more expansive outlook. The IDEAL method could also be used to explore the interaction of multiple types of legal restrictions within a policy environment. Disentangling both the individual mechanisms of a law and the interaction of multiple restrictions can provide a more accurate understanding of how implementation of these laws could be affecting the service delivery environment and related health outcomes and disparities, both positively and negatively. Mapping the cumulative consequences of delay and cost, for example, could illuminate how social position is transformed by apparently non-discriminatory legal interventions into inequitable health outcomes, contributing to the literature theorising and applying the social determinants of health. The utility of IDEAL in these applications is not limited to the realm of abortion law.

As a norm setting agency, WHO has a role in the ‘dissemination of valuable knowledge’. 51 Considerable knowledge about legal effects is available in research that documents medical and social processes in abortion. By enhancing our understanding of these causal relations and fortifying the evidence base with empirical studies or pointing to gaps in the literature, we pave the way for more informed and targeted policy research. Policy-makers and advocates generally can then use this actionable data to craft evidence-based solutions with a specific lens on improving health outcomes.

Conclusions

Causal modelling exposes the complex interplay among known variables and outcomes, legal requirements and procedures, and individual and population health. Like other modes of ‘realist’ review, the IDEAL process depends on an existing framework of research related to the phenomena regulated by law, and on transparent logical reasoning backed by established theory. While models can support only guarded causal inferences about actual policy effects in any given legal setting, these causal hypotheses gain evidentiary weight as additional evidence is identified, documenting the occurrence or character of predicted causal pathways. The study also offers a method for illuminating—and to some degree filling—gaps in the evidence base on the impact of abortion laws on significant health, behavioural, and socioeconomic outcomes. The IDEAL method provides plausible and actionable insights that can better inform guidance documents, as well as targeted strategies for research, policy and advocacy.

Acknowledgments

The authors thank the following Temple Law School students for their contributions to the research for and development of IDEAL causal models in this project: Nadijah Campbell, Margaret Corcoron, Joshua Davis, Brittany Jones, Samuel Katz, Priya Mehta, Amal Rafiq, Alexander Rojavin, Eleni Roustopoulos, Claude Rubeneka and Michelle Tolodziecki.

Handling editor: Seye Abimbola

Twitter: @scottburrisphlr, @PSkuster

Contributors: SB developed the method and wrote the final draft of the paper and the supplement. ARG participated in the research and wrote the first draft of the paper and supplement. PS, RR and LFC participated in the research and edited the paper and supplement. AL helped conceptualise the method and plan the research, reviewed the findings and edited the paper and the supplement.

Funding: The study was funded by the World Health Organization.

Competing interests: None declared.

Provenance and peer review: Not commissioned; externally peer reviewed.

Supplemental material: This content has been supplied by the author(s). It has not been vetted by BMJ Publishing Group Limited (BMJ) and may not have been peer-reviewed. Any opinions or recommendations discussed are solely those of the author(s) and are not endorsed by BMJ. BMJ disclaims all liability and responsibility arising from any reliance placed on the content. Where the content includes any translated material, BMJ does not warrant the accuracy and reliability of the translations (including but not limited to local regulations, clinical guidelines, terminology, drug names and drug dosages), and is not responsible for any error and/or omissions arising from translation and adaptation or otherwise.

Data availability statement

Ethics statements, patient consent for publication.

Not required.

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Confession: Critical Analysis under Indian Evidence Act

  • Janavi. H.S and Divya Deshpande
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Janavi. H.S

Student at Alliance School of Law, Bangalore, India

Divya Deshpande

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Cases of wrongful conviction show that not all confessors are guilty. However, there is currently no validated process for evaluating the veracity of admissions. As a result, a confession may have a huge effect on jurors and judges. According to research, even if no other evidence linking a suspect to a crime was presented, the mere presence of a confession tripled the chances of being found guilty rather than acquitted at trial. This could explain why false confessions are involved in nearly 29 percent of the cases investigated by the Innocence Project. The long-term consequences of wrongful convictions for all parties concerned illustrate the need for impartial measures to check a confession's veracity. This paper discusses about the wrongful convictions made with the relevance of false confession made. It also discusses whether the confession was proven to the police office is validate or not. This paper discusses the cases related to the topic. It also studies the concept of wrongful confession under the evidence law,1872. Also studies about the accused confession made under police custody and how the evidences are produced against him.

  • Wrongful convictions
  • confessions
  • Indian evidence act
  • criminal justice
  • supreme court.

Research Paper

Information

International Journal of Law Management and Humanities, Volume 4, Issue 3, Page 1917 - 1927

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evidence law research paper

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How to write a legal research paper: All you need to know

This article on “How to write a legal research paper: All you need to know” was written by Vridhi Rai, an intern at Legal Upanishad.

Introduction:

Law is all about analysis, critical thinking, and interpretation. Your capability to put together the analysis of the study of the issues in written form is essential in the practice of law. The research paper is one such way to express your creative and analytic thought process, your vision of the theme, and the originality of your content. The word ‘research’ means a systematic examination of material facts. It can be complex and daunting for law students. But research helps in enhancing your knowledge and cultivating your writing skills. This article will help you understand what is research paper all about and how to write a research paper.

What is a research paper?

A research paper is a piece of academic writing which is based on an author’s original composition in the research and the findings on a given theme or topic. The writing should be owned by the author himself or herself. A good research paper strives to convey the information traced by the author crisply and concisely. The paper is written to examine the theme or the provisions, present your stand on it, and showcase evidence in support in a systematic manner. The true nature of the paper shows you the purpose of the theme or topic. 

What is the aim of the legal research paper?

The aim of the legal research paper can be a subjective question since the writing will indicate what the intended outcome is. There are kinds of writings that would pave a way for courts because it geared toward a certain kind of doctrinal analysis of the court’s interaction with theory and practice. The writings are done for better interpretation of the law. It could also be used to influence policy-making and generate debates. The author has a specific objective and intended audience in mind to serve.

How to write a legal research paper

How to write a legal research paper?

Step-1 choose a theme or topic:.

The foremost step in writing a  legal research paper is to select a theme or topic for the research. Select topics that catch your attention or interest. You can pick topics addressing contemporary issues or topics for the intended audience you wish to cater to. It should be novel, innovative, and interesting. While choosing a topic, read pertinent issues from different sources.  You can follow legal news to search for pertinent topics.

In case, you find difficulty selecting a topic, it will be wonderful for you to approach your professors, colleagues, and friends for consultation. Also, never feel hesitant to change the theme or topic of the research, if you feel it is not the right topic or you will not able to research the topic effectively.

Step-2 Research on your topic:

Now, your next task is to research the topic extensively on your selected topic from credible sources. You can refer to different sources by reading legal research pieces from books to online sites like SCC online, Manupatra, and Kluwer Arbitration. Always remember don’t just goggle. Use conventional sources like books and articles, these will give you a broader perspective. Read as much as you can. Reading helps you understand the nitty-gritty of the law provisions. Please beware of the research as this task can be very monotonous. You might lose motivation to perform this task. But hang in there and stay motivated to find interesting facts.

Step-3 Examine and Make a plan:

After researching, your very next step is to examine and make a plan to execute writing a legal research paper. Your research will be comprehensive with ideas. Please develop a detailed outline. Try adding notes to your research work. It can be possible that you might end up adding too much information to your paper. Highlight the key findings from your study. At this stage you are required to identify the goal of your research work, it can be either argumentative or analytic. You have to determine the masses you are wishing to address. The focus and the tone of the paper should b according to the audience you are intending to reach.

To get your Legal Research Paper written by an expert. Contact us.

Step-4 writing the paper:.

The next step is to draft the research paper. Make a final outline of the research work. The outline must have the points to describe the overview of the paper. The basic mantra of legal research is the structure of the paper. The research paper writing should be creative, clear, concise, and comprehensive. The language of your research paper should be easy to interpret. The legal terminologies and material facts are generally very sophisticated and complex. The facts, you are mentioning must be backed by shreds of evidence.

The format of the legal research paper:

The paper should have a proper format that consists of writing styles, referencing styles, page numbering, spacing, and margins. It should also include the headlines, sub-headlines, citations, or credits to the authors and the scholars.

The content of the legal research paper:

The content consists of the following:

Acknowledgment : the content of the paper should include an acknowledgment section that appreciates all the contributors to the research paper for their efforts and encouragement.

Table of contents: it includes the list of the things that you have written in your research paper.

Scope of the research: the scope or object of the research includes the reason for your study. It shows you the skeleton of your research paper. You have stated the problem or issue of the paper.

A literature survey or the sources used in the study: it includes the sources you have referred to in your study. It can be primary or secondary resources. The primary resources include books, statutes, and case laws. The secondary sources include the material you have collected from law articles, journals, and compendiums online or offline.

The hypothesis of the research: the hypothesis is the idea that is suggested to explain the objective of the research conducted by the researcher. It conveys the expectations of the researcher on what basis he started studying the issues, he raised in his paper.

Abstract : abstract shows the gist of the theme you have mentioned in your study. It is like the summary of the findings in your research regarding the theme. It should be written clearly and concisely.

Introduction: the introduction should be well-written to attract the attention of the audience toward the theme you mentioned in your thesis. A glance over the initial paragraphs gives an insight to the readers of your work. The introduction determines whether the research paper is worth reading or not. It should express the research problem, the purpose of your thesis, and background details about the issue you are referring to. It should be short, crisp, and comprehensive.

The main body of the study: the main focus of the paper is the main body of the thesis. The body should be divided into paragraphs along with sub-headings for a better understanding of the facts. Each paragraph should draw the main points of your study. It should begin with the topic’s sentences and should conclude extensively. In the main body, you can add the case laws and judgments.  

The conclusion of the study: the finale of the study should include a summary of the main pointers discussed in the study, it should express your stand or viewpoint towards the research problem. The concluding para of your research can be affirmative or negative in tone. In the end, you can add some suggestive measures to your study.

References or bibliography: at the end of the paper mention the references or the sources links or sites from which you have researched the material facts.

Step – 5 edit and proofread the final draft of the research paper:

Use proper grammar, punctuation, and spelling. Proofreading will help you to find errors in your content. If you need, to make changes to the paper, check and find the logic and legality of the statement. At this stage, you check the plagiarism of your content.

The things that should be considered carefully before drafting the paper:

you need to check the validity of the judgments before mentioning them in the research paper. The validity of the bills mentioned in your study should be carefully considered. The errors related to applicability or jurisdictions should be carefully verified.

Conclusion:

Legal research is not an easy task to perform. It takes a lot of time to conduct it. Constant hard work, attention, motivation, and patience are the factors required to examine and analyze the details. It can be boring. But it will help you in brushing your skills. Your efforts and dedication toward finding more and more material facts will help in shaping you into a good researcher.

It is beneficial for law students for interpreting law provisions, policies, and judgments. It can be used as a medium to influence policy-making procedures and as a tool to aware the masses. Publication of your research papers will act as a stimulating force to your law career. It will help you build your confidence and help them transform into law professionals.

References:

  • How to write a legal research paper: guide: how to write a winning research paper?- Legal Desire. Retrieved: https://legaldesire.com/guide-how-to-write-a-winning-research-paper/
  • A helpful guide on writing a law research paper- Writing help. Retrieved: https://howtowrite.customwritings.com/post/law-research-paper-guide/
  • How to begin with writing a legal research paper- Manupatra- youtube channel-(video file)
  • How to write a legal research paper law?|research paper- Eminent law classes-(Video file)
  • The aim of writing a legal research paper- the art of writing a legal research paper-Rohini Sen-letter of the law-(video file)

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    Vol. 131 No. 2 December 2017. Evidence Leading Case. Peña-Rodriguez v. Colorado. Vol. 131 No. 1 November 2017 The jury is a semi-sacred institution in the American legal system. The Sixth Amendment guarantees criminal defendants the right to "trial, by an impartial... Evidence Commentary.

  3. Getting Started

    This guide is focused on the Federal Rules of Evidence and related material. We recommend starting your research with secondary sources such as evidence law texts & treatises or legal encyclopedias . For information on state rules of evidence, please refer to the "Statutes and Legislation" page of our research guide for any particular state ...

  4. Evidence Law

    652-678 Published: 18 September 2012 Annotate Cite Permissions Share Abstract This article reviews contemporary response to several contrasting strands of recent empirical work. It begins with discussing the scope and rationale of evidence law.

  5. Science, Evidence, Law, and Justice: A scientist's take on scientific

    CSTL has overseen production of consensus reports on a range of topics at the intersection of science and law, including forensic science , eyewitness identification , and the highly valued Reference Manual on Scientific Evidence . CSTL's products are a respected source of guidance and its process is a grass roots model for the larger science ...

  6. Evidence, Probability, and the Burden of Proof

    We substantiate this claim by juxtaposing the extant doctrine against two recent contributions to evidence theory: Professor Louis Kaplow's proposal that the burden of proof should be modified to track the statistical distributions of harms and benefits associated with relevant primary activities; and Professor Edward Cheng's model that calls on...

  7. Bending the Rules of Evidence

    Abstract. The evidence rules have well-established, standard textual meanings—meanings that evidence professors teach their law students every year. Yet, despite the rules' clarity, courts misapply them across a wide array of cases: Judges allow past acts to bypass the propensity prohibition, squeeze hearsay into facially inapplicable ...

  8. (PDF) The peculiarity of American evidence law: An outsider's

    June 2020 · International Journal of Evidence and Proof. Evidence law was famously deemed 'the child of the jury', its development widely perceived as a by-product of the jury trial ...

  9. Explaining and trusting expert evidence: What is a 'sufficiently

    The principle governing judicial scrutiny of the reliability of expert evidence in criminal trials in England and Wales is 'that in determining the issue of admissibility, the court must be satisfied that there is a sufficiently reliable scientific basis for the evidence to be admitted.

  10. Identifying data for the empirical assessment of law (IDEAL): a realist

    Development of the ideal process. Research assessing the health effects of legal interventions has often been important in guiding public health policy, but remains relatively rare for many topics, including reproductive health. 10-12 Abortion laws, like other legal interventions, operate in a complex and context-dependent manner, with multiple components that may be non-linear in their ...

  11. PDF Burden of Proof Under Evidence Law

    Evidence Act covers various facets of law and one of them is "Burden of Proof" which the researcher has chosen as the title for this paper. Unlike other procedural laws like CPC and CrPC which deal with a particular nature of cases, the principles laid down under Evidence Act applies to both of these laws.

  12. PDF A CRITICAL STUDY ON ADMISSIBILITY OF EVIDENCE [email protected]

    "When either party proposes to give evidence of any fact, the Judge may ask the party proposing to give the evidence in what manner the alleged fact, if proved, would be relevant; and the Judge shall admit the evidence if he thinks that the fact, if proved, would be relevant, and not otherwise.

  13. (PDF) PROVING ELECTRONIC EVIDENCE IN COURT: A CHALLENGE

    Modern legal system took years to accept the paper records as primary evidence and now the same challenge has arisen over the acceptance of the electronic evidence in the court of law.

  14. Burdens of Proof, Presumptions and Standards of Proof in Criminal Cases

    256 MIZAN LAW REVIEW, Vol. 8, No.1 September 2014 introduce enough evidence that help putting a matter in issue.As Tapper observed, evidential burden refers to: "The obligation to show, if called upon to do so, that there is sufficient evidence to raise an issue as to the existence or non-existence of a fact in issue, due regard being had to the standard of proof

  15. Writing a Law School Paper Prof. Chris Wold (Last revised: Oct. 2019

    Writing a Law School Paper I. Choosing a Thesis A. What Is a Thesis and Where Do You Find One A thesis has been defined as "an assertion supportable by arguments and evidence."1 In other words, the thesis is your "take" on an issue. A thesis should explain the issue and what you hope to write about the issue.

  16. Do People Know the Law? Empirical Evidence about Legal Knowledge and

    For law to shape behaviour, people whose conduct the law tries to influence should know the law. This chapter reviews the body of existing empirical research about legal knowledge. It assesses the extent to which laypersons and professionals know and understand legal rules across various domains including employment, family affairs, criminal ...

  17. Law of Forensic Evidence in India and Abroad: A Comparative Study

    I. Introduction The introduction of forensic science technology has resulted in dramatic technological advances in the decision-making process in criminal trials, but further research is needed to determine the precise role of forensic evidence in deciding the rate of prosecution and acquittal.

  18. Cross Examination: The Art and the Relevance of it

    One of the most important sections of any trial is the cross-examination of the witnesses. Without cross-examining a witness, his statement is incomplete and the trial cannot be concluded. While its importance is prime in any trial, it is pertinent to understand how to perfect the art of cross-examination. Below is a brief account of the relevance, objectives and the nuances associated with ...

  19. Abortion Care in the United States

    Abortion services are a vital component of reproductive health care. Since the Supreme Court's 2022 ruling in Dobbs v.Jackson Women's Health Organization, access to abortion services has been increasingly restricted in the United States. Jung and colleagues review current practice and evidence on medication abortion, procedural abortion, and associated reproductive health care, as well as ...

  20. Cross-Border Evidence Gathering: A Primer on Mutual Legal ...

    That said, national sovereignty, international treaties, and international law typically preclude U.S. law enforcement officials or litigation counsel from simply flying to a foreign country to conduct searches, question suspects/witnesses, documents, or otherwise engage in criminal or civil evidence gathering.

  21. Analysis of Research Topics in Law of Evidence Allotted to ...

    This document provides details about research topics allotted to students of Symbiosis Law School, Hyderabad for their batch of 2016-2021. It lists 25 different topics related to the law of evidence.

  22. Confession: Critical Analysis under Indian Evidence Act

    According to research, even if no other evidence linking a suspect to a crime was presented, the mere presence of a confession tripled the chances of being found guilty rather than acquitted at trial. ... This paper discusses the cases related to the topic. It also studies the concept of wrongful confession under the evidence law,1872. Also ...

  23. Expert Opinion: Relevancy and Admissibility Under the Indian Law of

    Indian Evidence Act, 1872 gives scope for consideration of an expert opinion before the court of law, recognizing his importance in assisting a judge during the dispensation of justice. It not only makes relevant the opinion of an expert but also makes his opinion admissible before the court of law.

  24. How to write a legal research paper: All you need to know

    Step-1 Choose a theme or topic: The foremost step in writing a legal research paper is to select a theme or topic for the research. Select topics that catch your attention or interest. You can pick topics addressing contemporary issues or topics for the intended audience you wish to cater to. It should be novel, innovative, and interesting.