Analyzing the Community Voice in Court Evidence Across Civil and Criminal Law

Across different legal domains, doctrines recognize the value of community input. But do courts truly listen to the community's voice when deciding these sorts of cases? A new study by Professors Bernard Chao, Sturm College of Law, and Kay Levine, Emory University School of Law, is the first to explore how courts treat survey evidence across both civil and criminal law. They comprehensively examine trademark, false advertising, patent, antitrust, obscenity, death penalty, and Fourth Amendment search cases. 

Their forthcoming Iowa Law Review article “The Empirical Double Standard: Opinion Surveys Across the Civil-Criminal Divide,” identifies a surprising inconsistency in how courts treat surveys as evidence. In civil cases—such as trademark disputes or antitrust lawsuits—judges often welcome survey evidence as providing helpful insights on important issues in dispute. Even if a survey isn’t perfect, courts often allow it and let the jury decide how much weight to give it. But in criminal cases—where courts are supposed to consider community standards on issues like obscenity, the death penalty, and Fourth Amendment searches—judges are far more skeptical of surveys. Courts tend to ignore the surveys or exclude them because of minor flaws. The result is that criminal defendants are denied an entire category of scientific evidence. Chao and Levine find this problematic because public opinion surveys offer a more objective measure of community standards than a judge’s personal beliefs and feel that courts should treat survey evidence in criminal cases the same way they do in civil ones—to create a fairer, more consistent, and evidence-based system.

A major focus of their research has been to provide judges and policymakers with the best data available. But for that to be effective, the authors find that courts must also be willing to engage with strong empirical evidence. The study exposes the unequal treatment of survey in civil and criminal cases. Chao and Levine argue that this disparity is wrong and that all expert evidence should be evaluated based on its scientific rigor rather than the type of case in which it is presented. By exposing this double standard, Chao and Levine hope this article will contribute to better judicial decision-making and help courts avoid making decisions tainted by personal or political bias.

Learn More: Article Abstract