Using Social Science Research to Support Your Appellate Claims
In this month’s edition of The Champion, the legal magazine published by the National Association of Criminal Defense Lawyers, Professor Eve Brensike Primus authored an informative article on opportunities for the use of social science research in criminal trial proceedings. Primus writes, “In recent decades, social scientists have created a treasure trove of empirical and sociological data that defenders can and should use to help their clients. Evidence rules, criminal law, and criminal procedure are filled with concepts informed by social science.”
Primus outlines a number of ways trial counsel can educate the jury or jury on social science research. But what if trial counsel has not done so in your case? Is all hope lost on appeal to use relevant research to inform the decisionmakers? No.
Enter the “Brandeis brief.” The Brandeis brief was a brief written by eventual U.S. Supreme Court Justice Louis Brandeis. The lengthy brief consisted of over 100 pages, all but two of which were devoted to a compilation of social science and other scientific information. It was an early attempt at combining the law with social science, and it has been used successfully throughout the years.
So how does a lawyer find social science research that could inform the court during its decisionmaking? The following are just a few resources:
law review articles on relevant topics, found on Westlaw, Lexis, etc.: these are perhaps the best source of information for appellate attorneys and are readily accessible by judges, making them an excellent source of persuasive authority for appellate briefs
Google Scholar