Foreword: Transparent Adjudication and Social Science Research in Constitutional Criminal Procedure

Tracey L. Meares
Bernard E. Harcourt, Columbia Law School


Constitutional criminal procedure decisions are often characterized today by pseudo-empirical statements about the importance of law enforcement and the sanctity of individual liberty. Without seriously taking account of empirical research, the Supreme Court strikes down rules of criminal procedure because they "fail to protect privacy...and impede effective law enforcement." The Court upholds other rules, again without really assessing the empirical evidence, because they embody a "carefully crafted balance designed to fully protect both the defendant's and society's interests." As we all recognize, these are purely rhetorical statements intended to render authoritative the Court's decisions. In this respect, the 1999 Term was business as usual. Without so much as discussing or even citing in a footnote the considerable research that had been conducted on police custodial interrogation in the 1990s, the Chief Justice, writing for a seven-member majority in Dickerson v. United States, concluded that there was no adequate justification for overruling the requirement of Miranda warnings. Writing for the Court in Wardlow as well, the Chief Justice acknowledged the empirical nature of the question - whether flight from a police officer amounted to reasonable suspicion - but stated that there were "no available empirical studies dealing with inferences drawn from suspicious behavior" and, therefore, that the Court had to rely on its own "commonsense judgements about human behavior." These types of assertions, we argue, are not self-evident or common sense. They are contested empirical claims that are hotly debated in legal and social scientific circles. And, we suggest, there are data and studies that discuss these empirical issues. Though we have differences of opinion as to the outcome in some of these cases, and though we have sharply disagreed in the past about the soundness of other criminal procedure decisions, in this Foreword we put aside our differences and link arms to call for a new generation of criminal procedure jurisprudence, one that places empirical and social scientific evidence at the very heart of constitutional adjudication. We are calling for a mode of judicial decision-making and academic debate that treats social scientific and empirical assessment as a crucial element in constitutional decision-making, thereby making criminal procedure decisions more transparent. By more transparent, we mean to describe adjudication that expressly articulates the grounds for factual assertions and, as a result, more clearly reflects the interpretive choices involved in criminal procedure decision-making. We are not so naive or idealistic as to think that increased attention to empirical evidence will guarantee right answers in criminal procedure cases. But use of empirical evidence will produce a clearer picture of the existing constitutional landscape and spotlight the normative judgments at the heart of criminal procedure cases.