The Empirical Double Standard: Opinion Surveys Across the Civil-Criminal Divide

Abstract

Across different legal domains, liability doctrines recognize the value of community input. But do courts truly listen to the community's voice when deciding these sorts of cases? This study is the first to explore how courts treat community opinion survey evidence across both civil and criminal law. To that end, we comprehensively examine trademark, false advertising, patent, antitrust, obscenity, death penalty, and Fourth Amendment search cases. 

Our research uncovers a significant asymmetry: courts readily admit survey evidence in civil proceedings but systematically exclude it in criminal cases. This asymmetry does not appear to stem from structural differences between civil and criminal litigation systems, nor from differences in judicial bureaucracies. Instead, we argue, its source is judicial decision-making bias. We contend that in criminal cases, judges feel comfortable with and morally able to decide issues without outside input. But judges have fewer (if any) moral intuitions about the salient issues in civil cases, leading them to be more willing to accept community input. This asymmetry unfairly denies criminal defendants the opportunity to present empirical evidence that more accurately reflects the standards that are expressly part of these criminal doctrines. 

By documenting this potential judicial bias, we challenge existing evidentiary practices that disadvantage criminal defendants and compromise legal fairness. Situated at the intersection of empirical legal studies, evidence law, and judicial process theory, this Article offers novel insights for legal scholars, practitioners, and judges who seek to improve judicial decision-making. We propose concrete recommendations, including encouraging judges to explicitly recognize survey evidence's relevance and urging all legal professionals to develop greater empirical literacy.

Keywords: Evidence, Surveys, Judges, Decision-making

JEL Classification: K41, K14, K15