SURVEYS AS LEGAL EVIDENCE

Survey researchers are frequently frustrated and irritated by the difficulties they encounter when the results of their surveys are introduced as legal evidence. The sources of these difficulties are traced to contrasting scientific and legal interest in "truth" and methods for establishing truth. These contrasts explain why the scientific worth of a survey is, by itself, insufficient to establish its relevance and value as evidence in an individual case. Consequently, despite the widespread use of survey data in litigation, the admissibility of and evidentiary weight given to surveys remains problematic. Survey researchers must be as sensitive to legal precedent and rules of evidence as they are to scientific method when designing surveys for their data to be accepted by a court. The use of survey data as legal evidence involves considerations that differ substantially from those that arise in scientific research. Failure to understand those considerations and how they affect the admissibility and evidentiary value of survey data can lead to frustration and irritation on the researcher's part. In this article, by describing how surveys are used in litigation and contrasting this with their use in scientific research, we seek to clarify what makes for the effective use of survey data as evidence. To this purpose, we first contrast the search for "truth" in science with that in a trial. The reasons why survey data were for a long time excluded as "hearsay" are then explored. Finally, we examine the relevance of survey data to the legal issues to be decided in most trademark litigation. IRVING CRESPI heads his consulting firm, Irving Crespi and Associates, and is Professor of Marketing, Baruch College, CUNY. This article is a revised version of a paper presented at the 1985 Joint Statistical Meetings of the American Statistical Association, August 5, 1985. Many of the judicial decisions cited in this paper were located as part of a research effort supported by RL Associates of Princeton, NJ. Michael Rappeport of RL Associates provided invaluable guidance in that effort. Public Opinion Quarterly Volume 51:84-91 ? 1987 by the American Association for Public Opinion Research Published by The University of Chicago Press / 0033-362X/87/0051-01/$2.50 This content downloaded from 157.55.39.104 on Mon, 20 Jun 2016 05:47:48 UTC All use subject to http://about.jstor.org/terms Surveys as Legal Evidence 85 Scientific and Legal "Truths" Although statistical data of all kinds are widely used in litigation, they are often treated by courts as having limited value compared with anecdotal reports that most social scientists would consider of lesser value. In 1981, for example, a court commented in deciding a discrimination case that: We find it very damaging to plaintiffs' position the fact that not only was their statistical evidence insufficient, but that they failed completely to come forward with any direct or anecdotal evidence of discriminatory employment practices by defendants. (Garcia v. Rush Presbyterian-St. Luke's Medical Center, 660 F.2d 1217) The Supreme Court has expressed a similar attitude toward statistical data, describing their value as contingent upon the uniqueness of individual circumstance: ... statistics are not irrefutable. They come in infinite variety and, like any other kind of evidence, they may be rebutted. In short, their usefulness depends on all of the surrounding facts and circumstances. (International Brotherhood of Teamsters v. United States) In a recent discrimination case, statistical analyses of payroll data, personnel records, and surveys constituted a major segment of the evidence presented by both plaintiff and defendant, and figured prominently in the court's decision. Nonetheless, anecdotal accounts were, if anything, more persuasive to the court: More important than any statistical evidence in this case is the testimony of Sears' witnesses. . . . Each of these witnesses had substantial personal knowledge of the checklist system at Sears. The court found them to be highly credible witnesses and was persuaded by their testimony.... The witnesses' uncontradicted testimony helps "bring to life" Sears' statistical evidence. ... EEOC presented no credible witnesses with personal knowledge of Sears who could contradict the testimony of Sears' witnesses, or give any life to EEOC's inadequate statistical data and analyses. (Equal Employment Opportunity Commission v. Sears, Roebuck and Co.) Social science and the American legal system are each concerned with establishing "truth," but they operate under very different sets of definitions, precepts, and procedures for achieving that goal. Functioning as a social scientist, the survey researcher seeks to document and This content downloaded from 157.55.39.104 on Mon, 20 Jun 2016 05:47:48 UTC All use subject to http://about.jstor.org/terms