ethnographers are not lawyers, ethnographies are not trials: standards of evidence, hearsay and the making of good analogies

The following is a guest post by Mikaila Mariel Lemonik Arthur

In the Winter 2019 issue of Contexts, legal scholar Steven Lubet analogizes ethnography to legal fact-finding. Lubet is not an ethnographer or a social scientist—he is a law professor with scholarly expertise in evidence and in legal history. Legal scholars do have a habit of weighing in on fields not their own, but then we sociologists can play that game.

In his essay, Lubet argues that, in legal contexts (by which he means American legal contexts), hearsay is good evidence of “opinions, motivation, and beliefs,” but not of occurrences, and he further argues that such principles ought to be extended to, if perhaps not strictly enforced upon, the practice of ethnography. So let’s begin by considering whether this makes sense from the perspective of legal analysis. First of all, what is hearsay? In the legal context, hearsay basically refers to evidentiary statements obtained second-hand and not under oath—such as when someone repeats a story they heard from someone else.  Rule 703 of the Federal Rules of Evidence permits experts to base their opinion testimony on hearsay and, in some cases, even to disclose that hearsay to the jury. And in bench trials, where juries are not present, hearsay rules are often relaxed. This is because we trust judges to assign the correct amount of weight to hearsay evidence—after all, in order to make decisions about the admissibility of hearsay evidence, judges must consider what that evidence is, so they reckon with it even when it is not admissible in court. Thus, Lubet applies a different standard to sociology practiced among sociologists (in other words, the publication of scholarly work) than would be applied to sociology practiced before a jury (in other words, expert witness testimony based on one’s scholarly expertise).

If we are to consider hearsay in the context of ethnography, let us begin with its history. Hearsay rules come out of a history of not trusting things other than eyewitness testimony, and our legal evidentiary tradition encodes a preference for eyewitness testimony above all other forms of evidence. In large part, this is due to the concern that jurors will be confused or misled by hearsay. As Laurence Tribe wrote in his 1974 Harvard Law Review article on the topic, hearsay is considered suspect because of the potential for “ambiguity,” “insincerity,” “erroneous memory,” and “faulty perception.” Of course, most human testimony—even under oath—is rife with such problems. But the development of the adversarial legal system brought with it a faith in the power of cross-examination as a test of trustworthiness. Thus, hearsay is excluded not simply because it may be ambiguous or faulty, but rather because cross-examination cannot be used to test it (Morgan 1937).

So, Lubet argues, neither ethnographers nor courts should rely on hearsay as evidence. Instead, he says that ethnographers should use documentary evidence. But documents themselves quite often contain hearsay. For example, correspondence, diaries, and social media posts are all types of documents that commonly contain secondhand knowledge and records of stories their authors heard elsewhere. Where documents do contain hearsay, they may still sometimes be ruled admissible (Kettles 1999) where there are specific reasons for them to be considered trustworthy—as in cases of documents like governmental reports and business records. But they are not necessarily. Even otherwise-admissible business records may be excluded in whole or in part when they contain hearsay that does not fit into one of the specific exceptions to the hearsay rule.

Furthermore, documents do not inherently provide the clear evidence of truth that Lubet suggests. Instead, as archival researchers know, they are often deeply contested. Take meeting minutes, for example, the type of business record that would ordinarily be admissible in court and that Lubet might see as a better source than attendees’ recollection. As those of us who have ever read the minutes of a faculty meeting know, such documents often contain elisions, euphemisms, equivocations, and other circumlocutions such that, months later, those who were at the meeting may not have any common understanding of what the minutes sought to convey.

Note that, as important as the hearsay rule is to the judicial process here in the United States, it is not nearly so important in other legal contexts. Inquisitorial courts, such as those found in most Francophone, Lusophone, and Hispanophone countries, include many fewer limits on the use of hearsay as evidence. In such systems, judges are charged with considering and weighing all evidence and then assigning the right weight to each scrap. While hearsay may be considered less trustworthy, that does not mean it should be excluded from presentation to the court. In contrast, in adversarial courts judges predetermine which evidence the fact-finders (jurors) will be permitted to see. Yet even in the adversarial courts of the United Kingdom, restrictions on the evidentiary value of hearsay have been much diminished in recent years (Clark 1987).

Let us take a step back, now. What is it that ethnographers are doing when they conduct ethnography? What is the right legal role to which the practice of ethnography should be analogized? To Lubert, it seems, the ethnographer is cast in the role of a judge in an adversarial trial—but a judge impoverished of information, as this judge does not have any lawyers in the courtroom casting forth arguments on which to rule. But the judge in an adversarial court does not make ruling of fact, or at least does not do so except in the absence of a jury. Where a jury is present, it is responsible for fact-finding, but the trial jury in U.S. courts is not permitted to investigate, to seek specific evidence, to ask questions. Thus it would seem unreasonable to analogize the ethnographer to the jury. And while there may be some similarities between the work of the ethnographer and the work of some lawyers, lawyers engaged in litigation are zealously advocating for their clients’ interests, not seeking to advance knowledge, build theory, test hypotheses, or any of the other things social scientists do in our research.

The ethnographer, then, is not easily analogized to any of the actors in the drama of the adversarial court. Indeed, the exercise of applying adversarial rules (which are fundamentally about “fairness” or the pursuit of a win while only sometimes truly involving truth-seeking) to what is clearly a non-adversarial process is rather absurd. If the ethnographer can be analogized to a courtroom actor, they are more akin to an inquisitor (the judge in an inquisitorial trial) than to a referee (the judge in an adversarial trial). Ethnographers have full command of the evidence they collect, and they use their scholarly expertise to arrange and weight it for readers much as inquisitorial judges use their legal expertise to arrange and weight legal evidence before making decisions. Furthermore, we readers are not courtroom actors. We are not asked, as jurors are, to fact-find. Rather, we are seated in the gallery, observing the proceedings and coming to our own conclusions not only about what we believe, but also about whether we trust the judges and litigants, and about what broader lessons we can learn as we observe.

Lubet, then, is picking and choosing which legal standards to emphasize and which to ignore. If he really wanted to hold ethnography to the standards of adversarial legalism, the eyewitness account—exactly what ethnography specializes in—would be most primary. Of course, we all (including Lubet) know about the many documented limitations of eyewitness reports and the false convictions they have engendered. For example, the voluminous literature on the cross-race effect has found that eyewitnesses are significantly less likely to correctly identify an individual if that individual is of a different race than themselves. Social scientists have mounted evidence-based critiques of legal and criminal justice practices due to these findings, arguing for different methods of handling such practices as police lineups and in-court identifications that are designed to encode an understanding of the fallibility of eyewitness memory into court procedures and legal understandings. And this fallibility remains despite the fact that cross-examination can be used, highlighting the fact that the ability to ask questions is not enough to resolve ambiguity or faulty memory. Thus, it is clear that legal standards of evidence—as important as they may be to our adversarial legal system—are not necessarily a better way to get to the truth.

But perhaps that doesn’t matter. As Michael Burawoy put it in his response to Lubet later in the same issue of Contexts, ethnography is not meant to be a search for the killer—or for incontrovertible causal proof. It isn’t law, it isn’t journalism, and it isn’t a laboratory experiment. Rather, ethnography is, in Burawoy’s conception, a theory-driven process for advancing knowledge as part of a scholarly conversation. Our field is so much more vibrant, bounteous, and delightful because of the amazing work ethnographers do—and more than that, our field benefits from ethnography’s ability to investigate phenomena that cannot be investigated using other methods. And were we to apply the standards of law to ethnographic work, we might in fact find its broader ability to speak to theory sadly reduced and replaced instead with a slavish devotion to the kinds of outcome-oriented opinions upon which litigation turns.

Mikaila Mariel Lemonik Arthur is Associate Professor of Sociology at Rhode Island CollegeHer book, Law and Justice Around the World, is forthcoming in February 2020 from the University of California Press.

Author: Dan Hirschman

I am a sociologist interested in the use of numbers in organizations, markets, and policy. For more info, see here.

3 thoughts on “ethnographers are not lawyers, ethnographies are not trials: standards of evidence, hearsay and the making of good analogies”

  1. This response seems to be based on a superficial caricature of Lubet’s argument. And his writing on this subject he addresses these concerns and is careful not to rigidly apply the analogy from legal contexts.

    Like

  2. I do not have a particularly balanced view of Lubet. My interactions with him involve his FOIA request which required me and a dozen other people spend a lot of time collecting our records about the thing he asked about in, I may add, a hostile and accusing tone that quoted the law and demanded fast response. We all spent dozens of hours complying with this request because we do know the law, even if we don’t like it, and went through our emails and collected all of the ones relevant to his request. When Lubet saw the response to his request, he wrote to all of us and said, “Oh, I did not realize my request required you to send me your emails. Never mind, I have deleted the entire response.” That people spent dozens of hours of their own professional time preparing. I’m sorry, this is probably my own bias, but I am not willing to read a word that he writes. I consider him to be a bad actor from start to finish.

    Liked by 1 person

Leave a Reply

Please log in using one of these methods to post your comment:

WordPress.com Logo

You are commenting using your WordPress.com account. Log Out /  Change )

Google photo

You are commenting using your Google account. Log Out /  Change )

Twitter picture

You are commenting using your Twitter account. Log Out /  Change )

Facebook photo

You are commenting using your Facebook account. Log Out /  Change )

Connecting to %s

This site uses Akismet to reduce spam. Learn how your comment data is processed.