The following is a guest post by Steve Lubet.
There is a story often told in the Cook County Criminal Courts Building about a young defense lawyer who was determined to do everything possible for a burglary defendant. After meticulous research, exhaustive investigation, and conscientious preparation, the attorney presented an airtight alibi, showing virtually minute-by-minute, and through multiple witnesses, that the client could not possibly have been at the scene of the crime. There was only one thing standing in the way of an acquittal. The elaborate alibi had been established for the wrong day, and counsel’s painstaking effort was all for naught. As with most such mythic accounts, this tale is probably apocryphal, or at least broadly exaggerated, but it still serves a valid teaching purpose. Even the most carefully developed argument will fail if it is based on a faulty premise.
So it is with Prof. Mikaila Mariel Lemonik Arthur’s recent response to my own essay on ethnography in Contexts. It would be a powerful riposte if only it had addressed my actual views. My essay is about comparative means assessing reliability – using multiple real life examples from law, history, and journalism – but you would never know that from reading Arthur’s piece. Her rejoinder of over 1500 words quotes only a single four-word passage from my work. Everything else is ill-premised spin. As I will explain below, there is nothing easier than presenting an alibi for the wrong day, nor simpler than refuting the imagined arguments of a straw person.
But first, let me say that Arthur’s essay is admirably constructed. It combines just the right amount of discrediting snark – “Legal scholars do have a habit of weighing in on fields not their own” – with solid research and scholarly observations. The piece is cogently written, tightly reasoned, well supported, and altogether a pleasure to read, even though, as one commenter pointed out, it happens to be built upon a “superficial caricature” of my argument.
So, Lubet argues, neither ethnographers nor courts should rely on hearsay as evidence. Instead, he says that ethnographers should use documentary evidence.
In reality, however, I said nothing of the sort. Far from urging ethnographers to reject hearsay, I suggested only that
[S]ome concepts in the law of evidence could be helpful by analogy, especially the hearsay rule’s distinction—often blurred in ethnography—between statements offered for their truth value and those establishing the declarant’s “state of mind.” In other words, ethnographers should be careful about distinguishing between “what I saw” (perception) and “what I was told” (hearsay).
Arthur’s subsequent disquisition on the acceptable evidentiary uses of hearsay is accurate, but quite beside the point. I made most of the same observations in my book, Interrogating Ethnography, including the permissible reliance on hearsay by expert witnesses and in business records. But that is all irrelevant to the Contexts essay, which did not, contra Arthur, advocate the exclusion of hearsay from either courts or ethnography.
The misrepresentations do not stop with the discussion of hearsay. Arthur goes on to say,
Furthermore, documents do not inherently provide the clear evidence of truth that Lubet suggests. Instead, as archival researchers know, they are often deeply contested.
My essay, however, recognized the problematic nature of many documents, referring to police reports, for example, as frequently “misleading and unreliable.” I made no claim that documents provide inherent evidence of truth:
Although documents are not always accurate or unbiased, they do have certain advantages over human memory and should be consulted if available.
The above examples, though distorted, at least touch upon issues raised in the Contexts essay, so perhaps Arthur’s inaccuracies can be attributed to misunderstanding. That is less likely in the following instance, where Arthur purports to rebut an assertion that I have never made:
[T]he 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.
Of course adversarial rules cannot be applied to ethnography, which I stated clearly and repeatedly in my book. Nor is there any such notion, or even an allusion to it, in the Contexts essay. The closest I come to Arthur’s insinuation – and it is not close at all – is the suggestion that “facts and fact-checking should matter as much for ethnographers as for historians, journalists, and lawyers,” with the further recommendation that ethnographers ought to “make frank distinctions between actual occurrences and subjective impressions, whether their informants’ or their own.” There is nothing necessarily adversarial about enhanced accuracy.
My objective has always been to bring an outside perspective to ethnography, with the goal of prompting discussion of ways in which the field can be improved. In law, we take outside perspectives seriously, whether they originate in economics, psychology, sociology, or the humanities. It is therefore disappointing that someone as thoughtful and well-versed as Prof. Arthur chose to ignore the gist of my essay – which focused on various ways of evaluating reliability – in favor of such tendentious readings.
It is ironic that Arthur accuses me of “picking and choosing which legal standards to emphasize and which to ignore,” given her own highly selective misreading of my essay. But in any case, what’s wrong with picking and choosing among legal standards to see which can be helpful in other fields? It is only in Arthur’s misconstruction that anyone has ever proposed the wholesale importation of law into ethnography. Instead, and unambiguously, I have suggested that certain principles of reliability can be useful, by analogy, to ethnographers. In other words, cautious “picking and choosing” is an essential feature of my work on ethnography, not a fault.
It is still more ironic for Arthur to point out, as though it is a criticism, that
Social scientists have mounted evidence-based critiques of legal and criminal justice practices . . . 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.
In fact, legal scholarship embraces the findings of the social sciences, recognizing that there is much to learn from other disciplines. It is frankly baffling that so many ethnographers are so resistant to the idea that they could likewise benefit from the fact-finding tools and experiences of other professions. Ethnography “isn’t law, it isn’t journalism, and it isn’t a laboratory experiment,” says Arthur. Well sure, but neither should it resemble oral history, memoir, or fiction.
Arthur concludes with a reminder that ethnography is “vibrant, bounteous, and delightful,” with which I have never disagreed. But accuracy, too, should matter, wherever it comes from.
Steven Lubet is the Edna B. and Ednyfed H. Williams Memorial Professor of Law at Northwestern University.