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14 clues to judicial behavior c h a p t e r 2  The puzzle of state supreme court variance in gatekeeping policy necessitates the search for clues to judicial behavior. When courts from different states are reaching different conclusions about the admissibility of the same science, it is natural to ask for an explanation. State gatekeeping policy is important because of the political implications of admitting or denying scientific evidence in judicial proceedings . For this reason, the analysis centers on political explanations of judicial behavior. In fact, a key argument of this book is that judicial gatekeeping is a function of political variables—not scientific variables. Political scientists specialize in recognizing and decoding political patterns in policy outcomes. With regard to judicial outcomes, political science has developed several competing political theories to explain why different courts reach different decisions. These explanations begin with an understanding of the way human actors (judges and courts) interact in a political system. Part of the story must recognize how humans make decisions. The rest of the story must build on this process by looking at the legal system in which state supreme courts operate. One theoretical approach emphasizes the way the law of admissibility used in a particular state will influence judicial outcomes. Some states simply have stricter legal standards than others, making it more difficult for any science to be admitted in that jurisdiction. A second theoretical approach emphasizes the political attitudes of the policy makers (judges) themselves. Some judges will simply favor law enforcement (or defendants ) more than others, as a product of their partisanship, region, and political preferences. For this reason, patterns of admissibility may depend on who is presenting the evidence or who is sitting on the court and where that court is located geographically.A third theoretical approach emphasizes the way the political system provides institutional and organizational advantages for certain political actors. Law enforcement, as an arm of the government, is certainly privileged in numerous important ways in the judicial political system, implying that science introduced by law enforcement should fare better in courts than science introduced by defendants. This chapter develops these theories step-by-step, with examples of previous use in political science. The goal is to synthesize the approaches to develop a model of judicial gatekeeping that can adequately explain and predict why some state courts were more likely to admit evidence than others. The end of the chapter presents this model as a diagram of related factors. The legal standard (whether strict or lenient) provides the starting point for the court. If the standard is strict, the science will need quite a bit of attitudinal support or political support to overcome the hurdle. If the standard is quite lenient, science can cross the threshold of admissibility with just a little attitudinal or political support. The development of this model precedes chapters presenting the puzzle of state supreme court variance for DNA, polygraphs, and syndrome evidence. In this way, the clues to judicial behavior provide keys to unlock the puzzle of stateto -state policy variance. Gatekeepers Are Human As simple as it may sound, it is important, in terms of theory, to begin with the observation that gatekeepers are human beings.The courts developing gatekeeping policy are composed of judges who are human decision makers. Clues to judicial behavior should necessarily be found in clues to the way human beings operate in a decision context. To understand variance in state judicial outcomes, it is important to have an explanation of human decision making to inform our expectations about the way conventional variables will affect judicial outcomes. Because the gatekeepers are human, cognitive psychology is the likely place to begin to look for clues to judicial behavior.It has conceptualized the human decision maker in terms that allow for the synthesis of dominant models of judicial outcomes. Once we articulate the cognitive process involved in decision making, it is easy to see how politically constructed variables, such as legal standards or judicial preferences, may become correlated with state variance in judicial outcomes. In their study of judicial behavior, Carp and Rowland (1996) have been the most explicit about proposing a theoretical foundation based on cognitive psychology. These scholars recognize cognitive psychology as a science that is sensitive to the way complex human beings operate,and they attempt a synthesis of psychology and judicial studies in order to advance the study of judicial politics.In terms of the puzzle of variance in...

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