Encyclopedia of Psychology and Law

he termed legislative facts and adjudicative facts.

According to Davis, legislative facts are those facts

that transcend the particular dispute and have rele-

vance to legal reasoning and the fashioning of legal

rules. Although judges are responsible for deciding

questions of legislative facts, they very often are the

subject of expert testimony. For instance, the question

of whether juveniles are as cognitively competent as

adults for purposes of evaluating the constitutionality

of imposing the death penalty for offenses committed

before adulthood is a legislative fact. Such legislative

facts are decided by judges, typically, at the trial stage

and reviewed de novo on appeal. At the appellate

level, legislative facts are sometimes referred to as

mixed questions of law and fact.

Adjudicative facts, on the other hand, are those

facts particular to the dispute. In ordinary litigation,

these are the facts that drive the dispute. Examples of

such facts include whether the traffic light was red or

green, the presence or absence of a stop sign, or the

kind of weapon allegedly brandished by the defendant.

Adjudicative facts are within the province of the trier

of fact (the jury or, if there is no jury, the judge) to

decide. On appeal, in nonconstitutional cases, review

is deferential under the abuse-of-discretion standard.

The appellate standard of review for constitutional

adjudicative facts is considerably more complicated,

but in most instances, they are reviewed de novo.

The Monahan-Walker Model

Although the Davis dichotomy has been extremely

influential in providing a nomenclature that is regu-

larly employed by the courts, it fails to capture the

complex interrelationship between different kinds of

facts in actual courtroom practice. Monahan and

Walker refined Davis’s dichotomy in the context of

social science research, though their three-part taxon-

omy could be applied to most forms of expert evi-

dence. A basic difference between the Davis and the

Monahan and Walker approaches concerns the respec-

tive focus each takes to the subject. Davis primarily

focused on the nature of the legal question involved—

legislative-like decisions or case-specific adjudica-

tions. In contrast, Monahan and Walker focused on the

kinds of social science available to answer the various

kinds of legal issues in dispute. In this way, the

Monahan-Walker model is more finely tuned to the

relevant issues raised by expert evidence. In particu-

lar, their model takes into account both the science

available on the subject and the level of fact in dispute

under applicable law.

Monahan and Walker identified three levels of evi-

dentiary convergence between social science and law:

social authority, social frameworks, and social facts.

Social authorityrefers to social science research rele-

vant to the determination of legislative facts and thus

the formation of legal rules. According to their pro-

posal, social authority is analogous to legal authority

and should be consulted similarly. Hence, judges would

consider social science “precedent” (i.e., available

research) as presented through briefs, through argu-

ments, and sua sponte. The information found to be rel-

evant would then be incorporated into the judge’s

conclusions of law. Alternatively, in the Monahan-

Walker model, social science research might be rele-

vant to social facts (largely equivalent to Davis’s

adjudicative facts), in which case, after being deemed

admissible, it would be presented to the trier of fact

through expert testimony. Finally, social science research

might have relevance as a combination of social author-

ity and social fact. Monahan and Walker label this con-

cept “social frameworks.” In social frameworks, some

issue in the particular dispute is claimed to be an

instance of a social scientific finding or theory of gen-

eral import. According to the model, the judge would

consider and instruct the jury on the verity of the gen-

eral claim, but the jury would also hear expert testi-

mony on how the theory applies in the case before it.

Although the Monahan and Walker model has gen-

erally received positive recognition, by far their iden-

tification of the concept of social frameworks has had

the greatest influence. This impact has occurred

largely because of the fact that most social science

comes into the courtroom in this two-stage form. This

is so even when the two levels of the framework are

not explicitly set forth, as occurs perhaps too often in

practice. To illustrate the power of the social frame-

work concept, consider three examples: the battered

woman syndrome (BWS), eyewitness identification,

and predictions of violence.

BWS illustrates social frameworks in their conven-

tional sense, in that courts have always expected that

there is a general fact that had to be proved and an

issue as to whether the case at hand was an instance of

that general fact. In the traditional context in which

BWS is offered as proof, the defendant is a woman

who has killed her abuser under circumstances that

traditionally would not have qualified as self-defense.

This may be because she killed when the victim was

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