"Convincing Empirical Evidence" on the Six Member Jury

The United States Supreme Court has recently been increasing its references to what it likes to call "empirical" data.A genuine issue is occasionally documented by such data, for example the "unusual" character of capital punishment in Furman v. Georgia.'In some cases, however, the intent of such references is merely to ornament an already determined result; the famous footnote 11 in Brown v. Board of Education 2 is an example.The Court generally cites "empirical" studies as lawyers cite cases, treating their summary conclusions as if they were holdings in prior cases.Applied to empirical research, this treatment encourages the notion that empirical findings, like case law, are infinitely mutable.The courts are thus diverted from using empirical studies for their intended purpose: to shed light on hitherto unknown facts.A more critical use of empirical data would better inform the courts and force them to face openly those instances in which their decisions are based on theory and merely ornamented by the "facts."Assurance of critical examination in the courts would also force researchers more carefully to connect their summary conclusions with the results of their studies.In two recent decisions concerned with replacing the traditional twelve-member jury with the six-member jury, the Supreme Court admitted that there was a crucial empirical issue: whether the reduction in jury size would affect trial results.In both opinions the Court cited empirical data as proof that there was no such effect.In