Social Scientists and the Courts - The Development of a Testimonial Privilege

• NCJ Number: 72343
• Journal: Social Science Journal Volume: 15 Issue: 1 Dated: (January 1978) Pages: 103-113
• Author(s): C R Knerr; J D Carroll
• Date Published: 1978
• Length: 11 pages
• Publication Format: Article
• Publication Type: Report (Study/Research)
• Language: English
• Country: United States of America

Annotation

This essay examines legal issues related to confidentiality in social science research, with emphasis on the question of whether researchers must disclose confidential information when ordered to do so in criminal proceedings. Social and behavioral scientists commonly conduct their research under an expectation of confidentiality.

Abstract

A subpoenaed researcher may face the serious ethical dilemma of whether to breach a vow or to suffer such serious consequences as imprisonment. Broad legal interests are involved in this issue. Private citizens are interested in preserving private spheres of opinions and behavior. Researchers are interested in unconstrained research. Public authorities are interested in securing information relevant to public decisionmaking. Society is interested in accurate information about social issues and certain forms of social behavior. At issue are the power of public officials to compel the disclosure of confidential scientific data, the unfettered flow of information to the public, and the unobstructed conduct of social and behavioral research. Limited Federal, State, and Constitutional statutes have been enacted to protect certain forms of research data, and an extension of these privileges is under review by the Federal and State governments. Persons engaged in mental health research are authorized to maintain confidentiality by the Department of Health, Education, and Welfare. Drug researchers have certain privileges. LEAA protects research data generated under grant or contract to LEAA. Several State statutes extend privilege or protection to limited segments of the research community. Although the first amendement has been used as a shield to resist subpoenas, the courts have consistently held that reporters must disclose confidential information when ordered to do so in criminal proceedings. Questions still to be answered include whether society's interests in the conduct of such research are greater than society's interest in the disposal of litigation, whether there is a substantial need for statutorily protecting researchers, and whether the researcher or the subject may claim a privilege. Examples of cases in which confidentiality was questioned and 61 reference notes are included.