Extrinsic Evidence, Social Science and Constitutional Adjudication in the United States: Implications for Litigation Under the Canadian Charter of Rights and Freedoms

• NCJ Number: 157147
• Author(s): C P Manfredi
• Date Published: 1992
• Length: 30 pages
• Sale Source: Canada Department of Justice
• Publication Type: Legislation/Policy Analysis
• Language: English
• Country: Canada

Annotation

The U.S. experience with extrinsic evidence in constitutional adjudication is reviewed, and implications for the Canadian court system are discussed.

Abstract

Extrinsic evidence is used by governments to defend the rationality of laws and policies, by plaintiffs to establish constitutional violations, and by courts to formulate complex remedies. Extrinsic evidence can be introduced directly by the parties to a constitutional dispute, indirectly by amicus curiae participants, and through judicial notice. In extrinsic evidence cases, government lawyers face three strategic disadvantages: relative lack of expertise, unequal access to experts and evidence, and incentive to lose on the part of defendant agencies and institutions. Nonetheless, rights-based constitutional review inevitably generates litigation in which extrinsic evidence becomes important, and both litigants and courts must be sensitive to this fact. In comparison to adversaries, government litigators usually lack the expertise and resources of plaintiff counsel, frequently confront a community of social science experts who may not be willing to provide testimony or information for the government's case, and sometimes represent defendant agencies and institutions that actually have an incentive to lose in such types of litigation. 93 footnotes