The Fourth Circuit’s opinion in United States v. Staten, issued last month, contains several observations about the use of social science reports. The government relied on a number of studies to establish the rate of domestic violence, the rate of recidivism among domestic violence offenders, and the use of firearms by domestic violence offenders. The government did not, however, introduce paper copies of these reports in the district court, asserting that they were freely available over the Internet. The Fourth Circuit found this approach to be generally okay (though not the best practice), with one exception:
We believe the far better practice is for the government to offer copies of whatever reports/articles upon which it seeks to rely in attempting to carry its burden under intermediate scrutiny for inclusion in the record at the district court level. However, with respect to the reports upon which the government relies in the present case, because Staten has never disputed the accuracy of either the government’s representations as to their ready availability via the Internet or the accuracy of the government’s representations as to their content, we reject Staten’s argument that the government cannot rely upon the reports to meet its burden under intermediate scrutiny in this case. We also note that, with one exception which we will address later in this opinion, we had no trouble viewing such reports via the Internet using the websites included in the addendum to the government’s appellate brief.
The one exception was an article from the Journal of the American Medical Association, which required a paid subscription for access to the full text. Senior Judge Hamilton, writing for the Fourth Circuit panel, wrote:
The online citation provided by the government for the full-text version of this report requires a paid subscription to the Journal of the American Medical Association. Fortunately for the government, we were able to confirm the accuracy of the government’s citation to our full satisfaction by viewing an abstract of the report on the Internet website for the Journal of the American Medical Association and by observing that the Seventh Circuit, sitting en banc, cited the same report for the same statistic in Skoien II, 614 F.3d at 643. Nonetheless, we are hereby putting the government on notice that, while it caught a break under the circumstances this time, if a social science report, article, or raw data upon which it relies is not readily available free of charge on the Internet, the government must offer a paper copy in the district court for the record in order for it to be considered.