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Observational methods can be divided into two types: (1) those using either human observers (participant observers or judges) or mechanical observers (cameras, digital recorders, and the like) and (2) those directly eliciting responses from subjects by questioning by a trained interviewer. Observational methods can be carried out both in laboratory or controlled situations and in field or natural settings.

Participant observation has a long history of use in anthropological research. Indeed, much of our knowledge of prehistoric law comes from anthropologists, such as Bronislaw Malinowski and E. Adamson Hoebel, who lived in traditional societies. Of course, for anthropologists, the opportunity to observe ongoing legal phenomena depends on a combination of circumstances and luck: It means that the anthropologists have to be in the right place at the right time. Anthropological (and sociological) field researchers generally proceed by way of a kind of methodological eclecticism, choosing the method that suits the purpose and present circumstances at any given time. In summary, “Hence, unobtrusive measurement, life history studies, documentary and historical analysis, statistical enumeration, in-depth interviewing, imaginative role-taking, and personal introspection are all important complements of direct observation in the field worker’s repertoire” (Williamson et al., 1982:200).

Observational techniques are sometimes used in laboratory or controlled situations. For example, comparatively little empirical research has been performed with actual juries because of the legal requirements of private deliberations. Consequently, social scientists who wish to study jury deliberations have used mock trials, in which “jurors” respond to simulated case materials. The mock trial permits both manipulation of important variables and replication of cases (Hillmer, 2015). Many of the laboratory jury studies deal with the deliberation processes preceding the verdict and how juries reach a verdict under various conditions (Loh, 1984). One method of analyzing deliberations is to make a video/audio recording of the deliberations and then analyze their content.

Sociologists and other social scientists often use observational methods in relatively natural field settings that involve direct contact with subjects. For example, in attempts to find out and understand how law typically works on a day-to-day basis, sociologists have studied various aspects of the criminal justice system in person. This body of research includes several notable examples:

  • a study of the public defender's office by David Sudnow (1965);
  • studies of the police by Richard V. Ericson (1989), Maurice Punch (1989), and Jerome H. Skolnick (1994), among others;
  • Frank W. Miller's (1969) study of prosecution;
  • Donald J. Newman's (1966) study of conviction; and
  • Abraham S. Blumberg's (1979) work on the entire criminal justice system.

A central finding of these studies concerns the role of discretion in the application or nonapplication of the law in legal proceedings. At each step in the criminal justice system, from the citizen’s decision to lodge a complaint or to define the situation as one in which it is necessary to summon the police, to the judge’s decision as to what sentence a convicted person should receive, decisions are made that are not prescribed by statutory law (Westmarland, 2011).

Observational methods have both advantages and limitations. The advantages include the opportunity to record information as the event unfolds or shortly thereafter. Thus, the validity of the recorded information can be high. Often observations are made and information is recorded independently of the observed person’s abilities to record events.

At times, when verbal or written communication between the researcher and the subjects is difficult—for example, in studying traditional tribes—observation is the only method by which the researcher can obtain information. Finally, the observer need not rely on the willingness of the observed persons to report events.

There are also several limitations of observational research. The method is obviously not applicable to the investigation of large social settings. The context investigated must be small enough to be dealt with exhaustively by one or a few researchers. In the case of fieldwork, there is a great likelihood that the researcher’s selective perception and selective memory will bias the results of the study. There is also the problem of selectivity in data collection. In any social situation, there are literally thousands of possible pieces of data.

No one researcher can account for every aspect of a situation. The researcher inevitably pulls out only a segment of the data that exist, and the question inevitably arises as to whether the selected data are really representative of the situation. Finally, there is no way to easily assess the reliability and validity of the interpretations made by the researcher.

As long as data are collected and presented by one or a few researchers with their own distinctive talents, faults, and idiosyncrasies, suspicion will remain concerning the validity of their rendering of the phenomena studied. Researchers often respond to these criticisms by suggesting that the cost of imprecision is more than compensated for by the in-depth quality of the data produced.

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