Wednesday, December 1, 2010

Mormon Polygamy on Trial : Notes from Day 5

Reader Beware: This is not an official court transcript - and I am not a qualified court stenographer. While I am doing my best to provide an accurate reflection of events, in most cases I am paraphrasing what was said and errors are likely.

Attorneys from STOP Polygamy in Canada and others have objected to Professor Campbell’s qualifications to testify. Required lengthy introduction by the Amicus and cross-examination by the court as to her credentials.

Amicus reviewed Campbell’s credentials: Angela Campbell professor of law at McGill University and director of faculty of comparative law. Comparative law compares across jurisdictions and cultures. Fields of interest in research and teaching include family law, criminal law and heath issues. Published paper in 2005 for National council for Status of Women in Canada on the legal, social and economic implications for polygamous women in Canada. Follow on paper concluded that there was insufficient primary information available on the ways that women experience polygamy in plural marriage communities. Dr. Campbell was later contacted directly from women from Bountiful who had found her contact information on the status of women website. They insisted that her research would affect them directly and they deserved to have input into the process. From this request, Dr. Campbell sought funding from SSHRC in 2006 to undertake qualitative empirical research to study the lived experience of women in polygamy. This enabled her, and her research team which included a sociological trained assistance, to conduct peer reviewed research (included 2 to 4 reviewers) between 2006 and 2009. Previous experience included work as a research assistant on a qualitative study of the way that Hasidic Jewish women experience their lives within that tradition. She described how quantitive studies, which acquire large sets of data and look for detailed statistical relationships, differ from qualitative studies which seek detailed interviews and examination of specific individuals to obtain personal perspectives. Dr. Campbell’s experience with interviewing Hasidic (small, strict religious community in Montreal) women proved to be an important factor to obtain funding for this FLDS study.

In funding application to SSHRC referred to legal literature which asserts that Interviewing people who are affected by law is an important part of conducting legal research. She has accepted that there are not sufficient statistics available for a detailed quantitative study. While Dr. Campbell’s past experience included interviewing women for qualitative analysis, she requested a grad student from sociology/anthropology department who was trained in designing qualitative studies. While it was not possible to get a grad student, she obtained the assistance of a “stellar” undergrad student that was recommended by the McGill faculty. Dr. Campbell has published a peer-reviewed article about women in Bountiful called “Wive’s tales” which studies how a scholar should conduct research in a polygamous community that is seen as hostile to the outside community.

When funding was available, Dr. Campbell initially contacted women from Bountiful who originally contacted her. Once this was done, she contacted additional women who had previously spoken out against the community. She attempted to avoid the pit-fall of speaking to community leaders - called the gate-keeper model - which goes against the feminist model for research as this person could control who she would speak to and what they might say. Gatekeeper model would also re-enforce the patriarchal model of authority by having to ask permission of some male figure head. Over two visits, totaling 12 days, interviewed 22 different individuals - two of which had left unhappy polygamous marriages. Funding was primarily from SSHRC. While studying polygamy in Bountiful, she has also studied the health, social and economic effects of polygamy in a variety of cultures and geographical locations. She has published two peer reviewed articles on her research experiences in Bountiful. Currently she teaches courses on family law and on empirical research methods.

Amicus asserts on the basis of these qualifications that Dr. Campbell is qualified to give opinion evidence as a legal scholar on the interface between the practice of polygamy and the legal prohibition of polygamy in Bountiful.

Cross-examination of Professor Campbell by lawyer from STOP Polygamy in Canada

Established that she is not a tenured professor, and she has no specific qualifications in anthropology, ethnography, sociology, psychology, archeology, etc.
Considers her work to be primarily in the area of law bordering on sociology.
for her experience in interviewing women in the Hasidic community that she interviewed 5 to 10 witnesses.

Lawyer referred to Dr. Campbell’s articles including Voices from Bountiful and Wive’s tales and some articles published by her supervising professors on the Hasidic study - which was published previous to her involvement.

Lawyer referred to letter from SSHRC which pointed out that Dr. Campbell had no formal training in sociology or performing qualitative sociology study research methods. She had to rely on a undergrad student to help design the research plan for the interviews. Questioned on whether there are differences between qualitiative research study designs for ethnography, sociology, anthropology, psychology, etc. she said she had consulted many standard texts on interview design, etc. She was further questioned on whether the interview design was structured or un-structured and whether either interview style provided more reliable information. She offered the opinion that she did not have a strong opinion but felt that a semi-structured approach was the best as it leveled the playing field between interviewer and interviewee.

She was further questioned on whether she was familiar with the best interview techniques for conducting studies in communities who have a culture of secrecy and intentional deception. She was further questioned as to whether she was familiar with the masters thesis of Marla Peters who had lived and worked in Bountiful during the 1990s and the assertion that Ms. Peters thesis determined that there was considerable secrecy and deliberate deception in Bountiful. The Lawyer further pointed out that she did not live in the community for an extended period of time and he further asked if she was aware of the best way to proceed in a community that has this type of deception. When asked if she felt that it was appropriate for a researcher to believe the statements that were given to her in interviews from people in a secretive and dishonest community, she felt it was reasonable to believe the statements - given proper reflection and analysis. She was asked if she was familiar with the definition of a cult and how research should be conducted in cult communities. Then she was asked if she thought Bountiful was a cult before she went there for her research. She replied she did not know at the beginning, however at the present time, she does not believe the members who she spoke to during her interviews would qualify as being members of a cult.

The Lawyer pointed out that Dr. Campbell and her student had frequently referred to a Dr. Cresswell during their research study design and asked if she felt that Dr. Creswell as an authority - which she did. He then referred to one of Cresswell’s publications that stated that these types of interviews should only be done with extensive and prolonged engagement for phenomenological studies of this type. He then asserted that she did not have extensive and prolonged engagement with the subjects and therefore was not qualified to make informed statements. She agreed that she does not have experience in quantitative analysis or in statistical analysis and cannot comment on how to design a study to insure there is adequate sample size, etc.

If a researcher wants to draw general conclusions across a population, is it necessary to perform quantitative research? Yes.

Could you extrapolate the information you gathered from the interviews to the rest of Bountiful? No - it is only applicable for the women that she interviewed.

Is she familiar with software packages used in these types of studies? yes, but she did not use them.

Does she agree that documents can be used for triangulation to verify information given in interviews? For example, did she use vital statistics data to confirm whether women under 16 yrs of age were no longer being married? No.

One of the threats in obtaining objective information is when the researcher has pre-existing opinions going into the study. She agrees. In her paper called Bountiful Voices, she states that her research is not quantitative nor completely representative of experiences in Bountiful. She also acknowledged and agreed with statements from her own publications that she did not screen applicants and there is no way to know whether women came of their own free will or if they were telling the truth about polygamy or if they were intimidated or afraid. However, in her work she felt the interviews offered a sound representation of women that she interviewed within the Blackmore faction - and when pressed on this, confirmed that this is her opinion. However, she felt this could not be extrapolated to the other side of the community or to polygamy in general.

When asked, she confirmed her preference for open-ended questions vs. pointed or closed questions - unless there is a need for specific information. She confirmed she is aware of the danger of using leading questions in interviews in that she would get the responses that she was looking for. She also offered that she believed it was important to share some personal information with the participants however, she did not believe that she was leading the interviewees or coaching them with what she wanted to hear. Dr. Campbell offered that she did tell the participants her opinion that the constitutionality of the polygamy law was in question and that the intention of the law was unclear.

In her publication “Wive’s tales” she outlined her opinions about power structures in the community - as this was based upon media reports and other information she had read and heard about Bountiful. However, she now has different opinions about the power-structures on the Blackmore side of the community after her first-hand visits. When asked about the limitation of doing research within focus groups, she outlined how more dominant people in the groups will overshadow women with differing or dissenting opinions. This prevents less dominant group members from giving their opinions. She further stated that she did not ask if the women who contacted her had been directed by their religious authority because she felt this question would insult them. Dr. Campbell was aware of these risks prior to going to Bountiful.

DId she come into the project with pre-conceived ideas about the criminalization of polygamy? At the time of the research, she felt it was an open question. Did she have firm views about whether the legal situation as it currently stands is acceptable. She did not have firm views - felt that further research was needed.

In her funding application, she highlighted parallels to same-sex marriage and offered that the current legal approach to polygamy is based upon classical Judeo-Christian ideas of marriage rather than compelling factual information about the situation in Bountiful.

STOP Polygamy (Mr. Samuels) lawyer’s questioning of Dr. Campbell ended immediately after lunch break.

the transcript of the examination was placed into evidence.

Leah from the AG office began questioning Dr. Campbell regarding her qualifications to testify as a qualitative researcher. It was confirmed that she has had experience with qualitative research in the field of public health and ethics on hospital boards. It was further determined that she spent about 20 hrs. per week working with Hasidic women in Montreal and was involved in approximately 10 interviews - 3 of these interviews she conducted on her own. Leah further determined that Dr. Campbell’s work on the hospital board was focused on the analysis of ethics rather than research methods.

In Dr. Campbell’s publication, it states that it is possible that women in Bountiful are reluctant to seek outside help, based on the sample that she interviewed. Leah contended that she could not generalize this outside the 22 women she mentioned because she had previously said that she could not generalize the data. Prof Campbell indicated that she felt she could generalize the “possibility” of reluctance to contact outside help due to the information she received in the interviews. It was further established that Dr. Campbell’s travel days had to be deducted from the time that she spent in Bountiful. During her stay in Bountiful, Dr. Campbell was free to walk around -sometimes alone and other times with her two research associates. In the most recent visit, she noted that some women were wearing Jeans, rather than the traditional clothes. Leah asserted that she could not know what the women wore the for the remaining 360 days of the year and Dr. Campbell agreed.

Leah asked whether Dr. Campbell’s aim was to allow the 22 women to give voice to their experience living in Bountiful - rather than attempting to speak for them. Dr. Campbell agreed. Leah then read from the interview transcripts about whether husbands could go with their polygamous wives to hospital when they are giving birth or whether there would be fear of criminal prosecution. The respondent affirmed that it used to be like this, but now things were better.

Then Leah went to another part of the transcript where the interview topic moved towards whether women in Bountiful felt able to access counseling and other services in Creston. Some of the transcript left the impression that Dr. Campbell was using leading questions and the subjects were just agreeing with her. Dr. Campbell said that these were only examples of cases where she was attempting to confirm what she had heard from other interview respondents.

Leah then went on to give several examples from the interview transcripts where women indicated that while there may be some fear and resistance, that several interviewees felt that outside services were available to people in the community and several people in the community used these services (counseling, nurses, health care, etc). Leah argued that the testimonies that she chose actually indicated that women in Bountiful could freely come and go as they pleased and felt completely comfortable accessing help from services outside the Bountiful community. However, Dr. Campbell pointed out that general services like grocery shopping, going to a doctor, etc. were not a problem, but other areas that are linked to polygamy - like marriage counseling, law enforcement, mental health, etc could be a different matter.

Leah asked Dr. Campbell to read a section of an interview transcript where she had given her opinion as to the purpose and intention of the polygamy law. In this segment of the interview, she had given her opinion that the polygamy law would be difficult to uphold considering that Canada does not criminalize adultery or having more than one sexual partner generally - only criminalizes when the relationships are seen as life-long commitments. She had also offered her opinion that the intention of the law was to ensure that the husband would have enough economic means to support all the women and children.

As to a statement that Dr. Campbell had made about the apparent well-being of the children in Bountiful, Leah contended that she had no expert qualifications in this area to make an expert opinion and Dr. Campbell agreed.

In her reports, Dr. Campbell had stated that women below the age of 16 were no longer being married in the community. Leah again pointed out that this was not verified by birth records and other data and questioned whether this really was the case.

Leah then questioned Dr. Campbell regarding the interviews from the two women who had left Bountiful as a result of unhappy plural marriages. One of the questions began to approach the identity of a witness and this was ruled out of order. Then Leah pointed out that no one could know if all the plural wives were married to one man or not and prof Campbell agreed - so the results may not be representative.

Lawyer for AG Canada then addressed questions to Proff. Campbell.

He asked whether Dr. Campbell has taken a public position on the issue of polygamy in Canada. She answered yes - if meaning through the articles she has published. He then brought forward copies of 3 newspaper articles from the Globe and Mail, Montreal Gazette and National post where Dr. Campbell had offered statements. These articles were then submitted into evidence.

The Amicus then objected that interveners, who are not the primary parties in the court, had not objected to Dr. Campbell on the basis of her previous submissions and therefore in the interest of time, further motions to examine the witness should be restricted to the admissibility of specific evidence.

The Lawyer for CRCC then approached to cross-examine Dr. Campbell as to her qualifications to make sweeping general statements - especially regarding issues relating to children. The Amicus objected, stating that there would be opportunity to cross-examine later. Justice agreed.

Then the lawyer for the attorney general of Canada objected to the court hearing information from Dr. Campbell as an expert witness, stating that she was not qualified. Dr. Campbell was asked to leave the witness box while the court heard arguments relating to her admissibility as an expert witness.

The AG Canada asserts that Professor Campbell is not qualified to speak as an expert witness because her testimony is related to subjects outside of her areas of expertise. He argued that the affidavits that Dr. Campbell collected are admissible and can stand on their own merit without the “glosses” that the professor might add. It was further argued that no weight should be given to Prof. Campbell’s written reports because they might add un-merited weight to the decisions. Harm can be done to the trial process when people testify as experts who are not qualified because it can be misleading. Case law indicates that over-reaching by expert witnesses is one of the major causes leading to reversal on appeal. Arguments were provided that expert witnesses are only admissible when there is considerable chance that important facts might be missed by the general public. Care must be taken to distinguish between generalists who are speaking outside their primary speciality and those who are speaking as experts who are speaking within their speciality. He further pointed to a case by MacIntosh where he stated that just because someone does research and teaches on a specific subject does not qualify them to give forensic evidence.

The Amicus has put professor Campbell forward as a witness qualified to give testimony who can offer opinion on the interface between the polygamy law and polygamy in Bountiful.

AG Canada argues that there is no standard definition for legal scholars. He further argued that Dr. Campbell has insufficient knowledge to perform literature searches and qualitative research methods or ethnography. Professor Campbell does not have sufficient expertise to offer opinion on the women in Bountiful, in the Blackmore group or even for the 22 women that she interviewed.

He stated that Dr. Campbell does not have qualifications to speak to FLDS theology - reading a book allows one to have an opinion but does not make one an expert.

Further argued that Dr. Campbell has stated that her work was designed to allow women in Bountiful to express their own stories in opposition to the opinions of the broader community. However, while she has stated that her work cannot be representative because of the limited sample size, she has allegedly made broad generalizations from comments made from a small number of participants to represent the entire community.

AG Canada argued that paragraphs where Dr. Campbell is speaking from outside of her expertise far outweigh paragraphs where she is speaking from her expertise. AG Canada would not object to Angela Campbell speaking as a lay-witness from her experience in Bountiful rather than an expert witness.

There is clearly a very high weight on the value of “expert witnesses” as opposed to everyone else.

(Will each expert have to rise to the same standard???)

Karen Horsman, AGBC, then gave a short submission regarding the inadmissibility of Dr. Campbell as an expert witness- preferring to simply admit the affidavits that she collected. Ms. Horsman further stated that the transcripts themselves are ambiguous and Dr. Campbell offers her personal interpretation on top of these transcripts. She has no relevant expertise in being able to interpret these affidavits over anyone else and for this reason, she should not be qualified as an expert.

STOP Polygamy in Canada also made a submission to disqualify Professor Campbell. Their submission does not take a position as to her admissibility as a legal scholar or to the admissibility of the interviews she obtained. However, STOP objects to her right to make general statements from the research. STOP does not object to using qualitative evidence in making court decisions - however, they have strict definitions as to how this information can be used in the court and making generalizations based on the information. They provided a precedent from Justice Doherty that give guidelines on how qualitative studies can be used

Techniques to assure reliability:
what extent is the expert using accepted methodology that is honored in that field
what extent does the expert honor accepted boundaries that have been established in the field
Conducting interviews using a strict and structured interview
Care in making questions that are not leading
Care in making sure that questions are understandable to a broad segment of the public
Triangulation using outside data to check veracity
Exclusion of individuals who have a motive to be less than honest in their answers
Extensive peer review should be done at each study level - pre-study, question and study examination, post, study, co-authors, funding bodies, etc.

All of these topics give weight to the reliability of the evidence drawn from qualitative studies in a specific field.

Dr. Campbell is not a psychologist, anthropologist, ethnographer, or formally educated in qualitative study methods.

Not only did she not spend as much time in Bountiful as Ms. Peters and even less time than one would expect for a study of this nature. She took few, if any steps, to perform triangulation to verify her results. The observations that Professor Campbell made cannot be generalized outside the women she interviewed - therefore her observations add nothing to the voices of Bountiful’s women over what is recorded in the transcripts. Her comments add nothing of merit because they don’t come from any relevant expertise. The court has a gate-keeping role to keep this information from the court records.

Amicus defense:

Dr. Campbell has unique expertise of all expert witnesses in terms of actually interviewing women in Bountiful. She has also clearly performed a detailed literature study of polygamy across cultures. Professor Campbell clearly has special knowledge from her first-hand experience in Bountiful over other witnesses.

Expert Witnesses must have outstanding information in a specific field - this may come from academic or practical experience.

Supreme court has said “Practical experience and common sense often combine to give the most important type of expert testimony.”

Mr. Samuel has stated that expert witnesses do not require academic qualifications. In some cases, extensive practical experience will outweigh academic. There is a relatively low threshold for admission of expert witnesses. Any shortcomings should go to weight and not admissibility.

From Mohan test:

Proff Campbell’s research is highly relevant because it speaks to the experience of women in Bountiful. Bountiful is polygamy made real - so Dr. Campbell going into the community is very important
She is the only academic witness giving testimony from first hand experience in Bountiful. BCAG noted that Dr. Heinrich has used statistical information from the FLDS side of the community - however, Amicus noted that this evidence does not include the blackmore side which would otherwise not be included. Her role as an expert witness is no different than any other expert witness - however, she does have first-hand experience from the women in Bountiful
Dr. Campbell has developed more than sufficient expertise through practical experience in her academic career, she engaged in an extensive study of qualitative studies and consulted with experts in the field of designing academic studies.
her publications have been extensively peer review and her success in receiving funding demonstrates her qualifications in obtaining and analyzing this information.

Also relevant that other scholars, including Dr. Beaman in this proceeding rely on the references from Dr. Campbell. In her affidavit she has spoken to the importance of Dr. Campbells research.

Another witness has quoted professor campbell’s research, who is testifying for STOP Canada, performs a very similar

Professor Bala - from STOP Canada addresses Dr. Campbell’s research method and states that her research does not provide any way to assess the reliability of the information and there is concern that women who do not have positive experiences will not speak out. Nevertheless, her work is still a significant study. While some of the women may have been requested to speak out on behalf of the positive merits of polygamy - this is full of speculation. Professor Bala makes extensive projections saying things like “there is some evidence that criminal prohibition and threat of prosecution may slowly be reducing the instances of Polygamy in bountiful” however, his only evidence is from Angela Campbell’s study.

Several of the most important and relevant recent publications, including those made by experts who testify for the parties opposing Dr. Campbell, find significant value and quote extensively from Professor Campbell’s work.

By the very nature of this case, there is extensive opinion evidence being submitted. While it is contended that Dr. Campbell is not qualified to give opinion or give a review of the social science literature because she is a lawyer and not a social scientist. However, many of the witnesses, including Dr. Bala are also lawyers who are doing social science literature reviews and giving this as evidence. They are also lawyers rather than social scientists - and the Amicus does not protest against this.

The AGBC brief contains over 35 papers from “expert witnesses” and this includes all of Dr. Campbell’s papers.

The Amicus stated that the AGBC has systematically fought against witnesses giving testimony from the Bountiful Community. They would not allow Blackmore to come to the hearing and give evidence and they have systematically resisted any attempt for the FLDS community to give testimony.

The Justice qualified Professor Campbell as an expert witness.


jbash said...

So, about your title: It's true that the AGBC would like this to be the trial of Mormon polygamy... but in fact it's about a law that covers many, many other people. The FLDS and Bountiful are a minuscule fraction of those affected. Most of the people affected by Section 293 are secular polyamorists or Muslims. Estimates of numbers are at

keith said...

Thank you Jbash for your excellent posting - and for your insightful blog entry. This is a "detail" that is frequently overlooked in the case. I also think it is important to say that while I am very much against the type of patriarchal, authoritarian and abusive structure that I have sensed from the FLDS church, these same controlling structures exist in many other non-polygamous institutions (some churches included).

Unfortunately, it seems the AG wants to focus on the most obviously abusive example of a communal church, which happens to include polygamy, in order to rally public support to uphold an archaic authoritarian law.

Then the AGs imply, of course we would never use the law to punish this behaviour, or that behavior. Just give the State permission to control the personal, intimate relations of these Bad people and We will always use the Power wisely.

Personally, I am not polygamous, Mormon or even Gay. I am a heterosexual, white, monogamous man and I'm still not very comfortable about that.

And about the title, it is a deliberate choice. The long legal prosecution that eventually led to the temporary dissolution of the LDS Mormon church in 1890 (or 1888) was nominally about Polygamy. However, a careful reading of documents from the time clearly indicates that the intention was to break the economic and political power that was held by the church in Utah. It was all about Sovereignty and dominion of a specific ideology - Polygamy was the most convenient way to rally emotional support from the broader public.