'The New Psychology of Expert Witness Procedure' by Jason M Chin, Mehera San Roque and Rory McFadden in (2020) 42(1)
Sydney Law Review 69 asks
Can procedural reforms effectively regulate expert witnesses? Expert procedures, like codes of conduct and court-appointed experts, remain controversial among academics and courts. Much of this discussion, however, has been divorced from the science of the reforms. In this article, the authors draw from emerging work in behavioural ethics and metascience that studies procedures analogous to those that are being used in courts. This work suggests that procedures can be effective, as they have been in science, if directed at key vulnerabilities in the research and reporting process. The authors’ analysis of the metascience and behavioural ethics literature also suggests several nuances in how expert evidence procedure ought to be designed and employed. For instance, codes of conduct require specific and direct wording that experts cannot interpret as ethically permissive. Further, drawing on a recent case study, courts have an important role to play in establishing a culture that takes codes as serious ethical responsibilities, and not simply as pro forma requirements.
The authors argue
In response to the threat of partisan expert witnesses, legal systems have developed a variety of procedural mechanisms (for example, expert codes of conduct, concurrent evidence, and court-appointed experts) to help manage experts and maintain public trust in the courts.[1] These procedures have inspired considerable academic and professional debate, and uneven adoption by courts. However, this discussion has been almost entirely uninformed by empirical research. In contrast with this experience in law, several sciences are enthusiastically enacting procedural reforms, which are being robustly tested and which rely on a large body of psychological research. This new area of metascientific and psychological research provides a novel perspective on procedural reform, suggesting such reform can meaningfully contribute to the regulation of expert witnesses. It also suggests how procedures ought to be designed and implemented. In this article, we explore that connection and, in doing so, the possibilities and limits of expert witness procedure.
In law, procedural reform aimed at expert partisanship has been controversial, garnering professional and academic support, but also sceptical and critical commentary. In particular, the critics have pointed out that the focus on individual expert partisanship promotes a narrow understanding of current problems with expert evidence, and also that expert procedures were designed without the benefit of empirical testing and may have perverse effects. Moreover, in forensic science specifically, partisanship may be a less pressing concern than the fact that many practices have not been demonstrated to actually work.
We seek to develop this discussion by highlighting an emerging corner of metascientific research (that is, the scientific study of science itself) that examines analogous procedural reform in science. These new procedures — grounded in the psychological study of ethical behavioural — have responded to a growing concern from many fields that many published studies cannot be reproduced by independent researchers. Such reforms include procedural modifications to the way scientists typically see their findings reviewed by others and published. Importantly, these reforms have received empirical testing demonstrating they often work and have been endorsed by respected scientific bodies, which may increase their ethical and psychological force. As we will discuss below, these insights from metascience help provide a roadmap for procedural reform in courts. Expert codes of conduct may especially benefit from recent research in metascience.
Our emphasis on codes of conduct — a procedural reform that spans civil and criminal trials in New South Wales (‘NSW’) — makes our analysis necessarily broad. That said, we recognise that criminal and civil litigation engage different policy considerations and practicalities (for example, the recent emphasis on efficiency in civil litigation). As to the latter, criminally accused parties frequently cannot afford their own expert witnesses and must rely on the expert proffered by the Crown. So, in the criminal context, robust expert procedure may be especially important. Indeed, we will focus on criminal cases in our legal analysis.Any application of our suggestions should mind the significant policy gap between civil and criminal cases.
In Part II, we briefly set the scene with some of the most significant procedural reforms that have been introduced to manage the presentation, form and content of expert evidence and expert reports. Part III introduces new research in metascience and behavioural ethics (that is, the psychological study of the situational factors that influence ethical behaviour) that founds a procedural reform movement in science. As we discuss, these reforms are being eagerly adopted in many scientific fields. Part IV then begins the discussion about how revelations from metascience and behavioural ethics could be leveraged to improve expert evidence procedure, putting them on firmer (meta)scientific footing. In Part V, we conclude with some limitations that can be expected of even the most scientifically grounded expert procedural reforms.
