scholarly journals The biases of experts: An empirical analysis of expert witness challenges

2019 ◽  
Author(s):  
Jason Chin ◽  
Michael Lutsky
Keyword(s):  
Empirical Analysis ◽  
Legal System ◽  
Expert Witness ◽  
Psychological Research ◽  
Expert Witnesses ◽  
Expert Evidence ◽  
Exclusionary Rule ◽  
Wrongful Convictions ◽  
Practical Operation ◽  
The Impact

Biased expert witnesses pose a distinct challenge to the legal system. In the criminal sphere, they have contributed to several wrongful convictions, and in civil cases, they can protract disputes and reduce faith in the legal system. This has inspired a great deal of legal-psychological research studying expert biases and how to mitigate them. In response to the problem of biased experts, courts have historically employed procedural mechanisms to manage partiality, but have generally refrained from using exclusionary rules. Canada diverged from this position in 2015, developing an exclusionary rule in White Burgess Langille Inman v Abbott and Haliburton Co. In this article, we assembled a database of 229 Canadian bias cases pre- and post-White Burgess to evaluate the impact that this case had on the jurisprudence. The data suggests that White Burgess increased the frequency of challenges related to expert biases, however, did not noticeably affect the proportion of experts that were excluded. This suggests that the exclusionary rule introduced in White Burgess did not significantly impact the practical operation of expert evidence law, as it pertains to bias. We conclude by recommending that one way for courts to better address the problem of biased experts is to recognize the issue of contextual bias.

scholarly journals Performing Expertise: The Design of Audiovisual Links and the Construction of the Remote Expert Witness in Court

2018 ◽  
Vol 28 (5) ◽  
pp. 698-718
Author(s):  
Emma Rowden ◽  
Anne Wallace
Keyword(s):  
Cognitive Load ◽  
Empirical Research ◽  
Expert Testimony ◽  
Expert Witness ◽  
Mode Of Delivery ◽  
Expert Witnesses ◽  
Expert Evidence ◽  
Jury Trials ◽  
Technological Improvements ◽  
The Relationship

This article reports on empirical research conducted into the use of audiovisual links (videolinks) to take expert testimony in jury trials. Studies reveal ambivalent attitudes to court use of videolink, with most previous research focussed on its use for vulnerable witnesses and defendants. Our study finds there are issues unique to expert witnesses appearing by videolink, such as compromised ability to gesture and interact with exhibits and demonstrative tools, and reductions in availability of feedback to gauge juror understanding. Overall, the use of videolinks adds an additional cognitive load to the task of giving expert evidence. While many of these issues might be addressed through environmental or technological improvements, we argue this research has broader ramifications for expert witnesses and the courts. The use of videolinks for taking expert evidence exposes the contingent nature of expertise and the cultural scaffolding inherent in its construction. In reflecting on the implications of these findings, and on the way that reliability, credibility and expertise are defined and established in court, we suggest a more critical engagement with the relationship between content and mode of delivery by stakeholders.

CRIMINOLOGICAL AND PENAL ASPECTS OF ISSUING A FALSE OPINION BY AN EXPERT WITNESS - DRAFT REPORT ON RESEARCH PROJECT WITH PROPOSALS FOR CHANGES IN THE LAW DETERMINING THE LEGAL STATUS OF EXPERT WITNESSES

2020 ◽  
Vol 136 (4) ◽  
pp. 360-375
Author(s):  
KRZYSZTOF JÓŹWICKI
Keyword(s):  
Expert Opinion ◽  
Justice System ◽  
Legal Status ◽  
Expert Witness ◽  
Criminal Responsibility ◽  
Negative Impact ◽  
Penal Code ◽  
Expert Witnesses ◽  
Expert Evidence ◽  
Draft Report

Evidence in the form of an expert opinion is usually of key importance for settling a pending case in any type of proceedings. In some cases, the role of the expert witness is closer to that of a judge rather than that of a witness, since a judge who does not have special knowledge often has to use evidence given by an expert to render a judgement. For this reason, issuing a false expert opinion results in a very high risk of delivering a wrong and unfair decision in a given case, which in turn has a negative impact on the social perception of the functioning of the justice system. In the Polish Criminal Code, criminal responsibility for issuing a false opinion is stipulated in Article 233 (4) and (4a) of the Penal Code. At the same time, despite a very large number of reports of suspicion that a crime has been committed by an expert witness, only a negligible number of investigations result in a bill of indictment and a conviction, which causes virtual impunity of perpetrators and has a negative impact on the functioning of criminal justice. Due to the diagnosed research gap in this area, the need to investigate and describe the phenomenon of issuing false opinions by expert witnesses, both in normative and criminological terms, on the basis of empirical research, has been clearly seen. The main objective of the research has been to characterise the phenomenon in question on many levels and to determine its real extent, its etiology and symptomatology. An additional aim of the research has been the verifi cation of research hypotheses and recognition of the normative sphere of the expert witness’s status, expert evidence, and principles of responsibility for issuing false opinions. The research fi ndings have resulted in proposals of solutions aimed both at limiting the phenomenon of issuing false opinions and more effective prosecution of perpetrators of crimes under Article 233 (4) of the Penal Code, which in turn may translate into more effi cient functioning of the entire justice system, as expert witnesses and their work are an extremely important aspect of thereof. The conducted research has fully confi rmed the research hypotheses and precisely indicated defective areas of expert evidence, and consequently the need to introduce immediate legislative changes. Some of the research conclusions and de lege ferenda postulates were implemented into the amended provisions of the Penal Code in 2016, which fully confi rms their legitimacy. Unfortunately, there is still no legal act of statutory rank which would comprehensively regulate the status of expert witnesses and expert evidence.

scholarly journals Level of Confidence and the Forensic Engineer

1989 ◽  
Vol 6 (1) ◽  
Author(s):  
Thomas A. Bratten
Keyword(s):  
Legal System ◽  
Expert Witness ◽  
Great Difficulty ◽  
The Other ◽  
Expert Witnesses ◽  
Factual Information ◽  
Level Of Confidence ◽  
Drawing Board

It is often not without great difficulty that the skilled engineer steps from the drawing board or desk and onto the witness stand. The problems are many, and only a few engineers ever become wholly comfortable with the process. It can be a fearful experience. To start with, it is a foreign arena to the engineer. And it is fraught with unknowns. Fear need have no more genesis than that. But there are more reasons. The arena is the setting for advocacy, argument and confrontation. The legal system is designed to test the truth and its limitations fully in this fashion. And, all too often for the forensic engineer, reliable factual information is either largely unavailable or obscured by dispute among the other witnesses in the case. Lawyers have been preparing instruction lists and tips for witnesses for decades. There are some specifically designed for expert witnesses. And most every attorney can tell you what it takes to be a great expert witness- at least his or her version t

scholarly journals The new psychology of expert witness procedure

2020 ◽  
Author(s):  
Jason Chin ◽  
Mehera San Roque ◽  
Rory McFadden
Keyword(s):  
Expert Witness ◽  
Codes Of Conduct ◽  
Recent Case ◽  
Expert Witnesses ◽  
Expert Evidence ◽  
Reporting Process ◽  
Recent Case Study ◽  
Pro Forma ◽  
Ethical Responsibilities

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 metascientific and behavioural ethical 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 pro forma.

Training the Expert Witness

1988 ◽  
Vol 28 (2) ◽  
pp. 93-97 ◽  
Author(s):  
David Gee
Keyword(s):  
Expert Witness ◽  
Medical Profession ◽  
Formal Training ◽  
Expert Witnesses ◽  
Expert Evidence ◽  
Changing Attitudes

At the present time expert witnesses have almost no training for that role. It is also becoming very difficult to obtain suitable experience in advance of exposure to cross-examination in a major case, due to alterations in court procedure. The medical profession takes scant notice of the needs of lawyers and the courts. There is a need for formal training in witness techniques of groups of doctors in disciplines likely to lead to court exposure, especially in the light of changing attitudes to expert evidence.

scholarly journals Expert evidence and the courts: 1. The history of expert evidence

1999 ◽  
Vol 5 (1) ◽  
pp. 71-77 ◽  
Author(s):  
Keith J. B. Rix
Keyword(s):  
Justice System ◽  
Expert Witness ◽  
Expert Witnesses ◽  
Expert Evidence ◽  
Civil Justice ◽  
England And Wales ◽  
History Of ◽  
Civil Justice System

Recommendations by Lord Woolf for the reform of the civil justice system in England and Wales include proposals which are already beginning to influence the provision of expert evidence to the courts. Lord Woolf has himself been instrumental in the establishment of an Expert Witness Institute which has caused some controversy in medical circles. It is no coincidence that all of this is happening at a time when the courts are delivering judgments which are particularly critical of some expert witnesses.

17. Opinion evidence

2017 ◽  
Author(s):  
Richard Glover
Keyword(s):  
Expert Opinion ◽  
Expert Witness ◽  
Common Law ◽  
General Rule ◽  
Expert Evidence ◽  
The Public ◽  
Commission Report ◽  
Materials Used ◽  
The Impact ◽  
Law Commission

This chapter discusses the following: the general rule of common law that the opinion of a witness is inadmissible, and the exceptions for evidence of general reputation, the opinion of an expert witness within his area of expertise, and the opinion of any witness as a way of conveying facts within the competence of members of the public generally which do not call for specialized knowledge; principles of admissibility; competence; independence and objectivity; the weight of expert opinion evidence; the function of expert evidence; materials used by experts in forming their opinion; expert reports; common subjects of expert evidence; and the admissibility of non-expert opinion evidence. The developments since the Law Commission report on Expert Evidence (No. 325) are addressed, as are the impact of the Criminal Procedure Rules 2015 and the Criminal Practice Direction.

Expert valuation witnesses in the UK – problems and solutions

2002 ◽  
Vol 20 (4) ◽  
pp. 316-353 ◽  
Author(s):  
Neil Crosby ◽  
John Murdoch ◽  
Anthony Lavers
Keyword(s):  
Current Practice ◽  
Expert Witness ◽  
Case Analysis ◽  
Expert Witnesses ◽  
Expert Evidence ◽  
Performance Training ◽  
Problems And Solutions ◽  
The Uk

This paper addresses the performance, training and organisation of expert valuation witnesses in the UK. Previous research, based on analysis of professional negligence cases in the UK courts, had found that expert valuation witnesses do not always perform rationally, for example informing courts that valuations can be undertaken within acceptable tolerances of valuation accuracy, while giving expert evidence that differed by more than these tolerances. There was evidence that, while well aware of their overriding duty to the court or tribunal, expert witnesses were frequently producing client‐biased valuations. Such findings provoked questions as to whether standards would be improved by two recently proposed alterations to current practice: either the introduction of a system of compulsory training and accreditation for such witnesses, or a change from the process by which expert valuation evidence is normally presented (one expert witness for each party to a dispute) to the use of a single expert, appointed either by the parties jointly or by the court. A case analysis is performed and conclusions discussed.

Legal control of expert witness bias

2016 ◽  
Vol 21 (1-2) ◽  
pp. 69-78
Author(s):  
Mingxiao Du
Keyword(s):  
Legal System ◽  
Expert Witness ◽  
Dual Process ◽  
Expert Witnesses ◽  
Industry Standards ◽  
Analytic Process ◽  
Scientific Principles ◽  
Anglo American ◽  
American Legal System ◽  
The Individual

Impartiality of expert witnesses means that such experts operate within scientific principles and legal procedures. By doing so, they assist the trier of fact. There are two aspects to the requirements for the impartiality of expert witnesses: the individual perspective and the industry perspective. Each expert witness must follow individual standards, including avoiding irrelevant information affecting his or her opinions; applying reliable methods; employing reasonable analysis; and providing the findings in comprehensive reports (including a precise description of personal background and expert activity). They must also follow industry standards of forensic science regarding objective technical accessible demands, laboratory management and career management. Biased expert witnesses, however, will damage impartiality and impede the goal of assisting the trier of fact. Based on psychological theories such as dual process theory, authoritarian personality and intergroup threat, this paper classifies expert witness bias into four categories: (1) cognitive bias; (2) bias in the analytic process; (3) bias resulting from the position of the expert witness at trial; and (4) the social bias arising from social pressure or economic pressure. Because bias influences the relevance, credibility and impartiality of experts, steps should be taken to restrict certain categories of bias, which can be and must be controlled. Reflecting the differences between the Anglo-American legal system and the Chinese legal system, in China the bias of expert witnesses should be controlled in terms of actions, occupational management and independence of laboratories.

scholarly journals Improving expert evidence: the role of open science and transparency

2018 ◽  
Author(s):  
Jason Chin ◽  
Bethany Growns ◽  
David Thomas Mellor
Keyword(s):  
Open Science ◽  
Expert Witnesses ◽  
Evidence Based ◽  
Expert Evidence ◽  
Wrongful Convictions ◽  
Disclosure Requirements ◽  
Trial Judges ◽  
Evidence Law ◽  
Science Movement

Both science and expert evidence law are undergoing significant changes. In this article, the authors compare these two movements – the open science movement and the evidence-based evidence movement. The open science movement encompasses the recent discovery of many irreproducible findings in science and the subsequent move towards more transparent methods. The evidence-based evidence movement is the discovery that many forms of expert evidence are unreliable, and that they have contributed to wrongful convictions. The authors identify similarities between these movements, which suggest how courts and legal actors may learn from the open science movement to produce more accurate results. Expert witnesses should comport themselves as rigorous open scientists to produce evidence that is more susceptible to evaluation. Parties should be subjected to more specific and rigorous disclosure requirements because research has shown that even leading scientists find it easy to discount and suppress findings that do not support their hypotheses. And trial judges, as gatekeepers, should not defer to the generally accepted practices that have proven insufficient in the mainstream sciences.

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