Improving Expert Evidence: The Role of Open Science and Transparency
46 Pages Posted: 25 Mar 2019 Last revised: 2 Jan 2021
Date Written: February 5, 2019
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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