The New Psychology of Expert Witness Procedure

Abstract

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 behavioral ethics and meta-science 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 meta-scientific and behavioral 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.

Keywords: Expert Evidence, Expert Witness Code of Conduct, Meta-science, Meta-research, Evidence Law, Expert Witness Procedure, Nudges, Open Science

JEL Classification: K10, K14