The New Psychology of Expert Witness Procedure

Jason M Chin, Mehera San Roque and Rory McFadden (2020) "The new psychology of expert witness procedure" 42:1 Sydney Law Review 69.

43 Pages Posted: 24 Apr 2020 Last revised: 29 Dec 2020

See all articles by Jason Chin

Jason Chin

Sydney Law School

Mehera San Roque

University of New South Wales (UNSW) - Faculty of Law

Rory McFadden

University of Queensland - T.C. Beirne School of Law

Date Written: March 31, 2020

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

Suggested Citation

Chin, Jason and San Roque, Mehera and McFadden, Rory, The New Psychology of Expert Witness Procedure (March 31, 2020). Jason M Chin, Mehera San Roque and Rory McFadden (2020) "The new psychology of expert witness procedure" 42:1 Sydney Law Review 69., Available at SSRN: https://ssrn.com/abstract=3564796 or http://dx.doi.org/10.2139/ssrn.3564796

Jason Chin (Contact Author)

Sydney Law School ( email )

New Law Building, F10
The University of Sydney
Sydney, NSW 2006
Australia

Mehera San Roque

University of New South Wales (UNSW) - Faculty of Law ( email )

Kensington, New South Wales 2052
Australia

Rory McFadden

University of Queensland - T.C. Beirne School of Law ( email )

Forgan Smith Building (1)
The University of Queensland
St Lucia, Queensland 4072
Australia

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