Revisiting Daubert: Judicial Gatekeeping and Expert Ethics in Court

Young, G., Goodman-Delahunty, J.

Psychol. Inj. and Law (2021). 

https://doi.org/10.1007/s12207-021-09428-8

Abstract

This article calls for pragmatic modifications to legal practices for the admissibility of scientific evidence, including forensic psychological science. We submit that Daubert v. Merrell Dow Pharmaceuticals, Inc. (1993) and the other two cases in the U.S. Supreme Court trilogy on expert evidence have largely failed to accomplish their gatekeeping goals to assure the reliability of scientific evidence admitted in court. Reliability refers to validity in psychological terms. Part of the problem with Daubert’s application in court is the gatekeeping function that it ascribes to judges. Most Daubert admissibility challenges are rejected by judges, who might lack the requisite scientific expertise to make informed decisions; educating judges on science might not be an adequate solution. Like others who have put forth the idea, pursuant to Federal Rule of Evidence (FRE) 706, we suggest that court-appointed impartial experts can help judges to adjudicate competing claims on admissibility. We further recommend that an expert witness ethics code sworn to in legal proceedings should be mandatory in all jurisdictions. The journal Psychological Injury and Law calls for comments and further recommendations on modifying Daubert admissibility challenges and procedures in civil and criminal cases to develop best practices to mitigate adversarial allegiance and other unconscious biases in expert decision-making.

Advantages of an Expert Witness Ethics Code Sworn to in Legal Proceedings

We suggest that in the field of psychological injury, jurisdictions in which courts reinforce expert obligations via an ethics code for expert witnesses will lead to more balanced and impartial testimony. The essential principle guiding a science-based expert witness ethics code sworn to in legal proceedings is that the process of forensic assessment, as well as the subsequent proffer of testimony in court based on those assessments, should account for all the reliable evidence gathered in a particular case as determined by methodologies informed by scientific research in the relevant field.  This recommendation is in line with psychological research showing that expert bias is reduced when experts do not focus on a single question or hypothesis, but address a “line up” of competing and alternative conclusions and hypotheses (Dror, 2020). The components of the expert witness oath, like the appointment of a court-appointed expert, encourage experts to adopt a differential diagnosis approach, in which all different conclusions and their probability are presented, rather than one conclusion (Dror, 2020). Opinions, interpretations, and conclusions based on the data, information, and evidence will more likely be impartial, fully scientifically informed, and just.

The full article is here, behind a paywall.

Why Facts Don’t Unify Us

By Tali Sharot and Cass Sunstein
The New York Times
Originally published September 2, 2016

Here is an excerpt:

These findings help explain polarization on many issues. With respect to the Affordable Care Act, for example, people encounter good news, to the effect that it has helped millions of people obtain health insurance, and also bad news, to the effect that health care costs and insurance premiums continue to increase. For the act’s supporters, the good news will have far more impact than the bad; for the opponents, the opposite is true. As the sheer volume of information increases, polarization will be heightened as well.

Essentially the same tale can be told with respect to immigration, terrorism, increases in the minimum wage — and candidates for the highest office in the land. Voters are now receiving a steady stream of both positive and negative information about Hillary Clinton and Donald J. Trump. Which kind of news will have a large impact will depend partly on people’s motivations and initial convictions.

But there’s an important qualification. In our experiment, a strong majority showed movement; few people were impervious to new information. Most people were willing to change their views, at least to some extent.

The article is here.

Psychological Science's Replicability Crisis and What It Means for Science in the Courtroom

By Jason Michael Chin
Journal of Psychology, Public Policy, and Law (Forthcoming)

Abstract:  
 
In response to what has been termed the “replicability crisis,” great changes are currently under way in how science is conducted and disseminated. Indeed, major journals are changing the way in which they evaluate science. Therefore, a question arises over how such change impacts law’s treatment of scientific evidence. The present standard for the admissibility of scientific evidence in federal courts asks judges to play the role of gatekeeper, determining if the proffered evidence conforms with several indicia of scientific validity. The alternative legal framework, and one still used by several state courts, requires judges to simply evaluate whether a scientific finding or practice is generally accepted within science.

This Essay suggests that as much as the replicability crisis has highlighted serious issues in the scientific process, it has should have similar implications and actionable consequences for legal practitioners and academics. In particular, generally accepted scientific practices have frequently lagged behind prescriptions for best practices, which in turn affected the way science has been reported and performed. The consequence of this phenomenon is that judicial analysis of scientific evidence will still be impacted by deficient generally accepted practices. The Essay ends with some suggestions to help ensure that legal decisions are influenced by science’s best practices.

Download the essay here.