The New Psychology of Expert Witness Procedure by Jason Chin & others [2020] Sydney Law Review 3 is an interesting discussion on whether procedural reforms can effectively regulate expert witnesses.
The authors make a case in favour of procedural reforms. They say that 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 as pro forma requirements.
In their conclusion the authors caution:
First, we do not mean to suggest that expert procedure is a silver bullet in ensuring factual rectitude. Yes, procedure may encourage experts to be transparent about the weaknesses of their methods (for example, codes of conduct) and control some biases that were not previously controlled (for example, preregistration). But even an expert who discloses some of his or her opinion’s weaknesses may still strongly hold to that opinion in a way that is persuasive to the factfinder.[193]
Second, the effectiveness of codes can be undermined by failures of counsel to take advantage of the tools offered, as well as countervailing procedural reforms that may discourage comprehensive reporting.[194] These countervailing trends create barriers and disincentives for parties, and anecdotally raise the possibility of higher costs being imposed on defendants and their representatives who request more comprehensive reporting.[195]
Third, there is the applied shortcoming that we saw in Chen and its progeny whereby, despite the critical outward posture adopted towards the partisan expert, courts are reluctant to enforce codes of conduct (and this often occurs in the criminal context).[196] Indeed, beyond the codes of conduct cases we discussed above, Australian courts have been careful to note that even serious questions of bias go to the weight, rather than the admissibility, of the evidence.[197] Similarly, expert procedures can be circumvented when witnesses are characterised as providing lay opinion or ‘ad hoc’ expert opinion based on repeated exposure to case-specific facts.[198]
With thanks to the Barnold Law site for noting this article.