Unisearch - Judicial attitudes towards expert evidence

By Dr Kristy Martire
PhD in Forensic Psychology UNSW, Master of Psychology (Forensic) UNSW, BA (hons)
Senior Lecturer, School of Psychology, University of New South Wales

Introduction

In 1999, on behalf of the Australian Institute of Judicial Administration, Dr Ian Freckelton, Dr Prasuna Reddy and Hugh Selby published Australian judicial perspectives on expert evidence: An empirical study. It was the first study to comprehensively survey the views of the Australian judiciary about expert evidence, however, the findings can no longer be considered current.

Judicial attitudes toward expert evidence was commissioned by Unisearch Expert Opinion Services to provide an up-to-date review of existing Australian and international empirical research examining judges’ perspectives towards expert evidence.

Only Australian studies published after 1999, and international studies published after 2010, have been reviewed in the report.

Executive summary

An extensive literature search found only two Australian studies conducted after 1999, and six international studies conducted after 2010.

International research came from the USA, Canada, Finland and Norway.

The review focuses on two key topics:

• factors that impress judges in the presentation of expert evidence, and
• factors that judges perceive to be problematic with expert evidence.

Factors that impress judges

Six papers examined judges’ perceptions of the impressive, persuasive or important elements of expert evidence.

In ranking order, the three factors that ranked highly on those dimensions were:

• the expert’s experience in the relevant field;
• good communication and clarity of explanation; and
• the usefulness and reliability of the testimony.

While there was considerable agreement in the perceptions of most elements of expert evidence across studies, there were some inconsistent results. Views on the expert’s academic qualifications; their experience as an expert witness; having publications in the relevant field; and whether the expert’s research was peer-reviewed were reported as impressive in some studies and unimpressive in others.

Factors judges perceive to be problematic

Four papers examined judges’ concerns about expert evidence. In ranking order, the two factors ranked most concerning were:

• biased expert practices (for example, in data gathering) and opinions; and
• poor cross-examination of experts and their evidence by counsel.

Other concerns that arose across multiple papers included use of complex language; poor communication abilities; and experts lacking the necessary qualifications or experience, and hence exceeding their expertise.

Click here to read the complete report and view a full list of references.