Judging Surveys: Experts, Empirical Evidence and Law Reform

Published date01 March 2005
Date01 March 2005
DOIhttp://doi.org/10.22145/flr.33.1.4
Subject MatterArticle
ORIGINALISM IN CONSTITUTIONAL INTERPRETATION JUDGING SURVEYS: EXPERTS, EMPIRICAL EVIDENCE AND
LAW REFORM
Gary Edmond*
1 INTRODUCTION
This article examines the conduct of empirical legal research and its relationship to law
reform. Through a detailed analysis of the largest survey of State and federal judges
conducted in Australia it explores some of the limits to empirical investigation,
particularly the tendency to rely primarily on judicial perspectives as the basis for law
reform. Focusing upon empirical legal research on the subject of expert evidence the
article initially examines research methodologies, then extends the analysis to consider
the correspondence between the collection, interpretation and presentation of
empirical data and recommendations for legal change. This involves an assessment of
a broad range of methodological and theoretical issues with implications extending
well beyond the particular survey. Last, the empirical research on expert evidence will
be evaluated using the principal reform proposal suggested by the investigators. This
exercise will provide an indication of methodological problems which beset the survey
and demonstrate practical limitations with the particular approach to expertise.1
Australian Judicial Perspectives on Expert Evidence: An Empirical Study and Australian
Magistrates' Perspectives on Expert Evidence: A Comparative Study report the results of
empirical studies of judicial and magistrates' attitudes to experts and expert evidence
in Australian legal settings.2 In the ensuing analysis the principal findings from
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* Faculty of Law, The University of New South Wales, Sydney 2052, Australia. E-mail:
. Earlier versions of this paper were presented in a special
session on 'Science and Law' at the Australasian Association for the History, Philosophy
and Social Studies of Science Annual Conference 2003, University of Melbourne, 30 June – 3
July 2003, at the Staff Seminar Series, Faculty of Law, University of Newcastle, August 2003
and at the 21st Annual Law and Society Conference, University of Newcastle, 8–10
December 2003. The author would like to thank those who commentated on drafts, along
with the referees and editors.
1 Similar issues arise in relation to the recent reforms to Federal Court and NSW Supreme
Court procedures: Practice Direction: Guidelines for Expert Witnesses in Proceedings in the
Federal Court of Australia 2003 (Cth) and the 'Expert Witness Code of Conduct' in the
Supreme Court Rules 1970 (NSW) sch K.
2 Ian Freckelton, Prasuna Reddy and Hugh Selby, Australian Judicial Perspectives on Expert
Evidence: An Empirical Study (1999) and Ian Freckelton, Prasuna Reddy and Hugh Selby,
Australian Magistrates' Perspectives on Expert Evidence: A Comparative Study (2001). This
article is primarily focused on the survey of judges, though most of the comments are

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Australian Judicial Perspectives on Expert Evidence (hereafter 'Perspectives' or the 'Report')
will be reviewed. In exposing problematic assumptions and questionable
methodological practices associated with the research project this article aims to re-
assess several of the principal, and widely endorsed, findings. Specifically, it questions
the empirical basis for the following claims:
1. That bias is the most serious problem with expert evidence.
2. That problems with expert evidence warrant the reform of existing rules and
procedures.
3. That judicial officers (and the public) are in favour of immediate and/or
fundamental law reform.
4. That the proposed Declaration (or similar reforms) will relieve problems attributed
to expert bias or partisanship.
2
PERSPECTIVES: AN OVERVIEW
This section provides a succinct overview of the survey, its origins, findings and
recommendations.
A Background
The survey of Australian judges emerged from concern with the limited amount of
information about the views of judges on the role played by expertise in Australian
legal systems.3 Conducted under the auspices of the Australian Institute of Judicial
Administration (AIJA), the study was intended to remedy this deficiency.
B Methodology
Perspectives focuses on the opinions of Australian judges (and magistrates):
Judges are in a unique position to contribute an informed perspective on the way in
which expert witnesses function within the adversary system. However, until now
comparatively little has been known about the views of judges in Australia or
internationally in relation to expert evidence and expert witnesses. 4
All other perspectives are marginalised.5
Prior to distribution the investigators developed a prototype survey and conducted
a pilot study. A revised instrument was distributed by mail to all Australian judges,
with the AIJA formally endorsing the project through the provision of a covering-
letter. The authors of the Report are a barrister (Freckelton), an academic psychologist
(Reddy) and a legal academic (Selby). Their combination facilitates, in conjunction with
the dearth of extant materials, the presentation of the results as a timely and
comprehensive interdisciplinary study.6
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applicable to the subsequent survey of magistrates. References to Australian Judicial
Perspectives are abbreviated as 'AJP'.
3
AJP, above n 2, 16.
4
Ibid.
5 The reader is told that the opinions of other participants will be examined at some future
stage.
6
AJP, above n 2, xi–ii.

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The Report presents the results of the survey of Australian judges. Slightly more
than 50 per cent of Australian judges (51%, n=478) responded.7 The investigators
expressed a primary interest in judges with trial experience as judges. This, they
suggest, raises the response rate closer to 60 per cent. The questionnaire adopts the
form of a multiple-choice survey with some space allocated for written comments.
Several questions requested elaboration or greater specificity.8 The survey was
anonymous and the quantified data are presented as the empirical basis for the
findings in the Report.
C Survey
findings
According to the Report, the 'three key outcomes' are: 'a recognition by judges of the
value of clarity of explanation, a quest for reliability in both opinions and their
proponents, and a desire that the courtroom be a truly effective accountability forum'.9
These results are consistent with the authors' espoused desire to improve the standard
of expert evidence appearing in courts. Having affirmed the (increasing) importance of
expertise in modern litigation the Report identifies a range of serious problems
disrupting contemporary practice. Chief among these problems is 'bias': 'witness
partisanship [is] the issue that most troubles Australian judges in relation to expert
evidence'.10 Though, complexity, comprehension, communication, advocacy and the
lay jury, to varying degrees, also warrant attention.
The prominence of problems with expert evidence, particularly problems attributed
to bias, lead the authors to recommend immediate law reform.
D Reform
Implications
On the basis of the survey results Perspectives advances law reform. Changing the
'culture of partiality' among experts and eliminating bias are at the forefront of the
recommendations.
Having empirically established the existence of a range of serious problems, the
Report is perhaps disappointing in the number, variety and originality of
recommendations. Confronted with partisan expert culture, serious communication
and comprehension difficulties, routine exposure to complex evidence and a lack of
preparation and skill by advocates, the actual proposals might be considered quite
modest in their compass. They include: requiring experts to make a formal
declaration—substantially similar to a range of recent reforms adapted from the
English modifications to civil procedure by several Australian jurisdictions; some
further (informal) mechanisms for training lawyers and experts; and greater recourse
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7
Ibid 1.
8
This article does not attempt to systematically analyse the judicial comments collected with
the questionnaire. Primarily because: the multiple-choice questions and answers appear to
be the principal basis for the empirical assertions in the text, and the basis for all numerical
claims; the comments are not available to readers whereas the assessment of the prefigured
responses and data provide materials which are readily accessible; and finally because
there is no obvious methodology associated with the presentation of judicial comments. In
general, the comments are used to confirm or reinforce, and occasionally qualify, results.
We are not always told how representative particular comments are, nor how many judges
actually produced written comments (to particular questions).
9
AJP, above n 2, 7.
10 Ibid 38.

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to audiovisual technologies. The expert Declaration, however, is the only...

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