Admitting scientific expert evidence in the UK: reliability challenges and the need for revised criteria – proposing an Abridged Daubert

Abstract

Purpose – Expert evidence is a contentious area with a number of high profile cases highlighting unreliable “scientific” expert evidence, leading to appeals and acquittals. The purpose of this paper is to argue for improvement in the assessment of expert evidence reliability to avoid such difficulties. Design/methodology/approach – A review of the area focused on the history of developing legal criteria for admitting “scientific” evidence. It examined the benefits and difficulties of approaches, and proposes an amendment to criteria for increased transparency and evidenced decision making. Findings – The review indicated a range of difficulties with “expert” evidence admissibility, including inconsistency, an over-focus on narrow elements of evidence, difficulties in interpretation, and the potential to unfairly restrict evidence. An alternative to current approaches is proposed. This takes the form of a two-stage approach to consider whether or not to admit expert evidence. It comprises a preparation and an examination stage. The former seeks to critically review the evidence and define its nature. The latter applies two sets of criteria; a Daubert application for generally accepted physical sciences, and proposes an Abridged-Daubert for novel and social/behavioural sciences. Also proposed is increased involvement by experts in critically reviewing their own evidence and in providing statements of limitations. Practical implications – The paper concludes by outlining the importance of developing such an approach for the UK legal system. It focuses on the application of specific criterion which could assist both Courts and witnesses to evaluate the quality of evidence prior to submission by accounting for the nature of the opinion evidence provided. Originality/value – The paper outlines a practical approach to examining evidence which has benefit to practitioners and advocates when opinion evidence is outlined.

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