Cass R. Sunstein (Harvard Law School; Harvard Kennedy School) and Jessie Layman have posted On the Flawed Architecture of Expert Evidence on SSRN. Here is the abstract:
Courts often rely on expert witnesses to translate technical jargon and draw conclusions from complex evidence. Because of their epistemic disadvantages, factfinders are poorly equipped to evaluate the reliability of expert witness testimony. Instead, judges and juries tend to rely on cognitive shortcuts, deferring to an expert’s credentials, confidence, and delivery. Drawing on empirical research and insights from behavioral economics, this article demonstrates that these cues are imperfectly reliable proxies for judgment quality. Experts are noisier, more biased, and more overconfident than their qualifications might suggest. The gap between perceived and actual expert reliability can result in erroneous factfinding. This article proposes the adoption of a structured elicitation model to aggregate expert opinions to reduce bias, attenuate noise, and present uncertainty transparently to the trier of fact.
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