Forensic investigation must be as thorough and objective as scientific research. Peer review in science ensures that the research is well done.
Unfortunately, peer review in forensic work is not carried out very often. And when it is there is a risk of bias in how it’s done. This in spite of strict civil procedure rules governing experts and their reports.
Peer review in science is a process of evaluating scientific work, by an expert or a group of experts in the related field. The scientific worker may or may not know the reviewer(s) – a blind peer review. Similarly, the reviewer may or may not know the worker. (after Ref. 1 and Dr. Google)
Bias, or unreasoned judgement, can be blatant, or it can be unintended, sneaking up on us out of the ether. (Refs 2, 3 and 4)
Getting rid of bias in peer review is essential to forensic investigation.
The penny dropped for me on a better way compared to current practice when I got an e-mail from a reader, Ruth Corbin, after she read a blog I posted on peer review. (Refs 5, 6) A quick reply to Dr. Corbin included my initial thoughts on how I think we can get rid of bias. These are bulleted below including some additional thoughts.
At present, experts investigate the cause of a problem. They write a report on their investigation and findings. The expert’s report goes to their client, the insurance claims adjuster or the civil litigation lawyer, and from there to the court or dispute resolution tribunal. The investigation and report are seldom peer reviewed. Except in a sense when they are rebutted by the expert for an opposing party.
Just how unbiased is the rebuttal report? If phraseology in some reports is any indication, not much.
(You’ve all seen this phraseology, I’m sure. Just to be really sure though, I’ll update this blog in future with some examples)
A peer review doesn’t have to be a crude denunciation or vetting of an expert’s work. We can get rid of blatant bias. We’re all here to serve the judicial and dispute resolution processes. Finding errors and omissions and fixing them serves that purpose.
A peer or rebuttal review a little closer to that in science would help, one that involves the expert as little as possible in the organizing of a peer review of his work. I think peer review procedures like the following will help, in decreasing order of preference:
- The court or tribunal retains the peer reviewer independent of the expert or his client. This in the spirit of peer review in the scientific community.
- All the experts engage in “hot-tubbing” session, give their evidence concurrently and agree a joint report. (Refs 2, 7)
- The lawyer or adjuster retains a peer expert to review his work. Because s/he wants a thorough and objective explanation of issues unfamiliar to the court or tribunal. But third in preference because the lawyer does have his interests.
- The expert retains a peer reviewer. Because she would like to think they have done thorough work and reasoned well, particularly in the more empirical applied sciences like some medical and engineering specialties. But fourth in preference because perception is everything in some fields of study. An expert hiring someone to check his work might not look good.
- The rebuttal expert peer reviews the expert’s work. I include this procedure because it’s a procedure that is sometimes followed. It can work if the rebuttal expert pushes back against bias.
- No peer review at all of any kind. The procedure assumes the expert’s work is thorough and objective and unbiased.
I believe the risk of bias is low when the court or dispute resolution tribunal arranges the peer review and high when the rebuttal expert does this.
We can get rid of some or almost all bias in peer review of forensic investigation and expert services. There are several methods for doing this. What we chose will reflect our commitment to change and what we’re prepared to accept. We’re accepting a lot of potential bias now.
- Merriam-Webster dictionary
- Biased experts cured with a soak in the “hot tub”. A blog posted January 31, 2017 at www.ericjorden.com/blog
- Expert witness forum looks at bias and other touchy subjects in forensic work. Posted March 8, 2018
- Are experts being broadsided by bias unbeknownst to them? Posted April 12, 2018
- A Bundle of Blogs: On the need for peer review in forensic engineering and expert services. Posted November 29, 2019
- Corbin, M.Sc., Ph.D., LL.D., Ruth M., Chair, Corbin Partners Inc, and Mediator, Corbin Estates Law, Toronto
- “Hot-tubbing” experts reduce the cost of civil litigation and ensure objectively. Posted March 31, 2018