Expert Reliability in Legal Proceedings: “Eeny, Meeny, Miny, Moe, With Which Expert Should We Go?”

Abstract

Between Expert Reliability refers to the extent to which different experts examining identical evidence make the same observations and reach the same conclusions. Some areas of expert decision making have been shown to entail questions with relatively low Between Expert Reliability, but the disagreement between experts is not always communicated to the legal actors forming decisions on the basis of the expert evidence. In this paper, we discuss the issues of Between Expert Reliability in legal proceedings, using forensic age estimations as a case study. Across national as well international jurisdictions, there is large variation in which experts are hired to conduct age estimations as well as the methods they use. Simultaneously, age estimations can be fully decisive for outcomes e.g. in asylum law and criminal law. Using datasets obtained from the Swedish legal context, we identify that radiologists and odontologists examining knees or teeth images to estimate age seem to disagree within their own disciplines (radiologist 1 v. radiologist 2 or odontologist 1 v. odontologist 2) as well as across different disciplines (radiologist v. odontologist) relatively often. This may have large implications e.g. in cases where only one expert from the respective field is involved. The paper discusses appropriate ways for legal actors to deal with the possibility of lacking Between Expert Reliability. This is indeed a challenging task provided that legal actors are legal experts but not necessarily scientific experts.

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