How clear is transparent? Reporting expert reasoning in legal cases

Abstract

Experts providing evidence in legal cases are universally recommended to be transparent, particularly in their reasoning, so that legal practitioners can critically check whether the conclusions are adequately supported by the results. However, when exploring the practical meaning of this recommendation it becomes clear that people have different things in mind. The UK appeal court case R v T painfully exposes the different views. In this article we argue that there can be a trade-off between clarity and transparency, and that in some cases it is impossible for the legal practitioner to be able to follow the expert's reasoning in full detail because of the level of complexity. All that can be expected in these cases is that the legal practitioner is able to understand the reasoning up to a certain level. We propose that experts should only report the main arguments, but must make this clear and provide further details on request. Reporting guidelines should address the reasoning in more detail. Legal practitioners and scientists should not be telling each other what to do in the setting of a legal case, but in other settings more discussion will be beneficial to both. We see the likelihood ratio framework and Bayesian networks as tools to promote transparency and logic. Finally, we argue that transparency requires making clear whether a conclusion is a consensus and reporting diverging opinions on request. © The Author [2012]. Published by Oxford University Press. All rights reserved.