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Tuesday, August 14, 2012

“Hired guns,” “charlatans,” and their “voodoo psychobabble”: Case law references to various forms of perceived bias among mental health expert witnesses.

By Edens, John F.; Smith, Shannon Toney; Magyar, Melissa S.; Mullen, Kacy; Pitta, Amy; and Petrila, John
Psychological Services, Vol 9(3), Aug 2012, 259-271.

Abstract

Although in principle the legal system expects and professional ethics demand that expert witnesses be unbiased and objective in their forensic evaluations, anecdotal evidence suggests that accusations of financial bias, partisanship, and other forms of nonobjectivity are common. This descriptive survey of published legal cases expands on an earlier case law review (Mossman, 1999) attempting to encapsulate and summarize key issues concerning perceptions or allegations of bias in mental health expert witness testimony. Using a series of search terms reflecting various potential forms of accusatory bias, a total of 160 published civil and criminal court cases were identified in which 185 individuals (e.g., attorneys, trial and appellate judges, other witnesses) made one or more references to clinicians' alleged lack of neutrality. Allegations most typically involved describing the expert as having an opinion that was “for sale,” or as a partisan or advocate for one side, although aspersions also were made concerning “junk science” testimony and comparing mental health experts to mystics and sorcerers. Our results indicate that diverse forms of bias that go beyond financial motives are alleged against mental health experts by various players in the legal system. Means are discussed by which experts can attempt to reduce the impact of such allegations.

Here are two excerpts:
It should not be surprising that wholesale acceptance of mental health expertise as accurate and neutral is hardly the norm.

Clearly, some judges, attorneys, academics, and jurors view at least some mental health experts-if not the entire field-with a considerable degree of suspicion (Fradella, Fogarty, & O'Neill, 2003), if not overt distain and/or hostility.
and
In terms of putative sources of examiner bias, several forms have been suggested as potentially undermining examiner objectivity (e.g., Saks, 1990).

Perhaps the most pernicious is that opinions are for sale. It is commonly alleged that monetary incentives primarily (or completely) motivate the testimony offered by witnesses characterized as "'hired guns,' 'whores,' and 'prostitutes'" (Mossman, 1999, p. 414).

Although being for sale is frequently lodged as a criticism of expert testimony, allegations of other forms of bias may spring from perceptions that the expert has a particular personal, political, or scientific "ax to grind" in relation to a specific legal issue.

Evidence of advocacy for one's pet cause(s)--whether it is championing a particular examinee's case, the rights of fathers in child custody disputes, or a novel or controversial psychological syndrome (to name but a few possibilities)--may be justifiable grounds for questioning an examiner's objectivity and fairness as well.
For reprint requests, comments, or questions: John F. Edens, Department of Psychology, Texas A&M University, 4235 TAMU, College Station, TX 77843; Contact johnedens@tamu.edu

Thanks to Ken Pope for this information.