Goldstein, D. S., & Morgan, J. E. (2024).
Archives of clinical neuropsychology:
the official journal of the National Academy
of Neuropsychologists, acae104.
Advance online publication.
Abstract
How is it that practicing forensic neuropsychologists occasionally see substandard work from other colleagues, or more fundamentally, have such disparate opinions on the same case? One answer might be that in every profession, competence varies. Another possibility has little to do with competence, but professional conduct. In this paper we discuss the process by which retainer bias may occur. Retainer bias is a form of confirmatory bias, i.e., in assessment, the tendency to seek, favor, and interpret data and make judgments and decisions that support a predetermined expectation or hypothesis, ignoring or dismissing data that challenge that hypothesis ( Nickerson, 1998). The tendency to interpret data in support of the retaining attorney's position of advocacy may be intentional - that is, within conscious awareness and explicit, or it may be unintentional, outside of one's awareness, representing implicit bias. While some practitioners accept referrals from both sides in litigation, numerous uncontrollable factors converge in such a manner that one's practice may nevertheless become associated with one side. Such imbalance is not a reliable index of bias. With brief hypothetical scenarios, in this paper we discuss contextual factors that increase risk for retainer bias and problematic practice approaches that may be used to support one side in litigation, violating ethical principles, codes of conduct and guidelines for engaging in forensic work. We also discuss debiasing techniques recommended within the empirical literature and call on the subspecialty field of forensic neuropsychology to conduct research into retainer bias and other sources of opinion variability.
Here are some thoughts:
The article examines the concept of retainer bias in forensic neuropsychology, highlighting its ethical implications and the potential for biases to influence expert opinions in legal cases. Retainer bias is defined as a form of confirmatory bias, where forensic experts may unconsciously favor the position of the party that hires them, leading to skewed interpretations of data and assessments. This bias can manifest either explicitly, where the expert is aware of their partiality, or implicitly, where it operates outside their conscious awareness. The authors note that while some practitioners may accept referrals from both sides in litigation, various uncontrollable factors can still create an association with one side, which does not necessarily indicate bias.
The article points out that significant variability exists in forensic examiner opinions, suggesting that retainer bias may contribute to this inconsistency. For instance, studies have shown that prosecution-retained experts often assign higher risk scores to defendants compared to those retained by the defense. This disparity raises ethical concerns since forensic psychologists are expected to maintain impartiality and integrity in their evaluations. The authors emphasize the importance of recognizing the "bias blind spot," where clinicians are more likely to perceive bias in others than in themselves.
To address these ethical challenges, the article advocates for increased awareness of retainer bias among forensic neuropsychologists and suggests implementing debiasing techniques. It calls for further research into retainer bias and other forms of bias within the field to enhance the quality and reliability of forensic work. Ultimately, the authors stress that maintaining professional integrity is crucial for ensuring that contributions to legal proceedings are accurate and unbiased, thereby upholding the ethical standards of the profession.