Crossing the Line: Daubert, Dual Roles, and the Admissibility of Forensic Mental Health Testimony

Gordon, S. G. (2016).

SSRN Electronic Journal.

Scholarly Works. 969.

Link is here.

Abstract

Psychiatrists and other mental health professionals often testify as forensic experts in civil commitment and criminal competency proceedings. When an individual clinician assumes both a treatment and a forensic role in the context of a single case, however, that clinician forms a dual relationship with the patient—a practice that creates a conflict of interest and violates professional ethical guidelines. The court, the parties, and the patient are all affected by this conflict and the biased testimony that may result from dual relationships. When providing forensic testimony, the mental health professional’s primary duty is to the court, not to the patient, and she has an obligation to give objective and truthful testimony. But this testimony can result in the patient’s detention or punishment, a legal outcome that implicates the mental health professional’s corresponding obligation to “do no harm” to the patient. Moreover, the conflict of interest created by a dual relationship can affect the objectivity and reliability of forensic testimony.

A dual clinical and forensic relationship with a single patient is contrary to quality patient care, and existing clinical and forensic ethical guidelines strongly discourage the practice. Notwithstanding the mental health community’s general consensus about the impropriety of the practice, many courts do not question the mental health professional’s ability to provide forensic testimony for a patient with whom she has a simultaneous clinical relationship. Moreover, some state statutes require or encourage clinicians at state-run facilities to engage in these multiple roles. This Article argues that the inherent conflict created by these dual roles does not provide a reliable basis for forensic mental health testimony under Federal Rule of Evidence 702 and should not be admitted as reliable expert testimony by courts. Because dual relationships are often initiated due to provider shortages and the unavailability of neutral forensic examiners, this Article will also discuss the use of telemedicine as a way to provide forensic evaluations in underserved areas, especially those where provider shortages have prompted mental health professionals to engage in dual clinical and forensic roles. Finally, this Article argues that courts should exercise their powers more broadly under Federal Rule of Evidence 706 to appoint neutral and independent mental health experts to conduct forensic evaluations in civil commitment and criminal competency proceedings.

Here are some thoughts:

The article explores the ethical and legal complexities surrounding mental health professionals who serve in dual roles—both as clinicians and forensic evaluators. The article highlights how these dual relationships can compromise objectivity and reliability in forensic testimony, a concern widely recognized within the psychiatric and psychological communities. Despite professional ethical codes discouraging such practices, courts often fail to exclude testimony from clinicians offering forensic opinions about their own patients. This inconsistency is particularly problematic under the Daubert standard, which mandates that trial judges act as gatekeepers to ensure expert testimony is both relevant and reliable. The piece argues that violating professional ethical norms—such as those against dual relationships—should be considered when evaluating the admissibility of forensic mental health testimony, especially since these violations are seen as markers of unreliability by the relevant scientific community. Additionally, the article touches on the practical implications of these dual role dilemmas, including the impact on patient care, legal outcomes, and the integrity of the judicial process. It concludes with a call for courts to take professional ethics more seriously when assessing the admissibility of expert testimony in forensic mental health cases.

A General Model of Cognitive Bias in Human Judgment and Systematic Review Specific to Forensic Mental Health

Neal, T. M. S., Lienert, P., Denne, E., & 

Singh, J. P. (2022).  

Law and Human Behavior, 46(2), 99–120.

https://doi.org/10.1037/lhb0000482

Abstract

Cognitive biases can impact experts’ judgments and decisions. We offer a broad descriptive model of how bias affects human judgment. Although studies have explored the role of cognitive biases and debiasing techniques in forensic mental health, we conducted the first systematic review to identify, evaluate, and summarize the findings. Hypotheses. Given the exploratory nature of this review, we did not test formal hypotheses. General research questions included the proportion of studies focusing on cognitive biases and/or debiasing, the research methods applied, the cognitive biases and debiasing strategies empirically studied in the forensic context, their effects on forensic mental health decisions, and effect sizes.

Public Significance Statement

Evidence of bias in forensic mental health emerged in ways consistent with what we know about human judgment broadly. We know less about how to debias judgments—an important frontier for future research. Better understanding how bias works and developing effective debiasing strategies tailored to the forensic mental health context hold promise for improving quality. Until then, we can use what we know now to limit bias in our work.

From the Discussion section

Is Bias a Problem for the Field of Forensic Mental Health?

Our interpretation of the judgment and decision-making literature more broadly, as well as the results from this systematic review conducted in this specific context, is that bias is an issue that deserves attention in forensic mental health—with some nuance. The overall assertion that bias is worthy of concern in forensic mental health rests both on the broader and the more specific literatures we reference here.

The broader literature is robust, revealing that well-studied biases affect human judgment and social cognition (e.g., Gilovich et al., 2002; Kahneman, 2011; see Figure 1). Although the field is robust in terms of individual studies demonstrating cognitive biases, decision science needs a credible, scientific organization of the various types of cognitive biases that have proliferated to better situate and organize the field. Even in the apparent absence of such an organizational structure, it is clear that biases influence consequential judgments not just for laypeople but for experts too, such as pilots (e.g., Walmsley & Gilbey, 2016), intelligence analysts (e.g., Reyna et al., 2014), doctors (e.g., Drew et al., 2013), and judges and lawyers (e.g., Englich et al., 2006; Girvan et al., 2015; Rachlinski et al., 2009). Given that forensic mental health experts are human, as are these other experts who demonstrate typical biases by virtue of being human, there is no reason to believe that forensic experts have automatic special protection against bias by virtue of their expertise.

The research is here.