August 9, 2012

Mental health expert witnesses slammed in court

A pint-sized hired gun
Are accusations of bias on the rise?

Hired gun.

It's every expert witness's worst nightmare. Vitriolic accusations of bias hurled at us on the witness stand, just because the cross-examining attorney doesn't like our opinion, or we have the audacity to charge for our services. (Have you heard of auto mechanics, plumbers or attorneys being called "whores" because they don't work for free?)

Unfortunately, it goes with the territory.

Now, a group of psychologists has tried to figure out just how big a part of the legal landscape accusations of bias against mental health expert witnesses are. The researchers scoured the LexisNexis legal database for insinuations of bias, with an eye to quantifying and categorizing the name-calling. In an article just published online in the journal Psychological Services, prominent forensic psychologists John Edens and John Petrila and four colleagues divided accusations of bias into five major categories:
    Starting with a list of 46 different ways of calling an expert biased, the authors searched and found 160 legal cases in which attorneys and judges made disparaging comments about forensic mental health experts. In these cases, 185 individual case participants made a total of 245 separable statements asserting a lack of objectivity and impartiality among mental health experts and/or the fields of psychology and psychiatry more generally.
    • FOR SALE: In the largest category, 28 percent of the total, experts were disparaged as financially biased (e.g., "hired guns" or "prostitutes").

    • PARTISANSHIP: Following close behind, with 27 percent  of cases, were accusations of advocacy, or having an "axe to grind."

    • PSEUDOSCIENCE: About 14 percent of cases involved accusations of non-scientific testimony (e.g., "charlatans" or "junk science").

    • MYSTICISM: Psychologists and psychiatrists were accused of babbling nonsense (e.g., "witch doctor," "voodoo" or "hocus pocus") in 6 percent  of the cases.

    • NONSPECIFIC BIAS: About one fourth, or 24 percent, of cases involved nonspecific accusations or other types of allegations of bias. 
    Interestingly, in more than a fourth of the cases, the disparaging comments were a basis for an appeal, typically by the defense calling foul over prosecutorial slurs against mental health experts. Such appeals were relatively unsuccessful, with only 18 percent of cases being reversed in part due to on-the-record accusations of expert bias. All of the successful appeals were in criminal trials, eight involving sanity or diminished capacity. 

    Uptick in nasty name-calling?

    Similar to a 1999 study by Doug Mossman, which was the only other known study to look at this issue, the researchers noticed a steady upward trend in disparaging comments in more recent years.

    It might be tempting to get depressed by this study, which at first blush seems to validate what we all know and fear. However, if we think about it, the results could be seen as mildly encouraging.

    First of all, if a thorough search of the massive LexisNexis database could locate only 160 cases, then blatant accusations of bias may be rarer than we think.

    Secondly, there are a heck of a lot more expert witnesses in court these days than ever before. Courts and attorneys increasingly rely on forensic psychologists and psychiatrists to assist in a wide range of psycholegal areas, from child custody to tort damages to criminal sentencing and civil commitment. As well, we are increasingly called upon to explain broader social science research, such as the accuracy of eyewitness identification, to judges and juries. So, as the authors acknowledge, any increase in accusations of bias could just be an artifact of our growing presence in court.

    Third, and perhaps most importantly, there really are hacks and quacks, charlatans and hired guns among are ranks. The methodology of the current study did not enable analysis of whether the accusations of partiality or bias were legitimate. In other words, attorneys may not have been just engaging in legal gamesmanship in some of these cases; they might have been righteously upset over actual bias or pseudoscientific methodology on the part of forensic psychologists or psychiatrists.

    Hopefully, that's a study someone else will take up on another day.

    For now, we're left with a couple of take-home messages:

    First, this is not a field for the thin-skinned. We must steel themselves to have our objectivity challenged, sometimes very rudely and without basis.

    More fundamentally, assuming that these accusations are tapping into popular perceptions and prejudices, forensic professionals need to work harder to reduce both actual bias and the perception of bias in our work.

    The articles are:

    " 'Hired Guns,' 'Charlatans,' and Their 'Voodoo Psychobabble': Case Law References to Various Forms of Perceived Bias Among Mental Health Expert Witnesses" by John F. Edens, Shannon Toney Smith, Melissa S. Magyar, Kacy Mullen, Amy Pitta and John Petrila, Psychological Services, 2012. 

    " 'Hired Guns,' 'whores,' and 'prostitutes': Case law references to clinicians of ill repute" by Doug Mossman, Journal of the American Academy of Psychiatry and the Law, 1999. 


    researcherone said...

    Apparently, the truth means nothing, and those who provide it with evidential support, logic and rational thinking are bullied and/or condemned when the truth they provide is undesirable. Is there no way for mental health experts to fight this sort of treatment when it happens?

    When I try to distinguish pathology from criminality, most people seem oblivious. References like "quack" and "phony" represent, to them, logical and conclusive ideals of those who present and explain a truth that either (1) goes over the layperson's head or (2) contradicts the "facts" or assumptions believed by said layperson.

    This scenario is not restricted to the mainstream public, however. One time, I witnessed an accident and was asked to provide testimony. The good citizen I was, I agreed. A few minutes into into my description of the events, the one lawyer began ignoring my commentary and took over the conversation. This guy obviously didn't like what I had to say and shut me out. Needless to say, I was not called into court to testify on the case.

    And I was only a casual witness, not a professional expert.

    Another time, I was on a discussion forum, conversing with a man who claimed to be a legal professional. I provided a lengthy and well-delineated explanation as to the nature of an adult male's attraction to adolescents and how that attraction is not pathological. I even provided a number of reputable links (yours among them) to substantiate my claims. He came back an adamantly disagreed, saying that his experience has taught him that such behavior "was not ok". I replied that I had never said such behavior "was ok," only that it wasn't pathological. Apparently, this supposed legal expert couldn't distinguish between pathology and crime, or somehow erroneously equated the two. I never heard back from him.

    Are those in the legal profession taught about mental pathology in law school? Such study would indeed seem a prudent consideration.

    Was I in error? I guess the only mistake I made was sharing a supported perspective that he didn't want to hear. People can get quite testy when their beliefs are challenged.

    Roy Aranda said...

    What about situations in which an expert made comments about the "quality" of another expert's findings or methods, even coming close to suggesting that the other expert's conduct may cross ethical boundaries?

    Consistent with the third conclusion, "Third, and perhaps most importantly, there really are hacks and quacks, charlatans and hired guns among are ranks," there really are experts who rely on outdated methods and assessments that are not valid in a given situation or type of case. And misuse statistics, use dated norms, and use incorrect comparison groups, wrong baselines, etc. See The American Psychological Association's (APA) Ethical Principles of Psychologists and Code of Conduct (Ethics Code): Standard 9.02(a), "Psychologists administer, adapt, score, interpret or use assessment techniques, interviews, tests or instruments in a manner and for purposes that are appropriate in light of the research on or evidence of the usefulness and proper application of the techniques"; and (b), "Psychologists use assessment instruments whose validity and reliability have been established for use with members of the population tested. When such validity or reliability has not been established, psychologists describe the strengths and limitations of test results and interpretation."

    Many fail to consider cultural and diversity-based differences. Some have interpreters spontaneously translate a test from English into the examinee's native language, or persist in performing an examination with a non-English dominant examinee in English without considering the impact on the findings and failing to mention anything about language dominance and competence and limitations on the validity of the conclusions. See Ethics Code: Principle E, "Psychologists are aware of and respect cultural, individual and role differences, including those based on age, gender, gender identity, race, ethnicity, culture, national origin, religion, sexual orientation, disability, language and socioeconomic status and consider these factors when working with members of such groups. Psychologists try to eliminate the effect on their work of biases based on those factors, and they do not knowingly participate in or condone activities of others based upon such prejudices"; and Standard 9.02(c), "Psychologists use assessment methods that are appropriate to an individual's language preference and competence, unless the use of an alternative language is relevant to the assessment issues."

    Some forget to mention in their reports or on the stand how a records-only examination may pose limitations in validity. See Ethics Code: Standard 9.01(b), "... clarify the probable impact of their limited information on the reliability and validity of their opinions and appropriately limit the nature and extent of their conclusions or recommendations."

    Clearly, not all of these situations arise during expert testimony and accusations are not "flying all over the place." But there are instances in which an expert may have used terms such as "inappropriate" and choice terms other than those in the "list of 46 different ways of calling an expert biased" noted in the article to refer to another expert or his or her work product.

    So, it is not just attorney and judges, but our own peers. And given the legitimacy suggested in the third conclusion, perhaps this is a good thing. A problem of course, is ferreting out false positives from true positives.

    Roy Aranda, Psy.D., J.D.
    NY & Long Island

    Karen Franklin, Ph.D. said...

    Dr. Aranda,
    Thanks for this commentary. I agree with you that the topic is complex and that, given the power that the legal system has handed over to forensic psychology and psychiatry, vigorous scrutiny of our opinions and conduct can be a very good thing.