The Question of Bias for Expert Witnesses
Edward R. Murrow
Everyone is a prisoner of his own experiences. No one can eliminate prejudices—just recognize them.
NATURE OF BIAS
Murrow’s wry comment captures the universality of bias and its inescapable nature. His view is predictably supported by the theories of dynamic psychiatry that hold, among other matters, that the human unconscious is a powerful force in ordinary mentation and that it is primitive in its “views.” The largest barrier to acceptance of human diversity is the deep-seated, prejudice-laden worldview of our own ids.
Forensic experts are often accused of bias in the narrow sense of being biased by the side that is paying them; if true, this situation defines that of the “hired gun.” All expert witnesses are hired by someone—a litigant, an attorney, the court, or an institution—but the hired gun is defined as an expert who sells testimony rather than time. That is, the hired gun is willing to subjugate his or her opinion to the needs of the retaining attorney regardless of the facts or principles that apply to the actual case.
Some scholars have suggested that bias is not the major problems in forensic testimony; rather it is the expert’s ignorance of the professional literature, of existing validated instruments and of empirical work in related fields (anonymous reviewer in reference 1).
These latter deficits are viewed as more important distorting factors and greater sources of error in expert testimony (2, p. 261).
Despite these truths, the expert may be aided by the following exploration of a taxonomy of bias, as it were; that is, an identification of possible sources of bias for expert witnesses. Awareness of these sources may serve as an alerting mechanism for the expert who is considering taking on a case.
In an earlier communication (2) a distinction was made between what might be termed external and internal sources of potential bias. External sources are those resulting from pressures coming outside the expert; internal refers to those issues generally related to forensic countertransference. Of course, these realms are not necessarily sharply divided; we would expect some interplay between them. However, this rough schema is used for purposes of discussion and illustration. The categories within these two rubrics are listed in Table 2.1 (2).
How does the universality of bias relate directly to forensic work? In an earlier communication (1, p. 70) the point was made:
The objectivity of the expert witness, in psychiatry or elsewhere, is one of the more valued qualities that an expert hopes to bring to the legal system, despite the latter’s necessarily partisan adversarial structure. Despite this ideal, dealing with bias constitutes one of the central challenges for expert witnesses in the legal system.
The issue is not a straightforward one. Although it may be axiomatic that experts are expected to advocate for their own opinions, they ought
not advocate for the side of the case that retains them, nor for a particular outcome of the case. As stated earlier, their role is to protect the truth of their opinion from both attorneys. Despite this neutral posture, experts commonly participate in the case in ways that appear partisan: assisting the retaining attorney in devising strategies for case presentation, preparing cross examination of the opposing expert, and collaborating on the direct examination.
not advocate for the side of the case that retains them, nor for a particular outcome of the case. As stated earlier, their role is to protect the truth of their opinion from both attorneys. Despite this neutral posture, experts commonly participate in the case in ways that appear partisan: assisting the retaining attorney in devising strategies for case presentation, preparing cross examination of the opposing expert, and collaborating on the direct examination.
TABLE 2.1 Sources of Potential Bias | ||||||||||||||||||||||||
|---|---|---|---|---|---|---|---|---|---|---|---|---|---|---|---|---|---|---|---|---|---|---|---|---|
|
From a practical standpoint, even in the previously mentioned activities the problem for the expert witness is that he or she must be “striving for objectivity,” according to the ethical code of the national forensic psychiatric organization, the American Academy of Psychiatry and Law; the very choice of the word “striving” is to suggest that perfect dispassion free of any bias is an unattainable ideal. One may strive for objectivity, but no one is expected to achieve it completely.
The centrality of the bias issue for expert witnesses has made the subject a matter of frequent study (e.g., references 3, 4, 5, 6); the results may be summarized in part as follows in terms of those factors that, to a significant degree, have been shown to bias the choices experts make:
One [factor] is how often one choice rather than another is made: an imbalance might occur when one testifies regularly for one side. The second factor is how choice outcomes are rewarded: does one get more business or less? Can one ask for higher fees? Does one become more popular or famous rather than infamous? The research allows the prediction that those two situations are particularly biasing and should be seen as such by expert witnesses (1, pp. 70-71).
Despite the above mentioned empirical awareness of the potentials for bias in the lives of experts, there were, historically, no studies of the views of the forensic experts themselves about biasing factors. The 2004 empirical study by the Program in Psychiatry and the Law (Department of Psychiatry, Beth Israel Deaconess Medical Center, Harvard Medical School) (1) attempted to fill this lacuna by asking about the kinds of situations the experts themselves viewed as biasing.
To achieve some dispassion, subjects of the study were asked about “other experts” rather than themselves. They were asked to rate various factors that might be biasing on a series of scales. Moreover, the word “bias” was not used to avoid telegraphing the point of the study; instead, the study was entitled “expert reactions to cases.” Factors such as payment, frequency of testifying, money, prestige, public attention, the ability to compensate for bias, and others were among those considered, as suggested by the previous empirical work. The actual instrument used is available elsewhere (1), but we are here concerned only with the practical implications of the results.
The results indicated that subjects largely felt that many factors that might well be biasing were not actually biasing. The authors noted:
It is not surprising that forensic psychiatrists wildly underestimate the biasing effects of their own conflicts of interest and of other factors—or at least they underestimate the biasing effects of such factors on opposing experts, where it would be expected they would see them as most prominent (1, p. 73; see also 7).
Only two factors showed a robust perception of bias. The first was whether an expert testified primarily and regularly for one side (e.g., plaintiff). The second was whether the case in question appeared to have an unmanageable personal resonance; in that situation, subjects recommended turning it down. Because the effect of the remainder of the 26 possible biasing factors was essentially minimized, the authors concluded that “a state of relative denial” characterized the subjects as to the impact of biasing factors on their decision making (1, p. 73). Many forensic experts apparently do not see it as a problem despite its acknowledged universality.
The authors make the following point:
We argue that, like memory, testimony is a constructive act. Also, like memory, that construction may be influenced by potentially biasing factors. In terms of useful approaches, we recommend (a) not denying bias; (b) resisting attempts to compensate for possible bias (since attempts to correct one’s own biases may constitute disingenuousness); and (c) directly addressing bias on direct examination, while allowing each attorney to point out the potential for bias of the other side’s expert (1, pp. 73-74).
What might such candor sound like in actual testimony? Here are some sample responses that might be used in different cases.
EXAMPLES:
EXPERT ON DIRECT: I am biased in favor of the belief that everyone is an autonomous agent; but in this case it is my expert opinion based on the data that the treater’s negligence was the proximate cause of the suicide.
EXPERT IN CHALLENGE TO INSURANCE EXCLUSION FOR SUICIDE: I am biased in favor of the view that not every patient who commits suicide is mentally ill or insane by the relevant criteria, but I believe in this case the decedent was sufficiently mentally ill to meet criteria for unsound mind in this jurisdiction.
EXPERT IN MALPRACTICE CASE: I am biased in favor of the view that most practitioners give reasonable care, but in this case the facts in the database lead me to conclude that the treatment fell below the standard of care.
EXPERT IN INSANITY CASE: I am biased in favor of the view that most people intend their actions while knowing if they are right or wrong, but in this case the information available to me leads me to the opinion that the defendant did not appreciate the wrongfulness of his actions.
To sum up this point, the optimal approach to the issue of bias is to acknowledge it in some version of the previous examples in the service of striving for objectivity and then to distinguish the present instance from the original biased position. By acknowledging and sharing our biases we allow all concerned to make better judgments about our testimony (1, p. 74). This frank acknowledgment of the potential bias allows the jury to recognize the expert’s candor; to observe that the expert has given due consideration to the issue; and, because the issue has been made available to them, to weigh this issue as a factor in their deliberations. The effects on the jury are, of course, significantly amplified when the other side has done none of these.
Cross-examining attorneys may attempt to imply a bias whether or not there is one:
EXAMPLE:
CROSS-EXAMINING ATTORNEY (CEA): Doctor, both you and the physician on whose behalf you are testifying are faculty at Harvard Medical School teaching hospitals, are you not?
EXPERT: First, I am not testifying on his behalf, I have been retained by his attorney to inform the jury about this issue. Second, the thirteen-odd Harvard hospitals are quite independent and have relatively little to do with each other. On the other hand, if I had known the defendant personally, I would not have taken the case.
We may now examine the categories of potential bias in some more detail, following the outline in Table 2.1.
Treater Bias
According to consultative experience, many clinicians underestimate the difficulty of stepping away from the clinical role of treating practitioner and entering the objective forensic posture required to serve appropriately as an expert witness. The wish to help patients and decrease their suffering is a prime motivator for those entering the clinical fields, but those motives are inconsistent with the dispassion required for expert testimony in court (2).
EXAMPLE:
For example, a senior forensic psychiatrist during a deposition found himself making the slip of referring to the forensic examinee (for whom he had served no treatment role) as “the patient.” After correcting himself on the record for the third time, he realized that he was subject to a bias in favor of the examinee based on unconsciously experiencing the relationship as doctor-patient (2, p. 261).
When such clues as to potential biases emerge, the expert should mentally step back and examine his or her assumptions about the parties or the case. Just as finding oneself thinking often or dreaming about a patient one is treating may be a valuable cue to a potential countertransference or boundary problem, in the same manner such cues may alert the witness to a potential bias.
The problem of treater bias arises because attorneys frequently turn to the treater as a potential expert witness, despite the clinical, legal, and ethical conflicts between the roles. Those conflicts are extensively anatomized elsewhere (8) but may be very briefly summarized as follows. Clinically, the treatment alliance creates—acceptably for treatment—a propatient bias that inevitably stands in conflict with forensic objectivity. Legally, the treater has usually not given to the patient those forensically necessary warnings about nonconfidentiality of the material and possible harms from court exposure of the content. Ethically, the treater’s obligation to “as a first priority, do no harm” may be violated by the truthful but unpredictably possibly harmful effects of the testimony.
With all these factors militating against it, why do attorneys so often attempt to use the expert as treater? Financial considerations always come first; attorneys may hope to use the treater at the treatment rate, far lower than expert fees. Another cohort of attorneys are simply unaware of the conflicts; yet another is aware but does not care. Attorneys will sometimes brush aside ideas of conflict and rationalize using the long-time treater based on the idea that “the treater knows the patient best,” in supposed contrast to the expert, who has performed a far briefer independent medical examination. This rationale, of course, misses the fact that the longer the treatment, the deeper the potential alliance-based bias.
As a practical matter the expert should turn down requests to serve as expert for his or her own patients and should educate the retaining attorney, if needed, about the role conflicts if the opposing expert is a treater.
Money
Historically, money has always had a dual identity as the means of making a living and as an issue charged with emotions, narcissistic concerns, ideas of self-esteem and self-worth, and other dimensions that transcend the simple numbers of dollars involved. Money has a special connotation in the expert witness context because the public perception of experts as “hired guns” paints all experts with the acquisitive brush at the cost of their expected honesty. A media cliche is the comment: “The case involved the finest experts money could buy,” implying that the experts’ opinions were the commodity being sold. Public perceptions aside,
Retained experts always face the tension between the need for objectivity and the pull of the retention contract—the temptation to aid the attorney who, after all retained you (2, p. 265).
These considerations support the importance of the expert’s “day job,” a more stable source of income from, say, private clinical practice that permits the expert to turn down cases that are without merit without jeopardizing the family’s economic survival. Experts seem to do best with control of monetary influence by means of well-designed fee agreements or retention contracts to bring clarity to the issues of fees (9,10), but the avoidance of a financial bias does not come from contracts; the effort to minimize this bias is an internal one.
Related posts:
Stay updated, free articles. Join our Telegram channel
Full access? Get Clinical Tree
