Pursuing Objective Forensic Evaluations
At the Forensic Clinic, our first priority is always to conduct high quality, thorough, and objective evaluations. In addition to conducting these evaluations, our faculty are leaders in researching and addressing the factors that threaten to undermine the objectivity of forensic evaluations throughout our field. These threats to objectivity and accuracy include cognitive bias, particularly a form of cognitive bias known as adversarial allegiance.
Cognitive biases are universal, automatic mental processes that can lead to errors. Authorities increasingly emphasize that cognitive biases may undermine well-established forensic science procedures, such as fingerprint and DNA analysis. Because biases operate covertly, usually outside of conscious awareness, they cannot be eliminated by good intentions alone. So authorities increasingly recommend procedural eforms that minimize room for cognitive bias.
Adversarial allegiance is a form of cognitive bias in which expert opinions drift—more than case details warrant—towards supporting the party who retained the expert. In studies of real cases and in a rigorous experiment funded by the National Science Foundation, ILPPP faculty were the first to document the phenomenon of adversarial allegiance in forensic mental health evaluations. We found that adversarial arrangements led many (though not all) experts to form opinions that drifted toward the side that retained them. This has led us to explore ways our field can minimize adversarial allegiance and other threats to objectivity, and even to pilot some of these interventions in our clinic here at UVA.
Consider these referral arrangements to further minimize the potential for bias and adversarial allegiance:
Blinding is one of the most effective countermeasures to cognitive bias. Consider, for example, that “double blind studies”—in which neither researchers nor research subjects know who is receiving the experimental drug and who is receiving a placebo—are now an essential part of medical research. Some scholars have already suggested blinding expert witnesses in civil litigation. We believe similar procedures can be applied to forensic mental health evaluations by blinding the evaluator to the referral source, reducing the likelihood that an evaluator’s opinion will drift inappropriately toward the retaining party. In addition to enhancing the objectivity of forensic evaluations, recent research suggests that jurors may consider blinded experts more credible.
We offer blind evaluations as a service at the Forensic Clinic. Blinding is feasible in many standard referral questions, such as competence to stand trial or questions around risk and sentencing (though some referral questions, such as capital mitigation, are not appropriate for blind referral). If you are interested in a blind evaluation, please let us know from the start so that our case manager can ensure that the evaluators for your case are blind to your identity and related information.
We also encourage you to consider joint referrals with the opposing attorney. We routinely complete certain types of evaluations (for example, competence to stand trial evaluations or presentencing evaluations) at the joint request of defense and prosecution. Joint referrals offer both parties an opportunity to ask questions about a defendant and provide all relevant collateral data, while saving time, money, and other resources that might otherwise be spent pursuing two separate evaluations or addressing results from “opposing” evaluations. Joint referrals can also limit adversarial allegiance by making it less likely that an evaluator’s opinion will drift toward a single retaining party with whom the evaluator is aligned.
For further reading:
Robertson, C. T. (2010). Blind expertise. New York University Law Review, 85(1), 174.