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Behavioral Sciences and the Law Behav. Sei. Law 28: 585-602 (2010) Published online 7 September 2010 in Wiley Online Library (wileyonlinelibrary.com) DOI: 10.1002/bsl.953

Empathy or Objectivity: The Forensic Examiner's Dilemma?

Daniel W. Shuman, J.D.* and John A. Zervopoulos, Ph.D., J.D.^

Examiners are ethically bound to manage personal biases tbat may infect their expert opinions. Empathy-related issues that lead to bias in forensic assessment of adjudica- tive competence arise in evaluation interactions with defendants (therapeutic empathy) and from examiners' personal views of issues that these assessments address (empathy- bias). This article first summarizes flexible adjudicative competence legal standards that invite bias by forensic experts. Then, after reviewing the therapeutic empathy issue, the article examines empathy-bias and its effects on the development of expert opinions. The authors assert that, properly managed, the often assumed dilemma between empathy and objectivity is a false one. Using case law, research psychology, and professional guidelines, the authors first emphasize that examiners must actively generate plausible alternative explanations of evaluation data as they form their opinions, not afterwards. Then the authors present a practical model to help experts develop opinions that best explain the data whUe minimizing empathy-bias. Copyright © 2010 John Wiley & Sons, Ltd.

In 2009, legal scholars and media commentators ardently debated President Obama's wish to choose Supreme Court nominees whose decisions would reflect empathy for the litigants (Kmiec, 2009). Chief Justice John Roberts, in his 2005 Senate confirmation hearings, articulated an opposing view when he analogized the judge's role to a baseball umpire who dispassionately calls balls and strikes without regard to the batter's reputation or the game situation (Marcus, 2009). U.S. Supreme Court Justice Sonya Sotomayor's 2009 Senate confirmation hearings centered on this issue. In her opening statement, Sotomayor responded to critics that "fidelity to the law," not empathy- tinged bias, was her approach to deciding cases (Baker & Lewis, 2009). Throughout the hearings, the meaning of "fidelity to the law" became a dominant question answered indirectly by her Senate confirmation. In contrast, others claimed that the notion of objective judges putting aside emotions and issuing opinions based solely on reason was "a useful falsehood" of the legal system, and that the crucial question was not whether the judge relied on empathy or emotion, but how the judge did so (Brooks, 2009). Is a judge's empathy for litigants an impediment to objective judicial decision-making, or a useful tool for judges that results in more just decisions?

Judges enjoy no monopoly on the empathy-objectivity conundrum. Forensic psychologists and psychiatrists often find themselves defending the role of empathy in gathering information or drawing inferences from it. Whether retained by a party or court appointed, mental health professionals acknowledge an obligation to act objectively

*Correspondence to: Daniel W. Shuman, J.D., Anderson Foundation Endowed Professor of Health Law, Dedman School of Law, Southern Methodist University, P.O. Box 750116, Dallas, TX 75275-0116, U.S.A. E-mail: dshuman@mail.smu.edu *PsychologyLaw Partners, Dallas, TX, U.S.A.

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(Mossman et al., 2007; Committee on Ethical Guidelines for Forensic Psychologists (CEGFP), 1991). Forensic psychologists and psychiatrists often conduct their work in cases that tug at the heart strings, if not the purse strings. Child custody cases are an obvious example of cases that present strong empathy-objectivity tensions, as are many personal injury claims, particularly in the case of victims of abuse or implanted false memories of abuse, but perhaps the most vivid tensions between objectivity and empathy occur in adjudicative competence cases—such as competence to stand trial, competence to waive counsel, competence to confess, and, particularly, competence to be executed.

The authors maintain that most forensic psychologists and psychiatrist experts have opinions on adjudicative competence cases but can satisfy both professional and legal demands for objectivity if they actively challenge their decision-making while they collect their data and formulate their opinions. To develop this thesis, this analysis first looks at the fiexible definitions and principles in adjudicative competence case law and the effects of this fiexibility on the tools that forensic examiners may use in these cases. Second, empathy-bias and the dilemma that empathy-bias poses for forensic examiners, this article's focus, is distinguished from therapeutic empathy, which examiners may improperly extend to defendants in their evaluation interviews. Third, we shall explore problems with models that have been proposed to account for the inappropriate use of empathy or other biases that might infect expert opinions are explored. Finally, a six-stage model is proposed to manage empathy or the biases that might compromise the reliability of expert opinions.

Such a model is necessary because, no matter how much forensic psychologists and psychiatrists try to be fair, they may be unaware of the complexity of empathy-related issues or even when empathy biases expert opinions (Bonnie, 1990; Goldstein & Stone, 1977). A study of New York competence to stand trial evaluations by experienced examiners who might be expected to be aware of their obligation to be neutral revealed two distinct philosophies (biases): "Guardians," who tended to protect their examinees by expressing concern that the examinees would be unable to attend to the realities of a stressful courtroom situation, and "Green-Lighters," who were more optimistic about the examinee-defendant's future performance in court, more inclined toward a "benefit of the doubt" approach (Goldstein & Stone, 1977). Concern also has been raised about the "partisan allegiance" of forensic evaluators to parties who retain them. One study examined 23 cases in sexual offender civil commitment trials in which opposing evaluators reported PCL-R total scores—a test designed to increase the reliability of psychopathy from one examiner to another—for the same individual. Differences between scores from opposing evaluators were usually in a direction that supported the party who retained their services—greater than would be expected based on the PCL-R's standard error of measurement or on rater agreement values reported in previous PCL-R research (Murrie et al., 2008). These examples fuel concerns about biased testimony of forensic psychologists and psychiatrists (Applebaum, 2008; Goldyne, 2007; Stone, 1984, 2008).

These concerns become more critical with the seriousness of case outcomes. For example, we may tolerate contrary "Guardians" versus "Green-Lighters" opinions when competence to stand trial is at issue in nonhomicide cases, but are such distinctions acceptable in competence to be executed cases?

Ironically, the issue is highlighted even more when the expert consciously acknowledges empathy towards a litigant or a litigant's position. But what is to be done? Should a psychologist or psychiatrist conduct a competence to be executed examination if he or she acknowledges a position for or against the death penalty? If the

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expert holds an opinion on the case issue, can this expert testify in a way that satisfies both ethical demands for objectivity and legal requirements for testimony that will "assist the trier of fact?"

Case law sets out legal principles of adjudicative competence, but the principles do not lend themselves to bright-line definitions. For example, the competence to stand trial question, which courts do not associate with "fixed or immutable signs," implicates "a wide range of manifestations and subtle nuances" that are difficult even for trained forensic examiners entertaining the same facts to evaluate (Drope v. Missouri, 1975, p. 180). These legal requirements and professional issues provide the context to consider whether forensic professionals can conduct objective evaluations.

ADJUDICATIVE COMPETENCE: FLEXIBLE DEFINITIONS AND PRINCIPLES

The Legal Backdrop

Adjudicative competence addresses the defendant's present mental capacity to understand and participate in the trial process, not the defendant's past mental capacity or responsibility for decisions. Many adjudicative competence principles drawn from competence to stand trial (CST) case law form the basis for many adjudicatory competence issues. CST implicates constitutional rights essential to a fair trial. The United States Supreme Court set the CST standard in Dusky v. United States (1960). The court noted that it is not enough for a trial judge to find that the defendant is "oriented to time and place and has some recollection of events" in order to be deemed competent to stand trial. Rather, the defendant must have "sufficient present ability to consult with his lawyer with a reasonable degree of rational understanding," and have "a rational as well as factual understanding of the proceedings against him." In Drope v. Missouri (1975), the court added that the competent defendant must be able to consult with counsel and assist in preparing his defense. In addition, the Drope Court held that the trial court's inquiry about the defendant's competence does not end when the trial begins. Rather, "A trial court must always be alert to circumstances suggesting a change that would render the accused unable to meet the standards of competence to stand trial" (p. 181). There are no "fixed or immutable" indicators that the trial court may use before or during trial to determine the defendant's CST. The defendant's irrational behavior, trial demeanor, and any prior medical condition are relevant—or only one of these considerations may be sufficient—when the court considers whether to inquire further into the defendant's CST (p. 180).

The Supreme Court emphasized that CST is the foundation upon which other rights essential to a fair trial are based: the right to effective assistance of counsel; the rights to summon, confront, and cross-examine witnesses; and the right to testify on one's own behalf or to remain silent without penalty for doing so (Riggins v. Nevada, 1992, Kennedy, J., concurring). The question then arises of whether the CST standard is the same standard that is required for a defendant to plead guilty or to waive the right to assistance to counsel. The Supreme Court in Godinez v. Moran (1993) held

In addition to determining that a defendant who seeks to plead guilty or waive counsel is competent, a trial court must satisfy itself that the waiver of his constitutional rights is knowing and voluntary. In this sense, there is a 'heightened' standard for pleading guilty

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and for waiving die right to counsel, but is not a 'heightened' standard of competence (p. 400).

This clouded Godinez standard echoes the flexibility of Drope's CST standard, highlighting a trial court's discretion when deciding these adjudicative competence issues.

The Godinez court referenced Johnson v. Zerbst (1938), the seminal case that addressed the general legal standard for waiving individual rights recognized by the U.S. Constitution (Rogers & Shuman, 2005, p. 115), to place its ruling in context. Johnson, a waiver of counsel case, describes a waiver as an intentional relinquishment or abandonment of a known right or privilege (Johnson, p. 463). The trial court is expected to protect the defendant's Sixth Amendment right to counsel—"a serious and weighty responsibility" that the trial judge bears when determining whether the defendant's waiver of counsel is "intelligent and competent" (p. 465).

However, the standards for this judicial determination are not bright-lined. Eor example, Johnson notes that the decision about whether the defendant's waiver of counsel is intelligent "must depend, in each case, upon the particular facts and circumstances surrounding that case, including the background, experience, and conduct of the accused" (p. 463). A later waiver of counsel Supreme Court case held that there was no reason to discard the Johnson standard for an inflexible one (North Carolina v. Butler, 1979). ;„

In cases following Johnson, the court's opinions amphfied the flexible knowing, intelligent, and voluntary criteria and their applications. The Sixth Amendment, which is the authority on which the right to counsel at all critical stages of a prosecution that might result in incarceration is grounded (Maine v. Moulton, 1985), correlatively recognizes the defendant's right to waive counsel and represent himself. If the defendant chooses to waive counsel, "he should be made aware of the dangers and disadvantages of self- representation, so that the record will establish that 'he knows what he is doing, and his choice is made with eyes open"' (Faretta v. California, 1915). The information a defendant must possess in order to make an intelligent election depends on a range of case- specific factors that include the defendant's education or sophistication, the complex or easily grasped nature of the charge, and the stage of the proceedings (Iowa v. Tovar, 2004).

The Miranda v. Arizona (1966) line of cases—which estabHshed a defendant's rights to remain silent when in police custody and to a lawyer—emphasized that a defendant may waive these rights "provided the waiver is made voluntarily, knowingly, and intelligently" (p. 444,475). The Miranda waiver should result from a "firee and deliberate choice rather than from intimidation, coercion, or deception" (Moran v. Burbine, 1986, p. 421). Eurther, "only if the 'totality of the circumstances surrounding the interrogation' reveals both an uncoerced choice and the requisite level of comprehension may a court properly conclude that the Miranda rights have been waived" (p. 421). Invoking the same principle, Godinez later held that the voluntary inquiry's purpose is to ensure that the defendant's decision to waive the right to counsel is uncoerced (p. 417, n. 12).

Colorado v. Connelly (1986) addressed the question of how mental illness might impact the voluntary quality of a defendant's constitutional right waiver. It established a condition for when a court may consider the "voluntary" prong. In Connolly, the defendant asked the court to nullify his confession after he waived his Miranda rights because his mental state at the time interfered with his "rational intellect" and "free will" (p. 160). The defendant traveled from Boston to Denver to confess to a Denver

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murder. After he was given his Miranda warnings, the defendant said that he understood the Miranda rights and wanted to talk about the murder. The next day, the defendant claimed that "voices" had directed him to go to Denver and confess. At a preliminary hearing, an examining psychiatrist testified that the defendant was psychotic and had been experiencing "command hallucinations" that had interfered with the defendant's "volitional abilities." However, the hallucinations had not significantly impaired the defendant's cognitive abilities—the defendant had under- stood his rights when the officers told him that he need not speak (p. 161).

The Connolly Court, in a controversial opinion, held that police coercion is a necessary predicate to finding that a confession is not "voluntary" within the meaning of the Due Process Clause of the Fourteenth Amendment (p. 167). The dissent objected to this strict definition of "voluntary" and insisted that "voluntary" entails the importance of free will and of reliability and, thus, demanded an inquiry into the "totality of the circumstances" surrounding the confession (p. 176).

>X île the predicate to finding that a defendant's confession is not voluntary is police coercion, cases after Connolly appear unclear about whether internal coercion, infiuenced by emotional factors, may be exempted when considering "voluntariness" where external coercion interacts with these emotional factors (Rogers and Shuman, 2005, p. 122). For example, the U.S. Supreme Court in Withrow v. Williams (1993) noted that courts look to the "totality of circumstances" to determine whether a confession was voluntary (p. 689). The circumstances may include "the crucial element of police coercion" as well as the length of the interrogation and its location and continuity. In addition, the court may consider the defendant's maturity, education, physical condition, and mental health (Schneckloth v. Bustamonte, 1973; Withrow v. Williams, 1993) for characterization of "totality of the circumstances"—of both the accused and the details of the interrogation—when determining voluntariness in a waiver to consent to search of a car case.

Although competence to be executed may appear to share similar concerns as the competencies discussed above, its constitutional grounding is different, and it spotlights the empathy-objectivity tension. CST throughout the trial and competence to waive the right to assistance of counsel are based on the U.S. Constitution's Sixth and Fourteenth Amendments (Dusky v. United States, 1960; Drope v. Missouri, 1975; Godinez v. Moran, 1993). Miranda's recognition of the right to remain silent and to have a lawyer is "indispensable to the protection of the Fifth Amendment privilege" (Miranda v. Arizona, 1966, p. 469).

Competence to be executed (CE) has a different constitutional basis than CST, competence to waive counsel, or competence to waive Miranda rights. Death penalty law is based in the Eighth Amendment's prohibition of the state imposing cruel and unusual punishment on defendants (Furman v. Georgia, 1972). In Ford v. Wainwright (1986), the U.S. Supreme Court held that the Eighth Amendment prohibits the state from infiicting the death penalty upon an insane prisoner. What emerged as the two- pronged standard for determining whether the criminal should be executed was articulated in Justice Powell's concurring opinion in Ford: "[T]he Eighth Amendment forbids the execution only of those who are unaware of the punishment they are about to receive and why they are to suffer it" (Ford, p. 422)—a humanitarian rationale that preserves the legal system's values and integrity. Nevertheless, what it means to be competent to be executed has not been paid much attention in case law and scholarly writings (Saks, 2009, p. 3). In a recent case, the court acknowledged that "rational

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understanding" as a concept in competence to be executed cases is difficult to define (Panetti V. Quarterman, 2007).

Atkins V. Virginia (2002) highlighted other judgment-related issues in competence to be executed cases. Like the Ford rationale, Atkins held that executions of mentally retarded criminals are cruel and unusual punishments prohibited by the Eighth Amendment (p. 304). The U.S. Supreme Court noted that, while the deficiencies of mentally retarded persons do not warrant exemptions from criminal sanctions, the deficiencies diminish the personal culpability of these convicted criminals (p. 305). The court did not specifically define mental retardation, leaving to the states to draft legislation to comply with the ruling—states differ in their statutory definitions of mental retardation for death penalty cases, related strict test cutoff scores, and mandated assessments (Duvall & Morris, 2006). Nevertheless, the court offered a two- pronged definition of mental retardation: the defendant's intellectual functioning would be "subaverage," and the defendant would also show significant limitations in adaptive skills such as communication, self-care, and self-direction, both of which manifested themselves before the age of 18.

In sum. Supreme Court cases set out important constitutional principles in adjudicative competence-related cases, but the court's interpretations of these principles do not lend themselves to bright-line definitions and applications, leaving ample room for discretion in each case.

THE FORENSIC EXAMINER BACKDROP

Courts admit expert testimony that will "assist the trier of fact" to weigh the evidence properly (Fed. R. Evid. 702). This requires that the testimony be relevant (i.e., correct legal standard) and reliable (i.e., consistency and accuracy). The Federal Rules of Evidence apply in trials, not in "preliminary matters in criminal cases" (Fed. R. Evid. 1101(d)(3)). In federal courts competence to stand trial is determined by the judge, although in some states a jury trial may occur at which the rules of evidence apply (Cal Penal Code §1369 (2010)). It is risky to assume that the same evidentiary demands will not apply in these trials. The Dauben revolution changed the rules, and judges who apply Dawèerr principles have learned to ask "Doctor, why should I believe that you can prove what you say?" Moreover, the forensic examiner's ethical obligation is triggered by the examiner-examinee relationship, not by the applicability of the rules of evidence. To meet this obligation to present relevant and reliable information, forensic mental health professionals have developed forensic assessment instruments to operationalize and measure many adjudicative competence legal principles (Grisso, 2003). While the law does not define these principles by test results, some instruments have proven useful to support expert opinions. Tom Grisso, a pioneer in the field, cautions that expert opinions about a person's capacity to waive Miranda rights should not rest on these instruments alone (p. 191). The use of these instruments, by itself, to support any adjudicative competence opinions is not legally sufficient. In sum, experts still must apply the forensic assessment instrument results, no matter how empirically based, to the legal standard required in a given examination—inferences that may not avoid the empathy-bias problem. Can forensic mental health experts put aside this empathy and conduct their work as objectively as Chief Justice Roberts's baseball umpires? Or can these experts acknowledge their empathy for the client and the client's issues yet

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set their goal as "fidelity to the law"—analogous to the standard of objectivity that professional practice guidelines, ethics codes, and rules of evidence require?

EMPATHY AND BIAS

In everyday parlance, empathy is regarded as the ability to identify with another. What is meant by empathy here differs because it deals with a technique used in psychotherapy and with an expert's role in the judicial process. In this article, two ways that empathy must be managed in forensic practice are addressed. The first aspect of empathy is the inappropriate use of empathy as a therapeutic technique in a forensic exam to cause the examinee to forget the purpose of the exam, albeit having been warned. In therapy, this is evidenced when the therapist conveys to the patient an understanding and emotional awareness of the patient's experience "as if I am the other"—beyond merely sympathetic sharing of another's feelings or friendly rapport (Greenberg & Elliott, 1997, pp. 167-168). The therapist's empathie expressions are thought to allow the patient to trust the therapist and, as a result, to more comfortably express personal concerns to the therapist (Barrett-Leonard, 1981). This use of empathy is referred to here as therapeutic empathy.

The second concern is with the effect of empathy on the objectivity of the evaluation. Can examiners adequately monitor and govern their personal views about cases to ensure that bias does not improperly infiuence their expert opinions (Bonnie, 1990; Brooks, 2009; Kmiec, 2009)? This use of empathy is referred to here as empathy-bias.

THE USE AND MISUSE OF EMPATHY

Both therapeutic empathy and empathy-bias threaten the forensic evaluation. In this section the reasons why the authors think that therapeutic empathy has no place in a forensic evaluation are summarized. In the remainder of the article the threat to forensic evaluations posed by empathy-bias will be examined in detail and a model to manage it will be proposed.

During their training, clinical psychologists and psychiatrists learn how to use therapeutic empathy in psychotherapy. Therapists purposefully apply empathy techniques in psychotherapy. The therapeutic use of empathy is intended to benefit the patient, who will as a result feel understood and comfortable making disclosures in psychotherapy. A private patient who undergoes psychotherapy voluntarily consents to undergo such treatment, whose sole purpose is to benefit the patient. To encourage this, as a general rule, the therapist may not disclose or be compelled to disclose information revealed in therapy. The patient may choose to end the therapy at any time.

That same justification does not exist in forensic examinations. The forensic examination's goal is not to benefit the examinee. Rather than a consensual relationship a patient chooses to begin and end, the choice to begin and end the forensic relationship may have serious legal consequences, such as dismissing a claim or striking a defense. Because the forensic examination's purpose is testimony rather than treatment that benefits the patient, the same limits on relational privacy do not exist (Perlin, 1991). It is a mistake to assume that what is done in therapy may also be done in a forensic examination.

There are several irreconcilable confiicts between psychotherapy and forensic relationships and significant difficulties for both the patient and the legal system when

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forensic experts or therapists do not respect relationship boundaries (Greenberg & Shuman, 1997). Professional guidelines have also tied an examiner's use of undefined empathy in forensic interviews to inappropriate role mixing that may harm the examinee and compromise the reliability of subsequent expert testimony. For example, the American Psychiatric Association's Task Force on the Role of Psychiatry in Sentencing (Psychiatry Task Force) cautioned that "use of empathetic techniques and tools of clarification and interpretation may lower a subject's usual defenses" (American Psychiatric Association, 1984, p. 203). Although the Psychiatry Task Force stated that a forensic examiner's empathie techniques could be justified to protect the defendant from harm in the interview, the Psychiatry Task Force also expressed concern that ifthe examiner were to employ empathie techniques in a forensic interview the defendant might reveal information that could damage himself legally in response to an examiner's empathetic comments (p. 203). To guard against this potential harm, the examiner, using her judgment, should consider terminating the interview whenever the subject is confused about the interview's purpose. Further, the examiner should remind the defendant "who appears to be slipping into a therapeutic mindset" that the interview is not intended to be therapeutic before proceeding with the examination (p. 203).

Research, however, finding that therapists do not accurately assess the level of what we call therapeutic empathy that patients perceive, suggests that the Psychiatric Task Force's expectation that the forensic examiner can distinguish between showing empathy to protect the defendant versus inappropriately using empathy to gain information from the defendant is illusory (Shuman, 1993). This presents a professional and ethical concern for the forensic examiner, beyond what even comprehensive informed consent warnings can remedy, that could lead the defendant to slip into a therapeutic mindset and, consequently, compromise the defendant's legal rights (Shuman, 1993, p. 289).

Empathy-bias, a broader notion of empathy that is defined here as the forensic examiner's personal views and mindset towards the examination's purpose, may also bias the evaluation findings and subsequent testimony of forensic examiners. This empathy-bias may compromise the objectivity of the findings and testimony that professional ethics require of forensic examiners and that the court demands of testifying experts. When this empathy becomes bias, the forensic examiner puts his or her thumb on the scale of objectivity and directs the outcome towards a preferred end. This empathy-bias may occur either in the evaluation, in the report writing, or on the witness stand (Gutheil & Simon, 2004). Consider a forensic evaluator, personally against the death penalty, who conducts a competence to be executed examination with a defendant whose behaviors raise questions about her understanding of the reasons for her impending execution. In the interview, the evaluator should not use therapeutic empathy to elicit statements from the defendant. But the evaluator may, nonetheless, consciously or unconsciously frame his evaluation data interpretations in a manner that supports his personal stance against the death penalty. Of course, this empathy-bias will also apply to examiners with pro-death-penalty beliefs.

THE EVALUATOR'S DILEMMA

The evaluator's dilemma may be particularly evident in capital cases. May a forensic examiner participate in a case when he or she holds personal views on the death penalty? It is a fair assumption that the examiner has views on issues of the day, particularly on a

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high-Stakes issue like the death penalty. However, the administration of justice in capital cases would be compromised if too many forensic specialists declined to conduct evaluations in these cases (Bonnie, 1990, p. 78). In this case, the pool of available experts could be slanted in the direction of those least likely to provide mitigating testimony, depriving capital defendants of fair opportunities to develop their cases and, thus, seriously compromising their Eighth Amendment rights (pp. 78, 89). Thus the standards developed by the U.S. Supreme Court to account for "the diverse frailties of humankind" (Woodson v. North Carolina, 1976) may not be realized if mental health professionals decline to participate (Bonnie, 1990, pp. 89-90).

CST hearings cast a different slant on the evaluator's dilemma. Many of these hearings are perfunctory exercises during which the court accords the forensic examiner's opinion much deference, often with little, if any, testimony that could illuminate the "black box" from which the opinion arises Q. Bellin, personal communication, Eebruary 14, 2010). Yet, as noted earlier, empathy-bias in the forms of "Guardians" and "Green-Lighters" has been shown to steer examiner's opinions in routine CST cases (Goldstein & Stone, 1977). The absence of legal oversight in many CST hearings highlights the ethical imperative that forensic experts actively challenge biases that may infect their opinions in these cases.

The forensic expert's ethical requirement for objectivity complements Eederal Rules of Evidence 7O2's requirement that only objective testimony can assist the trier of fact. Rule 702 provides the structure for admissible expert testimony, describing the kind of testimony that will quahfy (scientific, technical, or other specialized knowledge), the support on which the expert bases the testimony (knowledge, skill, experience, training, or education), and the characteristics of the testimony that will ensure its legal reliability. Rule 702 also emphasizes that the purpose for admitting expert testimony is to "assist the trier of fact to understand the evidence or to determine a fact in issue...." Absent this purpose, the court will not qualify a witness to offer expert opinions (Trigon Ins. Co. V. U.S., 2001, noting "[e]xperts participate in a case because, ultimately, the trier of fact will be assisted by their opinions, pursuant to Rule 702 Eed. R. Evid.") Experts' opinions can assist the trier of fact only when experts strive to be objective.

Proffering expert opinions on adjudicative competence issues does not differ from proffering other expert opinions. Any reliable expert opinion is a set of inferences from data derived from reliable methods (Daubert v. Merrell Dow Pharmaceuticals, Inc., 1993, p. 590). Eurther, while "[T]rained experts commonly extrapolate from existing data... [A] court may conclude that there is simply too great an analytical gap between the data and the opinion proffered" (General Electric Co. v. Joiner, 1997, p. 146). If the inferences that the expert uses to bridge the analytical gap between the data and the proffered opinion are too tenuous, the trial court, in ruling on a timely and specific objection, may judge the opinion as unreliable, and, therefore, inadmissible. It is when experts draw inferences to develop their opinions that biases may infect testimony and compromise the testimony's reliability.

PROPOSALS TO MANAGE EMPATHY-BIAS

Although forensic psychology and psychiatry professional guidelines and literature emphasize that experts conduct their evaluations objectively and testify fairly and honestly, other writings also acknowledge experts' dilemma about how to conduct their

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work when they may harbor stances about the subject matter of their work. Gold (2004, p. 39) notes, in the context of sexual harassment litigation, that examiners are not required to be devoid of political or social opinions and, in any event, cannot change their life circumstances. As a result, she maintains, absolute objectivity is unattainable. The forensic examiner's ethical obligation, she argues, is to strive for, not guarantee, objectivity. Gold further notes that even the presence of significant bias regarding a particular case may not be harmful if the expert recognizes the bias and continues to strive for objectivity (Gold, 2004, p. 54; Simon, 1996).

Gold's assertions beg the question of how the forensic expert may develop objective testimony that will assist the court if the expert harbors a bias towards the client or case. Gold writes that experts minimize bias infiuences "by honestly evaluating the degree of their influence and by adhering to standard forensic and psychiatric methodology" (Gold, 2004, p. 55). While Gold's answer reflects the prevailing position among forensic professionals, it provides the examiner with few tools to actively challenge these biases. The meaning of "honestly evaluating" is in the examiner's eye. Moreover, while non-adherence to standard methodology raises "red flags" about the legal reliability of the expert's opinion, such adherence, by itself, does not ensure reliability (Shuman & Greenberg, 1998). By itself. Gold's bias-checking method is too passive.

Wills (2008) presents a more active, systematic approach to help the forensic expert "checkmate" opinion bias. Her CHESS model for developing expert opinions contains five steps: C, formulating the claim (preliminary opinion) after gathering the data; H, establishing a hierarchy of supporting evidence; E, examining the evidence for exposure, or areas of potential vulnerability to cross-examination; S, studying the evidence to respond to these potential weaknesses and determining whether additional data are needed to bolster the opinion; and S, synthesizing a revised opinion with stronger supporting evidence (Wills, 2008, p. 537). Wills notes that her model's process—which the expert may repeat until she is satisfied with the product—helps experts use supporting evidence prudently and acknowledge contrary evidence in order "to formulate balanced opinions that will withstand cross-examination" (p. 539). The result of the CHESS model. Wills argues, will be more balanced testimony that will assist the trier of fact (p. 540). Our analysis is that, while the CHESS model is more active than Gold's approach, it is too focused on defending the opinion and not enough on the opinion's development.

A more active, assertive approach during the opinion's development that looks for the best explanation of the data is required. Relying on self-generated prospective cross- examination questions to already-formed opinions or admonishing forensic psychol- ogists and psychiatrists to be aware of empathy-bias are inadequate solutions. Cognitive psychology research indicates that even experienced professionals are prone to cognitive biases when they make judgments based on clinical interviews, even when given informative feedback (Faust, 1986, p. 426). Further, awareness that one makes such errors does not necessarily protect against those errors (p. 427). The lesson? Forensic examiners must actively challenge their thinking so that their defendant- or case-based empathy does not translate into biases that would compromise the objectivity and reliability of their work product and expert opinions (Goldyne, 2007, p. 63). Following professional guidelines gives some structure to the inductive-inference gathering process, and strengthening opinions against cross-examination may highlight weaknesses in already-formed opinions, but more is required.

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A PROPOSED MODEL TO MANAGE EMPATHY-BIASES

Plausible Altemative Explanations: The Foundation

Formal tests for the admissibility of an expert opinion include whether the opinion is falsifiable, whether the opinion's known or potential error rate is unacceptably high, and whether the opinion and its underlying methods are generally accepted in the expert's discipline (Dauben, 1993, p . 590; Frye v. United States, 1923). What these tests ask is why we should accept the expert's opinion as reliable. Daubert notes that "evidentiary reliability will be based upon scientific validity" (1993, pp. 5 9 0 - 5 9 1 , n.9). T h e scientific method is but an aspect of critical thinking—a systematic effort to ensure that things said about the world are accurate (Pinker, 2007). As the forensic evaluator examines the data developed in the examination, he or she must determine which explanations of the data are reasonable, and which are not. The objective of this inductive, inference-driven process is to arrive at the best explanation of the data that minimizes the effects of biases (Lipton, 2004). The key to achieving this objective is an active consideration of plausible altemative explanations for the gathered data ( C E G F P , 1991)—more than merely a cursory process. This essential approach is required by three sources with which forensic examiners must comply: case law, research psychology, and forensic professional guidelines.

Case law has emphasized that experts developing their opinions consider plausible alternative explanations as a condition of admissibility, without regard to research psychology or professional ethics. The advisory committee note to the 2000 post- Daubert amendments to Federal Rules of Evidence 702 summarized the collective wisdom of courts' applications of Dauben's pragmatic considerations:

(3) Whether the expert has adequately accounted for obvious alternative explanations. See Claarv. Burlington N.R.R., 29 F.3d 499 (9th Cir. 1994) (testitnony excluded where the expert failed to consider other obvious causes for the plaintiffs condition). Ambrosini v. Labarraque, 101 F.3d 129 (D.C. Cir. 1996) (the possibilitj' of some uneliminated causes presents a question of weight, so long as the most obvious causes have been considered and reasonably ruled out by the expert).

In Claar (1994, p. 502), a federal district court's decision to exclude affidavits of two medical experts was upheld by the Ninth Circuit Court of Appeals, whose reasoning centered on the experts' failure to rule out other possible causes for the plaintiffs injuries. In an example taken from a state case, the Texas Supreme Court noted that an expert trying to find a cause of something should carefully consider alternative causes (E.I. du Pont de Nemours and Co. v. Robinson, 1995,p. 551, quoúng In re Paoli RR, 1994, pp. 758-759).

Research psychology points to testing alternative explanations as the basis of experimental design. In their classic work on experimental research, Campbell and Stanley (1963, p. 35) assert that the "results of an experiment 'probe' but do not 'prove' a theory," and that an adequate hypothesis "repeatedly survived such probing, although it (the adequate hypothesis) may always be displaced by a new probe"—Dauben (1993, p. 590) echoes this idea, acknowledging that science does not traffic in certainty. In this scientific probing process, "varying degrees of 'confirmation' are conferred upon a theory through the number of plausible rival hypotheses available to account for the data. The fewer such plausible rival hypotheses, the greater the degree of 'confirmation'" (Campbell & Stanley, 1963, p. 36).

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Finally, forensic professional guidelines encourage forensic experts to test plausible alternative explanations while developing their opinions. The American Academy of Psychiatry and Law's (AAPL's) Fthics Guidelines for the Practice of Forensic Psychiatry (2005, p. 3) states that psychiatrists "communicate the honesty of their work, efforts to attain objectivity, and the soundness of their clinical opinion, by distinguishing,, to the extent possible, between verified and unverified information as well as among clinical 'facts,' 'inferences,' and 'impressions.'" More explicitly, the American Psychological Association's (APA's) Division 41 Specialty Guidelines for Forensic Psychologists states that "the forensic psychologist maintains professional integrity by examining the issue at hand from all reasonable perspectives, actively seeking information that will differentially test plausible rival hypotheses" (CEGFP, 1991, p. 661). The principle is reiterated in the upcoming updated guidelines draft (http://www.ap-ls.org/aboutpsychlaw/92908sgfp.pdf).

GENERATING AND TESTING PLAUSIBLE ALTERNATIVE EXPLANATIONS

Philosophical writings on inference-based thinking (Lipton, 2004) and cognitive psychology research provide a framework for a model by which mental health professionals may actively test plausible alternative explanations in their forensic work. These literatures suggest that forensic examiners apply two key steps to develop reliable conclusions and expert opinions that minimize biases. First, examiners should generate plausible or reasonable alternative explanations to their data. Next, examiners should actively challenge how each plausible explanation squares with the data until an explanation emerges that best "fits" the data. One step without the other will not likely cut through biases that may taint an expert opinion.

Step One: Generate Plausible Alternative Explanations

From where do plausible alternative explanations of data arise? How can one determine what alternative explanations are plausible? As discussed earlier, these questions speak directly to the legal reliability of expert opinions (Fed. R. Evid.. 702 advisory committee's note), and to the forensic expert's professional, even ethical, obligations (CEGFP, 1991, p. 661).

To address these key concerns, scientists apply a general inference strategy known to philosophers as inference to the best explanation (IBE) (Day & Kincaid, 1994; Lipton, 2004). By its name alone, IBE echoes the same process that the ethical forensic examiner who weighs plausible alternative explanations applies, but on its surface IBE also begs the same troubling concerns as the forensic examiner's "plausible alternative explanations" process: "From where do plausible alternative explanations of data arise?" and "How does one determine what alternative explanations are plausible?"

Day and Kincaid (1994) address these concerns by emphasizing that the IBE process, rather than inferring random hypotheses, draws from the context in which IBE is applied to decide among serious competitors for the best explanation of considered data. Three features fiesh out the context of a properly applied IBE strategy: background knowledge; internal vs. external evidence; and purposes.

IBE's first contextual feature relies on "our best background knowledge" to identify plausible reasonable explanations of considered data (Day and Kincaid, 1994, p. 286).

Empathy or Objeetivity 597

Background knowledge of a question's topic directs the inquirer to pursue data by asking relevant questions and to develop reasonable explanations of the data (Lipton, 2004). For the forensic mental health professional, the same process applies: research and professional knowledge of the topic in which the expert will offer an opinion directs exploration of data, aids in developing plausible alternative explanations of the data, and provides a basis for the opinion. For example, forensic examiners who conduct CST evaluations will consider better plausible explanations of their evaluation data if they are knowledgeable about the research literature in malingering and use that knowledge to question the data (Rogers, 2008). To emphasize this point, Daubert notes that permitting experts "wide latitude to offer opinions... is premised on the assumption that the expert's opinion will have a reliable basis in the knowledge and experience of his discipline" (Daubert, 1993, p. 592). In addition, professional ethics requires that experts provide services only in areas in whieh they are competent (APA, 2002).

IBE's second contextual feature addresses the kinds of evidence considered in reaching the best explanation—internal evidence and external evidence. Internal evidence concerns the data that examiners consider in a case to support their conclusions. In a CST exam, internal evidence might include a defendant's responses in interviews, results from a forensic assessment instrument, and information from collateral sources. External evidence concerns the adequacy and reliability of the expert's methods used to develop the data (Day & Kincaid, 1994). Methodological reliability is a key concern of the Daubert cases—unreliable methods do not yield reliable data or lead to reliable conclusions, or inferences in IBE's parlance (see Joiner, 1997, p. 146). The same principle applies professionally to the forensic examiner: "(P)sychologists base their opinions..., including forensic testimony, on information and techniques sufficient to substantiate their findings" (APA, 2002).

IBE's third contextual feature, IBE's purpose, overlaps the first two features. The inference's purpose relates to the inference's audience. For example, mental health colleagues of advanced forensic examiners in a professional conference will likely understand much of the background knowledge, the kind of evidence considered, and the reliability of methods used to develop plausible alternative explanations, or IBEs, in a CST examination—time or energy is not required to educate this audience about the basics. However, it is because courts and juries do not have this ' 'background knowledge' ' that the law allows experts to "assist the trier of fact to understand the evidence" (Fed. R. Evid. 702). In this latter case, forensic experts must show the background information that drives their data collection and hypothesis generation, and also that the data they consider derives from reliable methods. Without these connections, the court cannot judge a proffered opinion that claims to represent the most reasonable of plausible alternatives, or the inference to the best explanation. This makes sense—Joiner (1997) notes that "a court may conclude that there is simply too great an analytical gap between the data and the opinion proffered" and, thereby, rule the proffered opinion inadmissible (p. 146).

Step Two: Actively Challenge Plausible Alternative Explanations

The second key step to develop reliable conclusions and expert opinions that minimize biases is that examiners should actively challenge how each plausible explanation squares with the data until an explanation emerges that best "fits" the data.

598 D. W. Shuman and J. A. Zervopoulos

Cognitive psychology research suggests that actively challenging plausible alternative explanations goes beyond what many forensic examiners may consider adequate. Eor example, in a study exploring hindsight bias, Eischhoff (1977) found that merely warning subjects about the bias or exhorting them to work harder to consider alternative explanations to the information they had failed to undo the effects of the bias. Hirt and Markman (1995) found evidence for the debiasing effects of a "counter-explanation task." Eurther, debiased judgments more likely occur when subjects explain subjectively plausible alternative outcomes rather than when they explain subjectively implausible alternative outcomes. In a study on hypothesis generation and confidence, Koehler (1994) found that subjects appeared better able to judge the accuracy of hypotheses if they generated the hypotheses themselves than if the hypotheses were only presented to them to evaluate. Applying these principles to clinical judgments, Eaust (1986) noted that professionals "should habitually generate possible reasons why their conclusions may be wrong and possible reasons why another possibility may be correct." (p. 427) Goldyne (2007), in his practical approach to minimize the influence of "unconscious bias," insists that forensic experts proactively challenge biases "rather than passively await an inkling of them." (p. 63) Science writer Sharon Begley (2006), noting qualities of critical thinking that distinguish reasonable from unreasonable assertions, summarizes these principles succinctly: "You have to want to think critically. If you have good critical-thinking skills but for some reason are not motivated to deploy them, you will reach conclusions and make decisions no more rationally than someone without those skills" (p. Bl).

APPLYING A MODEL TO MANAGE EMPATHY-BIASES

Our discussion thus far shows that forensic experts must apply two steps to manage empathy-biases adequately when developing their conclusions and opinions. Eirst, experts should generate plausible alternative explanations to the data they consider. Then, they should actively challenge how each plausible explanation squares with the data until an explanation emerges that best "fits' the data. To apply these steps, we suggest a six-stage model that will aid the expert's obligation to provide objective testimony on which the court may rely.

Conform the examination to the referral question

The examination's referral question provides the examination's focus. A vague or inadequately phrased referral question may trigger relevance and reliability concerns that could compromise expert opinions derived from the examination.

Conduct the examination only if one has the expertise to address the referral question

One key measure of the expertise to address the referral question is familiarity with the "background knowledge"—including research, professional writings, legal principles, and professional forensic guidelines and standards—required to address the referral

Empathy or Objectivity 599

question (IBE's first contextual feature). Ethical experts use this background knowledge to orient their search for relevant data (IBE's internal evidence contextual feature) that will lead to plausible alternative explanations of the data.

Expertise also enables experts to ensure that the methods they use to evaluate gathered and generated data are scientifically valid and legally reliable (Daubert, 1993). This applied "background knowledge" (IBE's external evidence contextual feature) will ensure "that the expert's opinion will have a reliable basis in the knowledge and experience of his discipline" (p. 592).

Keep in tnind the purpose of one's expert testimony

This IBE contextual feature overlaps with "background knowledge" and data gathering and assessment. The trier of fact is the expert's audience—experts are qualified to assist the court with reliable testimony "to understand the evidence or to determine a fact in issue" (Fed. R. Evid. 702). Such assistance is the sine qua non of expert testimony (Trigon, 2001, p. 295). Courts require experts to "show their work" by demonstrating that the proffered opinions are adequately connected to data derived from reliable methods—"A court may conclude that there is simply too great an analytical gap between the data and the opinion proffered" (Joiner, 1997, p. 146).

Use one's expertise, background knowledge, and examination data derived from reliable methods to develop plausible alternative

explanations to explain the data in light of the referral question

Because scientific thinking is inductive, more than one hypothesis will plausibly explain data that an expert considers in a particular case (Day & ICincaid, 1994)—the case itself represents conflicting plausible explanations of facts. For example, in a CST examination, plausible alternative explanations may include the following: the defendant is competent; the defendant is competent but malingering; the defendant is incompetent and temporarily lucid; the defendant tests well but does not actually understand the test questions Q. Bellin, personal communication, February 14, 2010).

Developed hypotheses will more likely be plausible if the expert's examination approach conforms to the model stages discussed thus far. In contrast, an expert will engage in noncritical, biased thinking when she, consciously or unconsciously, prematurely insists on one hypothesis to explain case data and then looks to other data to confirm this settled hypothesis (Goldyne, 2007; Tversky & Kahneman, 1974).

Actively challenge each plausible alternative hypothesis by explaining, orally or in writing, the case data in the context

of each hypothesis

Recall research indicating that merely warning subjects about bias or exhorting them to work harder to consider alternative explanations of information they had failed to undo bias (Fischhoff, 1977). Actively generating plausible reasons why certain explanations may be wrong and plausible reasons why others may be correct helps to cut through

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biased notions (Faust, 1986; Koehler, 1994)—"you have to want to think critically" (Begley, 2006, p. Bl).

If possible, determine the explanation that best fits the considered data

This final step results in the expert's conclusions and opinions. However, experts should recognize that, because scientific inferences may never conclusively explain a given set of data, an expert may not be able to arrive at a "best" explanation of examination or case data. For example, more than one "best" plausible explanation may sufficiently fit the case data. Or, a given set of considered data may not give rise to any "best" plausible explanations that the court will deem as reliable.

CONCLUSION

Empathy or objectivity: the forensic examiner's dilemma? Properly managed, this is a false dilemma—in adjudicative competence cases and in other forensic endeavors. All forensic examiners hold political or social opinions formed from their own experiences. Absolute objectivity is unattainable, even under the best of circumstances (Gold, 2004). Developing forensic opinions does not equate to dispassionately calling balls and strikes irrespective of context. Rather, the forensic examiner's ethical obligation is to strive for, not guarantee, objectivity (Gold, 2004). A practical model is offered here to achieve that goal.

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