Crossing the Line: Daubert, Dual Roles, and the Admissibility of

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Sara Gordon †
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
† Associate Professor of Law, William S. Boyd School of Law, University of Nevada, Las
Vegas. Thank you to Dr. Paul S. Appelbaum, Linda Berger, Linda Edwards, Dr. Kirk Heilbrun,
Sandra Johnson, Michael Higdon, Dr. Melissa Piasecki, and participants in the Rocky Mountain
Junior Scholars Forum and University of Arizona Junior Faculty Exchange for their valuable
comments and feedback. Thanks also to the editors of the Cardozo Law Review for valuable
editorial suggestions, and Marckia Hayes and Chad Schatzle for excellent research assistance.
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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.
INTRODUCTION .............................................................................................................. 1346
DUAL CLINICAL AND FORENSIC RELATIONSHIPS................................................. 1350
A. The Medical Ethical Guidelines................................................................ 1354
B. The Legal Guidelines.................................................................................. 1360
II. THE PROBLEM WITH DUAL RELATIONSHIPS ........................................................ 1366
A. Harm to the Patient: Agency, Rapport, and Empathy ........................... 1366
B. Harm to the Legal System: Bias and Unreliability ................................. 1370
C. Disclosure Does Not Mitigate the Harm ................................................. 1381
III. RECOMMENDATIONS .............................................................................................. 1385
A. Courts Should Not Admit Forensic Testimony Based on Dual-Role
Relationships............................................................................................... 1385
B. Courts and States Should Permit Forensic Evaluations via
Telebehavioral Health ............................................................................... 1390
C. Courts Should Make Greater Use of FRE 706 to Appoint
Independent Mental Health Experts ........................................................ 1395
CONCLUSION................................................................................................................... 1398
In 1982, a young black army sergeant was accused of stealing a
stick of deodorant from the base where he worked. 1 When the military
police went to the sergeant’s home to investigate, they found other
stolen property—blankets, tools, cans of food—enough to “fill[] a trailer
truck.”2 Following his arrest, the army ordered that the sergeant be
examined by a civilian psychiatrist, who diagnosed him as a
kleptomaniac. 3 Because this diagnosis would have mitigated the
1 Alan A. Stone, Presidential Address: Conceptual Ambiguity and Morality in Modern
Psychiatry, 137 AM. J. PSYCHIATRY 887, 888 (1980) [hereinafter Stone, Presidential Address].
2 Id.
3 Id.
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sergeant’s criminal culpability, the army asked another expert to
examine the sergeant; this time an army psychiatrist. 4
The army psychiatrist spent weeks examining the sergeant. 5 And
while the sergeant was told repeatedly that anything he said could be
used against him at court martial, he nonetheless opened up to the army
psychiatrist and shared many intimate details about his life. He had
grown up poor in the segregated South, but was a good student and
graduated from college with a literature degree. He was eventually
drafted into the Korean War and remained in the army for the next
twenty years. 6 As time went on, he became increasingly unhappy and
He was convinced that life had cheated him because he was black and
that the Army, in the work and position it gave him, continued to
discriminate against him. Out of this sense of being cheated there
grew a sense of entitlement, and he came to feel that he was justified
in taking whatever he could whenever he could. He had no sense of
being impulsively driven to steal Army property; instead, he stole
with a sense of entitlement and reparation in protest of the racist
world that had deprived him of his hopes. 7
Ultimately, the army psychiatrist concluded that the sergeant did
not have kleptomania, nor any other disorder that would negate his
criminal responsibility for his actions. 8 The psychiatrist testified to this
effect at the court martial. While testifying, he tried to avoid making eye
contact with the sergeant, who sat in his dress uniform with his wife and
small children seated next to him. When the sergeant was sentenced to
five years of hard labor for his crime, the army psychiatrist knew
“something terrible happened” and experienced a “sense of dismay that
will not be dissipated.” 9
Dr. Alan Stone, a Professor of Law and Psychiatry at Harvard
University, told this story, which became known as The Parable of the
Black Sergeant, to the audience of the Thirteenth Annual Meeting of the
American Association of Psychiatry and the Law (AAPL). 10 It was 1982,
and Dr. Stone delivered the keynote address to the group in a speech he
called The Ethics of Forensic Psychiatry: A View from the Ivory Tower. 11
6 Id.
7 Id.
8 Id.
9 Id.
10 Charles L. Scott, Believing Doesn’t Make It So: Forensic Education and the Search for
Truth, 41 J. AM. ACAD. PSYCHIATRY & L. 18, 19 (2013).
11 Id. In Stone’s words, the speech was a “parable about racism, about guilt and forgiveness,
and about psychiatric theory and practice.” Stone, Presidential Address, supra note 1, at 887.
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At the end of the story, Dr. Stone revealed that he was the army
psychiatrist. 12 This story, and Dr. Stone’s speech, inspired some of the
first conversations within the psychiatric community about the ethics of
dual relationships between psychiatrists and patients. 13
When viewed within a contemporary forensic ethical framework,
Dr. Stone did not in fact have a dual relationship with the sergeant: Dr.
Stone did not have an existing therapeutic relationship with the
sergeant, but rather performed a forensic evaluation, one in which he
followed existing ethical guidelines by advising the sergeant about the
purpose and parameters of the evaluation. 14 When Dr. Stone felt a
treatment relationship developing with the sergeant, he believed the
relationship was unethical, and therefore concluded that forensic
psychiatrists “are without any clear guidelines as to what is proper and
ethical.” 15 And indeed, the disciplines of psychiatry and psychology had
not yet developed an ethical framework for forensic mental health
generally, or for the ethical problem of dual relationships specifically. 16
Although psychiatrists regularly testified in court proceedings at
this time, no one in the psychiatric community had yet spoken or
written about the ethical concerns raised by the practice, and Dr. Stone’s
audience was, by all accounts, riveted. 17 The problem, as everyone in the
room appeared to recognize, was that psychiatrists often engaged in
dual-role relationships when they provided patients with clinical
treatment in addition to giving forensic testimony in a legal proceeding
involving the patient. These relationships raised troubling ethical
concerns due to the different goals and expectations of forensic and
clinical settings. When providing forensic testimony, as Dr. Stone did in
the sergeant’s court martial, a psychiatrist’s primary duty is to the court,
not to the patient, and she has an obligation to give objective and
See Stone, Presidential Address, supra note 1, at 888.
See Scott, supra note 10, at 19.
14 Stone, Presidential Address, supra note 1, at 888 (“It is not clear why this black supply
sergeant, despite being warned, told all this to the Army psychiatrist.”).
15 Alan A. Stone, The Ethical Boundaries of Forensic Psychiatry: A View from the Ivory
Tower, 36 J. AM. ACAD. PSYCHIATRY & L. 167, 167–68 (2008) [hereinafter Stone, The Ethical
Boundaries of Forensic Psychiatry]. See generally Paul S. Appelbaum, A Theory of Ethics for
Forensic Psychiatry, 25 J. AM. ACAD. PSYCHIATRY & L. 233 (1997) [hereinafter Appelbaum, A
Theory of Ethics] (discussing Stone’s speech and the forensic psychiatric community’s
16 See Appelbaum, A Theory of Ethics, supra note 15, at 234 (noting that at the time of
Stone’s speech, “Forensic psychiatry still lack[ed] a theory of ethics by which to shape its
17 Paul S. Appelbaum, Ethics and Forensic Psychiatry: Translating Principles into Practice,
36 J. AM. ACAD. PSYCHIATRY & L. 195, 195 (2008) [hereinafter Appelbaum, Ethics and Forensic
Psychiatry]; Scott, supra note 10, at 19.
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truthful testimony. 18 In many cases, however, this testimony can result
in the patient’s detention or punishment, a legal outcome that
implicates a treating psychiatrist’s obligation to “do no harm” to the
patient. 19 Moreover, when a testifying mental health professional also
has a clinical relationship with an individual, that relationship can affect
her ability to give objective and reliable testimony. 20
As this Article will discuss, the fields of forensic psychiatry and
psychology later developed comprehensive and robust ethical
frameworks to guide mental health professionals who are faced with this
ethical dilemma, and the fields themselves strongly discourage—but do
not expressly prohibit—the practice. Notwithstanding these ethical
guidelines and the inherent conflicts that arise from this practice, many
courts do not question the mental health professional’s ability to
provide forensic testimony for a patient with whom she also has a
clinical relationship, and some state statutes actually require clinicians
in state-run facilities to perform these multiple roles. 21
Although this type of conflict and resulting unreliable testimony
can arise in a variety of litigation settings—from child custody litigation
to civil and criminal cases—this Article limits its analysis to forensic
evaluations that occur in civil commitment and criminal competency
evaluations. Part I of this Article will discuss the medical and legal rules
that govern dual relationships within the fields of psychiatry and
psychology and within the legal system. Part II will examine the various
harms that result from dual relationships, including harms to the patient
and the therapeutic relationship, and harms to the legal system that
occur when unreliable expert testimony is admitted in civil commitment
and competency proceedings. This Part will also discuss why disclosure
of the conflict is not enough to avoid these harms. Part III argues that
forensic assessment by a patient’s therapist does not generally provide a
reliable basis for forensic testimony under the Federal Rules of Evidence
and recommends that courts view such testimony with considerably
more skepticism than is current practice. This Part recommends that
state legislatures expand statutes permitting telebehavioral health 22 as a
way to provide neutral forensic evaluations, especially in communities
18 Appelbaum, Ethics and Forensic Psychiatry, supra note 17, at 196 (“[F]orensic
psychiatrists should testify to what they believe to be true, regardless of whether such testimony
favors or disadvantages the parties employing them.”).
19 Appelbaum, A Theory of Ethics, supra note 15, at 236, 241; see also infra Section II.A.
THE LAW 235 (4th ed. 2007); see also infra Section II.B.
(noting that in a review of legal standards governing the practice, “[n]o legal authority on this
principle was located”); see also infra Section I.B.
22 See text accompanying notes 285–87 (explaining telebehavioral health).
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where provider shortages have prompted psychiatrists and mental
health professionals to engage in dual clinical and forensic roles. Finally,
this Part also recommends that courts exercise their powers more
broadly under Federal Rule of Evidence 706 to appoint neutral and
independent mental health experts in civil commitment and
competency proceedings.
Psychiatry is a field of medicine that studies the “diagnosis and
treatment of disorders of thinking, feeling, and behavior.” 23 Forensic
psychiatry is a subspecialty of psychiatry that applies psychiatric
principles to legal questions and legal proceedings. One well known
definition of forensic psychiatry is “the application of psychiatry to legal
issues for legal ends, legal purposes.” 24 Similarly, forensic psychology is
“all forensic practice by any psychologist working within any
subdiscipline of psychology.” 25
Psychiatrists, psychologists, and other mental health professionals
are often asked to give testimony in legal proceedings ranging from
family law to civil litigation, civil commitment, and criminal
proceedings. 26 For example, a mental health professional might be asked
to testify about the custodial fitness of a parent or the degree of trauma
suffered by a civil plaintiff in a claim for assault. Similarly, a mental
health professional might give testimony about whether a defendant is
23 J. Richard Ciccone, Commentary, Forensic Education and the Quest for Truth, 41 J. AM.
ACAD. PSYCHIATRY & L. 33, 33 (2013).
24 Seymour Pollack, Forensic Psychiatry—A Specialty, 2 BULL. AM. ACAD. PSYCHIATRY & L.
GUIDELINES], (defining forensic psychiatry as “a subspecialty of
psychiatry in which scientific and clinical expertise is applied in legal contexts involving civil,
criminal, correctional, regulatory or legislative matters” and stating that “[t]hese guidelines
apply to psychiatrists practicing in a forensic role”).
26 See Appelbaum, A Theory of Ethics, supra note 15, at 239. Forensic mental health
evaluations are typically conducted by professional psychiatrists and psychologists. See
HEILBRUN, supra note 21, at 3. These mental health professionals are, of course, governed by
different professional rules, standards, and ethical codes, though the process of forensic
assessment is not typically defined by the profession of the evaluator. Id. at 6. Instead, “‘the
nature of the legal question’ has served as the unifying theme and the focus of most of the
literature in forensic assessment.” Id. Although this Article focuses on both forensic
psychiatrists and psychologists, many times the responsibilities and ethical concerns will relate
to both types of mental health providers when they testify as forensic experts. For that reason,
this Article will use the terms “clinician” or “mental health professional” to encompass both
psychiatrists and psychologists, and use the individual terms when applicable.
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competent to stand trial or criminally culpable for a charged offense, or
whether a respondent meets civil commitment criteria. Often, a neutral
psychiatrist or psychologist, one with no previous relationship to the
evaluee, is retained to conduct an evaluation and provide testimony in a
court proceeding. In some cases, however, when an individual clinician
assumes both a treatment and a forensic role in the context of a single
case, a dual-role relationship is created. 27
Dual relationships between clinicians and patients in the forensic
context can arise for a variety of reasons. 28 In the civil setting, if a patient
already has a therapist and later becomes involved in litigation, the
patient may prefer to have her original therapist testify and avoid the
expense and inconvenience of visiting a separate mental health
professional. 29 Some patients may also prefer not to share personal
information with a new clinician when they have already shared the
information with their existing therapist. If the therapist does not
typically serve in a forensic role, she may not be aware of the conflict or
the ethical guidelines advising against it, and may simply be trying to
assist her patient. Similarly, attorneys may not be aware of the conflict
dual relationships create and may send a client to the same clinician for
both treatment and evaluation. 30 In the criminal setting, dual
relationships often occur in criminal competency proceedings,
especially in public hospitals where the same staff often perform both a
See HEILBRUN, supra note 21, at 65.
See Larry H. Strasburger et al., On Wearing Two Hats: Role Conflict in Serving as Both
Psychotherapist and Expert Witness, 154 AM. J. PSYCHIATRY 448, 448–49 (1997); see also
HEILBRUN, supra note 21, at 65–66. As Heilbrun explains, dual roles occur in three types of
circumstances. The first circumstance “involves the combination of a professional role (e.g.,
therapist, consultant, or forensic evaluator) with a personal or vocational role (e.g., spouse,
lover, family member, friend, co-worker, or business associate).” Id. at 65. The second type
occurs when “both roles are professional, most often a treatment role combined with a forensic
evaluator role (e.g., a therapist serving as a forensic expert for a current therapy client).” Id. The
last type of circumstance in which a dual relationship is created is when a forensic expert
assumes “a second role within a forensic case (e.g., consultant), either concurrent with the role
of forensic evaluator or after it has been completed.” Id. at 66.
29 Of course, treatment and forensic roles can also become combined when a forensic
evaluator later develops a therapeutic relationship with an evaluee. Although this Article does
not specifically address that scenario, it is important to note that this type of relationship may
also be vulnerable to bias stemming from the blurring of these two roles.
30 See Strasburger et al., supra note 28, at 449 (“Attorneys may believe that by enlisting the
treating clinician as a forensic expert, they are making efficient use of the most knowledgeable
source of information. After all, who is closer to the patient than his or her own therapist?”); see
(Robert I. Simon & Liza H. Gold eds., 2d ed. 2010) (“Attorneys and even judges often believe
that the treating psychiatrist . . . . has spent the most time with the individual and would
therefore be expected to ‘best’ understand why the defendant acted as he or she did. However,
this [mistaken] assumption contains many fallacies of which legal professionals are typically
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therapeutic and forensic role. 31 Finally, many parts of the country lack
enough mental health professionals to perform separate forensic and
clinical roles for every patient. 32
This Article does not suggest that dual relationships are
inappropriate or harmful in all circumstances. For instance, in small
communities where few mental health professionals are available,
refusing to provide therapeutic services to an individual with whom the
clinician has an existing social or professional relationship might
deprive the community of needed mental health care and treatment. 33
There are also instances in which a treating clinician might
appropriately provide information in a legal setting on behalf of a
patient. In the context of social security benefits, for example, claimants
are required to submit the opinion of a “treating source.” 34 Refusing to
provide such documentation of the patient’s claim could result in a
harm to the patient much greater than any potential harm based on a
dual relationship. Although this type of conflict and resulting unreliable
See APPELBAUM & GUTHEIL, supra note 20, at 236. As Dr. Appelbaum and Dr. Gutheil
Criminal forensic evaluations are often performed on an inpatient basis in public
mental health facilities. When this occurs, the facility is charged with the
responsibility of conducting the evaluation and treating a psychotic, depressed, or
otherwise disordered patient. When staff time is at a premium, as is commonly the
case, there is a temptation to ask the treating clinician to serve also as evaluator, the
assumption being that time will thereby be conserved; this is a problematic situation.
Id. Some state statutes implicitly encourage dual relationships by requiring that individuals be
evaluated by forensic clinicians in a state-run facility. Maine, for example, requires that the
“defendant be examined by the State Forensic Service for evaluation of the defendant’s
competency to proceed.” ME. STAT. tit. 15, § 101-D(1)(A) (2013). Other states, however,
discourage the practice. See, e.g., 725 ILL. COMP. STAT. ANN. 5/104-13(a) (2006) (“No physician,
clinical psychologist or psychiatrist employed by the Department of Human Services shall be
ordered to perform, in his official capacity, an examination under this Section.”).
(“Our nationwide shortage of mental health professionals significantly impacts access to needed
mental health treatment and contributes to inadequate care and unsafe conditions.”); Kathleen
C. Thomas et al., County-Level Estimates of Mental Health Professional Shortage in the United
States, 60 PSYCHIATRIC SERVICES 1323, 1323 (2009) (“The shortage of mental health
professionals has been a persistent concern for decades.”).
33 See Sharon M. Moleski & Mark S. Kiselica, Dual Relationships: A Continuum Ranging
from the Destructive to the Therapeutic, 83 J. COUNSELING & DEV. 3, 7–8 (2005) (“Such
behavior merely trades one ethical concern for another.”). Moleski and Kiselica also cite to, as
an example, certain Asian cultures in which it is appropriate to express gratitude by giving gifts,
stating that “[w]hile Western-trained professionals may believe that accepting a gift would blur
boundaries, a refusal of the gift may result in the client feeling insulted.” Id. at 8.
34 20 C.F.R. § 404.1527(c)(2) (2015) (“Generally, we give more weight to opinions from
your treating sources, since these sources are likely to be the medical professionals most able to
provide a detailed, longitudinal picture of your medical impairment(s) and may bring a unique
perspective to the medical evidence that cannot be obtained from the objective medical findings
alone or from reports of individual examinations, such as consultative examinations or brief
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testimony can arise in a variety of litigation settings, this Article limits
its analysis to forensic evaluations that occur in civil commitment and
criminal competency evaluations. In these settings, where a clinician
gives expert testimony on behalf of an individual with whom she has a
preexisting therapeutic relationship, the court, the parties, and the
patient are all affected by the conflict and resulting biased testimony. 35
States vary widely in their requirements pertaining to forensic
testimony in civil commitment and criminal competency proceedings.
In civil commitment proceedings, many states require that a treating
mental health professional conduct commitment evaluations when an
individual is being held at a state facility, 36 while others permit a dual
treating and forensic relationship. 37 Finally, a few states expressly
prohibit this type of dual relationship in civil commitment
proceedings. 38 In criminal competency proceedings, most states require
that evaluations be conducted by a psychiatrist or psychologist, and a
few states require that evaluations be performed by a “qualified”
psychologist or psychiatrist. 39 Very few of these states explicitly require
an individual who is not otherwise involved in the defendant’s previous
treatment or restoration to perform the competency evaluation. 40 A few
state legislatures do seem to be aware of the potential ethical conflicts
created by dual relationships and have prohibited dual relationships by
statute. For example, Utah requires that competency evaluations be
performed by “at least two mental health experts not involved in the
current treatment of the defendant,” 41 while Indiana requires competent
and disinterested evaluators, none of whom “may be an employee or a
contractor of a state institution.” 42
See infra Part II.
See, e.g., COLO. REV. STAT. § 27-65-108 (2016) (“If the professional person in charge of
the evaluation and treatment believes that a period longer than three months is necessary for
treatment of the respondent, he or she shall file with the court an extended certification.”).
37 See, e.g., IND. CODE § 12-26-6-8(d) (2015) (“The physician who [evaluates an individual]
may be affiliated with the community mental health center that submits to the court the
report . . . .”).
38 See, e.g., CONN. GEN. STAT. ANN. § 17a-498(c)(1) (2012) (“The court shall require the
certificates, signed under penalty of false statement, of at least two impartial physicians selected
by the court, one of whom shall be a practicing psychiatrist . . . and shall not be connected with
the hospital for psychiatric disabilities to which the application is being made . . . .”).
39 See Douglas Mossman et al., AAPL Practice Guideline for the Forensic Psychiatric
Evaluation of Competence to Stand Trial, 35 J. AM. ACAD. PSYCHIATRY & L. (SUPPLEMENT) S3,
S59–67 tbl.3 (2007).
40 Id.
41 UTAH CODE ANN. § 77-15-5(2)(b) (West 2004).
42 IND. CODE ANN. § 35-36-3-1 (2012). The Indiana statutes provides that:
The court shall appoint two (2) or three (3) competent, disinterested: (1)
psychiatrists; (2) psychologists endorsed by the Indiana state board of examiners in
psychology as health service providers in psychology; or (3) physicians; who have
expertise in determining competency. At least one (1) of the individuals appointed
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Despite some statutory guidance regarding forensic mental health
testimony, it is the judge who ultimately decides whether offered
testimony is admissible. 43 As discussed in the following Section, while
the mental health community has reached a consensus that testimony
based on dual relationships is unethical and unreliable, most courts have
not followed the view of the mental health community when ruling on
the admissibility of this evidence.
The Medical Ethical Guidelines
In order to understand the propriety of forensic mental health
testimony, it is useful to first consider the way in which mental health
professionals view forensic mental health testimony and the limits that
the mental health profession puts on such testimony. In their capacity as
health care providers, mental health practitioners are, of course, bound
by medical ethics. The overarching guideline of medical ethics is
avoiding harm, with “the traditional Hippocratic moral obligation of
medicine [being] to provide net medical benefit to patients with
minimal harm—that is, beneficence with non-maleficence.” 44
Beneficence obligates the clinician to “promote that which is beneficial
to the patient,” while non-maleficence requires that the clinician “do no
harm.” 45 It is from these moral principles that professional mental
health associations create ethical standards and guidelines, with “their
purpose being to establish relatively clear expectations for professional
behavior.” 46
Because dual relationships can cause harm to patients and create
conflicts of interest, psychiatrists and psychologists are generally advised
to avoid relationships with patients outside of the therapeutic
relationship. 47 While sexual relationships are often highlighted in ethical
codes and the professional literature, “virtually all non-sexual dual
under this subsection must be a psychiatrist or psychologist. However, none may be
an employee or a contractor of a state institution . . . .
Id.; see also N.C. GEN. STAT. § 15A-1002(b)(1a) (2016) (“In the case of a defendant charged
with a misdemeanor or felony, the court may appoint one or more impartial medical
experts . . . .”).
43 See infra Section I.B.
44 Raanan Gillon, Medical Ethics: Four Principles Plus Attention to Scope, 309 BRIT. MED. J.
184, 185 (1994).
46 Moleski & Kiselica, supra note 33, at 4.
47 See id.
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relationships and conflicts of interest are [also] considered unethical.”48
This includes entering into a therapeutic relationship with a close friend
or relative, socializing with patients, trading therapeutic services for
other goods, and accepting gifts from patients. 49 Despite these longstanding prohibitions, Dr. Stone’s 1982 speech is widely believed to be
one of the first times anyone had publicly questioned the propriety of
dual clinical and forensic roles in psychiatry. 50
Dr. Stone believed that the forensic psychiatrist could not escape
acting as a “double agent” because he could not combine the traditional
clinical goal of doing no harm with the tasks required of forensic
experts: truthful testimony and serving the interests of justice. 51 In his
example of the sergeant, of course, Dr. Stone was serving, at least
ostensibly, in a single forensic role. Yet, through the course of that
forensic assessment, he learned personal details about the sergeant and
felt that he had begun to develop a treating relationship with the
sergeant. 52 For that reason, he questioned whether psychiatrists should
give forensic testimony under any circumstances and explained that he
himself no longer gave forensic testimony. 53 He ended his speech by
concluding that the ethics of forensic psychiatry were in chaos and that
the ethical foundations of the field were so inadequate that “forensic
psychiatrists are necessarily engaged in a morally dubious enterprise.” 54
In the audience that day was a psychiatrist and former student of
Dr. Stone’s, Dr. Paul Appelbaum. Dr. Appelbaum objected to Dr.
Stone’s position that “there were no neutral principles of ethics by which
forensic psychiatrists might guide their practices—and that none would
be found,” and concluded that Dr. Stone’s position condemned forensic
48 Vincent J. Rinella, Jr. & Alvin I. Gerstein, The Development of Dual Relationships: Power
and Professional Responsibility, 17 INT’L J.L. PSYCHIATRY 225, 226 (1994).
49 Id.
50 See Appelbaum, Ethics and Forensic Psychiatry, supra note 17, at 196 (“Stone’s talk was a
turning point for the field, forcing it to confront directly its significant ethics challenges and the
need for a coherent ethics framework to guide its work.”).
51 See Stone, The Ethical Boundaries of Forensic Psychiatry, supra note 15, at 167–68, 170
(noting that he is “not a forensic psychiatrist. What has kept [him] out of the courtroom is [his]
concern about the ethical boundaries of forensic psychiatry”). As Stone notes, “[t]he difference
that makes a difference between clinical practice and forensic practice sometimes has been
discussed under the heading of the psychiatrist as a double agent.” Id. at 170.
52 Id. at 170 (“It is no accident that good clinicians often are emotionally seductive human
beings inspiring personal trust.”).
53 Id. at 167. Of course, one also needs to consider the potential harm should psychiatrists
never offer forensic testimony. For example, in many cases, this might be a criminal defendant’s
primary means of offering mitigating evidence at trial or sentencing. According to Dr.
Appelbaum, Dr. Stone has since clarified that “he never meant to suggest that psychiatrists
should abandon the courtroom, [although] his view remains that psychiatry has nothing that it
can offer the courts that is both truthful and of use to the legal process.” Appelbaum, Ethics and
Forensic Psychiatry, supra note 17, at 199.
54 Appelbaum, Ethics and Forensic Psychiatry, supra note 17, at 199.
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psychiatrists “to wander in an ethical wasteland, permanently bereft of
moral legitimacy.” 55 Instead, Dr. Appelbaum proposed what has since
become known as the “Standard Position,” the view that psychiatrists
are guided by different ethical principles when they are acting in clinical
and forensic roles. 56 While the traditional ethical principles of
beneficence and non-maleficence guide the psychiatrist in a clinical
setting, “they do not attain primacy for the forensic psychiatrist.”57
When psychiatrists are performing a forensic role, we can therefore
expect that they are capable of satisfying different ethical obligations. 58
In developing an ethical framework for forensic psychiatry, Dr.
Appelbaum identified ethical principles for forensic psychiatrists that
differ from the traditional medical ethical obligations of beneficence and
non-maleficence. First, the principle of “truth-telling” is based on the
witnesses’ oath to testify truthfully. 59 As Dr. Appelbaum notes, “[t]he
primary task of the psychiatrist in the courtroom is to present the truth,
insofar as that goal can be approached, from both a subjective and an
objective point of view.” 60 Subjective truth-telling means testifying
honestly, while objective truth-telling means acknowledging, “insofar as
possible, the limitations on his or her testimony, including those due to
the limits of scientific or professional knowledge, as well as those
specific to a particular case.” 61 The second ethical principle Dr.
Appelbaum identifies is “respect for persons.” 62 In the forensic setting,
this primarily means “undercut[ting] subjects’ beliefs that they, acting in
the usual way that physicians act, are placing subjects’ interests above all
other considerations.”63 Specifically, forensic psychiatrists should ensure
Id. at 196 (quoting Appelbaum, A Theory of Ethics, supra note 15, at 234).
See Appelbaum, Ethics and Forensic Psychiatry, supra note 17, at 196–97.
57 Paul S. Appelbaum, The Parable of the Forensic Scientist: Ethics and the Problem of Doing
Harm, 13 INT’L J.L. & PSYCHIATRY 249, 252 (1990). As Dr. Appelbaum notes, the principles of
beneficence and non-maleficence are actually in conflict with the goals of forensic evaluation
and testimony and “[t]he possibility that a result harmful to the evaluee might flow from the
evaluation is the very feature that endows it with value.” Id.
58 See Appelbaum, A Theory of Ethics, supra note 15, at 238. Dr. Appelbaum uses the
example of a physician who works in both a clinical setting and a research setting. Dr.
Appelbaum states that, while working in the clinical setting, “fidelity to patients’ interests (that
is beneficence and nonmaleficence) is the over-riding moral imperative.” Id. When the
physician goes to work in a research unit, on the other hand, “the advancement of knowledge,
rather than the pursuit of health, takes priority. There is no reason to be uncomfortable with
the notion that as one’s role changes, so also do the ethics to which one is committed.” Id.
59 Id. at 240.
60 Id. (alteration in original) (quoting Paul S. Appelbaum, Psychiatric Ethics in the
Courtroom, BULL. AM. ACAD. PSYCHIATRY & L. 225, 225 (1984)).
61 Id.
62 Id.
63 Id. at 241. As Dr. Appelbaum notes, one risk of forensic psychiatry generally is that
patients may not understand that the psychiatrist is acting in an evaluative role, and may
instead assume that the psychiatrist is acting in a therapeutic role. Id. They may reason that
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that the subject knows who the psychiatrist is, what role they play in the
litigation, and that they are not serving a therapeutic function for the
subject. 64
At the same time that Dr. Appelbaum was developing his theory of
the ethical practice of forensic psychiatry, AAPL created its own
guidelines. 65 With respect to psychiatric forensic testimony, there is no
outright prohibition against dual relationships in the ethical guidelines
for psychiatrists. However, psychiatrists are advised to “generally avoid
acting as an expert witness for their patients or performing evaluations
of their patients for legal purposes.” 66 Moreover, the Code of Ethics of
the American Medical Association, which also governs psychiatrists,
notes that physicians have “an [ethical] obligation to assist in the
administration of justice,” 67 but cautions that when a treating
physician’s testimony would adversely impact a patient’s medical
interests, the physician should not testify unless the patient consents or
the physician is ordered to testify by the court. 68 When used as expert
testimony in a legal proceeding, physician testimony “should reflect
current scientific thought and standards of care that have gained
acceptance among peers in the relevant field.” 69
Similarly, psychologists are warned that “[p]roviding forensic and
therapeutic psychological services to the same individual or closely
related individuals involves multiple relationships that may impair
objectivity and/or cause exploitation or other harm” and are advised to
“make reasonable efforts to refer the request to another qualified
provider.” 70 The American Psychological Association’s Ethics Code
more generally emphasizes “the goal of assisting without harming those
“[t]his person is a physician . . . . Surely she is here to help me, and at least will do me no harm.
I am safe in speaking freely about whatever I choose.” Id.
64 Id. Dr. Appelbaum also emphasizes the importance of maintaining confidentiality,
noting that “[r]espect for persons also underlies the adherence of forensic psychiatrists to
maintaining the confidentiality of the evaluation, except to the extent that disclosure is
necessary to fulfill the forensic function.” Id. at 242.
supra note 21, at 68.
67 AM. MED. ASS’N, AMA CODE OF MEDICAL ETHICS OP. 9.07 (2004) (“In various legal and
administrative proceedings, medical evidence is critical. As citizens and as professionals with
specialized knowledge and experience, physicians have an obligation to assist in the
administration of justice.”).
68 Id. (“When treating physicians are called upon to testify in matters that could adversely
impact their patients’ medical interests, they should decline to testify unless the patient
consents or unless ordered to do so by legally constituted authority. If, as a result of legal
proceedings, the patient and the physician are placed in adversarial positions it may be
appropriate for a treating physician to transfer the care of the patient to another physician.”).
69 Id.
70 APA SPECIALTY GUIDELINES, supra note 25, § 4.02.01.
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with whom psychologists work.” 71 Finally, General Principle D—
Justice—was added to the Ethics Code in 2002 and obligates
psychologists to “exercise reasonable judgment and take precautions to
ensure that their potential biases, the boundaries of their competence,
and the limitations of their expertise do not lead to or condone unjust
practices.”72 Significantly, the APA Ethics Code attempts to reconcile
conflicts between the requirements of the Code and related legal rules in
the application section. The Code notes that:
If this Ethics Code establishes a higher standard of conduct than is
required by law, psychologists must meet the higher ethical standard.
If psychologists’ ethical responsibilities conflict with law, regulations,
or other governing legal authority, psychologists make known their
commitment to this Ethics Code and take steps to resolve the conflict
in a responsible manner in keeping with basic principles of human
rights. 73
Like psychiatry and psychology, many other professions have
ethical guidelines that address dual relationships. Model Rule of
Professional Conduct 1.8, for example, places restrictions on attorneys
who enter into a business transaction with an existing client, 74 and
prohibits attorneys from beginning a sexual relationship with an
existing client. 75 This rule is meant to prevent attorneys from engaging
in both a professional and personal relationship with a client. In the case
of a clinician who both treats a patient and provides testimony about
such patient in a legal proceeding, however, the resulting conflict is not
between personal and professional roles, but between two distinct
professional roles: that of a medical caregiver, and that of an expert legal
witness. 76 The conflicts that can result from this type of dual
BUSH ET AL., supra note 45, at 19.
PSYCHOL. ASS’N 2010) [hereinafter APA GENERAL PRINCIPLES]. For a general description of the
APA Ethics Code, see BUSH ET AL., supra note 45, at 19–20.
73 APA GENERAL PRINCIPLES, supra note 72, intro.
74 MODEL RULES OF PROF’L CONDUCT r. 1.8(a) (AM. BAR ASS’N 1983) (“A lawyer shall not
enter into a business transaction with a client or knowingly acquire an ownership, possessory,
security or other pecuniary interest adverse to a client unless: (1) the transaction and terms on
which the lawyer acquires the interest are fair and reasonable to the client and are fully
disclosed and transmitted in writing in a manner that can be reasonably understood by the
client; (2) the client is advised in writing of the desirability of seeking and is given a reasonable
opportunity to seek the advice of independent legal counsel on the transaction; and (3) the
client gives informed consent, in a writing signed by the client, to the essential terms of the
transaction and the lawyer’s role in the transaction, including whether the lawyer is
representing the client in the transaction.”).
75 Id. at 1.8(j) (“A lawyer shall not have sexual relations with a client unless a consensual
sexual relationship existed between them when the client-lawyer relationship commenced.”).
76 See Strasburger et al., supra note 28, at 448–49.
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relationship are therefore irreconcilable given the distinct goals and
obligations of clinical and forensic patient relationships.
Because of the conflicts that can arise from dual relationships,
psychiatrists and psychologists are urged by various ethical codes and
regulations to avoid dual clinical and forensic relationships, and “[t]he
professional literature provides reasonable support for not blending the
roles of therapeutic and forensic clinician in the same case.” 77 Many in
the psychiatric community support this position, including Dr.
Appelbaum, who believes that psychiatrists should not act
simultaneously in both a clinical and forensic role, and refers to the
AAPL guidelines that discourage this practice. 78 Specifically, Dr.
Appelbaum notes that the information a psychiatrist gathers during the
course of treatment should be used only to benefit the patient, and even
if the psychiatrist is well intentioned, using the same information in a
forensic setting “may redound to the patient’s detriment.” 79 Other
commentators are less subtle and propose “a rule imposing a clear,
impenetrable boundary between therapeutic and forensic roles within a
single case.” 80
The ethical guidelines for both psychiatrists and psychologists are
therefore consistent in warning against dual relationships created when
a single clinician assumes both a therapeutic and clinical role.
Furthermore, while there is some diversity among mental health
professionals as to whether such relationships should be avoided
entirely, “the majority of the literature is inclined against blending
HEILBRUN, supra note 21, at 69.
See Paul S. Appelbaum, Editorial, Ethics in Evolution: The Incompatibility of Clinical and
Forensic Functions, 154 AM. J. PSYCHIATRY 445, 445 (1997) [hereinafter Appelbaum, Ethics in
Evolution]. Appelbaum cites to the Ethical Guidelines for the Practice of Forensic Psychiatry of
the American Academy of Psychiatry and the Law, see AAPL FORENSIC PSYCHIATRY ETHICS
GUIDELINES, supra note 24, which discourage a single psychiatrist from performing both a
clinical and forensic role, and notes the “fundamental incompatibility between the ethics of the
two situations.” Appelbaum, Ethics in Evolution, supra; see also APPELBAUM & GUTHEIL, supra
note 20, at 237 (noting that role separation is optimal because of conflicts of interest that arise
from dual relationships).
79 Appelbaum, Ethics in Evolution, supra note 78, at 446.
80 Daniel W. Shuman et al., Special Perspective, An Immodest Proposal: Should Treating
Mental Health Professionals Be Barred from Testifying About Their Patients?, 16 BEHAV. SCI. L.
509, 514 (1998). As the authors note:
Under such a rule, across the judicial spectrum, therapists would not be permitted to
testify about their patients even if the parties or the court requested it. Instead, only
forensic examiners who had not treated the patient/litigant and, ideally, who had
specialized forensic training, could appear as retained or appointed experts. Apart
from avoiding the harm that proscription of therapeutic/forensic role conflicts is
designed to avoid, there are several reasons why such a proposal may be appealing
for therapy and the provision of information in the courtroom.
Id.; see also BUSH ET AL., supra note 45, at 14 (“In general, to maximize objectivity, these roles
should not be combined in a single case.”).
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personal–professional or therapeutic–forensic roles in a single case.
There is sufficient support to conclude that this principle is
established.” 81
The Legal Guidelines
Notwithstanding the ethical prohibitions and extensive
commentary within the psychiatric and psychological fields, the legal
system, which relies heavily on forensic psychiatric and psychological
testimony, offers almost no guidance on the propriety of dual
relationships. Dr. Kirk Heilbrun, in a review of legal standards
governing the practice, notes simply that “[n]o legal authority on this
principle was located.” 82 Notwithstanding the lack of governing case
law, forensic mental health testimony—like all expert testimony—is
governed by the rules of evidence, which provide some guidance as to
the propriety of clinicians who offer testimony in a case in which they
have a dual relationship with a patient.
Under the Federal Rules of Evidence (FRE or Rules), mental health
professionals may testify as either lay witnesses or expert witnesses. FRE
701 allows lay witnesses to give an opinion about matters that are
“rationally based on the witness’s perception,” helpful to the jury, and
“not based on scientific, technical, or other specialized knowledge.”83 If
a clinician testifies about things she simply observed or witnessed while
meeting with a patient, she would be considered a lay witness under
FRE 701. 84 In contrast, when the clinician expresses a professional
HEILBRUN, supra note 21, at 73.
Id. at 68. One exception to this lack of guidance can be found in the American Bar
Association’s “black letter” standards that govern issues of mental health in criminal law
mentalhealth_blk.html. Specifically, Standard 7-3.11 governs the qualifications for expert
witnesses who testify about a person’s mental condition. See id. § 7-3.11(a)(ii)(B) (noting that
experts may gain sufficient knowledge to testify in a case based on “a professional therapeutic
or habilitative relationship with the person whose mental condition is in question”).
83 FED. R. EVID. 701. The rule governs lay witness testimony and provides:
If a witness is not testifying as an expert, testimony in the form of an opinion is
limited to one that is: (a) rationally based on the witness’s perception; (b) helpful to
clearly understanding the witness’s testimony or to determining a fact in issue; and
(c) not based on scientific, technical, or other specialized knowledge within the scope
of Rule 702.
84 The doctor-patient privilege would of course limit the clinician’s ability to give this
testimony, but a patient can choose to waive that privilege. See, e.g., Clay v. Woodbury Cty., 965
F. Supp. 2d 1055, 1060 (N.D. Iowa 2013) (“Under Iowa law, the physician-patient privilege
‘may be waived by the defendant’s disclosure or consent to disclosure of the privileged
information.’” (quoting State v. Demaray, 704 N.W.2d 60, 65 (Iowa 2005))).
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opinion about those facts based on her “knowledge, skill, experience,
training, or education,” she becomes an expert witness and is subject to
the more stringent requirements of FRE 702. 85
For much of the twentieth century, the major case governing the
admissibility of expert testimony was Frye v. United States, which
provided what became known as the “general acceptance” test. 86 In Frye,
the defendant attempted to prove his innocence by introducing expert
testimony about the results of a lie detector test that measured systolic
blood pressure. 87 In rejecting this testimony, the court created the
standard for the introduction of expert testimony, holding that the point
at which a scientific theory or principle should form the basis of expert
testimony is difficult to pinpoint, but that:
Somewhere in this twilight zone the evidential force of the principle
must be recognized, and while courts will go a long way in admitting
expert testimony deduced from a well-recognized scientific principle
or discovery, the thing from which the deduction is made must be
sufficiently established to have gained general acceptance in the
particular field in which it belongs. 88
Frye’s general acceptance standard proved problematic for new and
contested scientific areas. For example, under Frye, defendants were
unable to introduce expert testimony about now commonly accepted
conditions such as pathological gambling, 89 and battered woman
FED. R. EVID. 702. The rule governs expert witness testimony and provides:
A witness who is qualified as an expert by knowledge, skill, experience, training, or
education may testify in the form of an opinion or otherwise if: (a) the expert’s
scientific, technical, or other specialized knowledge will help the trier of fact to
understand the evidence or to determine a fact in issue; (b) the testimony is based on
sufficient facts or data; (c) the testimony is the product of reliable principles and
methods; and (d) the expert has reliably applied the principles and methods to the
facts of the case.
86 See Frye v. United States, 293 F. 1013 (D.C. Cir. 1923). Though the Supreme Court later
announced a new standard applicable to the federal courts in Daubert v. Merrell Dow
Pharmaceuticals, Inc., 509 U.S. 579 (1993), many states have rejected the Daubert test and
continue to use the Frye standard to determine the admissibility of expert testimony. See, e.g.,
N.Y. C.P.L.R. 4515 (MCKINNEY 2015); PA. R. EVID. 702.
87 See Frye, 293 F. at 1013–14. The court describes the lie detector test as one that can
purportedly measure systolic blood pressure, which is raised by “conscious deception or
falsehood, concealment of facts, or guilt of crime, accompanied by fear of detection when the
person is under examination.” Id. at 1013. Systolic blood pressure, in turn “corresponds exactly
to the struggle going on in the subject’s mind, between fear and attempted control of that fear,
as the examination touches the vital points in respect of which he is attempting to deceive the
examiner.” Id. at 1013–14.
88 Id. at 1014.
89 See, e.g., United States v. Lewellyn, 723 F.2d 615 (8th Cir. 1983). In a trial for
embezzlement, the court held that to enter an insanity plea, Lewellyn was required to
demonstrate “that there is general acceptance in the fields of psychiatry and psychology of the
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syndrome. 90 Many commentators criticized the Frye test for its
inflexibility and inability to keep up with the rapid scientific
developments. 91 And while the FRE, which were adopted in 1976,
seemed to suggest that courts should take a more expansive view of the
use of scientific expert testimony, 92 most federal circuits, and about half
of the states, continued to apply Frye’s general acceptance rule to govern
the admissibility of contested expert testimony. 93
More than two decades after the adoption of the FRE, the United
States Supreme Court clarified that the Rules, and not Frye’s general
acceptance test, were the controlling standard for the admissibility of
expert testimony in federal courts. 94 In Daubert v. Merrell Dow
principle that some pathological gamblers lack substantial capacity to conform their conduct to
the requirements of laws prohibiting embezzlement and similar offenses.” Id. at 619. Because
pathological gambling was not included in the current Diagnostic and Statistical Manual of
Mental Disorders (DSM), and the expert did not testify that it was generally accepted by other
mental health professionals, Lewellyn did not establish the “requisite indicia of scientific
reliability.” Id. at 620.
90 See, e.g., State v. Thomas, 423 N.E.2d 137, 140 (Ohio 1981), overruled by State v. Koss,
551 N.E.2d 970 (Ohio 1990) (holding that “‘battered wife syndrome’ is not sufficiently
developed, as a matter of commonly accepted scientific knowledge, to warrant testimony under
the guise of expertise”). As MCCORMICK ON EVIDENCE notes,
Polygraphy, graphology, hypnotic and drug induced testimony, voice stress analysis,
voice spectrograms, various forms of spectroscopy, infrared sensing of aircraft,
retesting of breath samples for alcohol content, psychological profiles of battered
women and child abusers, post traumatic stress disorder as indicating
rape, . . . astronomical calculations, . . . [and] blood group typing, . . . all have fallen
prey to [Frye’s] influence.
MCCORMICK ON EVIDENCE § 203 (Kenneth S. Broun ed., 6th ed. 2006) (footnotes omitted).
91 See, e.g., Andre A. Moenssens, Admissibility of Scientific Evidence—An Alternative to the
Frye Rule, 25 WM. & MARY L. REV. 545, 547 (1984).
92 See, e.g., FED. R. EVID. 702 (amended 2000, 2011). The 1972 Advisory Committee notes
on the existing version of FRE Rule 702 provided:
The rule is broadly phrased. The fields of knowledge which may be drawn upon are
not limited merely to the “scientific” and “technical” but extend to all “specialized”
knowledge. Similarly, the expert is viewed, not in a narrow sense, but as a person
qualified by “knowledge, skill, experience, training or education.” Thus within the
scope of the rule are not only experts in the strictest sense of the word, e.g.,
physicians, physicists, and architects, but also the large group sometimes called
“skilled” witnesses, such as bankers or landowners testifying to land values.
FED. R. EVID. 702 advisory committee’s note to 1972 proposed rule.
93 See Michael J. Saks, Merlin and Solomon: Lessons from the Law’s Formative Encounters
with Forensic Identification Science, 49 HASTINGS L.J. 1069, 1076–77 (1998) (noting that while
the FRE rejected Frye and instead focused on the validity of the proposed scientific testimony,
“we did not learn this about the Federal Rules until the Supreme Court’s unanimous decision in
Daubert v. Merrell Dow in 1993”).
94 See Daubert v. Merrell Dow Pharm., Inc., 509 U.S. 579, 586–87 (1993). The Court noted
that while many had debated the merits of Frye’s general acceptance test, the “[p]etitioners’
primary attack, however, is not on the content but on the continuing authority of the rule. They
contend that the Frye test was superseded by the adoption of the Federal Rules of Evidence. We
agree.” Id. at 587 (footnote omitted).
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Pharmaceuticals, Inc., Joyce Daubert was prescribed Bendectin for
nausea during her pregnancy. 95 When her son, Jason, was later born
with a malformed right arm, the Dauberts sued Merrell Dow, the
manufacturer of Bendectin. 96 At trial, Merrell Dow’s expert testified
that, based on his extensive review of the scientific literature, “maternal
use of Bendectin during the first trimester of pregnancy has not been
shown to be a risk factor for human birth defects.” 97
In response, the Dauberts introduced the testimony of eight
experts. 98 These experts did not disagree with Merrell Dow’s expert
regarding the published human studies, but instead concluded—based
on animal-cell studies, live-animal studies, and chemical-structure
analyses—that the drug can cause birth defects if administered during
pregnancy. 99 In granting Merrell Dow’s motion for summary judgment,
the district court applied the Frye standard to the Dauberts’ expert
testimony, and concluded that the testimony did not meet the standard
because the animal studies and chemical-structure analyses conducted
by the Dauberts’ experts were not generally accepted by the scientific
community. 100 The Ninth Circuit affirmed the district court’s
decision. 101
On appeal, the United States Supreme Court first noted that the
“Frye test has its origin in a short and citation-free 1923 decision,” and
clarified that Frye was “superseded by the adoption of the Federal Rules
Daubert v. Merrell Dow Pharm., Inc., 711 F. Supp. 546, 547 (S.D. Cal. 1989).
Jason Daubert was born with two fingers on his right hand and without a lower bone on
his right arm. See Natalie Angier, High Court to Consider Rules on Use of Scientific Evidence,
N.Y. TIMES (Jan. 2, 1993),; see also Daubert, 711 F. Supp. at 547 (“Jason was born
with a limb-reduction defect of his arm and hand.”). The Dauberts were joined in their lawsuit
by another family, the Schullers, whose son Eric had suffered similar birth defects after his
mother was prescribed Bendectin during pregnancy, being born without a left hand and with
one leg shorter than the other. See Angier, supra.
97 Daubert, 509 U.S. at 582. The expert, Dr. Lamm, testified that he had reviewed more than
thirty published studies involving more than 130,000 patients and that none of those studies
had found that Bendectin caused birth defects. Id.
98 Id. at 583.
99 Id. The experts based their conclusions upon test tube and animal studies “that found a
link between Bendectin and malformations,” studies of the chemical structure of Bendectin that
found its structure was similar to that of other substances that were known to cause birth
defects, and a reanalysis of previously published human studies of Bendectin. Id.
100 Daubert v. Merrell Dow Pharm., Inc., 727 F. Supp. 570, 575 (S.D. Cal. 1989). As the
district court noted, because “epidemiological studies are the most reliable evidence of
causation in this area[,] . . . expert opinion which is not based on epidemiological evidence is
not admissible to establish causation because it lacks the sufficient foundation necessary under
FRE 703.” Id. The district court also rejected the testimony regarding the reanalysis of the
published human studies of Bendectin because it had not been published or subjected to peer
review. Id.
101 See Daubert v. Merrell Dow Pharm., Inc., 951 F.2d 1128 (9th Cir. 1991).
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of Evidence.” 102 The Court observed that Frye’s requirement of general
acceptance was “rigid” and “at odds with the ‘liberal thrust’ of the
Federal Rules and their ‘general approach of relaxing the traditional
barriers to “opinion” testimony.’” 103 Instead, the Rules require that
opinion evidence be both reliable and helpful to the fact finder. 104 Rule
702 itself was later amended to include this focus on helpfulness and
reliability. 105
Perhaps most significantly, the Court assigned the screening role,
which under Frye had been primarily left to the experts themselves, to
the trial judge. 106 The Court created a nonexhaustive list of factors for
trial judges to consider in making this assessment, including whether
the theory or technique has been tested, whether it has been subjected to
peer review and publication, whether there is a known or potential rate
of error, whether there are standards controlling the technique’s
operation, and finally, whether the technique has been generally
accepted by the relevant scientific community. 107 While general
acceptance is therefore no longer the only standard courts can consider
in evaluating expert witness testimony, it still remains a factor the judge
may consider. Moreover, it is the trial judge who is responsible for
evaluating proposed expert testimony under Rule 702 to ensure that it is
sufficiently helpful and reliable.
Notwithstanding the Supreme Court’s confidence in the ability of
trial judges to perform this screening function, 108 some lower court
judges expressed concern about taking on this role. Writing on remand
102 Daubert, 509 U.S. at 585, 587. The Court noted that the Rules’ permissive nature, and the
absence of the “general acceptance” language within the text of the revised FRE 702, made “the
assertion that the Rules somehow assimilated Frye . . . unconvincing. Frye made ‘general
acceptance’ the exclusive test for admitting expert scientific testimony. That austere standard,
absent from, and incompatible with, the Federal Rules of Evidence, should not be applied in
federal trials.” Id. at 589.
103 Id. at 588 (quoting Beech Aircraft Corp. v. Rainey, 488 U.S. 153, 169 (1988)).
104 Id. at 590–91.
105 See FED. R. EVID. 702. The rule provides that:
A witness who is qualified as an expert by knowledge, skill, experience, training, or
education may testify in the form of an opinion or otherwise if: (a) the expert’s
scientific, technical, or other specialized knowledge will help the trier of fact to
understand the evidence or to determine a fact in issue; (b) the testimony is based on
sufficient facts or data; (c) the testimony is the product of reliable principles and
methods; and (d) the expert has reliably applied the principles and methods to the
facts of the case.
106 Daubert, 509 U.S. at 589 (“[U]nder the Rules the trial judge must ensure that any and all
scientific testimony or evidence admitted is not only relevant, but reliable.”).
107 Id. at 593–94.
108 Id. at 593 (“We are confident that federal judges possess the capacity to undertake this
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in Daubert, for example, Judge Kozinski describes this “daunting” task
as follows:
Our responsibility, then, unless we badly misread the Supreme
Court’s opinion, is to resolve disputes among respected, wellcredentialed scientists about matters squarely within their expertise,
in areas where there is no scientific consensus as to what is and what
is not “good science,” and occasionally to reject such expert
testimony because it was not “derived by the scientific method.”
Mindful of our position in the hierarchy of the federal judiciary, we
take a deep breath and proceed with this heady task. 109
Furthermore, while Daubert was meant to provide clarity about the
standards and the role of the court in determining the admissibility of
expert testimony, some commentators have observed that the Court
“did not address anything at all.” 110 Because Frye’s general acceptance
test remained part of the broader inquiry under Daubert, many felt that
Daubert could in fact be seen as a victory for either side. 111 Specifically,
many courts and commentators were left wondering whether the new
reliability standard set forth was intended to be more or less restrictive
than Frye’s general acceptance test. 112 Notwithstanding the additional
factors judges may consider under Daubert, however, it is clear that
admission of forensic testimony “entails a preliminary assessment of
whether the reasoning or methodology underlying the testimony is
109 Daubert v. Merrell Dow Pharm., Inc., 43 F.3d 1311, 1316 (9th Cir. 1995); see also David
L. Faigman, Essay, Mapping the Labyrinth of Scientific Evidence, 46 HASTINGS L.J. 555, 558
(1995) (questioning whether judges have the time and energy necessary to master complex
scientific theories and observing that scientific testimony covers “topics ranging from voice
spectrography to gas chromatography, from premenstrual syndrome to post-traumatic stress
syndrome, and from identification through bitemarks to identification through handwriting”
and that “[a] judge attempting to swim from shore to shore of this sea would finish, at best,
exhausted and, at worst and more likely, drown”).
110 Joseph B. Spero, Note, Much Ado About Nothing—The Supreme Court Still Fails to Solve
the General Acceptance Problem Regarding Expert Testimony and Scientific Evidence, 8 J.L. &
HEALTH 245, 268 (1993–94).
111 See Kenneth R. Foster et al., Science and the Toxic Tort, 261 SCI. 1509, 1614 (1993)
(“Astonishingly, all parties expressed satisfaction with the Daubert decision—the lawyers for
the plaintiff and defense, and scientists who wrote amicus briefs.”). As one author put it at the
time, “[t]his alone should have raised red flags.” Paul C. Giannelli, The Supreme Court’s
“Criminal” Daubert Cases, 33 SETON HALL L. REV. 1071, 1077 (2003).
112 See Giannelli, supra note 111, at 1077. More recently, some studies have not found
significant changes in the admission of expert testimony since Daubert. See, e.g., Jennifer L.
Groscup et al., The Effects of Daubert on the Admissibility of Expert Testimony in State and
Federal Criminal Cases, 8 PSYCHOL. PUB. POL’Y & L. 339, 370 (2002). Although judges do seem
to be embracing the gatekeeping role, it “is not necessarily accomplished by applying the
suggested four Daubert criteria, but is instead accomplished by increased and differential
application of the Rules to different types of testimony.” Id.
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scientifically valid.” 113 It is the reliability of the methods that produced
the testimony itself that therefore determines reliability. 114
As the next Part will explore, however, when forensic mental health
testimony is based on information obtained as a result of a dual
relationship, that testimony does not meet the Daubert reliability
threshold. In this circumstance, the methodology that produces the
information violates controlling ethical guidelines, and the testimony
itself is therefore unreliable under Daubert and Rule 702.
When a single clinician engages in both a treating and forensic role
with an individual patient, a variety of harms can result. Testimony
arising out of dual relationships causes harm to the patient by subjecting
her to potentially negative legal outcomes, and to the therapeutic
relationship by impairing the patient’s trust in the therapist.
Furthermore, this type of dual relationship creates a conflict of interest
for the clinician. This conflict may render the clinician unable to
eliminate bias from her judgment, bias that may ultimately make her an
unreliable witness. Finally, disclosure of the conflict to the patient or
evaluee is not enough to mitigate the resulting bias.
Harm to the Patient: Agency, Rapport, and Empathy
When a clinician provides forensic testimony in a case in which she
is also treating the evaluee, the evaluee may, of course, suffer harm. 115
Daubert, 509 U.S. at 592–93.
See Daniel A. Krauss et al., The Admissibility of Expert Testimony in the United States, the
THE COURTROOM 1, 8 (Daniel A. Krauss & Joel D. Lieberman eds., 2009) (“[W]hile the Daubert
standard is commonly referred to as a reliability standard by legal commentators, it is actually
meant to be an examination of the scientific validity of expert testimony.”). The Supreme Court
reaffirmed the judge’s gatekeeping role in Kumho Tire, where it held that Daubert “applies not
only to testimony based on ‘scientific’ knowledge, but also to testimony based on ‘technical’ and
‘other specialized’ knowledge.” Kumho Tire Co. v. Carmichael, 526 U.S. 137, 141 (1999)
(quoting FED. R. EVID. 702). Because Daubert’s list of factors is flexible, courts need not apply
every factor to experts in each case and can instead determine how to measure reliability on a
case-by-case basis. As Justice Breyer noted in the opinion in Kumho Tire, the line between
scientific and other technical or specialized knowledge is unclear and “conceptual efforts to
distinguish the two are unlikely to produce clear legal lines capable of application in particular
cases.” Id. at 148.
115 See BUSH ET AL., supra note 45, at 18 (“For forensic examinations, helping the examinee
is not a primary goal of the examiner. Helping the trier of fact to make an appropriate
determination taking into account the examinee’s cognitive or psychological functioning is a
goal. The examinee may or may not benefit from the examination findings.”).
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For instance, the clinician might testify that the evaluee is competent to
stand trial for a crime and the evaluee could be subject to criminal
punishment. Similarly, the clinician could testify that the evaluee meets
the state’s requirements for civil commitment and the evaluee could be
subject to confinement and loss of liberty. This ethical conflict was the
basis of Dr. Stone’s argument that psychiatrists should never act as
expert witnesses, because he felt that by giving any forensic testimony,
they would always be violating the ethical maxims of beneficence and
non-maleficence. 116
Dr. Appelbaum attempted to reconcile these conflicting roles by
noting that the clinician could fulfill her obligations to a patient in a
therapeutic setting, while still fulfilling separate obligations to a court in
a legal setting. 117 Yet Dr. Appelbaum never suggested that the same
clinician attempt to fill both roles for the same patient. 118 When a
clinician evaluates a patient for treatment purposes, she is seeking
information that will assist her in helping her patient and she uses that
information only with an awareness of her ethical obligation to act in
the patient’s best interest and avoid harm to the patient. 119 This
obligation to act in the patient’s best interest can be difficult or
impossible to fulfill when a treating clinician testifies in a legal
proceeding because in attempting to simultaneously give accurate and
truthful testimony about the patient, she may persuade the fact finder to
impose a variety of bad outcomes that harm the patient. 120
In addition to the legal harms that can result from forensic
testimony, when a clinician offers truthful forensic testimony about an
existing patient, this testimony may cause significant impairment of the
therapeutic relationship and a corresponding decline in the patient’s
trust in the therapist. 121 The therapeutic relationship—or the therapeutic
alliance—between a patient and a psychiatrist is “the collaborative bond
between therapist and patient [and] is widely considered to be an
essential ingredient in the effectiveness of psychotherapy.” 122 Indeed, the
See supra text accompanying notes 1–17.
See supra text accompanying notes 54–64.
118 See Appelbaum, Ethics in Evolution, supra note 78, at 445 (“[The] contemporary
sentiment among forensic psychiatrists is accurately reflected in the Ethical Guidelines for the
Practice of Forensic Psychiatry of the American Academy of Psychiatry and the Law, which
discourage psychiatrists from simultaneously performing both clinical and forensic roles.”).
119 See supra Section I.A.
120 See generally Stuart A. Greenberg & Daniel W. Shuman, Irreconcilable Conflict Between
Therapeutic and Forensic Roles, 28 PROF. PSYCHOL. RES. & PRAC. 50 (1997).
121 See APPELBAUM & GUTHEIL, supra note 20, at 238 (“[T]he necessity for the clinician to
reveal her opinions concerning the patient’s diagnosis, functional state, and the like, as well as
the possibility that the clinician’s opinion will not be favorable to the patient/subject, are likely
to interfere with subsequent therapy.”); see also Greenberg & Shuman, supra note 120, at 56.
122 Janice L. Krupnick et al., The Role of the Therapeutic Alliance in Psychotherapy and
Pharmacotherapy Outcome: Findings in the National Institute of Mental Health Treatment of
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quality of this relationship is often more predictive of a successful
therapeutic outcome than the specific therapeutic techniques the
therapist uses with the patient. 123
At the core of the therapeutic relationship are both rapport and
empathy. Rapport between the client and therapist “depends on mutual
respect and interest, expressed in words and behavior, between clinician
and patient.”124 Empathy can be generally described as “the ability to
understand the patient’s situation, perspective, and feelings and to
communicate that understanding to the patient.” 125 When patients
perceive that their therapist is empathetic, this can improve outcomes
for patients, as well as create an environment in which patients are less
defensive and more willing “to talk about their perceptions of need.” 126
To develop a positive therapeutic relationship, the patient must feel
understood by the therapist, and the therapist must suspend judgment
of the patient. 127
The impact of dual relationships on the therapeutic relationship
arises in both outpatient and inpatient settings. When a clinician offers
legal testimony about a patient with whom she has an existing
outpatient relationship, the clinician must often reveal opinions about
the patient’s mental state. Because much of this testimony may be
unfavorable to the patient, this testimony is likely to impair the
therapeutic relationship and have an impact on any subsequent
Depression Collaborative Research Program, 64 J. CONSULTING & CLINICAL PSYCHOL. 532, 532
(1996); see also Marvin R. Goldfried & Joanne Davila, The Role of Relationship and Technique
in Therapeutic Change, 42 PSYCHOTHERAPY: THEORY RES. PRAC. TRAINING 421, 427 (2005)
(“The establishment of an optimal therapeutic alliance is most certainly based on the quality of
the therapy relationship, which particularly contributes to the formation of the bond between
client and therapist.”); Michael J. Lambert & Dean E. Barley, Research Summary on the
Therapeutic Relationship and Psychotherapy Outcome, 38 PSYCHOTHERAPY 357, 359 (2001)
(noting that in a review of more than 100 studies, the research has “consistently reported a
positive relationship between the therapeutic alliance and outcome across studies”).
123 See Fredrik Falkenström et al., Therapeutic Alliance Predicts Symptomatic Improvement
Session by Session, 60 J. COUNSELING PSYCHOL. 317, 317 (2013); Lambert & Barley, supra note
122, at 359 (“[T]herapists need to remember that the development and maintenance of the
therapeutic relationship is a primary curative component of therapy and that the relationship
provides the context in which specific techniques exert their influence.”); Dale A. Matthews et
al., Making “Connexions”: Enhancing the Therapeutic Potential of Patient-Clinician
Relationships, 118 ANNALS INTERNAL MED. 973, 973 (1993) (“An important component of
healing, apart from the effect of any technology that is applied, derives from the relationship
between the healer and the patient.”).
124 Matthews et al., supra note 123, at 974.
125 John L. Coulehan et al., “Let Me See if I Have this Right . . . ”: Words that Help Build
Empathy, 135 ANNALS INTERNAL MED. 221, 221 (2001).
126 Stewart W. Mercer & William J. Reynolds, Empathy and Quality of Care, 52 BRIT. J. GEN.
PRAC. (SUPPLEMENT) S9, S9 (2002); see also Coulehan et al., supra note 125, at 221 (“The
effective use of empathy promotes diagnostic accuracy, therapeutic adherence, and patient
satisfaction, while remaining time-efficient.”).
127 See Greenberg & Shuman, supra note 120, at 54.
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therapy. 128 The clinician can attempt to repair the relationship and
resume treatment, but “[i]f the alliance cannot be repaired, termination
and referral may be necessary.” 129 Furthermore, patients who are aware
that the information they disclose to a therapist might be later used in a
legal proceeding are much more likely to self-censor and withhold
damaging information from the therapist. 130 This lack of disclosure
could also have a negative impact on the patient’s further treatment. 131
In the inpatient context, where the staff at public mental health
facilities is often responsible for both treatment and criminal forensic
evaluations, “there is a temptation to ask the treating clinician to serve
also as evaluator, the assumption being that time will thereby be
conserved.” 132 Yet for the newly hospitalized defendant, who is asked to
confide in a clinician for treatment purposes, and also asked to disclose
information to the same clinician for evaluation purposes, this can
present an irreconcilable problem. The defendant must confide in the
clinician to receive appropriate treatment, yet is also told that anything
she tells the clinician during an inpatient evaluation may be used against
her in court. 133 A defendant who chooses to withhold information
during treatment because she feels it might be used against her later
could be seen as uncooperative or malingering. 134 Therefore, even if the
defendant is able to distinguish between the clinician’s two roles, “there
may be no way for her to resolve the conflicting messages the clinician
conveys concerning the desirability of disclosure.” 135 Moreover, dual
relationships in the criminal setting can adversely affect the treatment
received by a defendant who is charged with a serious crime. 136
See APPELBAUM & GUTHEIL, supra note 20, at 237–38.
Id. at 238.
130 See Greenberg & Shuman, supra note 120, at 56.
131 See id.
132 APPELBAUM & GUTHEIL, supra note 20, at 236. In the inpatient forensic setting, the
conflict of interest is less troubling when the primary form of treatment has a strictly restorative
focus. If the patient is involved in group therapy and focused on learning about legal
procedures, a therapist involved in that group therapy may also appropriately act as a forensic
133 Appelbaum, A Theory of Ethics, supra note 15, at 241 (“Forensic psychiatrists, . . . must
make clear to the subjects of their evaluations who they are, what role they are playing in the
case (including which side they are working for), the limits on confidentiality, and—of
particular importance—that they are not serving a treatment function.”).
134 Malingering assessments often direct clinicians to suspect malingering when the evaluee
demonstrates substantial noncompliance with treatment, or “inadequate and/or variable levels
of effort on standard psychological tests.” THE AMERICAN PSYCHIATRIC PUBLISHING TEXTBOOK
OF FORENSIC PSYCHIATRY, supra note 30, at 469, 473; see also Thomas M. Dunn et al., Detecting
Neuropsychological Malingering: Effects of Coaching and Information, 18 ARCHIVES CLINICAL
NEUROPSYCHOLOGY 121, 121 (2003) (“Accurate assessment . . . is dependent upon the patient
putting forth his or her best possible effort.”).
135 APPELBAUM & GUTHEIL, supra note 20, at 237.
136 Id.
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Inexperienced staff members who believe a criminal defendant is unlike
other inpatient psychiatric patients may engage her in less treatment or
adopt a “hands off policy towards [her].” 137
Harm to the Legal System: Bias and Unreliability
In addition to causing harm to the patient and the therapeutic
relationship, dual forensic and clinical relationships can exacerbate bias
and contribute to unreliable expert testimony. One striking example of
biased expert testimony can be seen in the 2004 case of Brandon
Mayfield. Mayfield was an attorney in Oregon who was arrested in
Portland for his alleged role in the bombings of four commuter trains in
Madrid on March 11, 2004, which killed 191 people and wounded more
than 1,800. 138 According to the FBI, Mayfield’s fingerprint was found on
a plastic bag at the scene of the bombing, but the FBI’s fingerprint
analysis turned out to be incorrect and Mayfield was later released. 139
Mayfield, a Muslim, claimed to have been targeted based on his faith,
but the United States Department of Justice (DOJ) denied that
accusation and instead released a statement claiming that while it had
used “standard protocols and methodologies . . . [u]pon review it was
determined that the FBI identification was based on an image of
substandard quality.” 140
Mayfield’s case gained the attention of civil rights leaders who
argue that the Patriot Act “has made it too easy for law enforcement to
spy on people.”141 Others have criticized the FBI for a more technical
reason: its analysis of the forensic fingerprint evidence. 142 In its review
of the case, the DOJ outlined several reasons for the misidentification,
among them the unusual similarity between Mayfield’s prints and the
137 Id. (“When a patient is accused of a dramatic, violent, perverse, or unusual crime, clinical
staff may react to or recoil from the patient . . . as if she were already found guilty. . . . Thus,
‘preconviction’ may deprive the patients of careful attention and objective assessment of their
actual state.”).
138 See Dan Eggen, U.S. Settles Suit Filed by Ore. Lawyer, WASH. POST (Nov. 30, 2006),;
see also Spain Train Bombing Fast Facts, CNN (Mar. 4, 2016, 11:39 AM),
139 See Eggen, supra note 138. Mayfield eventually settled with the FBI for two million
dollars and a written apology. Id.
140 Press Release, Fed. Bureau of Investigation, Statement on Brandon Mayfield Case (May
24, 2004),
141 Larry Abramson, The Patriot Act: Alleged Abuses of the Law, NAT’L PUB. RADIO (July 20,
2005, 12:00 AM),
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prints found at the scene, the poor quality of the fingerprint image, and
faulty reliance on “tiny details.” 143
In addition to these causes, however, the DOJ also identified the
existence of bias among the fingerprint examiners, specifically a type of
cognitive bias known as “circular reasoning”—reasoning that uses its
conclusion as support for the argument itself. 144 According to the DOJ’s
report, the fingerprint examiner’s interpretation of Mayfield’s prints was
influenced “by reasoning ‘backward’ from features that were visible in
the known prints of Mayfield . . . [and] [h]aving found as many as 10
points of unusual similarity, the FBI examiners began to ‘find’
additional features in [the print found at the scene] that were not really
there.” 145 Many were surprised that this kind of bias was found in
fingerprint analysis because experts and courts had long considered
fingerprint analysis to be relatively objective 146 and even infallible.147
This is, of course, not the case, and “the identification of similar visual
patterns depends on human experience and judgment.” 148 Like all
human judgment, this analysis is vulnerable to bias.
Partly in response to the Mayfield case, in 2005, Congress
authorized the National Academy of Sciences (NAS) to conduct a study
on the state of forensic science in the United States. 149 In 2006, a
committee appointed by the NAS was formed and, in 2009, released its
report, Strengthening Forensic Science in the United States: A Path
Forward. 150 As the report notes, psychiatrists and other mental health
professionals often act as forensic scientists when they perform court-
Id. at 7; see also Lance J. Rips, Circular Reasoning, 26 COGNITIVE SCI. 767, 767 (2002)
(explaining that when engaging in circular reasoning, “the arguer illicitly uses the conclusion
itself (or a closely related proposition) as a crucial piece of support, instead of justifying the
conclusion on the basis of agreed-upon facts and reasonable inferences”).
145 FBI’S HANDLING OF THE MAYFIELD CASE, supra note 142, at 7.
146 See, e.g., Itiel E. Dror et al., Contextual Information Renders Experts Vulnerable to
Making Erroneous Identifications, 156 FORENSIC SCI. INT’L 74, 74 (2006). As Dror noted,
“inconsistent identification decisions may reflect cognitive flaws and limitations in conducting
objective and independent processing and evaluation of the information.” Id. at 77.
FINGERPRINTS: CLASSIFICATION AND USES, at iv (1985) (“Of all the methods of identification,
fingerprinting alone has proved to be both infallible and feasible. Its superiority over the older
methods, such as branding, tattooing, distinctive clothing, photography, and body
measurements (Bertillon system), has been demonstrated time after time. While many cases of
mistaken identification have occurred through the use of these older systems, to date the
fingerprints of no two individuals have been found to be identical.”).
148 Scott, supra note 10, at 21.
150 Id.
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ordered evaluations. 151 The report recommends that “forensic
disciplines that rely on subjective assessments of matching
characteristics . . . need to develop rigorous protocols to guide these
subjective interpretations and pursue equally rigorous research and
evaluation programs.” 152 Specifically, the report notes that these
disciplines can benefit from “the findings of cognitive psychology on the
potential for bias and error in human observers.”153
The idea that bias affects the reliability of all scientific testimony
may be a relatively recent finding, but there is no doubt that it has long
been a concern for forensic psychiatric testimony. As one author put it,
“[i]f reliability of fingerprint evidence is now called into question, what
might this suggest for the scientific admissibility of forensic psychiatric
evidence?” 154 Moreover, as AAPL notes in its ethical guidelines for
forensic psychiatrists:
The adversarial nature of most legal processes presents special
hazards for the practice of forensic psychiatry. Being retained by one
side in a civil or criminal matter exposes psychiatrists to the potential
for unintended bias and the danger of distortion of their opinion. It
is the responsibility of psychiatrists to minimize such hazards by
acting in an honest manner and striving to reach an objective
opinion. 155
Although the NAS report did not specifically address forensic
mental health evaluations, some commentators have suggested that
forensic psychiatric education should better implement these
recommendations by highlighting the role of bias and the conflicts of
interest that arise from dual relationships. 156 While medical ethics
education has become a priority at American medical schools in the past
several decades, 157 the effects of bias, conflicts of interest, and “a doctor’s
inner feelings on his thinking get short shrift in medical training and in
Id. at 8.
153 Id.
154 Scott, supra note 10, at 21.
156 See Scott, supra note 10, at 31 (discussing the findings of the NAS report and noting that
“[f]orensic psychiatric education can help achieve that goal by providing increased training on
standardized forensic assessment instruments and specific training regarding the impact of
biases on assessment methodology and opinion formation”). But see Appelbaum, Ethics and
Forensic Psychiatry, supra note 17, at 199 (“Training in the ethics of forensic psychiatry, which
fellowship programs are required to provide, is part of the answer; but it may be too easy to
push such training to the back of one’s mind when one enters the world of practice.”).
157 See Rachael E. Eckles et al., Medical Ethics Education: Where Are We? Where Should We
Be Going? A Review, 80 ACAD. MED. 1143, 1143 (2005). All United States medical schools now
require ethics courses in the undergraduate medical curriculum. Id.
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research on decision-making.”158 One review of syllabi from fifty-eight
United States medical schools, for example, found that in most medical
schools, ethics education focused on informed consent, health care
delivery, confidentiality and privacy, quality of life, death and dying, and
physician-assisted suicide. 159 Conflicts of interest were included in
ethical training in only 22.4% of syllabi. 160 Moreover, most of the
published research on training in conflicts of interest seems to focus on
conflicts that arise based on physician relationships with drug
companies 161 and inappropriate sexual boundaries with patients. 162
Because psychiatrists and psychologists often do not receive training on
conflicts that arise when professional roles are blurred, “the transition
from the classroom or clinical setting to a forensic environment may
involve a substantial paradigm shift and a corresponding struggle with
the ethical, moral, and legal issues involved.” 163
Psychiatrists can receive additional training or certification in
forensic psychiatry, including a forensic psychiatric fellowship, which
focuses on law and forensic examinations. 164 Psychiatrists can also
become board certified by the American Board of Psychiatry and
158 JEROME GROOPMAN, HOW DOCTORS THINK 36 (2007) (rejecting assumptions that
“medical decision-making is an objective and rational process, free from the intrusion of
emotion,” and arguing instead that “[t]he physician’s internal state, his state of tension, enters
into and strongly influences his clinical judgments and actions”).
159 See James M. DuBois & Jill Burkemper, Ethics Education in U.S. Medical Schools: A Study
of Syllabi, 77 ACAD. MED. 432, 434 (2002). Most schools covered only six main content areas:
“informed consent (85%), health care delivery (75%), confidentiality and privacy (67%), quality
of life/futility/provision of treatment (67%), death and dying (66%), and euthanasia and
physician-assisted suicide (60%).” Id.
160 Id. at 435 tbl.2.
161 See, e.g., Troyen A. Brennan et al., Health Industry Practices that Create Conflicts of
Interest: A Policy Proposal for Academic Medical Centers, 295 J. AM. MED. ASS’N 429, 429 (2006)
(“The current influence of market incentives in the United States is posing extraordinary
challenges to the principles of medical professionalism. . . . Arguably, the most challenging and
extensive of these conflicts emanate from relationships between physicians and pharmaceutical
companies and medical device manufacturers.”).
162 See, e.g., Gillian E. White, Medical Students’ Learning Needs About Setting and
Maintaining Social and Sexual Boundaries: A Report, 37 MED. EDUC. 1017, 1017 (2003)
(“Despite increasing awareness of the potentially harmful consequences of social and sexual
relationships between doctors and patients, little assessment has been made of the learning
needs of medical students for setting and maintaining social and sexual boundaries in the
doctor–patient relationship.”).
163 BUSH ET AL., supra note 45, at 16.
164 See, e.g., Forensic Fellowship Program Description, ALBERT EINSTEIN C. MED., http:// (last visited June 18, 2015) (“Fellows
will leave with an in-depth knowledge of: psychiatric evaluation of individuals involved with
the legal system[;] the specialized psychiatric treatment required by those who have been
incarcerated in jails, prisons, or special forensic psychiatric hospital[;] [and] legal regulation of
general psychiatric practice.”).
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Neurology in the subspecialty of forensic psychiatry. 165 Psychologists
can be similarly certified by the American Board of Forensic
Psychologists. 166 While clinicians with advanced training and
certification may have spent more time focusing on the ethical concerns
raised by dual relationships, courts do not require expert witnesses to
have such training or certification. 167 Moreover, individuals other than
forensic psychiatrists and psychologists—including psychologists and
other mental health professionals whose primary job is that of a
therapist—often give forensic testimony. 168 Many of these individuals do
not receive any additional training in forensic ethics, perhaps because
they do not view themselves as forensic psychologists, but rather as
therapists who are also providing testimony in a legal proceeding. 169
The professional literature suggests that most clinicians are aware
that dual relationships create a potential conflict of interest leading to
bias, but many appear to believe that they can resist the influence of a
clinical relationship on any subsequent forensic testimony. 170 This
expectation that clinicians can somehow overcome bias differs from
other areas of medicine generally, and from psychiatry specifically,
where explicit attempts are made to address and remove bias and
conflicts of interest. When clinicians conduct clinical research, for
instance, the results of that research are “double-masked” or “doubleblind” and neither the researcher nor the patient know which treatment
the patient is receiving. 171 This standard ensures that the study
minimizes the bias that can occur in both assignment to a treatment
165 See General Requirements, AM. BOARD PSYCHIATRY & NEUROLOGY, http:// (last visited June 18, 2015); see also
Forensic Psychiatry, AM. BOARD PSYCHIATRY & NEUROLOGY, (last visited Feb. 3, 2016).
166 See Forensic Psychology, AM. BOARD PROF’L PSYCHOL.,
index.cfm?pageid=3356 (last visited June 18, 2015).
167 See FED. R. EVID. 702.
168 See Greenberg & Shuman, supra note 120, at 50 (noting that psychologists, psychiatrists,
and other mental health professionals are acting as expert witnesses on behalf of their patients
with increasing frequency).
169 Id. at 51 (“When these clinicians eventually testify in court, they see themselves as
benignly telling the court about their patients and perhaps even benevolently testifying on
behalf of their patients. Therapists are not typically trained to know that the rules of procedure,
rules of evidence, and the standard of proof is different for court room testimony than for
clinical practice.”).
170 See Daylian M. Cain & Allan S. Detsky, Commentary, Everyone’s a Little Bit Biased (Even
Physicians), 299 J. AM. MED. ASS’N 2893, 2893 (2008).
171 Institutional Review Board Guidebook: Chapter IV Considerations of Research Design,
(last updated 1993) [hereinafter IRB GUIDEBOOK] (defining a double-masked study design as
one “in which neither the investigators nor the subjects know the treatment group assignments
of individual subjects”); see also Cain & Detsky, supra note 170, at 2895.
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group and assessment of the study’s outcome. 172 As one author notes of
this apparent discrepancy in the forensic setting, “[r]esearchers are not
insulted by the imposition of these methods in research. Why then are
they so insulted by the suggestion that similar influences might have
affected their beliefs in other settings?” 173
It may be that some psychiatrists and psychologists believe that
their medical training and professionalism allow them to evaluate
evidence objectively and consciously remove bias from their decision
making. Yet the social science literature on bias tells us that this
assumption “may be based on an incorrect understanding of human
psychology.” 174 Conflicts of interest may result from bias that is
unintentional, and therefore cannot be easily eliminated from decision
making, even by an ethical and conscientious psychiatrist who is
attempting to give truthful testimony in a legal proceeding. 175
Like all people, mental health professionals are prone to cognitive
errors or bias. 176 Biases are the preferences that influence impartial
judgment, and one author has argued that the majority of mistakes in
modern medicine are due to errors in thinking instead of errors in
technique and that “most misguided care results from a cascade of
cognitive errors.” 177 Psychiatrists and psychologists, of course, are not
immune from these errors, and bias can have a profound effect on
IRB GUIDEBOOK, supra note 171. As the guidelines note:
Good methodology requires that studies be designed to minimize bias both in
assignment to treatment groups (e.g., by randomizing) and in assessment of
outcome. Bias may enter into a study in several ways. The investigator may have
strong beliefs or hopes regarding the success of a particular intervention or the truth
of a particular hypothesis; these expectations may unconsciously influence his or her
evaluation of the outcome of the research. To avoid this possibility, it is now accepted
and preferred practice to conduct controlled investigations by dividing subjects into
at least two groups: those who receive the experimental intervention (the
experimental or treatment group) and those who do not (the control group).
Id.; see also Ezekiel J. Emanuel et al., What Makes Clinical Research Ethical?, 283 J. AM. MED.
ASS’N 2701, 2704 (2000) (“[R]esearch that uses biased samples, questions, or statistical
evaluations . . . is thus unethical.”).
173 Cain & Detsky, supra note 170, at 2895.
174 Id. at 2893.
175 Id. As the authors note, conflicts of interest are problematic because they are widespread
and “also because most people incorrectly think that succumbing to them is due to intentional
corruption, a problem for only a few bad apples. . . . [On the contrary,] succumbing to a conflict
of interest is more likely to result from unintentional bias, something common in everyone.” Id.
176 See GROOPMAN, supra note 158, at 260 (“Different doctors have different styles of
practice, different approaches to problems. But all of us are susceptible to the same mistakes in
thinking.”); see also Michael Makhinson, Biases in the Evaluation of Psychiatric Clinical
Evidence, 200 J. NERVOUS & MENTAL DISEASE 76, 79 (2012) (“Simply put, it is difficult for
everyone, including clinicians, to change beliefs and behaviors.”).
177 GROOPMAN, supra note 158, at 260; see also TO ERR IS HUMAN: BUILDING A SAFER
HEALTH SYSTEM 26 (Linda T. Kohn et al. eds., 2000) (reporting that “at least 44,000 and
perhaps as many as 98,000 Americans die in hospitals each year as a result of medical errors”).
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forensic mental health testimony. 178 In the case of a clinician who offers
forensic testimony about a patient with whom she also has a clinical
relationship, many of these biases might have even more influence.
Because a clinician “must enter into the patient’s subjectivity to see the
world through the patient’s eyes,” this empathetic engagement with the
patient creates bias that can prevent objective forensic testimony. 179
Because of the ambiguities inherent in mental health diagnosis and
forensic assessment, “[c]onfirmation bias may be the most common
cognitive error in psychiatry.” 180 When people are confronted with new
information, they tend to devote less attention to examining information
that contradicts those beliefs, 181 or ignore ways in which the new
information is inconsistent with their preexisting beliefs. 182 This tendency
is known as “confirmation bias,” and it affects the ways in which people
notice and evaluate information. 183 Unlike many medical symptoms,
mental health symptoms can be interpreted in a variety of ways and this
ambiguity can lead to confirmation bias in diagnosis. 184 For example:
[T]he decision whether or not to diagnose psychosis and start the
patient on a year or a lifetime of antipsychotic medications may hang
on the interviewer’s idiosyncratic interpretation of the patient’s
experiences, or the subjective distinctions between a delusion and an
overvalued idea, or between a “true” and “pseudo-” hallucination. 185
Moreover, psychiatrists may be prone to confirmation bias in the
prescription of medication. For example, a psychiatrist may pay more
attention to clinical trials that support their current medication
practices and minimize the importance of other trials that challenge
those practices. 186
178 See Scott, supra note 10, at 27. Scott lists eight potential types of bias that might influence
psychiatric forensic testimony, including anchoring bias, attribution bias, confirmation bias,
conformity bias, halo effect, hindsight bias, observer bias, and overconfidence bias. Id.
179 APPELBAUM & GUTHEIL, supra note 20, at 235.
180 Niall Crumlish & Brendan D. Kelly, How Psychiatrists Think, 15 ADVANCES PSYCHIATRIC
TREATMENT 72, 76 (2009).
181 See Peter H. Ditto & David F. Lopez, Motivated Skepticism: Use of Differential Decision
Criteria for Preferred and Nonpreferred Conclusions, 63 J. PERSONALITY & SOC. PSYCHOL. 568,
569 (1992).
182 See Dieter Frey, Recent Research on Selective Exposure to Information, in 19 ADVANCES IN
EXPERIMENTAL SOCIAL PSYCHOLOGY 41, 42 (Leonard Berkowitz ed., 1986).
15 (2012).
184 Crumlish & Kelly, supra note 180, at 76.
185 Id.
186 See Makhinson, supra note 176, at 79 (“[P]sychiatrists who still believe that secondgeneration antipsychotics have superior efficacy over first-generation antipsychotics in the
treatment of schizophrenia may cite numerous early studies that support this but discount
more recent larger higher-quality studies.”).
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Forensic evaluators who have a preexisting clinical relationship
with a patient may also be prone to “treater bias,” where the clinician is
“subject to a bias in favor of the examinee based on unconsciously
experiencing the relationship as doctor-patient.” 187 It can be difficult, if
not impossible, to transition from the role of a treating clinician to the
role of a forensic expert for the same patient. The clinician’s medical
training and dedication to the patient’s best interest may influence the
objectivity and candor required of an expert witness. Specifically, the
“empathic subjectivity of the treater role” might be a major biasing
factor, which could cause her to “stretch relevant forensic criteria ‘to aid
a patient.’” 188 Treater bias can therefore be viewed as an extension of
confirmation bias. Because the treating psychiatrist has been trained and
is motivated to act in her patient’s best interest, she may unconsciously
tend to pay attention to information that will support a legal outcome
that is in her patient’s best interest, and to view more critically
information that is not. 189
Another related type of bias that may influence the treating
psychiatrist’s decision making is the affect error or affect heuristic. 190
This type of bias can occur when a clinician’s decision making is biased
by her desire for a certain outcome to occur, such as seeing a patient do
well. 191 Similarly, a treating clinician’s hope for a good outcome for her
patient may cause her to interpret facts in a way that promotes that
187 Thomas G. Gutheil & Robert I. Simon, Avoiding Bias in Expert Testimony, 34
PSYCHIATRIC ANNALS 260, 261 (2004).
188 Id. The authors note that these conclusions are based on their respective consultative
experiences, and there do not appear to be any published studies on the effects of the “treater
bias.” Id. Nevertheless, one can imagine that this would be a likely result of the conflict that
results from such dual-role relationships. Moreover, extensive studies on confirmation bias do
suggest that psychiatrists and other physicians are prone to this kind of selective information
processing. See generally supra notes 138–87 and accompanying text.
189 This type of critical evaluation of information is known as “biased assimilation.” Charles
G. Lord et al., Biased Assimilation and Attitude Polarization: The Effects of Prior Theories on
Subsequently Considered Evidence, 37 J. PERSONALITY & SOC. PSYCHOL. 2098, 2099 (1979)
(describing biased assimilation as the tendency of individuals to “dismiss and discount
empirical evidence that contradicts their initial views, but . . . derive support from evidence, of
no greater probativeness, that seems consistent with their views”). When people evaluate new
information, therefore, that evaluation can be influenced by the extent to which it is consistent
or inconsistent with the person’s expectations about the new information. See APPELBAUM &
GUTHEIL, supra note 20, at 235. “When we come across evidence that supports our desired
conclusions, we may accept it at face value. But when we come across comparable evidence that
challenges our desired conclusions, we may evaluate it more critically and work hard to refute
190 See Crumlish & Kelly, supra note 180, at 76–77.
191 See id. at 74 (“A doctor may allow positive feelings towards a patient to influence their
clinical judgement [sic]: because the doctor wishes the patient well, a symptom may be
interpreted benignly when a more ominous interpretation is valid.”); see also generally Melissa
L. Finucane et al., The Affect Heuristic in Judgments of Risks and Benefits, 13 J. BEHAV.
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outcome. This bias is similar to confirmation bias: if either of two
plausible outcomes is possible, the clinician may interpret the
information in a way that promotes the best outcome for her patient.192
While this bias can of course be unconscious, it also seems possible to
imagine a scenario in which a treating psychiatrist might consciously
choose between two justifiable conclusions when one produces a better
outcome for an existing patient. 193
Although typically discussed in the therapeutic setting,
transference is another type of unconscious bias that all people—not just
individuals receiving mental health treatment—experience. 194 For
example, people often react to other people quickly, both consciously
and unconsciously, based on what the other person represents. 195 In this
way, stereotyping is a type of transference, in which “behavioral
information about one group member is applied to the group as a whole
and is transferred to other group members.” 196 In the therapeutic
setting, transference is the patient’s direction of previous feelings
towards a new object: the therapist. 197 Countertransference, in contrast,
is specific to the therapeutic context and can be described as the
emotional response a clinician has toward her patient and the patient’s
previous behavior. 198 Countertransference includes “all feelings, whether
192 See Crumlish & Kelly, supra note 180, at 76; see also Greenberg & Shuman, supra note
120, at 56 (“Therapists are usually highly invested in the welfare of their patients and rightfully
concerned that publicly offering some candid opinions about their patient’s deficits could
seriously impair their patient’s trust in them. . . . They are usually sympathetic to their patient’s
plight, and they usually want their patient to prevail.”).
193 See Crumlish & Kelly, supra note 180, at 77 (“[A] psychiatrist may be aware of all
possible diagnoses in a particular case, may be aware of the influence of hope on decisionmaking, and may still be faced with enduring diagnostic uncertainty.”); see also Greenberg &
Shuman, supra note 120, at 56 (“Engaging in conflicting therapeutic and forensic relationships
exacerbates the danger that experts will be more concerned with case outcome than the
accuracy of their testimony.”).
194 See S. Pirzada Sattar et al., Countering Countertransference: A Forensic Trainee’s
Dilemma, 30 J. AM. ACAD. PSYCHIATRY & L. 65, 67 (2002) [hereinafter Sattar et al., Forensic
Trainee’s Dilemma].
195 See Lisa A. Mellman, Countertransference in Court Interpreters, 23 BULL. AM. ACAD.
PSYCHIATRY & L. 467, 467 (1995) (“Transference is an unconscious process in which people
inappropriately place emotional reactions or patterns of behavior that originated with
significant people of their past onto others in their current life. . . . ‘Transference accounts for
the instant like or dislike of a person upon first encounter.’” (quoting EDWIN R. WALLACE, IV,
196 Matthew T. Crawford et al., Perceived Entitativity, Stereotype Formation, and the
Interchangeability of Group Members, 83 J. PERSONALITY & SOC. PSYCHOL. 1076, 1076 (2002).
198 See S. Pirzada Sattar et al., Countering Countertransference, II: Beyond Evaluation to
Cross-Examination, 32 J. AM. ACAD. PSYCHIATRY & L. 148, 148 (2004) [hereinafter Sattar et al.,
Beyond Evaluation]. The concept of countertransference was first introduced by Sigmund
Freud to describe “the therapist’s unconscious response to the patient, based on the therapist’s
unresolved conflicts.” Sattar et al., Forensic Trainee’s Dilemma, supra note 194, at 65. This
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conscious, subconscious, or unconscious, that are evoked in forensic
examiners during evaluation or testimony, in response to examinee and
nonexaminee variables that have the potential to have an impact on the
objectivity of their forensic opinions.” 199 This emotional response “can
create an impediment to giving an honest and unbiased opinion.” 200
Countertransference can be positive or negative. 201 For instance, in
the civil context, a forensic examiner might have developed a close
therapeutic alliance with an existing patient and give biased testimony
that is more likely to lead to a positive legal outcome for the patient. In
the criminal context, if a defendant is accused of a serious or heinous
crime, this could evoke a strong negative emotional response in the
mental health professional performing the forensic examination and
bias any resulting testimony against the defendant. 202 Whether the
countertransference is negative or positive, however, it “can affect the
objectivity of the final forensic evaluation.” 203 Because of the significant
role the forensic mental health professional can play in legal
proceedings, it is essential that she be aware of the impact this type of
bias can have on a forensic evaluation. 204 When forensic and clinical
roles are mixed, however, it can be even more difficult for the forensic
mental health professional to identify and manage countertransference
Finally, many commentators express concern about “allegiance
bias,” 205 or the “the hired gun phenomenon,” which is the “perception
that expert testimony frequently reflects who is paying the clinician and
not an impartial assessment of the merits of a case.” 206 Indeed, it is not
definition was then broadened to include “all natural reactions that the therapist has to the
patient’s outrageous behavior.” Id. Although the concept of countertransference was originally
introduced in the clinical setting, forensic mental health professionals are also vulnerable to this
type of unconscious bias towards an evaluee, and the literature on forensic mental health
“suggests adding a modifier to the word countertransference, such as ‘forensic
countertransference’ in an attempt to add a degree of clarity to this concept.” Sattar et al.,
Beyond Evaluation, supra, at 152.
199 Sattar et al., Beyond Evaluation, supra note 198, at 152.
200 Sattar et al., Forensic Trainee’s Dilemma, supra note 194, at 65.
201 See id. at 68.
202 See Sattar et al., Beyond Evaluation, supra note 198, at 149; see also Adam J. Goldyne,
Minimizing the Influence of Unconscious Bias in Evaluations: A Practical Guide, 35 J. AM.
ACAD. PSYCHIATRY & L. 60, 60 (2007) (“Emotions such as anger, pity, guilt, affection,
resentment, disdain, humiliation, and others may give rise to unconscious motivations that
conflict with the motivation to be objective.”).
203 Sattar et al., Forensic Trainee’s Dilemma, supra note 194, at 68.
204 Id.
205 Thomas Munder et al., Researcher Allegiance in Psychotherapy Outcome Research: An
Overview of Reviews, 33 CLINICAL PSYCHOL. REV. 501, 501 (2013) (describing researcher
allegiance as “a risk of bias in psychotherapy outcome research”).
206 Douglas Mossman, “Hired Guns,” “Whores,” and “Prostitutes”: Case Law References to
Clinicians of Ill Repute, 27 J. AM. ACAD. PSYCHIATRY & L. 414, 414–15 (1999). Mossman
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just a perception. One study found a tendency of “some experts who
score ostensibly objective assessment instruments [to] assign scores that
are biased toward the side that retained them.” 207 Participants were 108
forensic psychologists who were paid to review sex offender files and
score them on two commonly used risk assessment measures. 208
Although the participants spent only fifteen minutes with the retaining
attorney, “the risk scores assigned by prosecution and defense experts
showed a clear pattern of adversarial allegiance.” 209 As the authors noted,
these results were especially significant because the short time the
experts spent with the retaining attorney was significantly less than they
would have if they had been retained in an actual case and the
“experimental manipulation was less powerful than the forces experts
are likely to encounter in most real cases.” 210
Allegiance bias can, of course, cut both ways. Allegiance bias
towards a patient can occur in conjunction with the affective heuristic
or treater bias. 211 One can imagine that this allegiance bias would only
be heightened in cases where the forensic expert has a preexisting
therapeutic relationship with the client. And allegiance bias towards the
state or prosecuting attorney can also occur, especially in jurisdictions
where a mental health professional is regularly retained by the state as a
professional expert. 212 To the extent that this type of unconscious bias
does exist, one author suggests that it can be reduced by, among other
conducted a search of published court decisions that “make, or refer to, derogatory statements
concerning mental health experts.” Id. at 414. He found 567 cases, “45 (7.9%) of which
contained comments about professionals’ ethics. In 35 opinions, professionals were termed or
compared with ‘hired guns’; five cases described testifying experts using the word ‘whore,’ and
five cases used some variation on ‘prostitute.’” Id.
207 Daniel C. Murrie et al., Are Forensic Experts Biased by the Side that Retained Them?, 24
PSYCHOL. SCI. 1889, 1895 (2013); see also Neil Vidmar & Nancy MacDonald Laird, Adversary
Social Roles: Their Effects on Witnesses’ Communication of Evidence and the Assessments of
Adjudicators, 44 J. PERSONALITY & SOC. PSYCHOL. 888, 895 (1983) (concluding that the “placing
of witnesses i[n] an adversary role induces bias in subsequent testimony,” that “[t]he bias effect
is subtle, and the evidence suggests that the witnesses were probably unaware of it”).
208 The first was the Psychopathy Checklist–Revised (PCL-R), which is a “20-item measure
of interpersonal, emotional, and behavioral traits, which clinicians score on the basis of an
offender’s records and a clinical interview.” Murrie et al., supra note 207, at 1892. The second
was the Static 99-R, which is “[c]omposed of 10 items that address an offender’s age and prior
living arrangements, as well as several aspects of his offense history.” Id.
209 Id. at 1893 (“As expected, allegiance effects were stronger for the PCL-R, a measure that
requires more subjective clinical judgment, than for the Static-99R, a measure that requires less
clinical judgment.”).
210 Id. at 1895; see also Daniel C. Murrie et al., Does Interrater (Dis)agreement on
Psychopathy Checklist Scores in Sexually Violent Predator Trials Suggest Partisan Allegiance in
Forensic Evaluations?, 32 L. & HUM. BEHAV. 352, 352 (2008) (finding that clinician’s
psychopathy checklist scores for sexually violent predators “were usually in a direction that
supported the party who retained their services”).
211 See supra text accompanying notes 187–93.
212 See, e.g., supra text accompanying notes 36–37.
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things, enforcement of ethical standards and better training for forensic
clinicians. 213
Given the impact that unconscious bias can have on decision
making, many mental health professionals believe that true objectivity
among forensic mental health experts is an unrealistic expectation. As
one author put it when describing his work on the creation of AAPL’s
Ethical Guidelines relating to dual relationships, “[a]fter much debate, a
Quaker-like consensus emerged that the achievement of objectivity by
forensic psychiatrists . . . is an illusive goal. It is better to be
straightforward with ourselves and others; the best we could hope for is
to approach objectivity asymptotically.” 214 Of course, this lack of true
objectivity can be found in all professions and all people—everyone is
vulnerable to bias. In striving for objectivity, however, forensic
psychiatrists must be aware of bias and its effects, and “constantly
vigilant to the influence of bias.” 215 In attempting to counteract existing
bias, many professionals in the forensic mental health field have called
for greater education and study of forensic mental health testimony and
bias. 216
But in addition to greater education within the mental health fields
about the bias that exists when dual relationships are created, courts
should also be more aware of how these conflicting roles can affect the
reliability of forensic testimony. And while “[i]t is the responsibility of
the psychologist to provide education to those who do not appreciate
the threats to impartiality and to attempt to maintain clear distinctions
in professional roles,” 217 it is also up to the legal system to appropriately
consider the admissibility of forensic expert testimony when a dual
forensic and clinical relationship forms the basis of that testimony.
Disclosure Does Not Mitigate the Harm
While the ethical guidelines for both forensic psychiatrists and
psychologists strongly discourage dual relationships, neither explicitly
prohibits the practice. 218 Instead, when a single clinician enters into both
a clinical and forensic role with a single patient, she should “explicitly
See Mossman, supra note 206, at 415.
Ciccone, supra note 23, at 34.
215 Id. at 36 (“Bias, like Zeus transforming into a bull or swan, can take many forms.”).
216 See id. (noting that “[a] model curriculum for teaching about bias in forensic psychiatric
work would make a great start to being more attentive to the effects of bias” and recommending
that the AAPL Education Committee take on this important task).
217 BUSH ET AL., supra note 45, at 15.
218 See supra discussion Section I.A.
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inform the evaluee that the psychiatrist is not the evaluee’s ‘doctor’” 219
or “disclose the potential risk” to the patient. 220 But even if a patient is
informed at the outset that the same clinician will perform both a
forensic and clinical role, “it is difficult to imagine how open
communication and effective treatment can take place” under these
circumstances. 221
Disclosure can be ineffective in the case of a dual relationship,
however, because of the dramatically different, and sometimes
conflicting, roles played by mental health professionals in forensic and
clinical settings. A forensic evaluator is distinguished from a treating
clinician due to the difference in agency. 222 The treating clinician is the
agent of the patient, while the forensic evaluator is an agent of the
court. 223 Even if a patient is told at the outset that the clinician is
performing a dual role and that the outcome of the forensic evaluation
may not have a positive outcome, “subjects often slip back into a
therapeutic mindset.” 224 This occurs for several reasons. First, a patient
who is involved in a legal proceeding is understandably under a great
deal of stress, which may encourage the person to confide in the
clinician. 225 This “regression” back to the therapeutic relationship “may
pose a problem in which the subject’s openness may yield evidence
damaging . . . in court.” 226 Similarly, a patient with an existing
relationship with a clinician may consciously or unconsciously transfer
feelings associated with the previous clinical relationship—including
trust and transparency—to the new evaluative relationship. 227 Finally,
the patient may simply have “wishful confusion,” which makes them
unable to grasp the new agency. 228 This resistance, “out of a wish for
help combined with confusion about the situation,” can be compounded
by the stress of litigation. 229
Moreover, patients and clinicians have different expectations of the
nature and purpose of forensic evaluations and clinical treatment, and
when those roles are blurred, it may be difficult to adequately
communicate the change to the patient. For example, the informed
APA SPECIALTY GUIDELINES, supra note 25, at 11, § 4.02.01.
221 Appelbaum, Ethics in Evolution, supra note 78, at 446.
222 See APPELBAUM & GUTHEIL, supra note 20, at 235.
223 See id.; see also BUSH ET AL., supra note 45, at 12 (noting that while psychologists
providing treatment form a therapeutic alliance with patients, “[t]he psychologist retained as an
expert witness forms an alliance with the truth”).
224 APPELBAUM & GUTHEIL, supra note 20, at 236.
225 Id.
226 Id.
227 Id.
228 Id.
229 Id.
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consent doctrine applies to the therapeutic setting as patients have “a
choice about whether to accept or refuse the intervention; the decision
must be made in a knowing, intelligent, and voluntary way.” 230 When a
forensic evaluation is court ordered, however, the individual does not
typically have a choice to participate. Instead, the clinician should
communicate the purpose of the examination and explain that
information the individual reveals could be used against her in a legal
proceeding. 231 For this reason, “the ‘intelligent’ aspect of decisionmaking is less important, and the ‘voluntary’ component clearly does
not apply.” 232
When the purposes of the therapeutic and forensic roles are
combined or changed, it can be difficult for patients to understand this
change, and patients “may be insufficiently attentive to the risks
involved in forensic proceedings.”233 This is especially true in cases
where the clinician initially acted in a therapeutic role because the
patient may trust that her therapist will continue to act in her best
interest and therefore, the patient may disregard or minimize any
notification that the traditional protections of the already developed
therapeutic relationship no longer apply. Moreover, when a criminal
defendant is admitted to an inpatient setting for both evaluation and
treatment, she must simultaneously consent to treatment and receive
notice of the purposes of evaluation. 234 Often, defendants are told to
complete a form acknowledging that they understand that information
they reveal during treatment may be later used against them in court. 235
In the case of a seriously mentally ill defendant, however, it is difficult to
imagine that the individual could understand the different purposes of
the forensic evaluation and the corresponding clinical treatment and be
able to give meaningful informed consent.
Furthermore, disclosure of the conflict to the patient is appropriate,
but is not enough to eliminate the conflict. To be effective, disclosure
must give the patient an understanding of how the conflict of interest
will influence the mental health professional and allow the patient to
“correct for that biasing influence.” 236 Yet several studies on the
disclosure of conflicts of interest “suggest[] that [patients] are not very
HEILBRUN, supra note 21, at 70 n.4.
232 Id.
233 Id. at 71.
234 Id. at 143.
235 See, e.g., Consent for Forensic Psychiatric Evaluation, U. PITTSBURGH MED. CTR., http:// (last visited Feb. 4, 2016).
236 Daylian M. Cain et al., The Dirt on Coming Clean: Perverse Effects of Disclosing Conflicts
of Interest, 34 J. LEGAL STUD. 1, 3 (2005).
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concerned about the information they receive.” 237 One meta-study
found that although most patients expressed a desire to know about a
physician’s financial ties to drug companies, most were not concerned
about the conflict and did not believe it would affect their decision
making. 238
Other studies have found that disclosure could actually have a
negative impact on the doctor-patient relationship and may impair the
therapeutic relationship. For example, one study asked subjects to play
the role of hypothetical patients who were given a medical history and
current symptoms. 239 Each subject then heard a recording of their
“doctor,” who told them about treatment options and made a
recommendation. 240 The recommended treatment option benefited the
doctor financially, but this financial benefit was only disclosed to one
group of subjects, while the other group was given no additional
information. 241 Although both groups of subjects received identical
medical advice, the patients who were given the disclosure “reported
trusting the doctor significantly less . . . , were less likely to believe that
their doctor had their best interests at heart, and were less likely to
indicate that they would consult with that particular doctor again in the
future.” 242 In other words, “[d]isclosure had damaged the doctor-patient
relationship.” 243
Finally, unlike other types of conflicts of interest, the role conflict
that dual relationships create is not one that the patient should be
permitted to waive because it is a conflict that affects people other than
the patient. 244 The court, the parties, and the patient are all affected by
the conflict and the resulting biased testimony that may result from dual
237 George Loewenstein et al., The Limits of Transparency: Pitfalls and Potential of Disclosing
Conflicts of Interest, 101 AM. ECON. REV.: PAPERS & PROC. 423, 424 (2011) (discussing various
238 See Adam Licurse et al., The Impact of Disclosing Financial Ties in Research and Clinical
Care: A Systematic Review, 170 ARCHIVES INTERNAL MED. 675, 680 (2010); see also Lindsay A.
Hampson et al., Patients’ Views on Financial Conflicts of Interest in Cancer Research Trials, 355
NEW ENG. J. MED. 2330, 2330 (2006) (finding that that over ninety percent of patients in cancer
research trials “expressed little or no worry” that researchers in the study had financial ties to
drug companies).
239 See Loewenstein et al., supra note 237, at 426.
240 Id.
241 Id.
242 Id.
243 Id.
244 See Greenberg & Shuman, supra note 120, at 54.
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Courts Should Not Admit Forensic Testimony Based on Dual-Role
Federal Rule of Evidence (FRE) 702 and Daubert govern the
admissibility of expert forensic testimony. 245 And while the
methodology and ethical use of forensic mental health testimony based
on dual relationships does not fit precisely into the Daubert framework,
it is still an appropriate framework under which to analyze the
admissibility of that evidence. Daubert clarified that FRE 702 requires
judges to make two distinct inquiries when determining the
admissibility of forensic testimony. 246 One of these inquiries, whether
the testimony will “assist the trier of fact to understand the evidence or
to determine a fact in issue,” goes “primarily to relevance,” 247 and is a
question of “fit.”248 If the proposed testimony is “sufficiently tied to the
facts of the case that it will aid the jury in resolving a factual dispute,” it
survives this inquiry. 249 Forensic mental health testimony, whether or
not it is the product of a dual relationship, does seem to satisfy this test.
Such testimony would presumably be relevant to the legal proceeding
and tailored to assist the trier of fact in reaching a decision about the
individual’s mental state.
FRE 702’s other inquiry, however, focuses on the underlying
methodology of the “scientific, technical, or other specialized
knowledge.” 250 As the Daubert court noted, “‘[S]cientific’ implies a
grounding in the methods and procedures of science. Similarly, the
word ‘knowledge’ connotes more than subjective belief or unsupported
speculation. The term ‘applies to any body of known facts or to any
body of ideas inferred from such facts or accepted as truths on good
grounds.’” 251 In other words, this requirement goes to reliability. In
determining the reliability of the scientific knowledge that forms the
basis of expert testimony, Daubert instructs judges to consider whether
the theory or technique has been tested, whether it has been subjected to
peer review and publication, whether there is a known or potential rate
of error, whether there are standards controlling the technique’s
See supra discussion Section I.B.
Daubert v. Merrell Dow Pharm., Inc., 509 U.S. 579 (1993).
247 Id. at 591 (first quoting FED. R. EVID. 702).
248 Id. (quoting United States v. Downing, 753 F.2d 1224, 1242 (3d Cir. 1985)).
249 Id. (quoting Downing, 753 F.2d at 1242).
250 FED. R. EVID. 702(a).
251 Daubert, 509 U.S. at 589–90 (quoting Knowledge, WEBSTER’S THIRD NEW
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operation, and finally, whether the technique has been generally
accepted by the relevant scientific community. 252 In other words,
requiring that “an expert’s testimony pertain to ‘scientific knowledge’
establishes a standard of evidentiary reliability.” 253
Although there are standards controlling various types of forensic
evaluations, 254 and different kinds of forensic mental health evidence
have been tested, 255 forensic mental health testimony based on a dual
relationship cannot be easily evaluated under these factors. Moreover,
this type of testimony is not a scientific technique for which there is a
known potential rate of error. However, as noted above, many authors
have written in peer-reviewed journals about the impropriety of the
practice, and there is a general consensus in the mental health
community that clinicians should not engage in dual-role relationships
with patients. 256 Moreover, the inquiry under Daubert is meant to be a
flexible one, with the focus “solely on principles and methodology, not
on the conclusions that they generate.” 257 Furthermore, Daubert
explicitly retained Frye’s general acceptance test, and noted that
widespread acceptance in the relevant professional field is an important
factor to consider when weighing the admissibility of expert testimony,
and that methods that are not widely accepted should be viewed
cautiously. 258
If we, therefore, consider forensic mental health testimony under
the most applicable Daubert factors—general acceptance and peer
review—such testimony should be excluded as unreliable under Daubert.
The psychological and psychiatric literature expresses overwhelming
support for minimizing the practice of dual relationships and for
exercising caution when relying on information gained as a result of
forensic evaluations when a clinician also has a therapeutic relationship
with the patient. 259 Moreover, the ethical codes for both professions
explicitly warn clinicians against the practice. 260 And while neither code
affirmatively prohibits the practice, “[t]he articulation of the minimum
requirements for valid opinions or assessments in the ethical code or
Id. at 592–94.
Id. at 590.
254 See, e.g., Mossman et al., supra note 39, at S3.
255 See, e.g., Michael A. Norko & Madelon V. Baranoski, The Prediction of Violence;
Detection of Dangerousness, 8 BRIEF TREATMENT & CRISIS INTERVENTION 73, 73 (2008).
256 See supra discussion Section I.A.
257 Daubert, 509 U.S. at 595.
258 Id. at 594 (“Widespread acceptance can be an important factor in ruling particular
evidence admissible, and ‘a known technique which has been able to attract only minimal
support within the community’ may properly be viewed with skepticism.” (citation omitted)
(quoting United States v. Downing, 753 F.2d 1224, 1238 (3d Cir. 1985))).
259 See supra Section I.A.
260 See supra Section I.A.
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guidelines of the profession in which the expert bases a claim of
expertise, goes to the heart of the admissibility requirements articulated
in both Frye and Daubert.” 261
Dual relationships are considered by most professionals in the
mental health community to be unethical, and forensic assessments
based on dual relationships are considered to be unreliable. 262
Psychologists and psychiatrists should apply the same rigorous
standards of professionalism and ethics that they give to their clinical
practice to their legal testimony. 263 And while courts are not obligated to
ensure the professionalism of mental health professionals outside of the
courtroom, they should look to professional norms to ensure that
forensic testimony is reliable. As one author noted, “[t]o the extent that
ethics governs all scientific and professional behavior—which it does—it
is only appropriate that it become the first metric against which to judge
the expert witnessing of scientists and professionals.” 264
Although the conflict of interest created by dual relationships arises
frequently in the courtroom, no published legal opinions address the
practice. Because courts may not be aware of the ethical concerns or
risks of unreliable or inaccurate testimony when a mental health
professional is serving dual roles, some authors have recommended that
courts look to relevant professional ethical norms when evaluating the
admissibility of forensic mental health testimony. 265 By looking to
professional ethics and norms, judges can “distinguish those experts
who legitimately offer scientific testimony from those who misuse the
opportunity for other motives and, in so doing, mislead the court.”266
Courts, however, seem unwilling to evaluate forensic mental health
testimony based on the witnesses’ ethical code of conduct.
In one of the few published decisions discussing psychological
ethical guidelines as they apply to witness testimony, the court rejected
an argument that professional ethical guidelines should dictate the
admissibility of expert testimony. 267 In Baskerville v. Culligan
261 Daniel W. Shuman & Stuart A. Greenberg, The Role of Ethical Norms in the Admissibility
of Expert Testimony, JUDGES’ J., Winter 1998, at 4, 8.
262 See discussion supra Section I.A.
263 See BUSH ET AL., supra note 45, at 114 (“Psychologists are advised to be vigilant to
attorneys’ efforts, throughout the provision of psychological services, to induce them to take on
multiple roles . . . .”).
264 Bruce D. Sales & Daniel W. Shuman, Editorial, Reclaiming the Integrity of Science in
Expert Witnessing, 3 ETHICS & BEHAV. 223, 225 (1993).
265 See, e.g., Shuman & Greenberg, supra note 261, at 6 (“We suggest that ethical rules and
guidelines may assist the courts in this task by serving as red flags to raise potential problems of
the reliability of expert testimony.”).
266 Id.
267 See Baskerville v. Culligan Int’l Co., No. 93 C 5367, 1994 WL 162800, at *3 (N.D. Ill. Apr.
25, 1994).
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International Co., the plaintiff called her treating psychologist, who was
also her sister, to testify on her behalf in a sexual harassment lawsuit.268
The defendant argued that the psychologist’s testimony violated the
American Psychology Association’s ethical guidelines, which require
psychologists to refrain from taking on professional roles that could
reasonably “impair their objectivity, competence, or effectiveness in
performing their functions as psychologists” and should be excluded. 269
The court rejected this argument and instead held that it went to the
sister’s credibility and was, therefore, an appropriate subject for crossexamination. 270
Courts do apply professional ethical norms in other contexts,
however. For instance, many courts hold that rules of professional
responsibility can be considered in determining the standard of care in
legal malpractice suits. 271 Furthermore, at least one court has held that
“violations of the [Model Rules of Professional Conduct] create a
rebuttable presumption of legal malpractice.” 272 Numerous courts have
found that counselors who engage in sexual relations with their patients
in violation of ethical guidelines prohibiting such a practice, have
engaged in professional negligence. 273 In the case of forensic psychiatric
testimony, however, courts “have been reluctant to apply professional
ethical norms to the decision to admit expert testimony, even when
these norms express professional consensus about what is minimally
necessary to present reliable professional information.” 274
APA GENERAL PRINCIPLES, supra note 72, § 3.06 (Conflict of Interest); see also
Baskerville, 1994 WL 162800, at *3.
270 Baskerville, 1994 WL 162800, at *3 (“If at trial the court determines that Dr. Bell may
testify as an expert, the court would not be sponsoring her testimony or vouching for its
objectivity. Rather, it would be the jury’s function to assess the credibility of Dr. Bell’s opinions
and to determine the weight to be given her testimony.”).
271 See Mainor v. Nault, 101 P.3d 308, 320 (Nev. 2004) (holding that a “violation of
professional rules of responsibility does not create a private right of action, but is relevant to the
standard of care”); see also Sears, Roebuck & Co. v. Goldstone & Sudalter, P.C., 128 F.3d 10, 19
(1st Cir. 1997) (“Violations of the rules governing the legal profession are evidence of legal
malpractice . . . .”); Krischbaum v. Dillon, 567 N.E.2d 1291, 1301 (Ohio 1991) (holding that the
Code of Professional Responsibility creates “norms of behavior, the violation of which may be
deemed to be actionable upon the theory that the violator has not acted with due care”).
272 Hart v. Comerica Bank, 957 F. Supp. 958, 981 (E.D. Mich. 1997).
273 See, e.g., Weaver v. Union Carbide Corp., 378 S.E.2d 105, 107 (W. Va. 1989) (citing
various cases). The Weaver court cited to the Second Restatement of Torts in support of this
finding, which provides that “[u]nless he represents that he has greater or less skill or
knowledge, one who undertakes to render services in the practice of a profession or trade is
required to exercise the skill and knowledge normally possessed by members of that profession
or trade in good standing in similar communities.” Id. at 107 n.4 (quoting RESTATEMENT
(SECOND) OF TORTS § 299A (AM. LAW INST. 1965)).
274 Shuman & Greenberg, supra note 261, at 6. For example, in Barefoot v. Estelle, the
American Psychiatric Association submitted an amicus brief arguing that the forensic
psychiatrist in the case should not have been permitted to testify regarding the defendant’s
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FRE 702 and Daubert require exactly this kind of guidance from
the relevant professional standards. The mental health field is unique in
that it is a system entirely separate from the legal system, yet it is one the
legal system regularly tasks with providing information necessary to
reach legal decisions. Although Daubert makes it clear that “a rigid
‘general acceptance’ requirement would be at odds with the ‘liberal
thrust’ of the Federal Rules and their ‘general approach of relaxing the
traditional barriers to “opinion” testimony,’” 275 courts are still permitted
to consider the general acceptance requirement and should view
testimony that is not generally accepted by the relevant scientific
community “with skepticism.” 276
Furthermore, while FRE 702 and Daubert do not explicitly address
forensic mental health testimony and do not distinguish between a
treating physician and a retained forensic expert, the Federal Rules of
Civil Procedure (FRCP) do draw such a distinction in Rule 26(a)(2),
which requires parties to disclose expert witnesses who are expected to
testify in the case. 277 FRCP 26 requires expert witnesses to make a
report, but several courts have found that “a treating physician,
testifying as to his consultation with or treatment of a patient, is not an
expert witness under Rule 26.” 278 This distinction is significant because
it is based on the fact that when a treating psychiatrist provides
testimony in a legal proceeding, “he has functioned as a direct
participant in the events at issue” and is therefore “an actor with regards
to the occurrences from which the tapestry of the lawsuit was woven.”279
The methods that produced his testimony, in other words, are not
probability of future dangerousness based solely on a series of hypotheticals and should have
instead conducted “an in-depth psychiatric examination and evaluation.” Brief for the
American Psychiatric Association as Amicus Curiae at 6, 7, Barefoot v. Estelle, 463 U.S. 880
(1983) (No. 82-6080) (noting that the “diagnostic technique employed by the prosecution
psychiatrists in this case is completely unacceptable”). Notwithstanding the APA’s objections
based on psychiatric best practices, the United States Supreme Court held that psychiatric
testimony need not “be based on personal examination of the defendant” but may “be given in
response to hypothetical questions.” Barefoot, 463 U.S. at 903.
275 Daubert v. Merrell Dow Pharm., 509 U.S. 579, 588 (1993) (quoting Beech Aircraft Corp.
v. Rainey, 488 U.S. 153, 169 (1988)).
276 Id. at 594.
277 FED. R. CIV. P. 26(2)(2). The advisory committee note to FRCP 26 further distinguishes
treating physicians from retained forensic experts by clarifying that “[a] treating physician, for
example, can be deposed or called to testify at trial without any requirement for a written
report.” FED. R. CIV. P. 26 advisory committee’s note to 1993 amendment.
278 Gonzalez v. Exec. Airlines, Inc., 236 F.R.D. 73, 77 (D.P.R. 2006); see also Rogers v. Detroit
Edison Co., 328 F. Supp. 2d 687, 690 (E.D. Mich. 2004) (finding in a negligence action that an
expert who was testifying as the plaintiff’s treating psychologist was not required to file a FRCP
26 expert report).
279 Gonzalez, 236 F.R.D. at 77 (quoting Gomez v. Rivera Rodriguez, 344 F.3d 103, 113 (1st
Cir. 2003)).
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methodologically sound and the treating psychiatrist should not be
characterized as an expert.
While the Federal Rules of Evidence may not prohibit expert
testimony by a treating clinician, courts considering testimony under
the rules should not permit testimony from a mental health professional
who has become an actor in the case through her involvement in the
patient’s treatment. In effect, she is evaluating her own role in the
patient’s treatment and current mental state. As one author put it, “Only
by not being a person whose actions influence the mental status or
condition of the litigant can the forensic expert offer an independent
opinion regarding the litigant’s mental status or condition.” 280 The
underlying methodology of such an approach is unsound and should
not be admitted.
The mental health community has reached a general consensus
that dual forensic and clinical relationships lead to conflicts of interest,
bias, and harm to the therapeutic relationship. 281 Moreover, this bias is
often unconscious and cannot be eliminated. 282 Testimony is inherently
unreliable and should not be admissible under FRE 702 when it is
premised upon information a clinician learns while participating in a
dual relationship with a single patient. Although there is widespread
agreement among mental health professionals that this sort of testimony
is troubling and “problematic at best,” 283 courts have not taken the view
of the mental health community into account when ruling on the
admissibility of forensic mental health testimony. Whether this is
because courts are unaware of the testimony’s unreliability, or because
some mental health professionals are willing to relax professional
standards and boundaries if they feel a court will not question those
professional ethics, the practice should not be permitted to continue.
Courts and States Should Permit Forensic Evaluations via
Telebehavioral Health
One reason for dual forensic and clinical relationships is the
shortage of qualified mental health professionals throughout the United
States. One recent study found that seventy-seven percent of counties in
the United States had a “severe shortage” of psychiatrists and other
280 Stuart A. Greenberg & Daniel W. Shuman, When Worlds Collide: Therapeutic and
Forensic Roles, 38 PROF. PSYCHOL. RES. & PRAC. 129, 130 (2007). The authors also state, “When
a therapist also serves as a forensic expert, the therapist is part of the fabric of the case, in part
evaluating the impact of his or her own participation.” Id.
281 See supra Sections II.A–B.
282 See supra Section II.C.
283 APPELBAUM & GUTHEIL, supra note 20, at 235.
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mental health professionals, with “over half their need [for mental
health services] unmet.” 284 The problem is particularly acute in rural
areas. A report on the U.S. physician workforce found that in 2005, only
11.4% of physicians practiced in rural areas; the number of psychiatrists
in those areas accounts for only 8.7% of all licensed psychiatrists in the
United States. 285
The American Psychiatric Association has endorsed
telepsychiatry—or telebehavioral health—as a way to provide mental
health care and forensic evaluations in underserved areas, especially
those with provider shortages. 286 Telecommunication technologies are
used to treat and evaluate mental health patients from a distance. 287
Within the mental health professions, live videoconferencing, as
opposed to other communication forms like email and telephone
communication, is the most commonly used medium, and the one most
conducive to the practice of psychiatry and psychology. 288 Research has
found that “psychiatric consultation and short-term follow up provided
by telepsychiatry can produce clinical outcomes that are equivalent to
those achievable when patients are seen face to face.” 289 In remote areas,
or those without access to a large psychiatric workforce, telepsychiatry
can also be less expensive than services provided in person. 290 Points of
delivery for telepsychiatry can include hospitals, clinics, prisons, or any
setting with secure videoconferencing equipment. 291
284 Kathleen C. Thomas et al., County-Level Estimates of Mental Health Professional Shortage
in the United States, 60 PSYCHIATRIC SERVICES 1323, 1325 (2009). The study included
prescribers, including psychiatrists, and nonprescribers, including other mental health
professionals such as psychologists, advanced practice psychiatric nurses, social workers,
licensed professional counselors, and marriage and family therapists. Id. at 1324.
286 See Underserved Communities: Rural and Telepsychiatry Resources, AM. PSYCHIATRIC
(last visited Feb. 4, 2016).
287 See Diana J. Antonacci et al., Empirical Evidence on the Use and Effectiveness of
Telepsychiatry Via Videoconferencing: Implications for Forensic and Correctional Psychiatry, 26
BEHAV. SCI. & L. 253, 253 (2008).
288 See id. at 254.
289 Richard O’Reilly et al., Is Telepsychiatry Equivalent to Face-to-Face Psychiatry? Results
from a Randomized Controlled Equivalence Trial, 58 PSYCHIATRIC SERVICES 836, 842 (2007).
290 See id. at 841.
291 The American Psychiatric Association has created an extensive resource document for
practitioners that addresses various implementation issues related to telepsychiatry, including
available technology, security protocols, and the confidentiality of patient information. See APA
issues also arise with the use of telepsychiatry, primarily privacy and confidentiality, as well as
licensing requirements governing psychiatrists located outside of the state where treatment is
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Furthermore, recent studies suggest that the use of telebehavioral
health is an appropriate option in correctional settings, where it is
frequently used for competency evaluations. 292 Studies suggest these
evaluations are as reliable as in person evaluations, and both users and
prisoners report they are satisfied with telepsychiatry. 293 In particular,
one study found that some prison inmates prefer telepsychiatry
consultations for discussing sexual abuse issues. 294 Finally, the use of
telepsychiatry in forensic competency evaluations is one way to reduce
the cost of transporting defendants to a location where a forensic
evaluation can be performed. 295
Although most states have enacted statutes related to telehealth,
access and coverage vary widely. 296 While a few states explicitly permit
the use of telebehavioral health or telepsychiatry, 297 most that allow for
the practice define telebehavioral health within the context of a more
comprehensive “telehealth” statute 298 or rely on other statutes allowing
for temporary or guest practices—courtesy licenses—to permit for the
use of telemedicine by mental health professionals located outside of the
state. 299 A few states without comprehensive telehealth statutes simply
provided. For an overview of some of those concerns, see Regina A. Bailey, The Legal, Financial,
and Ethical Implications of Online Medical Consultations, 16 J. TECH. L. & POL’Y 53 (2011).
292 See Antonacci et al., supra note 287, at 265–66.
293 See id. Another recent study of seventy-two forensic outpatient interviews found similar
results for in person and video interviews on both the Brief Psychiatric Rating Scale-Anchored
Version and the MacArthur Competence Assessment Tool-Criminal Adjudication and
concluded that “providers can expect remote interviews to provide clinical information similar
to that obtained by interviews conducted in person.” Frances J. Lexcen et al., Use of Video
Conferencing for Psychiatric and Forensic Evaluations, 57 PSYCHIATRIC SERVICES 713, 713–15
294 See William Tucker et al., A Pilot Survey of Inmate Preferences for On-Site, Visiting
Consultant, and Telemedicine Psychiatric Services, 11 CNS SPECTRUMS 783, 785 (2006).
295 See Lexcen et al., supra note 293, at 713.
296 For a recent summary of state legislative efforts in regards to telehealth, see AM.
297 See, e.g., 24 DEL. ADMIN. CODE § 3500–18.1 (2013) (“‘Telepsychology’ means the practice
of psychology by distance communication technology such as but not necessarily limited to
telephone, email, Internet-based communications, and videoconferencing.”); OHIO REV. CODE
ANN. § 4732.01(J) (West 2013) (“‘Telepsychology’ means the practice of psychology or school
psychology by distance communication technology, including telephone, electronic mail,
internet-based communications, and video conferencing.”). For a comprehensive review of
telepsychology statutes among states, see AM. PSYCHOLOGICAL ASS’N, TELEPSYCHOLOGY 50STATE REVIEW (2013) [hereinafter TELEPSYCHOLOGY 50-STATE REVIEW], http://
298 See, e.g., ARIZ. REV. STAT. ANN. § 36-3601 (2014) (providing that psychologists are
included as “Health care provider[s]” who may practice telemedicine in the state).
299 Colorado, for instance, does not have a dedicated telepsychology statute, but allows for
the “delivery of health services by other licensed professionals, within the professional’s scope
of practice, using advanced technology, including, but not limited to, interactive audio,
interactive video, or interactive data communication.” COLO. REV. STAT. § 12-36-106(1)(g)
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allow for courtesy licenses for mental health professionals licensed out
of state and define “psychological services” to include the provision of
all psychological services by those professionals, regardless of whether
the professional is temporarily located in the state or is providing
services by electronic or telephonic means from the state where the
professional is licensed. 300 States vary in their approach to licensing
requirements for professionals licensed out-of-state, but all require such
practitioners to be licensed to practice in their own state, in any state, or
in any state where the state requirements exceed those of the state in
which they are providing services. 301 Finally, some states allow only a
psychologist or psychiatrist who is licensed in the state to provide
mental health services via telemedicine. 302
In many states, the most direct ways to implement telebehavioral
health for mental health professionals are to amend an existing
telehealth statute to include the practice of psychology and psychiatry,
or to create a new statute that explicitly allows telebehavioral health.
Similarly, to expand the pool of available practitioners, states that allow
only psychiatrists and psychologists located within the state to practice
telemedicine could remove those restrictions. In states with strict
courtesy licensing requirements, these requirements could be relaxed.
For instance, in Alaska, psychologists may obtain a courtesy license to
practice for no more than thirty days in a twelve-month period, but may
receive only one courtesy license in their lifetime. 303 Similarly,
psychiatrists and other medical doctors in Alaska may receive a courtesy
license only under very limited circumstances, including the provision
of emergency health or mental health services in response to a disaster,
or the accompaniment of an out-of-state sports team to a sporting
event. 304 For psychiatrists and physicians in that state, there is no
general provision allowing medical doctors to receive a courtesy license
to practice medicine. If these courtesy licensing requirements were
(2015). The state also allows for a psychologist who resides in another state and is currently
licensed as a psychologist in that state to provide services to patients in Colorado under certain
circumstances. If the activities and services are performed within the scope of the person’s
license or certification, do not exceed twenty days a year, and disclosure is given to the patient
that the psychologist is not licensed in the state, then a psychologist licensed in another state
can provide services in Colorado. See id. § 12-43-215(9).
300 See, e.g., WIS. STAT. § 455.03 (2014); WIS. ADMIN. CODE PSY. § 2.14(1) (2016).
301 See TELEPSYCHOLOGY 50-STATE REVIEW, supra note 297.
302 See, e.g., CAL. BUS. & PROF. CODE § 2290.5(a)(3) (West 2012) (“‘Health care provider’
means . . . [a] person who is licensed under this division.”).
303 See ALASKA ADMIN. CODE tit. 12, § 60.035(c) (2016). The individual must provide
verification of a current license to practice psychology in another jurisdiction for the scope of
practice specified in the application, and provide verification of having passed the EPPP
examination. See id.
304 See id. § 40.045(b) (2016). Other allowable purposes include conducting a specialty clinic
or accompanying a patient who is also the physician’s employer. See id.
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relaxed, however, psychologists and psychiatrists located out of state
could perform forensic evaluations within the state after receiving a
courtesy license.
Apart from licensing requirements, another barrier to the
provision of telebehavioral health is the unwillingness of professionals
to use it. 305 Part of this resistance is likely due to mental health
professionals’ lack of experience with the relevant technology. As
telemedicine has become more prevalent, some medical schools have
begun to include telemedicine education, 306 and some institutions have
begun to offer training to practicing physicians and other health care
providers. 307 But more education and training is needed. 308 When
telemedicine becomes a standard component of medical education,
some of these concerns are likely to dissipate.
Some clinicians also express concern that the use of
videoconferencing equipment could have an impact on the therapeutic
relationship. 309 Yet studies of telebehavioral health have found “no
apparent impairment of the working alliance” when therapy was
delivered via interactive video. 310 Moreover, in the forensic setting, the
mental health professional is not attempting to form a therapeutic
relationship with the evaluee. Instead, her role is to “gather and present
objective information that may ultimately aid a trier of fact . . . to reach a
just solution to a legal conflict.” 311 Telebehavioral health is an
appropriate way to conduct that forensic evaluation and could reduce
the frequency of dual-role relationships. 312
Telebehavioral health is one of the fastest-growing applications of
telemedicine in the United States and “[m]ental health is particularly
suited to the use of advanced communication technologies and the
305 Carl May et al., Resisting and Promoting New Technologies in Clinical Practice: The Case
of Telepsychiatry, 52 SOC. SCI. & MED. 1889, 1895–96 (2001).
306 See, e.g., Telehealth Leadership Fellowship, T. JEFFERSON U.,
leadership.html (last visited Feb. 4, 2016).
307 See, e.g., Continuing Medical Education Credits, U.C. DAVIS HEALTH SYS., http:// (last visited Feb. 4, 2016).
308 See generally José G. Conde et al., Telehealth Innovations in Health Education and
Training, 16 TELEMEDICINE J. & E-HEALTH 103 (2010).
309 See May et al., supra note 305, at 1895–96 (“Ideas about the ‘impersonality’ or ‘lack of
spontaneity’ experienced in using the videophone run through [psychiatrist’s] accounts” of
telemedicine and mentioning that some psychiatrists also noted “the failure of the system to
adequately mediate the emotional reality of situations, or to permit ‘natural’ interactions.”).
310 M. Manchanda & P. McLaren, Cognitive Behaviour Therapy Via Interactive Video, 4 J.
311 Greenberg & Shuman, supra note 120, at 54.
312 See Underserved Communities: Rural and Telepsychiatry Resources, supra note 286.
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Internet for delivery of care.” 313 Moreover, numerous guidelines exist
that provide for appropriate clinical, technical, and ethical use. 314
Finally, telebehavioral health has the potential to provide mental health
access to individuals in areas throughout the United States, and its
continued and expansive use is one way to reduce mental health
professionals’ and courts’ reliance on unreliable forensic mental health
Courts Should Make Greater Use of FRE 706 to Appoint
Independent Mental Health Experts
The goal of protecting jurors from unreliable expert testimony is,
of course, not unique to the United States, and courts around the world
have struggled to create an appropriate standard for the admission of
expert testimony. 315 In adversarial systems like the United States, courts
impose fewer restrictions on the admissibility of expert testimony and
rely on cross-examination to expose jurors to major weaknesses in
expert testimony. 316 Because both sides of the lawsuit present competing
stories, and these stories are often supported by expert testimony, the
factfinder is free to decide which expert is more credible.
In contrast, in inquisitorial systems like those in many European
countries, experts are often appointed by the court and “little attempt is
made to point out weaknesses of the expert testimony to the ultimate
fact-finder, the judge.” 317 In Germany, for example, “the court selects
the expert . . . [from a prepared] list of experts.” 318 This expert must be
neutral and independent of the parties. 319 The judge asks the majority of
the questions, and when the attorneys do question the witness, it “can be
described as a polite questioning in a non-confrontational
314 See id. at 8–19.
315 See Krauss et al., supra note 114, at 2.
316 See Vidmar & Laird, supra note 207, at 888–89.
317 Krauss et al., supra note 114, at 3.
318 Sven Timmerbeil, The Role of Expert Witnesses in German and U.S. Civil Litigation, 9
ANN. SURV. INT’L & COMP. L. 163, 173 (2003).
319 Id. at 174.
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atmosphere.” 320 When parties do hire outside experts, their opinions are
given less weight because the experts’ opinions are not considered
reliable. 321
Although many scholars believe that an adversarial system better
safeguards procedural justice, 322 others still question the propriety of
adversarial procedures for presenting expert testimony. As one author
notes, “[c]ritics have argued that many problems associated with expert
testimony result from features inherent in the adversarial process.”323
For example, because experts are well paid, this can advantage the party
with greater resources. 324 The adversarial system also encourages the
development of “professional experts,” who may have ongoing
relationships with certain parties and therefore are prone to allegiance
bias. 325 Finally, the nature of the adversarial system often results in a
“battle of experts,” which can “confuse jurors and waste time at trial.” 326
Put simply, “an expert witness may de1iver biased testimony simply
because he or she has been hired by an attorney.” 327
Id. at 175. As the author explains:
[One] reason why the parties and their lawyers question the expert in such a
deferential manner is obvious: the court appointed the expert and gave her orders
during the proceedings. Attacking the expert would be equivalent to criticizing the
judge’s authority to select and question the expert—and in German civil courts, the
judge is always the decision-maker.
321 See id. at 178 (“Courts usually doubt the reliability of partisan experts who are hired by
the parties and have discussed the case with counsel.”); see also Hein Kötz, Civil Justice Systems
in Europe and the United States, 13 DUKE J. COMP. & INT’L L. 61, 64 (2003). Kötz explains his
participation in various litigation as a court-appointed expert in a German court and an expert
hired by a party in a British court:
What struck me most in my role as party-selected expert witness in the English cases
was not the experience of being examined and cross-examined, but the difficulty to
resist the subtle temptation to join your client’s team, to take your client’s side, to
conceal doubts, to overstate the strong and downplay the weak aspects of his case and
to dampen any scruples you might have by reminding yourself that the other side will
select and instruct another expert witness and that, when the dust has settled, the
truth will triumph.
322 See Nancy J. Brekke et al., Of Juries and Court-Appointed Experts: The Impact of
Nonadversarial Versus Adversarial Expert Testimony, 15 LAW & HUM. BEHAV. 451, 451–52
(1991) (discussing various studies). As the authors note, “[d]ecisions resulting from adversarial
procedures are perceived as more just and fair than decisions resulting from nonadversarial
alternatives.” Id. at 452.
323 Id. at 452.
324 See id.
325 Id.; see also supra text accompanying notes 206–13.
326 Brekke et al., supra note 322, at 452.
327 Id. at 453.
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FRE 706 allows courts to appoint neutral and independent
experts 328 and Daubert itself noted that “Rule 706 allows the court at its
discretion to procure the assistance of an expert of its own choosing.” 329
Yet court-appointed experts are infrequently used, 330 and many court
decisions attribute this reluctance to respect for the adversarial
system. 331 However, one study of 431 federal district court judges found
that twenty percent had appointed an expert on one or more
occasions. 332 In many cases, judges felt that a court-appointed expert
was necessary when the parties failed to present credible witnesses and
“[a]ppointment of an independent expert enabled access to testimony
that was thought to be both impartial and necessary to understand the
testimony of the parties’ experts.” 333
Although some scholars have objected to court-appointed experts
because they fear that jurors will be biased in favor of such testimony,334
one study of mock jurors did not find this type of bias. 335 When mock
jurors were presented with evidence from both court-appointed
(nonadversarial) and attorney-hired (adversarial) experts, the “[c]ourtappointed status did not boost the expert’s credibility,” and
“nonadversarial evidence was not automatically accorded favored status
in jurors’ minds.”336 On the contrary, jurors who heard testimony from
court-appointed experts tended to pay slightly less attention than those
328 See FED. R. EVID. 706(a) (“The court may appoint any expert that the parties agree on
and any of its own choosing.”).
329 Daubert v. Merrell Dow Pharm., Inc., 509 U.S. 579, 595 (1993).
at 7 (1993) (“[T]he use of court-appointed experts appears to be rare . . . .”); see also Reilly v.
United States, 863 F.2d 149, 156–57 (1st Cir. 1988) (“Appropriate instances, we suspect, will be
hen’s-teeth rare.”).
331 See CECIL & WILLGING, supra note 330, at 5 (“Judges view the appointment of an expert
as an extraordinary activity that is appropriate only in rare instances in which the traditional
adversarial process has failed to permit an informed assessment of the facts.”); see also
McCracken v. Ford Motor Co., 392 F. App’x 1, 4 (3d Cir. 2010) (stating that the use of courtappointed experts is rare because it “interferes with adversarial control over the presentation of
PROCEDURE § 6304 (1st ed.)); In re Joint E. & S. Dists. Asbestos Litig., 830 F. Supp. 686, 693
(E.D.N.Y. 1993) (“Rule 706 should be reserved for exceptional cases in which the ordinary
adversary process does not suffice . . . .”).
332 See CECIL & WILLGING, supra note 330, at 7 (“The figures indicate that, taken together,
these judges made approximately 225 appointments, far more than suggested by the paucity of
published opinions dealing with the exercise of this authority.”).
333 Id. at 13.
334 See Brekke et al., supra note 322, at 468; see also FED. R. EVID. 706 advisory committee’s
note to 1972 proposed rules (“[T]he contention is made that court appointed experts acquire an
aura of infallibility to which they are not entitled,” but “the trend is increasingly to provide for
their use”).
335 See Brekke et al., supra note 322, at 468.
336 Id.
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who heard testimony from adversarial experts and had poorer recall of
information that court-appointed experts provided. 337 As the authors
note, this somewhat ironic result suggests that “[c]ourt-appointed
experts may, in fact, deliver more accurate, unbiased testimony than
their adversarial counterparts, but this increased accuracy may be lost
on jurors who are no longer paying careful attention to the expert’s
testimony.”338 These findings suggest that jurors should not be told that
a particular expert is court appointed.
Finally, greater use of court-appointed experts could minimize
some of the effects of the adversarial system on expert testimony. Judges
would be motivated to appoint well-credentialed and respected experts
within their communities, and experts would be paid by the court, thus
reducing bias against parties with fewer financial resources. 339 If courtappointed experts were regularly used, this could lead to fewer “hired
guns,” thus reducing allegiance bias and “battles between experts.”340
Attorneys would still be permitted to call their own experts, but many
may choose to simply rely on the court-appointed experts. 341 Perhaps
most importantly, “[t]he nonadversarial role of the court-appointed
expert should enable the expert to give the most impartial and unbiased
testimony possible” and “could represent a significant improvement
over the current adversarial procedure for introducing experts.” 342
The mental health community overwhelmingly believes that dual
forensic and clinical relationships lead to conflicts of interest, bias, and
harm to the therapeutic relationship. Moreover, this bias is often
unconscious and cannot be eliminated. Testimony premised upon
information that a clinician learns while participating in dual
relationships with one patient is therefore inherently unreliable and
should not be admissible under FRE 702 or Daubert. Although there is
widespread agreement among mental health professionals that this sort
of testimony is troubling, unethical, and unreliable, courts have not
taken the view of the relevant scientific community into account when
ruling on the admissibility of this type of expert testimony. Whether this
is because courts are unaware of the testimony’s unreliability, or because
some mental health professionals are willing to relax professional
See id. at 469–70.
Id. at 470.
Id. at 453–54.
Id. at 454.
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standards and boundaries if they feel a court will not question those
professional ethics, the practice should not be permitted to continue.
The admission of forensic mental health testimony based on dual
relationships should be excluded as unreliable under FRE 702. States
should adopt or amend statutes allowing the practice of telebehavioral
health to allow for greater use of neutral and independent forensic
mental health evaluations, and courts should consider the greater use of
FRE 706 to appoint neutral and independent mental health evaluators in
legal proceedings.

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