Rethinking “Objectivity” for 21st Century Forensic Psychiatry

Background

The issue of objectivity has been a source of conflict in forensic ethics since at least the mid-20th century. The “Standard Position” (Alan Stone’s term for Paul Appelbaum’s widely accepted framework) proposed “truth-telling,” along with respect for persons, as one of the two core ethics tenets of the field.^4,5 For Appelbaum, the forensic psychiatrist’s duty regarding veracity included “saying what one believes to be true” and acknowledging “the limitations on his or her testimony, including those due to the limits of scientific or professional knowledge” (Ref. 5, p 240). These principles are reflected in the current version of the American Academy of Psychiatry and the Law’s ethics guidelines, adopted in 2005, which state that, when functioning as experts, forensic psychiatrists “should adhere to the principle of honesty and should strive for objectivity” (Ref. 3, p 3). This standard of striving for objectivity, although somewhat imprecise, occupies a middle course between the positions of “subjectivists,” like Bernard Diamond, who reject the possibility of narrative objectivity⁶ and “objectivists,” like Wade Myers, who view anything less than objectivity as “insidious.”⁷

The guidance to strive for objectivity is now accepted by much of the profession. But the directive is likely interpreted and applied in varied and inconsistent ways. In particular, a subset of practitioners in fields such as asylum evaluation and sexual harassment litigation are more likely to apply this standard in practice in a manner that might better be described as the “not deceptive” standard. As discussed below, such an approach in these subfields allows for advocacy while also engaging in truth-telling. In this article, I briefly review the evolution of the existing standard, consider the challenges of applying it to one such subfield (asylum evaluation), and then advocate to change the current guideline from “should strive for objectivity” to “should not engage in deception.” This seemingly minor modification recognizes the broadened scope of the forensics specialty and is more consistent with the norms of practice in certain subfields. At the same time, the approach leaves room for practitioners to strive for objectivity in many traditional areas of forensics. Striking this balance opens the door for ethical advocacy by forensics experts in certain circumstances within the bounds of the established truth-telling framework.

The Current Approach

The ongoing debate over the role of objectivity in forensic psychiatry emerged in the 1960s. At that time, “new legal questions were posed to ‘new’ experts,” namely psychoanalysts, partially supplanting the role of neurologists, “who had prided themselves on their precision and heavy reliance on objectively demonstrable, observable data points” (Ref. 7, p 145). This shift prompted pioneering forensic psychiatrist Bernard Diamond to conclude that impartiality was “unobtainable” and “a farce.”⁸ These comments anticipated Alan Stone’s 1981 address to the American Academy of Psychiatry and the Law in which he rejected the very notion of ethics principles in forensic psychiatry.⁹ Of note, these concerns arose parallel to the philosophical work in France of Jacques Derrida,¹⁰ which challenged the imprecision of language, and Michel Foucault,¹¹ who characterized how language shapes legal power dynamics, as well as the subsequent critiques of language impartiality evinced by Critical Legal Studies scholars, including Roberto Unger¹² and Duncan Kennedy¹³ at Harvard Law School. Unlike Stone, Diamond¹⁴ believed the ethics problem could be largely resolved by acknowledging and embracing the impossibility of objectivity.

In the ensuing decades, the field of forensics has largely accepted the premise that achieving complete objectivity in forensics testimony and reports is not possible. As Judge David Bazelon noted, “Like any other man, a physician acquires an emotional identification with an opinion that comes down on one side of the conflict; he has an inescapable, prideful conviction in the accuracy of his own findings” (Ref. 15, p 21). The presence of bias, whether as a result of unconscious emotions or through “nonemotional factors,” such as “the expert’s information-processing style or fund of knowledge,” inevitably influences the expert’s work (Ref. 16, p 60). Still, many scholars reject Diamond’s surrender to partiality. Starting with Manfred Guttmacher¹⁷ and Seymour Pollack,¹⁸ these scholars argued that, whether or not pure impartiality was possible, the value of the forensic profession depended on efforts to achieve it. Pollack observed that “the credibility of the forensic psychiatrist is proportional to the measure of neutrality and objectivity” and that “if his opinions are perceived as no more than reflections of his professional or individual philosophy, he loses credibility” (Ref. 18, p 23). Moreover, as Warren Gorman noted, “the appearance and projected image of neutrality, impartiality and objectivity are as important as the authentic characteristics” themselves (Ref. 19, p 380). Since the 1960s, various methods have been proposed to reduce bias.^16,20,–,22 Some scholars have even attempted to fully reconcile bias with objectivity.²³ At the same time, scholars like Ezra Giffith have advanced further evidence that such bias may be intractable.²⁴

The initial version of the AAPL ethics guidelines, formally adopted in 1987, stated that the “psychiatrist should avoid being an advocate for the party who has retained him or her” and that “an honest effort should be made to be impartial and to avoid partisan bias” (Ref. 25, p 16). Whether this standard represented the majority view of forensic psychiatrists at the time is questionable. A survey conducted by Robert Weinstock et al. in 1991 found that more than half of AAPL members surveyed favored adopting a contrary ethics guideline that stated: “Once a forensic psychiatrist has reached as objective an opinion as possible, honest advocacy is permissible so long as the psychiatrist does not knowingly permit use of his testimony for misleading purposes” (Ref. 26, p 243). Six years later, Paul Appelbaum’s⁵ seminal article, “A Theory of Ethics for Forensic Psychiatry,” implicitly acknowledged that complete impartiality was impossible while still advocating for a form of objectivity. In Appelbaum’s view, the psychiatrist has a duty to state “what one believes to be true” (i.e., “subjective truth-telling”) and also an obligation to share “the limitations on his or her testimony” (i.e., “objective truth-telling”) (Ref. 5, p 240). Then, in 2005, AAPL adopted the current ethics guidelines, which call for experts to “strive for objectivity.”³ Yet Appelbaum’s conception of “subjective truth-telling” and the “striving for objectivity” standard of the current guidelines, although sharing commonalities, differ fundamentally in multiple regards. The gap between the two visions creates a wide swath of gray area on a subject where precision would standardize expert conduct, provide helpful guidance to practitioners, and acknowledge the distinctive attributes of less traditional subfields in forensics.

Asylum Evaluation and “Objectivity”

The asylum process is a legal mechanism through which individuals who have been persecuted abroad or have a well founded fear of persecution in the future may seek regularized immigration status.^27,28 Engagement in immigration evaluations, and particularly as pro bono asylum evaluators, “is a growing area of work for forensic psychiatrists, one that shows no signs of abating” (Ref. 29, p 281). As Franks et al. have noted, “The forensic psychiatrist’s goal in this endeavor is to translate a story through a medico-scientific lens to create a narrative that is useful and impactful within court systems” (Ref. 30, p 449). Over the past two decades, forensic practitioners have increasingly grappled with ethics problems related to testimony and report writing in immigration cases.^31,32 Starting with Zonana,³³ program directors in forensic psychiatry have called for an increased role for fellows in this area. Disla de Jesus and Appel³⁴ have gone one step further in arguing that fellows should be trained to “advocate” for asylum seekers whose claims they believe to hold merit. Unfortunately, the “strive for objectivity” standard provides inadequate guidance on three subjects that arise frequently in asylum cases: when to include accurate but prejudicial information that favors the asylum seeker, when to exclude accurate but prejudicial information that disfavors the asylum seeker, and when to shape reports and testimony to conform to the biases of the trier of fact.

Consider, for example, the forensic psychiatrist retained by an immigration attorney to conduct an evaluation of a political dissident from abroad who is seeking asylum after reportedly suffering torture while detained by the authorities in his native country. To establish his claim, the dissident must demonstrate that “race, religion, nationality, membership in a particular social group, or political opinion was or will be at least one central reason for [his] persecuting” (Ref. 27, Sec. (b)1(B)(i)). In this case, the matters relevant to the asylum claim are the credibility of the client’s narrative and the presence of psychiatric sequelae. During the course of the interview, the psychiatrist ascertains that the client is a deeply devout churchgoer, that the dissident has three adult daughters and a newborn granddaughter named Daisy, and that, while in the United States awaiting his hearing, the client has adopted an injured kitten and nursed the animal back to health. A psychiatrist acting in good faith and seeking to adhere to the current AAPL ethics guidelines will face the question of whether to include any or all of these details in the report. On the one hand, the evaluator firmly believes all of these specifics to be accurate. On the other hand, these details are likely not dispositive to the underlying question of whether the client either has presented a credible narrative or experiences psychiatric symptoms. Assuming the psychiatrist has concluded that the client meets the legal standards for asylum, the ethics guidelines offer no guidance on whether including this favorable information is consistent with striving for objectivity. A related concern is whether the psychiatrist should inquire after these prejudicial details directly, such as asking for the name of the granddaughter, while conducting the evaluation. Including such details in the report if they are divulged incidentally, but not inquiring about them, seems both illogical and unjust, as such an approach will favor clients who pepper their responses with these details or are coached to do so. At the same time, uncertainty remains regarding whether intentionally seeking out such details paints an objective picture or merely distracts the trier of fact from the relevant questions, a matter on which experts may reasonably disagree.

In contrast, one might argue against including such details at all, even when discovered incidentally, to avoid the risk of these details influencing the trier of fact, although their exclusion may deny the court a full and contextualized understanding of the client’s life. Arguably, neither actively soliciting such details nor relying on their incidental disclosure is ethically appropriate in a given case, underscoring the inadequacy of the current ethics guidelines in addressing these situations. In short, forensic psychiatrists writing reports in asylum cases must decide whether to include accurate, but not legally or medically relevant, information that favors the asylum seeker. The AAPL ethics guidelines, as currently written, do not resolve this dilemma. Of course, some details regarding family relationships and personal beliefs may prove relevant to a clinical formulation, even when not legally dispositive. Some information is of minimal diagnostic or legal relevance; how to handle this information is the challenge for psychiatrists in asylum evaluations and potentially a range of other subfields. In other words, the distinction is not grounded in sympathy for the evaluee or the novelty of the subfield but in the structure of the legal decision being informed. In asylum proceedings, which involve considerable room for discretion on the part of the triers of fact, much of the psychiatric expert’s work involves credibility assessment and engagement with narrative, which in turn intensifies ethics ambiguity regarding framing.

A psychiatrist acting in good faith and seeking to adhere to the current AAPL ethics guidelines will face the dilemma of whether to exclude accurate but prejudicial information that disfavors the asylum seeker. For instance, in the hypothetical case described above, consider the possibility that the evaluator discovers that the client also has two adult sons but has not spoken to either of them by choice in 20 years because they both married individuals of different races. As a result, the client has never met any of his grandchildren, not even Daisy. In addition, the client holds a range of legal but controversial, nonmainstream beliefs that downplay the severity of historical atrocities, such as African American slavery and the Holocaust. The details here are distinct from those of the favorable details provided earlier, as they are likely irrelevant to the ongoing legal matter, yet presenting them in a report may prove highly prejudicial against the interests of the client. Assuming the psychiatrist believes this information to be accurate, the ethics guidelines offer no indication of whether including this information is consistent with striving for objectivity. On the one hand, such information will present a clearer picture of the life of the asylum seeker. Arguably, declining to provide this information creates a less complete and hence less objective understanding of the client. On the other hand, if the psychiatrist genuinely believes that the client meets the criteria for asylum, providing this unfavorable information may influence the trier of fact and result in injustice. Withholding such information is not overtly deceptive: these details are not relevant to the legal or scientific questions and they have not been requested by counsel or court. Yet, to many experts, suggesting that excluding this information from a report or testimony is consistent with striving for objectivity strains the meaning of this phrase considerably.

Finally, asylum evaluators often work closely with attorneys who are familiar with the preferences and prejudices of the triers of fact as a result of repeat encounters. Under such circumstances, the forensic assessor frequently confronts the question of whether to shape reports and testimony to conform to the biases of the judges. For instance, in the hypothetical case described above, one can imagine a scenario in which an attorney, prior to the evaluation, shares information with the evaluator about the immigration judge who is expected to handle the hearing. According to the attorney, the immigration judge is of the same religion as the client and is highly devout; the immigration judge has written several academic articles raising ethics concerns about separating parents from children and grandchildren as a result of asylum hearings, including the emotional impact this separation might have on both parties; and the immigration judge, an avid birdwatcher, was recently quoted in a major newspaper expressing concern that the exploding cat population in the city is causing a “massacre of innocent songbirds.” The forensic psychiatrist cannot be certain whether these personal attributes will bias the immigration judge. But to present the strongest case for the client, the expert considers including both the name of the dissident’s granddaughter and the denomination of his church in the report while excluding information about the man’s work with feral cats. Whether the expert may do so in compliance with the current AAPL ethics guidelines is unclear.

The hypothetical case described above reveals several difficulties with the striving for objectivity standard. First, the standard itself is considerably imprecise. The ethics guidelines offer no clear direction on how psychiatric experts should handle the various challenges described. Second, the imprecision likely leads to considerable variation in practice. As a result, one’s likelihood of success depends in part on the way in which one’s evaluator interprets the standard. Such a result is incompatible with the ethics norm of justice, which requires treating similarly situated individuals in the same manner, and also inconsistent with the underlying goal of the objective, which is in part to ensure credibility. Third, a striving for objectivity standard merely grants more weight to other biases in the system, such as those held by triers of fact, which means that the adherence to the standard may actually result in less accurate outcomes. The underlying problem is that true objectivity is impossible, as a result of the limits of both human nature and language, so striving for something impossible creates enormous subjectivity.

It must be emphasized that striving for objectivity in forensic psychiatry has traditionally been understood to embrace such factors necessary for analytic rigor, including defining questions in advance, applying systematic methods of data collection, and clarifying the evidence underlying conclusions. Nothing in this proposal is intended to question the importance of these methodological commitments. Instead, the goal here is to highlight ethics challenges that arise even when such standards are observed. In particular, in settings like asylum evaluation that are heavily driven by narrative and lack discrete legal thresholds, methodological care alone does not sufficiently address how information should be framed and contextualized, leaving an ongoing area of uncertainty.

Asylum evaluation offers a particularly strong case of the limitations of the current strive for objectivity standard. Similar ethics dilemmas arise in a range of other subspecialties. Although a comprehensive review of all such subfields is not possible here, one additional example may help clarify the broader applicability of the concerns raised. In workplace discrimination and harassment litigation, experts often learn accurate, but not dispositive, information that may influence the trier of fact. As in asylum evaluations, the ethics guidelines offer little guidance on whether to include or exclude this potential evidence. For instance, an expert in a workplace sexual harassment case might discover that the alleged victim recently became a grandmother, a fact of no dispositive bearing on the case yet having the potential to generate sympathy on the part of a judge or jury. Whether including such a detail is permissible under the current ethics guidelines is unclear.

A Broader Standard

AAPL’s ethics guidelines are generally understood to be “a floor not a ceiling” (Ref. 7, p 308). As Grounds et al. have observed, “Practicing at the highest ethical level involves going beyond them, but not meeting them would be to fall below an acceptable standard” (Ref. 7, p 308). The fact that they include a section on how to pursue complaints of unethical conduct lends support to this interpretation. Although considerable theoretical work has advocated for an “aspirational” approach to forensic ethics, which is “concerned with what the profession ought to be,” that is clearly not the intent of the current guidelines (Ref. 35, p 244). Persuasive arguments exist for the establishment of ethics guidelines that are aspirational, a topic debated elsewhere that is well beyond the scope of this article.³⁶ If AAPL chooses to retain its current approach, however, then an alternative standard to striving for objectivity is called for in a range of nontraditional cases, such as asylum evaluations. Alternatively, AAPL must be prepared to declare the psychiatrist who includes irrelevant but favorable information in an asylum report (as in the initial hypothetical cases above) to be acting unethically and, in theory, subject to referral to the American Psychiatric Association for potential discipline.

This article proposes that AAPL consider an alternative standard to serve as a floor for future versions of its ethics guidelines: a principle stating that forensics experts “should not engage in deception.” By deception, what is meant is either the presentation of factually inaccurate information or the presentation of information in a manner that will lead others to believe factually inaccurate information. Needless to say, avoiding deception is already a fundamental ethics obligation for forensic psychiatrists. The significance of including this standard in the ethics guidelines is not the creation of a new prohibition but in ensuring this standard is maintained once the striving for objectivity requirement is removed. Inclusion of the nondeception principle is a safeguard needed to make clear that, although selective presentation of accurate information without intent to mislead is not an ethics breach, doing so with the intent to mislead is still an ethics violation despite the changes proposed here. Alternative approaches to the concerns raised above might include emphasizing transparency regarding one’s biases or even recusal when one holds a strong view of the case. Although transparency is certainly desirable, regardless of the ethics standard used, and recusal may be appropriate in certain circumstances, these approaches are of limited value in asylum cases, in which strong views often emerge only after the completion of the assessment. Moreover, these approaches do not help to resolve the practical questions related to framing, inclusion, and exclusion described above.

Such a revised standard renders each of the scenarios above far easier to resolve. Applying this revised standard to the above cases, the forensic psychiatrist is clearly entitled to present extraneous information favorable to the asylum seeker, withhold extraneous information that is prejudicial to that asylum seeker, and tailor the information presented to conform with the biases of the trier of fact. This is not to say, of course, that all forensic psychiatrists will choose to do so or that such an approach is appropriate in all cases. In many situations, the ethical evaluator should aspire to strive for objectivity. Future guidelines should note overtly that the “not deceptive” standard is a floor and might also offer some aspirational goals as well.

The goal of this proposal is not to advantage one set of litigants in adversarial contexts. Opposing experts in cases involving workplace discrimination and harassment claims, for instance, would also be permitted to avail themselves of the nondeceptive standard. (In theory, these standards would apply in immigration contexts as well, but in practice, the state rarely if ever retains experts in routine asylum cases.) A caveat might be relevant for experts retained by the government in nonadversarial or quasi-adjudicative roles, such as an expert appointed by a judge to conduct a state hospital evaluation for civil commitment, but the nuances of such cases need not be explored here. Rather, the acknowledgment that the proposed standard will apply equally to experts retained by both parties in adversarial contexts should be sufficient to advance a case for these changes to the ethics guidelines.

The elimination of the strive for objectivity standard without including a requirement that forensic practitioners not engage in deception might seem speciously appealing, especially to individuals inclined toward simplicity. But establishing this floor is essential to prevent testimony that is knowingly false as well as to prohibit testimony that is not inherently false but is presented or framed in a manner to create a false impression for the trier of fact. The goal of the changes advanced in this article is not to mislead the courts. Rather, the goal is to allow practitioners latitude to present a complete account of the context and circumstances of the client’s conduct in a manner intended to create an accurate impression. A directive to not engage in deception creates a clear and actionable ethics floor for professional practice.

The idea that different subfields of forensics may require nuanced variations to the existing ethics guidelines is not novel. Candilis and Martinez laid the groundwork for such healthy pluralism in their theory of robust professionalism, writing that such an ethic “requires broader consideration of personal, professional, and community values” (Ref. 35, p 242). Drawing upon this approach, among others, Glancy argued that “the delivery of correctional mental health demands its own ethics perspective” to “help clinicians…resolve ethics dilemmas in correctional mental health” (Ref. 37, p 74). The same is arguably true of asylum evaluation, as discussed above, and potentially other subfields. What must be emphasized is that it is not the newness of these subfields that justifies a distinctive approach or the fact that they reflect trends of interest among practitioners. Rather, the underlying nature of the work in these subfields merits the distinctive approach. To the degree that more conventional forensic evaluations share commonalities with asylum-related practice, the door remains open to modifications in traditional practice. That possibility is beyond the scope of this discussion and need not be addressed here.

Limitations

Adopting a nondeceptive standard is likely to raise challenges. At the most fundamental level, establishing differing ethics norms across various subfields of forensics poses genuine risks regarding both credibility and consistency. For instance, some practitioners in traditional areas of forensic practice may fear being perceived as less credible or even as partisan advocates if more leeway is afforded practitioners in asylum cases. In addition, even in the field of asylum evaluation itself, triers of fact may grow suspicious of the testimony of forensic experts if the expectation of neutrality gives way to the perception of bias. In short, the distinction between the roles of expert and advocate may be blurred. Even more troubling, the risk exists for genuine ethics drift in which some practitioners, possibly with the best of intentions, adopt such latitude in the presentation of information as the new standard becomes a license for strategic deception.

Fortunately, these risks can be mitigated. First, the nondeceptive standard should be established as an ethics floor, not an endorsement of advocacy. The new standard is not a license to forgo transparency. As under the current ethics guidelines, experts should be expected to document fully the sources of their information and the bases for their conclusions. Nor should the new standard undermine existing mechanisms of training and oversight. Ideally, professional organizations such as AAPL will offer concrete examples of permissible and impermissible conduct and will emphasize the importance of honest intent. As a result, rather than undermining the reform proposed here, acknowledging these challenges will place emphasis on the establishment and maintenance of appropriate safeguards.

In addition, some critics of the reform proposed here may argue that one of the merits of the existing striving for objectivity standard is its latitude. In letting different practitioners in different subfields interpret the standard in various ways, the ethics guidelines in essence create a big tent in which experts in these various subspecialties may practice side by side. One might view the current approach as a compromise between those in the objectivist camp and those who believe that the search for objectivity is a fool’s errand. All of that may indeed be true. But if the standard is broad enough, then that raises the question of whether any value exists in having the rule at all. Should the profession not be able to achieve meaningful consensus on its own ethics floor, then the utility of the guidelines appears highly limited.

Conclusions

The current ethics guidelines are over two decades old. Since 2005, the profession has witnessed a considerable expansion in its scope and the types of subspecialties that fall under the forensics umbrella. The notion of striving for objectivity may strike some forensic experts in some of these subspecialties as a quaint vestige of a different era when forensic work focused on criminal trials and specific types of interpersonal civil litigation. At present, the vast majority of forensic psychiatrists, no matter what their area of practice, can likely agree that experts should not actively deceive the courts either in written reports or testimony. Needless to say, knowingly presenting factually false information in a judicial setting is illegal and rightly so. Fewer forensic experts likely see truth-telling and striving for objectivity as synonymous, especially in areas like asylum evaluation, in which advocating for truth may be inconsistent with presenting an objective narrative. If AAPL’s ethics guidelines are to remain a floor for acceptable conduct rather than an aspirational document, an alternative standard, more consistent with contemporary notions of justice in all areas of forensics, is in order. Eschewing deception while presenting an accurate, contextualized, and humanizing account of the evaluee that is consistent with the available evidence is likely consistent with current practice in some areas of forensic practice, such as asylum evaluation, and establishes an ethics floor that offers clear guidance to the field.