Taking the Side of Objectivity

• objectivity
• ethics
• bias
• asylum
• refugee

The United States’s approach to immigration took an abrupt and severe turn under the current administration. In January 2025, Executive Order 14163 suspended the Refugee Admissions Program “until such time as the further entry into the United States of refugees aligns with the interests of the United States” (Ref. 1, p 1). This is one of many actions taken with the expressed intent to curtail immigration, both legal and otherwise.² Government policies could directly affect forensic psychiatrists when writing reports or providing testimony to immigration courts hearing asylum cases, where psychological factors are often at issue.³ In the first Trump administration, quotas influenced the behavior of immigration judges by substantially increasing the number of removal orders.⁴ Although research has yet to be reported on the current administration’s policies on immigration decisions, scholars anticipate reduced asylum-seeking and stricter policy enforcement in the coming years.⁵ This is the context in which Jacob Appel’s article appears, calling for the American Academy of Psychiatry and the Law (AAPL) to “choose” an advocacy approach, at least in the specific example of asylum cases, with the ethics standard reduced to telling the truth and, by corollary, not intentionally deceiving the court.⁶

I get it. Now more than ever, the deck is stacked against persons who entered, or want to enter, the United States seeking safety. The current immigration policies conflict with longstanding American values, like those captured by Emma Lazarus’s words engraved on the pedestal of the Statue of Liberty: “Give me your tired, your poor, Your huddled masses yearning to breathe free” (Ref. 7, p 103). Like most of us, I learned about Beauchamp and Childress’s⁸ four principles of medical ethics (autonomy: self-determination, nonmaleficence: do no harm, beneficence: do good, and justice: be fair) long before I heard about the dialectic between Stone⁹ and Appelbaum.¹⁰ At the time of this writing, the administration’s approach to immigration is unpopular, at least related to the actions of Immigration and Customs Enforcement and its economic effects.¹¹ For many evaluees, this is literally a matter of life or death. If this were analogized to a trolley problem, the refugee is tied to the rails, a parallel track is clear, and the forensic psychiatrist is at the switch. If this is how the ethics problem is conceived, I understand why some colleagues might feel obliged to use their influence accordingly.

At the risk of being unpopular in 21^st century forensic psychiatry, I remain committed to the core AAPL ethics principle of “striving for objectivity.”¹² Appel correctly and fairly points out that objectivity is illusory. I certainly have biases; I would profoundly mistrust anyone who claims to have none. Diamond¹³ argued that an expert’s assertion of being impartial is not only hubris but misleading to the court. There is a difference, though, between acknowledging that objectivity is aspirational and abandoning it altogether. Taking the former approach, forensic psychiatrists admit the limitations of their reports and testimony and are prepared to persuade decision-makers that their opinion can survive counterarguments. Taking the latter approach, forensic psychiatrists become little more than advocates, not for their opinion per se (because they knowingly ignore its weakness), but for a cause, with the refugee being incidental. Diamond conditioned psychiatry participating in an adversarial system, in part, on “[being] less preoccupied with its own omniscience, and sufficiently secure in its public status that it is unafraid to expose its deficiencies of knowledge about some of the most fundamental problems of human nature” (Ref. 13, p 235). Thus, the need for striving.

It is naive to believe that attorneys, judges, and juries will not notice advocacy for a cause. Edens and colleagues,¹⁴ building from Mossman’s earlier review¹⁵ searching legal records for references to “hired guns” and other unsavory terms applied to psychiatric expert testimony, found that such derogations were increasingly common and, to at least a limited extent, influential in appellate outcomes. Residents and fellows conducting pro bono asylum evaluations may be immune from being called a hired gun, although they are not immune from accusations of political or ideological bias. Negative impressions of psychiatric experts in these studies were not limited to financial motives; more references to advocacy or partisanship were seen in civil cases, and sometimes remarks were generalized to psychiatry as a whole.¹⁴

There will always be the proverbial “bad apples” who roundly fail to be objective. Other apples can count on AAPL’s formal ethics stance on “striving for objectivity” if faced with ad hominem attacks in cross. Should the organization “choose” to remove the phrase from its ethics guidelines, this is tacit approval of advocacy untethered to science or the totality of the facts known to the expert. Although I wholeheartedly agree that AAPL should retain truth-telling in its stable of principles, this is a low bar. The American Bar Association’s Model Rules of Professional Conduct not only say, “A lawyer shall not knowingly …make a false statement of fact or law to a tribunal or fail to correct a false statement of material fact” but that one also has a duty to disclose law unfavorable to the client, unless opposing counsel does so (Ref. 16, Rule 3.3). In other words, there is some measure of objectivity required of officers of the court whose job it is to advocate for their clients.

I am unclear whether Appel’s proposal is intended to apply to the ethics of forensic psychiatry in general or to select areas relevant to social justice. Should professional ethics depend on the legal question at hand, a process would need to exist to determine which questions require different ethics, which may change over time based on the concerns of the day that interest members most. Tomorrow, asylum cases may not be one of these.

Limiting the removal of “striving for objectivity” to certain types of cases pretends that social justice does not touch every type of case we may encounter. Let us consider a hypothetical scenario, although psychiatrists working in jails and prisons will find this narrative familiar. You are retained as a defense expert to evaluate a man in his early thirties for criminal responsibility for an alleged armed robbery. You conduct a thorough psychosocial history, including a consideration of social determinants. The defendant’s history is replete with deprivation and neglect, few prosocial mentors, evident exposure to discrimination, and limited opportunity. He meets current diagnostic criteria for an unspecified bipolar disorder, antisocial personality disorder, and various mild to moderate substance use disorders. The insanity statute in the jurisdiction excludes antisocial personality disorder and substance intoxication as bases for a defense, and you fear that mentioning either in your testimony will cause the fact-finder not to consider your professional opinion as to the source of his impulsivity. The evaluee got dealt a bad hand, and the temptation to steer the hand of justice toward a correction is strong. Even if the defendant’s narrative is not sympathetic, sociological research supports incarceration itself as one factor in the creation and perpetuation of inequality, which may bias the forensic psychiatrist toward testimony aimed at avoiding incarceration for anyone.¹⁷

As Appel concedes, bias unfair to the defendant in an expert unconcerned with “striving for objectivity” is equally possible and perhaps even more concerning when such cases stir up strong emotion. Wood and colleagues’ recent review¹⁸ of countertransference and bias toward persons with borderline personality disorder and how this may influence forensic assessments, particularly around the subject of risk, is on point.

I appreciate Appel’s citation of Graham Glancy’s recent treatise on ethics in correctional psychiatry.¹⁹ Glancy described the nuances of ethics in such work, which often straddles the clinical and the forensic. Psychiatrists working in jails and prisons may face situations not seen elsewhere, and the principles used must comport with what is called for in the situation. Evaluating responsibility for an institutional infraction, for example, requires a forensic lens, whereas research with prisoners as subjects requires consideration of classical medical ethics,⁸ but with respect for a right to improved care and with a careful risk-benefit analysis.¹⁹ I read nothing in Glancy’s work suggesting a limited standard of ethics.

I challenge the suggestion that striving for objectivity may be separated from truth-telling in forensic psychiatric practice. Paul Appelbaum’s classic discussion of the theoretical basis for ethics in forensic psychiatry¹⁰ makes no specific use of the phrase. Rather, functions such as acknowledging the limitations of one’s testimony, including limits to the relevant scientific knowledge, were in keeping with the “objective component of truth-telling” (Ref. 10, p 240). Katz²⁰ reframes striving for objectivity as “[informing] fact finders about the extent and limits of his or her scientific knowledge and the factual information on which his or her opinions are based as well as the scientific and value assumptions that underlie them” (Ref. 20, p 151). Both the original (1987)²¹ and current (2005)¹² text of the AAPL ethics guidelines group “Honesty and Striving for Objectivity” in the same section. If we continue to value that “psychiatrists should not distort their opinion in the service of the retaining party” (Ref. 12, p 3), divorcing objective truth-telling from the subjective truth is a perilously thin line to walk.

Quoting Franks and colleagues,²² Appel suggests that the role of the forensic psychiatrist is to “create a narrative that is useful and impactful within court systems” (Ref. 22, p 449). The Refugee Act of 1980 includes in the definition of “refugee” someone who has “a well-founded fear of persecution on account of race, religion, nationality, membership in a particular social group, or political opinion” (Ref. 23, p 102). Zonana’s commentary on the role of forensic psychiatry in the asylum process²⁴ notes that, although posttraumatic stress disorder may be relevant in asylum evaluations, a diagnosis of posttraumatic stress disorder (PTSD) does not by itself verify the narrative. Although such disclosure may be inconvenient to achieving a particular outcome, inadequately warning the court about the limits to the probative value of psychiatric diagnoses may be deceptive, whether intended or not. And if there is no psychiatric diagnosis to be found in the narrative, it is unclear why a forensic psychiatrist is there in the first place.

Appel argues that a revision to the ethics guidelines is necessary to avoid getting into trouble with AAPL. The fear of censure by medical boards or professional organizations is understandable and legitimate. Aggrieved parties who may be satisfied by harm to an expert’s reputation without monetary compensation have little to dissuade them from utilizing these routes, which require less effort, less monetary cost, and less risk than a lawsuit.²⁵ There are fewer legal barriers to making such complaints, like statutes of limitations or even merit.²⁶ As a member of my district branch’s Ethics Committee, I would like to give the process more credit. Forensic psychiatry is the practice of medicine, and medicine is both an art and a science. Without some allowance for professional judgment and values that “[honor] both the duties and ideals of our work” (Ref. 27, p. 244), the practice of forensic psychiatry would be robotic. It strikes me as unlikely that a professional organization would police an expert providing (or omitting) a piece of irrelevant social history favorable (or unfavorable) to a party. Regarding objectivity, the qualifier of “striving” entitles forensic psychiatrists to the benefit of the doubt in peer review, if a reasonable effort has been made to consider known facts that are inconsistent with their opinion.

Finally, I will appeal to the competitive spirit occasionally observed in physicians. The American Psychological Association’s 2013 Specialty Guidelines for Forensic Psychology requires expert witnesses to “strive for accuracy, impartiality, fairness, and independence” (Ref. 28, p 8). Forensic psychologists have performed asylum evaluations and testified in immigration court.³ Removing the floor of “striving for objectivity” from the AAPL Ethics Standards will differentiate the fields of forensic psychology and forensic psychiatry, not necessarily to the benefit of our profession. The American Medical Association expects physicians who testify as expert witnesses to “evaluate cases objectively and provide an independent opinion” (Ref. 29, Opinion 9.7.1). We are physicians first, and I would prefer not to distinguish us from other experts in this way.

In summary, I share Dr. Appel’s compassion for refugees and others we may evaluate who have greatly suffered, who are seeking safety and a chance to have a life worth living, whatever that may be for them. Forensic psychiatry has thrived in the decades guided by the current ethics structure.^12,21 Should the bare minimum become such that refraining from deception is sufficient, our professionalism becomes less robust. Although individuals may choose to continue to “strive for objectivity,” the downstream effects of eliminating this principle are predictably problematic. Outside of the courtroom, we can and should pursue social good, both at an individual and at a professional organizational level. Inside the courtroom, our duty is to serve the interests of justice by applying our knowledge and skill, with adequate humility and acknowledgment of our limitations, so that the fact-finder can make an informed decision. The moral responsibility for an unjust legal decision rests with the decider; that is not our trolley.

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