Most trial judges understand that psychiatry and psychology aspire to, and sometimes achieve, the standards of hard science. Amid a climate of case demands and research initiatives, many frontiers spark sincere disagreement in how data are to be interpreted. This is not unlike the controversies of established medicine for example, the assessment of signs of sexual assault or a shaken baby, among others. Apart from differences in perspective, forensic psychiatrists and psychologists reach different opinions for principally two reasons: because one examiner is relying upon more data to inform an opinion, or because bias has affected one or both of the forensic psychiatrists’ or psychologists’ work. See Robert A. Nicholson & Steve Norwood, “The Quality of Forensic Psychological Assessments, Reports, and Testimony: Acknowledging the Gap Between Promise and Practice,” 24 Law & Hum. Behav. 1 (2000); David E. Bernstein, “Expert Witnesses, Adversarial Bias and the (Partial) Failure of the Daubert Revolution,” 93 Iowa L. Rev. (2008).
The National Academy of Sciences’ (NAS) 2009 report on the necessary steps to strengthen forensic sciences quite clearly notes the challenges that expert witnesses face in overcoming contextual and cognitive biases. The report concedes, “There is no good evidence to indicate that the forensic science community has made a sufficient effort to address the bias issue.” Committee on Identifying the Needs of the Forensic Sciences Community, Strengthening Forensic Science in the United States: A Path Forward, Nat’l Res. Council of the Nat’l Academies 8-9 (2009). Even as the behavioral sciences assume greater court influence than ever before, the NAS report made no recommendations for forensic psychiatry and psychology.
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