When Does Personal Empathy-Bias Occur in Professional Settings and What are Effective Ways to Manage it? ?You have been invited throughout this course to explore personal empathy-bias about the legal topics and issues that we have explored and analyz

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

Empathy or Objectivity: The Forensic Examiner's Dilemma?

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

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

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

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

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

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

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

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

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

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

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Empathy or Objectivity 587

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

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

ADJUDICATIVE COMPETENCE: FLEXIBLE DEFINITIONS AND PRINCIPLES

The Legal Backdrop

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

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

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

Copyright © 2010 John Wiley & Sons, Ltd. Behav. Sei. Law 28: 585-602 (2010) DOI: 10.1002/bsl

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

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

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

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

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

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

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

Copyright © 2010 John Wiley & Sons, Ltd. Behav. Sei. Law 28: 585-602 (2010) DOI: 10.1002/bsl

Empathy or Objectivity 589

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

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

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

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

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

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

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

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

THE FORENSIC EXAMINER BACKDROP

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

Copyright © 2010 John Wiley & Sons, Ltd. Behav. Sei. Law 28: 585-602 (2010) DOI: 10.1002/bsl

Empathy or Objectivity 591

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

EMPATHY AND BIAS

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

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

THE USE AND MISUSE OF EMPATHY

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

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

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

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

Copyright © 2010 John Wiley & Sons, Ltd. Behav. Sei. Law 28: 585-602 (2010) DOI: 10.1002/bsl

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

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

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

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

THE EVALUATOR'S DILEMMA

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

Copyright © 2010 John Wiley & Sons, Ltd. Behav. Sei. Law 28: 585-602 (2010) DOI: 10.1002/bsl

Empathy or Objectivity 593

high-Stakes issue like the death penalty. However, the administration of justice in capital cases would be compromised if too many forensic specialists declined to conduct evaluations in these cases (Bonnie, 1990, p. 78). In this case, the pool of available experts could be slanted in the direction of those least likely to provide mitigating testimony, depriving capital defendants of fair opportunities to develop their cases and, thus, seriously compromising their Eighth Amendment rights (pp. 78, 89). Thus

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