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"Hired Guns," "Charlatans," and Their "Voodoo Psychobabble":

Case Law References to Various Forms of Perceived Bias Among
Mental Health Expert Witnesses

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Psychological Services © 2012 American Psychological Association
2012, Vol. 9, No. 3, 259 –271 1541-1559/12/$12.00 DOI: 10.1037/a0028264

“Hired Guns,” “Charlatans,” and Their “Voodoo Psychobabble”:

Case Law References to Various Forms of Perceived Bias Among
Mental Health Expert Witnesses

John F. Edens, Shannon Toney Smith, Kacy Mullen and Amy Pitta
and Melissa S. Magyar Southern Methodist University
Texas A&M University
John Petrila
University of South Florida

Although in principle the legal system expects and professional ethics demand that
expert witnesses be unbiased and objective in their forensic evaluations, anecdotal
evidence suggests that accusations of financial bias, partisanship, and other forms of
nonobjectivity are common. This descriptive survey of published legal cases expands
on an earlier case law review (Mossman, 1999) attempting to encapsulate and sum-
marize key issues concerning perceptions or allegations of bias in mental health expert
witness testimony. Using a series of search terms reflecting various potential forms of
accusatory bias, a total of 160 published civil and criminal court cases were identified
in which 185 individuals (e.g., attorneys, trial and appellate judges, other witnesses)
made one or more references to clinicians’ alleged lack of neutrality. Allegations most
typically involved describing the expert as having an opinion that was “for sale,” or as
a partisan or advocate for one side, although aspersions also were made concerning
“junk science” testimony and comparing mental health experts to mystics and sorcerers.
Our results indicate that diverse forms of bias that go beyond financial motives are
alleged against mental health experts by various players in the legal system. Means are
discussed by which experts can attempt to reduce the impact of such allegations.

Keywords: expert testimony, mental health evidence, advocacy, bias, case law survey

The legal community’s view of the appro-
priate role for mental health expertise in the
resolution of criminal and civil cases is best
characterized as conflicted—if not perhaps
even paradoxical. Consider, for example, the
following commentaries highlighting the im-
portance and relevance of mental health ex-
pert evidence in certain cases:
This article was published Online First April 30, 2012.
John F. Edens, Shannon Toney Smith, and Melissa S.
Magyar, Department of Psychology, Texas A&M Univer-
sity; Kacy Mullen and Amy Pitta, Department of Psychol-
ogy, Southern Methodist University; John Petrila, Depart-
ment of Mental Health Law and Policy, University of South
Florida.
Amy Pitta is now with the Virginia Consortium Program
in Clinical Psychology, Norfolk, Virginia.
Correspondence concerning this article should be ad-
dressed to John F. Edens, Department of Psychology, Texas
A&M University, 4235 TAMU, College Station, TX 77843.
E-mail: johnedens@tamu.edu
259
. . . Without the assistance of a psychiatrist to conduct
a professional examination . . . [and] to present testi-
mony . . . the risk of an inaccurate resolution of sanity
issues is extremely high. With such assistance, the
defendant is fairly able to present at least enough
information to the jury . . . as to permit it to make a
sensible determination (Ake v. Oklahoma, 1985, p. 82).
Whether the individual is mentally ill and dangerous to
either himself or others and is in need of confined
therapy turns on the meaning of the facts which must
be interpreted by expert psychiatrists and psychologists
(Addington v. Texas, 1979, p. 430).
Many (civil) cases could not be tried without expert
witnesses to testify as to the applicable standard of
care, the reconstruction of accidents, or the value of a
plaintiff’s damages (Richmond, 2000, quoted in
Shuman & Greenberg, 2003, p. 220).
Such statements reflect the fact that mental
health evidence is frequently viewed as impor-
tant, if not essential, to addressing certain legal
issues (e.g., sanity, emotional damages, parental
fitness). Moreover, according to prominent psy-
cho-legal scholars (Monahan, Walker, & Mitch-
260 EDENS ET AL.
ell, 2008), the legal system appears to rely in-
creasingly on experts to provide a “social
framework” in relation to the interpretation of
social science research (e.g., violence risk as-
sessment, accuracy of eyewitness identification)
that may be germane to the adjudication of a
particular case (see, e.g., Dukes v. Wal-Mart,
Inc., 2007).
In contrast to the preceding statements, con-
sider the following diverse commentaries on
mental health expertise:
. . . What we’ve got now are thousands of self-styled
soul doctors run amok in our courts, drunk with power,
bedazzled by spectacular fees for the no-heavy-lifting
job of shooting off their mouths about any psycholog-
ical topic that sneaks a toe into the courtroom. (Hagen,
1997, p. 4).
Grigson, while outlandish and notorious, is not the
only “expert” upon whom the state of Texas relies to
convince juries of the need to put a defendant to death.
Other “killer shrinks” have followed Grigson’s lead
and, in courtrooms around the state today, forecast the
unknown cloaked in the aura of reliability conferred by
the honorific title “Doctor” (Texas Defender Service,
2004, p. 19).
. . . Juror 184 wrote “I believe you can find a psychol-
ogist or psychiatrist that will support whatever side of
the case you want.” Moreover, juror 184 explained that
he would have a predisposition to believe that a psy-
chiatrist would be a biased witness (U.S. v. Fell, 2005,
p. 13).
Plaintiff alleges that the defense attorney uttered the
“inflammatory epithet ‘witch doctor,’” under his
breath, which Plaintiff argues was “encouraged by the
Court’s seemingly hostile and suggestive treatment of
Plaintiff’s psychologist” (Ullman v. Starbucks Corpo-
ration, 2001, p. 14).
It should not be surprising that wholesale
acceptance of mental health expertise as accu-
rate and neutral is hardly the norm. Clearly,
some judges, attorneys, academics, and jurors
view at least some mental health experts–if not
the entire field–with a considerable degree of
suspicion (Fradella, Fogarty, & O’Neill, 2003),
if not overt distain and/or hostility.
Moreover, regardless of one’s “true” beliefs
about the objectivity of the mental health field
generally or any particular examiner specifi-
cally, it is self-evident in an adversarial system
that there may be considerable strategic advan-
tage during cross-examination or closing argu-
ments to suggest that an examiner has self-
serving or otherwise less-than-noble motives
for providing whatever testimony is offered on
direct examination. Consider the following
strategy recommended in response to mental
health evaluations in child custody cases:
Once the report comes out in your client’s favor all you
have to do is convince the court that this evaluator is
truly an expert whose recommendations must be fol-
lowed or the well-being of the client will be imperiled.
Then again, if the evaluation is against your client, it is
all psychobabble, erroneous data, and dangerous con-
clusions and clearly the court should not abdicate its
responsibility to do what is right for the children be-
cause of the temptation to follow the specific recom-
mendations of this charlatan (Oddenino, 1994, p. 86).
Similarly, focusing attention on an expert’s
fees, history of testifying only on one “side” of
a legal issue, and so forth, may cause fact-
finders—rightly or wrongly—to question the
objectivity and neutrality of the offered opin-
ions (Boccaccini & Brodsky, 2002; Cooper &
Neuhaus, 2000). The implications of such accu-
sations may have the greatest effect on jurors,
judges, and in some egregious cases may create
an appealable issue. For instance, denigrating a
mental health expert’s reputation may poten-
tially sway jurors’ opinions regarding the extent
to which a defendant was psychologically re-
sponsible for his actions. Additionally, judges’
disparaging remarks toward a mental health
professional or the mental health field in general
may indicate a more pervasive bias (e.g.,
judges’ rulings regarding admissibility of expert
testimony) and later serve as grounds for an
appeal.
Of course, not every criticism or suggestion
of bias by a lawyer is legally inappropriate,
given the nature of the adversarial system. Al-
though professional ethical guidelines (e.g.,
American Psychological Association, 2002)
clearly mandate that mental health professionals
are to be competent and objective in their work,
it would be naı̈ve to think that all professionals
are. It would also be naı̈ve to assume that all
mental health experts in all circumstances will
be completely immune to the demands of an
intrinsically adversarial system that pressures
them to deviate from the goals of nonpartisan-
ship and dispassionate opinion. As noted by
Shuman and Greenberg (2003), “Experts per-
ceive that they are often trapped between dis-
cordant ethical and legal concerns. Consequen-
tially, experts may perceive that they must
choose between integrity and advocacy” (p.
219). As such, it may be quite reasonable for
 PERCEIVED BIAS AMONG EXPERT WITNESSES
lawyers to question what motivates the mental
health opinions and testimony offered in any
given case.
In terms of putative sources of examiner bias,
several forms have been suggested as poten-
tially undermining examiner objectivity (e.g.,
Saks, 1990). Perhaps the most pernicious is that
opinions are for sale. It is commonly alleged
that monetary incentives primarily (or com-
pletely) motivate the testimony offered by wit-
nesses characterized as “‘hired guns,’ ‘whores,’
and ‘prostitutes’” (Mossman, 1999, p. 414). Al-
though being for sale is frequently lodged as a
criticism of expert testimony, allegations of
other forms of bias may spring from perceptions
that the expert has a particular personal, politi-
cal, or scientific “ax to grind” in relation to a
specific legal issue. Evidence of advocacy for
one’s pet cause(s)—whether it is championing a
particular examinee’s case, the rights of fathers
in child custody disputes, or a novel or contro-
versial psychological syndrome (to name but a
few possibilities)—may be justifiable grounds
for questioning an examiner’s objectivity and
fairness as well.
Although the last few decades have seen an
increase in interest in policing and improving
the quality and objectivity of mental health tes-
timony (Shuman & Greenberg, 2003), concerns
about the objectivity of mental health expertise
continue to be expressed with considerable reg-
ularity within the legal community. In principle,
one might expect that the scientific quality and
objectivity of such evidence would improve—
and, consequently, be less controversial—in the
wake of evolving admissibility standards (e.g.,
Daubert v. Merrell Dow Pharmaceuticals, Inc.,
1993). In practice, however, it appears that
these standards may have had relatively little
impact on what qualifies as mental health “ex-
pertise” in the legal system (Fed. R. Evid. 702,
2000; Redding & Murrie, 2007). Although this
may in part stem from judges’ general lack of
comprehension of what constitutes sound scien-
tific evidence (Gatowski et al., 2001; Kovera &
McAuliff, 2000) and/or an unwillingness to ap-
ply these standards to “soft” psychological ev-
idence (Dahir et al., 2005), it is also clear that
the courts expect vigorous cross-examination
and rebuttal testimony to help fact-finders ferret
out the wheat from the chaff—particularly in
regards to mental health evidence (e.g., Bare-
foot v. Estelle, 1983). As the U.S. Supreme
261
Court concluded in relation to evaluations to
determine whether an inmate is competent to be
executed:
. . . cross-examination of the psychiatrists . . . would
contribute markedly to the process of seeking truth in
sanity disputes by bringing to light the bases for each
expert’s beliefs, the precise factors underlying those
beliefs, any history of error or caprice of the examiner,
any personal bias with respect to the issue of capital
punishment . . . Without some questioning of the ex-
perts . . . a factfinder simply cannot be expected to
evaluate the various opinions, particularly when they
are themselves inconsistent (Ford v. Wainwright,
1986, p. 351; more recently, see Panetti v. Quarter-
man, 2007).
As such, it is unrealistic to expect that the
specter of expert bias will ever not be at issue in
an adversarial legal system. As Saks (1990)
aptly noted, these are “old problems continually
rediscovered” (p. 292).
Despite considerable interest in the topic of
expert objectivity, relatively little systematic in-
vestigation has been undertaken to ascertain the
scope of this issue. For example, beyond anec-
dotal accounts, we know very little about the
types of allegations of bias that are levied
against mental health experts, the types of cases
in which they tend to occur, who makes them
(i.e., judges, attorneys, other witnesses), or
whether such assertions appear to impact the
trial or appeals process. Over a decade ago,
Mossman (1999) conducted to our knowledge
the first and only extensive legal review of these
issues by identifying and summarizing pub-
lished cases in which mental health experts
were referred to using the disparaging terms
“hired gun,” “whore,” and/or “prostitute.” From
an initial pool of 567 cases, he located 45 that
made some form of reference to the ethics of
mental health examiners. The vast majority of
comments were of a derogatory nature, with
“hired gun” being the most common deprecat-
ing descriptor (35 cases). Also, a small but
meaningful percentage of the cases involved
commentary that a particular mental health ex-
aminer was not biased—although by implica-
tion suggesting that some examiners were.
Over half of the cases Mossman (1999) lo-
cated involved appeals of criminal convictions
that involved mental health testimony at trial or
before sentencing. Of note, inflammatory com-
ments predominantly were made by prosecutors
in insanity cases, although numerous other
types of cases were represented as well (e.g.,
262 EDENS ET AL.
death penalty, child custody). Appellate courts
took a dim view of such disparaging remarks,
but in only three cases did they uphold an ap-
peal. Also of note, there was a strong associa-
tion (R2 ⫽ .34) between the number of case
references and the year of the case, indicating a
relatively sharp increase in the documentation
of derogatory statements over the time frame
(1978 –1998) examined.
Although Mossman’s (1999) review provides
a useful starting point on an understudied topic,
the author noted it was constrained by the scope
of the literature search, which was restricted to
three of the more common derogatory terms
used to denigrate examiner objectivity. Noted in
the preceding quotes, numerous other terms and
phrases (e.g., charlatan, killer shrink, psycho-
babble) obviously could be used to suggest the
presence of various forms of bias—particularly
inappropriate advocacy alleged to be motivated
by factors other than financial gain. Addition-
ally, the increase in the prevalence of such
statements from 1978 to 1998 suggests that a
review might already be seriously dated. As
such, the present project was undertaken to pro-
vide an update and significant expansion of the
case law survey conducted by Mossman (1999),
using a more extensive array of search terms
that might provide a more thorough examina-
tion of references to allegedly biased mental
health expertise.
Method
Using the computerized database LexisNexis
Academic, a search was conducted for legal
cases including disparaging remarks made spe-
cifically toward mental health professionals, as
well as toward the mental health profession in
general. LexisNexis contains published case
law from U.S. federal, state, and military courts.
For federal case law, LexisNexis contains ap-
pellate cases from the U.S. District Court of
Appeals and the U.S. Supreme Court, as well as
some federal trial court decisions by the U.S.
District Courts. State case law typically in-
cludes appellate and high court decisions. The
search was conducted for relevant cases avail-
able in LexisNexis through the end of calendar
year 2009. A total of 46 separate search terms1
were used, all of which represented some type
of disparaging word or phrase that might be
directed toward mental health professionals.
Beyond the three terms investigated in the
Mossman (1999) study, the additional search
terms we examined were identified through
group discussion among the coauthors, as well
as consultation with various practitioners in the
field who routinely provide expert mental health
testimony.
Similar to Mossman’s (1999) search strategy,
cases initially were identified for further review
in which the search term occurred within 100
words of the root word “psych” (to be inclusive
of terms such as psychologist, psychological,
psychiatrist, psychiatric). This preliminary
search strategy yielded a massive number of
cases (⬎1,100), all of which were reviewed by
a member of the research team to determine if
the search term was used to describe a mental
health professional or the field more generally.
Not surprisingly, the vast majority of the cases
initially identified were not relevant to our re-
view because the content of the case had noth-
ing to do with mental health expertise2 and were
excluded from our sample. The results of this
search strategy located a total of 160 cases in
which statements in relation to some form of
mental health examiner bias were made.3 These
cases were then reviewed in greater detail by
two coauthors to document information con-
cerning numerous characteristics (e.g., year the
case was published, type of case [civil or crim-
inal], the nature of the mental health testimony,
the individual making the disparaging remark).
Each rater independently reviewed and docu-
mented information for 80 of the 160 cases.
Although in the majority of the 160 cases
identified an allegation of bias was made only
by one individual, in 16% a second person
involved in the case also made some type of
negative comment concerning lack of objectiv-
ity— either concerning the expert or the field
more generally. As such, a total of 185 individ-
uals were involved in making disparaging re-
1
See the Appendix for a complete list of search terms.
2
For example, there were numerous cases identified us-
ing the search term “prostitute” in conjunction with “psych”
that focused on psychological problems of defendants being
charged with solicitation. Similarly, the term “bias” resulted
in the identification of hundreds of cases that ultimately did
not relate to mental health expertise or evidence.
3
Of note, we excluded cases in which claims of bias were
made against mental health treatment providers who had
testified at trial, as their role in legal cases is fundamentally
different from that of forensic examiners.
 PERCEIVED BIAS AMONG EXPERT WITNESSES
marks across the 160 cases. In most cases only
one specific term alleging some form of bias
was noted per person, but in 26% of the cases
the person or persons alleging bias used multi-
ple disparaging terms to describe the expert(s),
resulting in a total of 245 separable derogatory
statements located across the entire sample of
cases.
Given the search terms chosen for this proj-
ect, the types of comments made across these
cases (e.g., “hired gun,” “advocate,” “junk sci-
ence,” “witch doctor”) could be meaningfully
subtyped into broader categories of alleged bias
that were described in the Introduction and that
have been discussed previously in the literature
(e.g., Saks, 1990). Each case was independently
reviewed by two research team members to
classify the specific statement or statements di-
rected toward the expert into the following mu-
tually exclusive categories: being for sale (e.g.,
references to being a “hired gun” or “prosti-
tute”); engaging in pseudoscience (e.g., refer-
ences to experts as “charlatans” or testimony as
being “junk science” or otherwise fraudulent);
engaging in mysticism (e.g., referring to the
expert as a “witch doctor” or as engaging in
“voodoo” or “hocus pocus”); being a partisan
or advocate for one side of the case—with no
statement asserting any particular motive (e.g.,
financial); showing signs of (nonspecific) bias;
and “other.”
The consistency of these classifications
across the two raters was exceedingly high (␬ ⬎
.90), indicating that there was very little dis-
agreement as to how to code each of the cases
(Fleiss, 1981). The small number of discrepan-
cies—primarily concerning whether a specific
term fit within one of the broad categories or
should be classified as “other”—subsequently
was resolved by consensus among the two raters
and the first author (Edens). Table 1 provides a
few examples of each type of disparaging com-
ment from sample cases.
Results
Overview of Case Characteristics
Consistent with Mossman’s (1999) earlier
findings, there was a strong positive relationship
between the year a case was published and the
number of cases identified per year (r ⫽ .62,
p ⬍ .001), indicating that allegations of some
263
type of bias have become increasingly common
in published cases over the years. To focus on
more recent trends in published cases, we re-
stricted these analyses to the last 20 years; this
still resulted in a moderate positive association
over this time frame (r ⫽ .49, p ⬍ .05).
Of the 160 cases we identified, approxi-
mately 59% were state cases (representing 33
different states), 39% were federal cases, and
2% were military cases. In terms of case type,
allegations of some form of bias appeared
more so in criminal cases (64%) rather than
civil cases (36%). In the civil realm, almost
half (47%) of the cases focused on parties
seeking financial remuneration of some sort,
either in relation to the receipt of disability
benefits or damages related to personal injury
or negligence cases. Most of the rest involved
child custody disputes (36%).
In the criminal arena, insanity/diminished
capacity cases were the most common type of
case (56%), followed by those in which an
expert was being called to testify regarding
sentencing issues (20%). Among the insanity/
diminished capacity cases, the primary focus
of the expert testimony in almost all cases
was on the presence/absence of mental disor-
der and/or the defendant’s capacity to form
criminal intent, although in a few instances
examiners testified regarding other issues,
such as competence to stand trial, malinger-
ing, or violence risk potential. Almost all of
the criminal cases involved charges for vio-
lent crimes, with murder being the most com-
mon (67%); in fact, 37% of the total criminal
cases involved capital charges. The focus of
expert testimony in the capital cases was quite
diverse, ranging from mitigation evidence
(e.g., presence of mental disorder or mental
retardation), to malingering, to violence risk.
Of the nonmurder criminal cases, sexual of-
fenses accounted for the majority of the re-
maining types of charges (15%).
Of note, in most of the cases the negative
assertions were directed toward a specific expert
involved in the case at hand. In a smaller num-
ber of cases (25%), however, allegations were
additionally directed toward the mental health
field more generally, rather than directed only to
a particular expert. Of those cases involving
disparaging remarks about participants in the
trial itself (rather than the field more broadly),
the majority of remarks were in reference to
264
Table 1
Examples of Disparaging Comments About Mental Health Expert Witnesses Across Cases
Comment type Case examples
For sale Wisconsin v. Flattum, 1985
North Carolina v. Kirkley,
1983
Ohio v. Mundy, 1994
Partisan/advocate New York ex rel. Robert O.
Lehman v. Cynthia
Lehman, 1986
The People v. Delpy, 2001
U.S. v. Harris, 1994
Pseudoscience People v. Hensley, 2008
Lowe v. Walker, 2009
Bui v. State, 1988
Mysticism West Virginia v. Walter,
1992
New York v. Madera, 2005
Mitts, Jr. v. Bagley, 2005
Bias Sanford v. Astrue, 2009
U.S. v. Sergeant Murphy,
2008
EDENS ET AL.
Case participant
making comment Specific comments (emphasis added)
Judge “. . . the jury does not need the so-called
help of expert hired guns to offer
their opinions . . .”
Prosecutor “Well, let’s not mince words about the
fine [Dr. X]. I submit to you he’s like
a whore.”
Prosecutor “. . . yet, it’s okay for [Dr. X] to
prostitute himself by flying all the
way across the country to testify
against his colleagues.”
Judge “. . . is guilty of malfeasance in that he
became a partisan and advocate for
one of the parties.”
Defense attorney “[Dr. X] was a ‘prosecutorial
advocate’.”
Judge “. . . [Dr. X]’s testimony is seriously
marred by a transparent partisanship
that undermines the objectivity of
what he says . . .”
Defense attorneys “. . . the notion that this ‘expert’ could
provide a jury with a detailed
psychoanalysis of AH . . . without
interviewing her or any witness in
this case, without reviewing a single
report or statement . . . is the epitome
of junk science.”
Defendant (pro “. . . claims that the trial court’s
se) admission of evidence regarding child
sexual abuse accommodation
syndrome (‘CSAAS’) violated his
right to due process . . . not only is
CSAAS ‘junk science . . .’”
Prosecutor “. . . the only thing we are saying here is
the very idea of the charlatan that
they put on the stand to try to feed
you the garbage and spoon feed it to
you as they did . . .”
Judge “. . . we have even more anxiety about
psychological tests, particularly when
they are conducted by witch doctors
rather than regular doctors.”
Judge “. . . the court didn’t want ‘any hocus-
pocus in front of the jury.’”
Defense attorney “. . . referred to psychologists as ‘dr.
feelgood[s]’ and made a remark about
‘the psychiatrist and their voodoo
psychobabble.’”
Judge “. . . consideration of the record as a
whole reveals [Dr. X]’s report to
have been influenced by bias.”
Judge “[Dr. X] displayed an obvious bias that
was apparent in the manner in which
he answered Government questions
relating to the bases for his diagnosis
and opinions.”
 PERCEIVED BIAS AMONG EXPERT WITNESSES 265

Table 1 (continued)
Case participant
Comment type Case examples making comment Specific comments (emphasis added)
Shreeves v. U.S., 1978 Defense attorney “. . . since the only person who
examined him at the time of his arrest
was a psychologist whose opinions
were assailed by the government at
trial for bias as a defense-retained
expert . . .”
“Other” Walbey v. Quarterman, Prosecutor “. . . the prosecutor described the
2007 defense experts as an insult to the
jury’s intelligence, ‘psychiatric
babble . . . little wind up-toys.’”
People v. Gacy, 1984 Defense attorney “. . . then proceeded to impugn the
reputation of the psychiatrists who
would testify for the People, calling
[Dr. X] ‘a mechanic for the
State . . .’”
Commonwealth v. Shelley, Prosecutor “. . . characterizations of psychological
1978 testing techniques as ‘well-meaning
ink-blot tests . . . mice . . . goblins,’
could only have been made for their
emotional impact.”

only one expert. There were, however, a minority
in which derogatory comments were made about
multiple experts involved in the case. Although it
was not always possible to discern the gender of
the expert or experts being disparaged, in those
instances in which it was clear, men accounted for
84% of the maligned expert witnesses. Although
the gender of the person alleging bias also was
unclear in some instances, in those cases in which
it could be discerned it typically was made by a
man as well (84%).
In terms of the professional credentials of the
experts, the vast majority of derogatory phrases
were directed toward psychiatrists (47% of all
experts) and psychologists (42% of all experts),
with the few remaining cases identifying the
experts generically as “doctor,” as master’s
level practitioners, or as unclear regarding cre-
dentials/degrees. In those cases in which the
gender of the experts could be identified, psy-
chiatrists appeared to be disproportionately
male (94%) compared with psychologists (79%
men), ␹2(n ⫽ 144) ⫽ 8.06, p ⬍ .01.
In terms of responses to derogatory terms,
objections appeared to be relatively rare at trial.
Of note, they were much more common (though
still relatively infrequent) in criminal cases
(27%) than in civil cases, where there was doc-
umentation of only one instance of this occur-
ring.
Regarding appeals, 29% of the cases specif-
ically noted derogatory comments directed to-
ward mental health experts as part of the justi-
fication for appealing the trial court’s decision.
Such appeals appear to be becoming more com-
mon over the years, with the year of case pub-
lication being modestly correlated with the fre-
quency of cases (r ⫽ .35, p ⫽ .07). Appeals
were relatively unsuccessful, however, with
only a minority of decisions being reversed
(18%) in which derogatory accusations regard-
ing the mental health expert appear to have been
at least partly implicated in the reversal ruling.
All of these successful appeals were criminal
trials, eight of which were sanity/diminished
capacity cases.
Breakdown of Types of Allegations
Figure 1 summarizes the frequencies of the
different types of disparaging statements. Re-
garding the exact breakdown by allegation type
across these 245 comments, 28% referred to a
mental health expert being for sale, 27% re-
ferred to being a partisan/advocate, 21% re-
ferred to nonspecific bias, 14% referenced pseu-
doscience, 6% referenced mysticism, and 3%
could not be classified (“other”). Of note, in the
cases in which a generic statement regarding
expert bias was asserted, 50% also contained a
266 EDENS ET AL.

Figure 1. Frequencies of differing types of disparaging comments made about mental health
expert witnesses across 160 cases and 245 separate comments.

more specific derogatory comment, usually con-
cerning an expert either being for sale or being
a partisan/advocate. As such, only about 14%
of the 160 cases contained generic assertions of
examiner bias without reference to a more spe-
cific derogatory term.
In terms of where these types of comments
were occurring, allegations of mental health ex-
perts being for sale occurred primarily in state
(54%) compared with federal (26%) cases,
␹2(n ⫽ 157) ⫽ 11.92, p ⬍ .01. The other types
of alleged bias were not significantly different
in their distribution across these jurisdictions,
however. Also of note, the proportion of alle-
gations of being for sale was higher in criminal
(51%) cases compared with civil (29%) cases,
␹2(n ⫽ 160) ⫽ 7.08, p ⬍ .01. In contrast, the
proportion of partisan/advocate allegations was
much higher in civil (69%) cases compared with
criminal (27%) cases, ␹2(n ⫽ 160) ⫽ 20.89,
p ⬍ .001. The proportion of assertions concern-
ing pseudoscience and mysticism did not differ
across civil and criminal cases.
In the criminal arena, allegations of the ex-
pert being for sale were raised in over half
(56%) of the insanity/diminished capacity
cases, with statements asserting the expert was a
partisan/advocate appearing in 35% and pseu-
doscience allegations occurring in 19%. In the
civil realm, allegations of being a partisan/
advocate accounted for the disparaging com-
ments in the majority of the cases involving
financial remuneration (78%). In the child cus-
tody/termination of parental rights cases, alle-
gations of being a partisan/advocate (63%) and
assertions of being for sale (37%) were the most
common.
Noted above, most negative assertions were
directed toward a specific expert. In those cases
where aspersions were additionally directed to-
ward the mental health field more generally,
most involved assertions that mental health pro-
fessionals in general were for sale (45%) or
involved allegations of the field being a pseu-
doscience (43%).
Sources of Allegations
Attorneys not surprisingly were the most fre-
quent group of individuals identified as making
direct statements concerning mental health ex-
pert bias (49%). The most common type of
 PERCEIVED BIAS AMONG EXPERT WITNESSES
allegation they made was of experts being for
sale (50%), followed by pseudoscience allega-
tions (20%) and partisan/advocate allegations
(14%). Other expert witnesses accounted for a
distant third of the allegations (8%).
Judges were the second most common source
of statements alleging bias (41%). However, it
should be noted that in many instances judges
appeared to use a particular label (e.g., refer-
ence to a “hired gun”) in response to a more
general argument raised by the attorneys at trial
or on appeal (i.e., that a witness’s testimony was
financially motivated). As such, although the
judge ostensibly introduced the specific derog-
atory term itself, the more general allegation of
impaired objectivity appears nearly always to
have stemmed from the attorneys in the case
rather than a judge proactively and indepen-
dently raising a concern about a biased witness.
With that caveat in mind, it is interesting to
note that when making disparaging comments,
judges primarily referred to partisan/advocate
experts (64%), with experts being described as
for sale (29%) less commonly. Although the
majority of these references to bias occurred
during the original trial, in 27% of the cases
comments concerning mental health expert bias
appeared to be first introduced during the ap-
peals process. Not surprisingly, in 70% of these
cases derogatory terms were utilized by appel-
late judges. However, in a small percentage of
these cases (13%), comments by appellate
judges were clearly delivered in the context of a
ruling concerning the expert’s behavior and
were not clearly disparaging toward the expert
or the mental health field in general. Addition-
ally, in only 45% of these cases did it appear
that an appellate judge was the original source
of a disparaging remark and in such cases the
remark invariably came from a dissenting
judge. When derogatory comments were intro-
duced at trial, judges also were responsible for
the majority of allegations of bias in the civil
cases (49%). Attorneys accounted for only 29%
of these statements. Somewhat in contrast, in
the 73 criminal cases at trial, judges were re-
sponsible only for 19% of these statements at
trial. Prosecutors were responsible for the ma-
jority (56%) of these instances. Defense attor-
ney comments accounted only for an additional
25% of these cases.
Finally, in regards to the relatively small
number of cases being appealed that were noted
267
earlier, there was a disproportionate percentage
that reflected a particular type of bias. In these
cases, most (73%) involved an allegation that
the expert was specifically for sale.
Discussion
This primarily descriptive case law review
builds on earlier work (Mossman, 1999) sum-
marizing allegations of mental health expert
witness bias within the legal system. A total of
160 cases were located involving 185 individual
case participants who made a total of 245 com-
ments asserting that a mental health expert (or
the mental health field as a whole) was in some
fashion lacking in objectivity and impartiality.
Similar to the survey of Mossman (1999), we
identified a large number of cases in which
financial bias specifically was alleged, as indi-
cated by references to experts with disparaging
labels such as hired gun, prostitute, or merce-
nary. Going a step beyond the methodology
used by Mossman (1999), we also identified a
large number of published cases in which
claims of some other form of bias were made.
These included a large number of cases involv-
ing assertions of examiner partisanship or ad-
vocacy for one particular side of the case, as
well as a smaller number of cases in which
witnesses were specifically accused of engaging
in either pseudoscience or mysticism.
Collectively, our results suggest that allega-
tions of bias are not uncommon and that they
can be quite varied across cases. Interestingly,
there were some differences in types of dispar-
aging remarks by types of cases. Claims of
overt financial bias were proportionately more
common in criminal trials, yet assertions of
advocacy/partisanship were much more com-
mon in civil cases. The reason for this disparity
is unclear, but it could reflect a heightened
perception that certain examiners in civil cases
(e.g., child custody) were overly invested in the
disposition of the case (e.g., support for one
parent over the other) and moved more into an
advocacy role that was not necessarily per-
ceived to be financially motivated. We should
note, however, that our categorizations are of
course somewhat fuzzy, in that some relatively
nonspecific references to partisanship or advo-
cacy evident in the published case descriptions
may have obscured a more direct allegation of
financial (or other) bias at trial that was not
268 EDENS ET AL.
documented in the case information. Future re-
search examining actual trial transcripts might
lead to a more nuanced and exacting classifica-
tion of the types of accusations being directed at
mental health expert witnesses.
Another interesting find from our study is the
fact that cases with these types of comments are
being published with greater frequency in recent
years (r ⫽ .62)— consistent with Mossman’s
initial findings from 1999 —suggesting that per-
haps the courts have become more sensitized to
the occurrence of these allegations. That ap-
peals based in part on these disparaging remarks
appear to have become somewhat more com-
mon also supports this interpretation. That be-
ing said, appeals were for the most part unsuc-
cessful, and dissenting judges on appellate
decisions themselves were responsible for a
number of disparaging comments about mental
health experts.
A few interesting findings emerged when
considering the source of disparaging com-
ments in these cases. For example, in criminal
cases prosecuting attorneys were more prone to
making these types of negative statements than
defense attorneys. Before reading too much into
this finding, one must keep in mind that it is
obviously more likely that convictions will re-
sult in appeals and those cases involving de-
fense attorneys who cast aspersions against
prosecution experts simply may be less likely to
be published if the prosecution loses the case. A
second interesting finding concerning the
source of allegations of bias was the number of
statements attributed to judges4 in these cases
(although this was not the case for criminal
trials). Judges did seem somewhat less prone to
imply direct financial motivations for testi-
mony, referring more so to advocacy and parti-
sanship than to experts being for sale. Still, it
seems clear that at least some judges have very
negative attitudes toward at least some specific
mental health experts, if not the field entirely.
Given our results, what are the implications
for the practicing mental health professional
who testifies in court? First, examiners should
prepare for the possibility that their objectivity
may be challenged on a variety of grounds (i.e.,
not exclusively related to financial motives) and
they should consider means by which they
might be able to minimize the impact of such
aspersions. One obvious recommendation is
that experts should take whatever proactive
steps they can to reduce both the possibility of
bias and the perception of bias— even though
they may not be able to prevent allegations from
being made. In addition to recommendations for
how to maintain one’s objectivity and compe-
tence (Shuman & Greenberg, 2003), numerous
authors have suggested useful strategies for at-
tempting to minimize possible bias resulting
from external factors, such as undue attorney
influence. For example, being cognizant of var-
ious means by which unethical lawyers might
try to subvert the opinions of the experts they
retain, such as through “selective” release of
important case data or through subtle or overt
bribery or extortion (see, e.g., Gutheil & Simon,
1999, for a review), can help prevent such tac-
tics from being implemented or at least mini-
mize their efficacy and reduce the stress that
they may create (Strasburger, Miller, Com-
mons, Gutheil, & LaLlave, 2003).
One mean of minimizing perceived bias is to
take steps to maximize perceptions that one is in
fact a credible expert. Kwartner and Boccaccini
(2008) recently reviewed the empirical litera-
ture on what factors increase perceived credi-
bility among witnesses, noting that the “4 Cs”
(clarity, clinical knowledge, case specificity,
and certainty) result in greater efficacy as an
expert. These factors might in turn help inocu-
late judges and/or jurors against subsequent at-
tempts to paint the expert as less than objective
in his or her opinions (see also, Brodsky, 1999).
For example, an expert’s level of clarity in
terms of reviewing highly technical information
on the stand has been shown to directly affect
how persuasive this testimony is. The clearer
such testimony is, the more impact it is likely to
have. Along these same lines, it may be that
exceedingly clear testimony when reviewing
complex issues might also make it more diffi-
cult for attorneys to allege that the expert is
engaging in pseudoscience or “hocus pocus.”
Limitations of this study should be briefly
noted, which hopefully can inform more sophis-
ticated research in this area in the future. First,
there is no way to discern whether allegations of
4
Here again, “source” may not be an entirely appropriate
descriptor, in that the judges’ statements that we identified
in many cases were in response to issues being raised by the
attorneys. Nevertheless, the judges were responding to these
allegations of bias by the attorneys and introducing a dis-
paraging term in regards to the expert witness.
 PERCEIVED BIAS AMONG EXPERT WITNESSES
bias were merely an instrumental tactic used to
paint a witness in an unfavorable light or if the
experts’ testimony was indeed tainted by some
form of financial or other bias. Although some
cases seemed to indicate as much, in the major-
ity of cases the amount of summary text devoted
to describing these allegations was generally
brief. Therefore, we were unable to make any
concrete judgments regarding the relative accu-
racy of the derogatory comments in relation to
any examiner’s actual level of objectivity and
impartiality.
A second limitation is that although we used
an expansive list of search terms to capture
multiple sources of alleged bias, it is inevitable
that cases containing allegations of bias were
not identified due to idiosyncratic terms or
phrases used that were not included in our
search. For example, some of our cases were
identified because a judge used a search term to
state that the mental health expert was not bi-
ased in response to the prosecutor’s inflamma-
tory comments, which included none of our
search terms. Those cases would not have been
identified by our search strategy had the judge
not responded in a manner that included search
terms. Therefore, because of our inability to
foresee all possible combinations of phrases
used to indicate bias, it is likely that our sample
is an underrepresentation of the actual preva-
lence of these derogatory comments in pub-
lished cases.
Furthermore, other than those cases that were
clearly demarcated as having been appealed
due, at least in part, to allegations of bias, we
have no way of ascertaining the level of impact
of these pejorative comments. For instance, a
review of case law provides no information
regarding jurors’ reactions to such comments,
or to what extent these comments play a role in
juror decision-making. We also have no way of
judging the relative impact of different types
of statements. For example, would allegations of
financial bias negatively impact juror perceptions
of mental health expert witness testimony more so
than allegations of advocacy bias? Future experi-
mental studies should be conducted for the pur-
pose of examining the impact of different types of
bias allegations on jurors’ ratings of mental health
expert witness credibility.
Finally, the sheer volume of cases included in
the LexisNexis database makes it difficult to
discern whether the absolute increase in the
269
number of disparaging remarks reported over
the years reflects a proportional increase in
these types of allegations. For example, it could
be that mental health testimony itself is becoming
more prevalent in published cases and the propor-
tion that contains allegations of bias has remained
fairly constant rather than increased. Because
broad-band searches for cases that might involve
mental health testimony identify literally thou-
sands of potentially relevant cases that would need
to be coded, it is beyond the scope of this article to
be able to ascertain the frequency of such testi-
mony for comparison purposes.
These limitations notwithstanding, we be-
lieve this survey of allegations of various forms
of bias provides a useful overview of the types
of derogatory comments that may be directed at
forensic mental health examiners in the course
of civil and criminal cases, particularly given
that we expanded our review beyond that of
Mossman (1999) to include nonfinancially
based aspersions. We hope this review will spur
further research into these important topics us-
ing more sophisticated methodological ap-
proaches in the future.
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 PERCEIVED BIAS AMONG EXPERT WITNESSES 271

Appendix

Search Terms Utilized

Prostitut! Chameleon Mercenary Mountebank

Whore Shark Snake Humbug
Hired Gun Weasel Snake Oil Apologist
Junk Science Con artist Witch Doctor Hocus Pocus
Pseudoscience Con man Mouthpiece Magic!
Quack Phony Sleaz! Zealot
Bias Professional Witness Advocate Partisan
Hack Professional Expert Opportunist Hustler
Voodoo Disreputable Loose Cannon Harlot
Tea Leaves For Sale Attack Dog Swindler
Mind Reader Highest Bidder Charlatan
Fraud Imposter
Note. Search terms ending in ! allow search engines to display results for stem words with
multiple endings (e.g., magic, magician, magical).

Received November 7, 2011

Revision received February 1, 2012
Accepted February 7, 2012 䡲

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