Can Defense Attorneys Detect Forensic Confirmation Bias? Effects on Evidentiary Judgments and Trial Strategies

Knowledge of task-irrelevant information undermines the probative value of forensic evidence (i.e., forensic confirmation bias). Cross-examination may sensitize jurors to bias—but do attorneys recognize when bias has tainted evidence against their client and adjust their cross-examination strategy accordingly? To address this question, 130 defense attorneys imagined representing a man charged with manslaughter and reviewed a case file that included, among other things, an autopsy report from a medical examiner who was either aware or unaware of their client’s recanted confession before ruling the death a homicide. When the examiner knew of the confession, attorneys rated the autopsy as no less probative or reliable, they were no less confident in their client’s guilt, and only 46% raised the possibility of confirmation bias on cross-examination. Our findings suggest that defense attorneys underappreciate the impact of forensic confirmation bias, such that biased forensic testimony would be better avoided via procedural reform

Can defense attorneys detect forensic confirmation bias? Effects on evidentiary judgments and trial strategies

Knowledge of task-irrelevant information (i.e., a suspect's confession) undermines the probative value of forensic evidence (i.e., forensic confirmation bias). Cross-examination may sensitize jurors to bias—but do attorneys recognize when bias has tainted evidence against their client and adjust their cross-examination strategy accordingly? To address this question, 130 defense attorneys imagined representing a man charged with manslaughter and reviewed a case file that included, among other things, an autopsy report from a medical examiner who was either aware or unaware of their client’s recanted confession before ruling the death a homicide. When the examiner knew of the confession, attorneys rated the autopsy as no less probative or reliable, they were no less confident in their client’s guilt, and only 46% raised the possibility of confirmation bias on cross-examination. Our findings suggest that defense attorneys underappreciate the impact of forensic confirmation bias, such that biased forensic testimony would be better avoided via procedural reform

Testing the waters: An investigation of the impact of hot tubbing on experts from referral through testimony

Objective: The present research examined whether concurrent expert testimony, or hot tubbing, is able to reduce adversarial allegiance compared to traditional adversarial expert testimony. Hypotheses: We expected concurrent experts would display less adversarial allegiance over the course of a mock criminal responsibility evaluation, with case opinions converging between prosecution and defense witnesses. We expected adversarial experts would display escalating adversarial allegiance with increasingly divergent case opinions and that court-appointed experts’ opinions would remain stable over the evaluation. We also expected concurrent expert witnesses would produce more balanced expert reports and testimony than would adversarial experts. Method: Clinicians and advanced clinical doctoral students (N = 103) completed criminal responsibility evaluation training before conducting a mock criminal responsibility evaluation for the prosecution, defense, or the court. Half of the partisan experts followed traditional adversarial procedures and half followed a concurrent testimony process. Participants provided case perceptions at three time points: after initial evidence review, after completing expert report(s), and after testifying. Case perceptions included a dichotomous responsibility judgment, strength of responsibility ratings, and a cognitive dissonance measure. Results: Concurrent testimony did not eliminate adversarial allegiance. For perceptions of responsibility, there was no significant difference between adversarial and concurrent experts (ηp2 = .001), nor any change in participants’ ratings over time (ηp2 = .03); however, prosecution experts – across testimony types – rated the defendant as significantly more responsible compared to defense experts (ηp2 = .80). Concurrent and adversarial experts did not differ in the information provided in their expert reports and minimally differed in testimony content. Conclusions: Partisan experts showed adversarial allegiance regardless of expert testimony method, and we observed no attenuation of this bias over the course of the evaluation

Testing the Waters: An Investigation of the Impact of Hot Tubbing on Experts From Referral Through Testimony

Objective: The present research examined whether concurrent expert testimony (“hot tubbing”) and court appointed testimony reduced adversarial allegiance in clinical experts’ judgments compared with traditional adversarial expert testimony. Hypotheses: We predicted Hypothesis 1: Defense experts would render more not responsible judgments and lower ratings of criminal responsibility than would prosecution experts; Hypothesis 2: Adversarial allegiance effects on experts’ judgments would be heightened for adversarial experts and attenuated for concurrent experts over time; Hypothesis 3: Adversarial and concurrent experts would report higher dissonance than would court-appointed experts and adversarial experts’ ratings would increase over time, concurrent experts’ ratings would decrease, and court-appointed experts’ ratings would remain unchanged. Method: Clinicians and advanced clinical doctoral students conducted simulated criminal responsibility evaluations for the prosecution, defense, or court. We categorized participants as favoring the prosecution or defense based on their preexisting attitudes and randomly assigned them to the adversarial, concurrent, or court appointed expert testimony conditions. Participants completed a dichotomous responsibility judgment, strength of responsibility ratings, and cognitive dissonance measure after initial evidence review (n = 93), report completion (n = 52), and testimony (n = 48). Concurrent experts generated a joint report outlining areas of agreement and disagreement before providing testimony. Results: Concurrent testimony did not eliminate adversarial allegiance. Adversarial and concurrent experts’ perceptions of responsibility did not significantly differ (d = .04, 95% CI [.64, .71]) or change over time; however, prosecution experts—across testimony types—rated the defendant as significantly more responsible than did defense experts (d = 1.87, 95% CI [1.06, 2.67]). Concurrent and adversarial experts did not differ in their reports and minimally differed in testimony content. Conclusions: Experts who initially favored the prosecution or defense showed adversarial allegiance regardless of expert testimony method, and we observed no attenuation of this bias over the course of their case involvement