'They're an Illusion to Me Now': Forensic Ethics, Sanism and Pretextuality

Abstract

The so-called battle of the experts is, in most cases, a myth. The vast majority of insanity cases are walk-throughs; most cases involving competency to stand trial determinations never reach the contested trial stage. Yet, those case that are contested are vivid (not coincidentally, often because they involve high-profile crimes, victims or defendants, thus assuring saturation media coverage), and we tend to make many of our assumptions about the criminal justice system based on our knowledge about this relatively-small database.

And it is these cases that help shape our focus on an important question of forensic ethics: to what extent does a witness's pre-existing value system of political, cultural, and social beliefs shape her expert opinions (especially, though not exclusively, in criminal and quasi-criminal cases)? Studies by Homant and Kennedy tell us that an expert's opinion in insanity defense cases and civil psychic trauma trials positively correlates with the expert's underlying political ideology. And certainly there are experts who testify only (or virtually only) for the state or for defendants, although, anecdotally, witnesses who split their time (testifying on both sides) appear to have greater credibility with at least some trial judges and juries because of that fact.

In a series of articles and a book (The Hidden Prejudice: Mental Disability on Trial), I have explored the impact of what I call sanism and what I call pretextuality in the mental disability law system. I have concluded that it is impossible to understand any aspect of mental disability law without an understanding of the corrosive and malignant impact of these factors

To the best of my knowledge, no one has ever yet explored the connection between sanism and pretextuality and the question of forensic ethics: to what extent do (some) witnesses's pre-existing social/cultural/political stances on issues dominate and color their professional practices, and to what extent, if any, does this effect reflect sanism and pretextuality? I will modestly attempt a first tentative answer to this question in this paper, and will then consider all questions through a therapeutic jurisprudence filter.

Keywords: expert testimony, forensic ethics, sanism, pretextuality, personal values, therapeutic jurisprudence