Crossing the Line: Daubert, Dual Roles, and the Admissibility of Forensic Mental Health Testimony

55 Pages Posted: 28 Apr 2016

See all articles by Sara Gordon

Sara Gordon

University of Nevada, Las Vegas, William S. Boyd School of Law

Date Written: 2016


Psychiatrists and other mental health professionals often testify as forensic experts in civil commitment and criminal competency proceedings. When an individual clinician assumes both a treatment and a forensic role in the context of a single case, however, that clinician forms a dual relationship with the patient — a practice that creates a conflict of interest and violates professional ethical guidelines. The court, the parties, and the patient are all affected by this conflict and the biased testimony that may result from dual relationships. When providing forensic testimony, the mental health professional’s primary duty is to the court, not to the patient, and she has an obligation to give objective and truthful testimony. But this testimony can result in the patient’s detention or punishment, a legal outcome that implicates the mental health professional’s corresponding obligation to “do no harm” to the patient. Moreover, the conflict of interest created by a dual relationship can affect the objectivity and reliability of forensic testimony.

A dual clinical and forensic relationship with a single patient is contrary to quality patient care, and existing clinical and forensic ethical guidelines strongly discourage the practice. Notwithstanding the mental health community’s general consensus about the impropriety of the practice, many courts do not question the mental health professional’s ability to provide forensic testimony for a patient with whom she has a simultaneous clinical relationship. Moreover, some state statutes require or encourage clinicians at state-run facilities to engage in these multiple roles. This Article argues that the inherent conflict created by these dual roles does not provide a reliable basis for forensic mental health testimony under Federal Rule of Evidence 702 and should not be admitted as reliable expert testimony by courts. Because dual relationships are often initiated due to provider shortages and the unavailability of neutral forensic examiners, this Article will also discuss the use of telemedicine as a way to provide forensic evaluations in under served areas, especially those where provider shortages have prompted mental health professionals to engage in dual clinical and forensic roles. Finally, this Article argues that courts should exercise their powers more broadly under Federal Rule of Evidence 706 to appoint neutral and independent mental health experts to conduct forensic evaluations in civil commitment and criminal competency proceedings.

Keywords: Daubert, Mental Health, Forensic Testimony, Federal Rule of Evidence 702, Federal Rule of Evidence 706, Telemedicine, Civil Commitment, Criminal Competency

Suggested Citation

Gordon, Sara, Crossing the Line: Daubert, Dual Roles, and the Admissibility of Forensic Mental Health Testimony (2016). Cardozo Law Review, Vol. 37, No. 4, p. 1345, 2016, UNLV William S. Boyd School of Law Legal Studies Research Paper, Available at SSRN:

Sara Gordon (Contact Author)

University of Nevada, Las Vegas, William S. Boyd School of Law ( email )

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