Forensic evaluators are human, too: Different sources of bias in forensic psychology

Forensic psychology’s importance in legal proceedings has been steadily rising throughout the last few years, which means that decisions made under the influence of an evaluator’s bias pose a greater threat to the outcome of legal proceedings. This article reviews cognitive factors that can be the source of bias using an eight-level taxonomy that encompasses the factors of innate human nature (cognitive architecture and the brain), environment, culture, and experience (personal factors, education and training, organisational factors, and base-rate expectations), and case specifics (contextual information, reference materials, and data). It also presents ways of reducing bias both on each specific level as well as in broader terms. It emphasises the importance of researching different types of biasing influences and provides direction for further steps in the making of forensic evaluation as objective as possible. 

Introduction

Forensic psychology has been recognised as an applied area of specialisation by American Psychological Association (APA) since 2001 (APA, 2024); however, it’s still developing as a science and has many aspects, such as methodology, ethics, and impartiality, which require some revision and correction. APA (2012) defines forensic psychology as “professional practice by any psychologist working within any subdiscipline of psychology (e.g. clinical, developmental, social, cognitive) when applying the scientific, technical, or specialized knowledge of psychology to the law to assist in addressing legal, contractual, and administrative matters” (p. 7). Most often, forensic psychologists carry out evaluations like assessments for competence to stand trial and for criminal responsibility (Borum & Grisso, 1995). The first involves evaluating whether the defendant is capable of understanding legal proceedings and providing assistance to their lawyer in terms of planning or carrying out a defence, while the second is used to determine the defendant’s mental state at the time point of their offence (Borum & Grisso, 1995). Throughout the entirety, the human element is omnipresent in forensic psychology, from the selection process to the presentation of evidence in court, throughout which the evaluator often serves as an instrument of analysis (Dror, 2015). It is especially prominent in the case of decision-making, where different cognitive factors can cause bias (Zapf & Dror, 2017), which can have an undermining effect on justice and severe consequences for both the lives of defendants and the larger community’s safety. If the experts’ opinions, presented in court, are based on irrelevant information and non-objective conclusions, the likelihood of wrongful ones being made is increased (MacLean et al., 2019). The purpose of this article is to outline the various sources of bias and ways of reducing them.

Cognitive bias

Cognitive factors can have a great impact on both an examiner’s understanding as well as subsequent analysis and interpretation of data and are thus relevant in any area of forensic science and forensic evaluation (Zapf & Dror, 2017). Forensic psychology is only one of the areas of forensic science, which also encompasses the application of different scientific specialties and methods to the legal system (from physics, biology, and chemistry to electronic technology) and usually involves dealing with more physical data, such as DNA and other crime scene evidence (Bartol & Bartol, 2021). Whereas there are certain key differences between the type of work and roles of other forensic science practitioners and forensic evaluators, there are also some similarities that allow experts to draw parallels between the weaknesses of the two: both forensic scientists and forensic evaluators are required to acquire and evaluate relevant information in order to draw a valid conclusion and both can be influenced by irrelevant pieces of information to the degree that they change their interpretation of relevant data (Zapf & Dror, 2017). 

To systematically analyse the various sources of bias that may contaminate conclusions drawn from relevant data, an eight-level taxonomy has been developed (Dror, 2009, 2015, 2020; Stoel et al., 2014; Zapf & Dror, 2017). The bottom of the taxonomy represents sources deriving from inherent human nature (cognitive architecture and the brain) and then the taxonomy ascends to cover the sources relating to environment, culture, and experience (personal factors, training and education, organisational factors, and base rate expectations). At the very top, the sources are connected to a specific case being evaluated at the time. The taxonomy therefore systematically approaches the influences from general to specific.

Figure 1 

Eight sources of cognitive bias that might impact the process of forensic evaluation (Dror, 2020)

Cognitive architecture and the brain

Representing the base of the taxonomy are the influences derived from innate human nature and the way the brain works. They are a result of the human inability to look at the situation from an outside, objective perspective and not have it tarnished by the workings of their mental processes (Dror, 2009). With its structure, the brain dictates the capacity and limits of our cognitive abilities (Dror, 2020). This is related to the fact that most of the perception of the world is done through three processes (Zapf & Dror, 2017). The first is top-down processing, which means interpreting information within the context in which it is presented, the second is selective attention, which means attending to particular information while disregarding other information, and the last is grouping information, which refers to connecting separate pieces of information into a sensical whole (Lindsay & Norman, 1977, in Zapf & Dror, 2017). 

While these processes serve as mechanisms to make the world perception as efficient and automatic as possible, they have drawbacks as well; the more efficient and automatic an individual is while working in a particular area of expertise, the more inflexible and prone to error they can become in their judgement (Dror, 2009; Zapf & Dror, 2017). Such bias includes availability bias, which is the tendency to incorrectly make conclusions about the probability of an event due to easy recollection of a similar past occurrence (Tversky & Kahneman, 1974). It can also involve anchoring bias, which means assigning greater weight to information received at first as opposed to information acquired later on (Tversky & Kahneman, 1974), and confirmation bias, referring to gathering and interpreting data in such a way that it agrees with the individual’s preexisting beliefs, assumptions or hypotheses (Nickerson, 1998). A forensic evaluator might be set up for confirmation bias by other individuals in the process before they’ve even become involved themselves, which causes their decision-making process to be contaminated from the start (Kunkler & Roy, 2023; Neal & Grisso, 2014). For example, a psychologist, intended to evaluate whether a defendant is suitable to stand trial, might be influenced by law enforcement officers, who tell him of the defendant’s previous deviant and manipulative behaviour; as a result, the evaluator might be prone to interpreting the defendant’s neutral or even nervous actions as evidence of manipulation (Kunkler & Roy, 2023). 

As forensics is a difficult area of work, evaluators should take care to recognise the signs and symptoms of decision fatigue, burnout and vicarious trauma connected to the nature of the work (Kunkler & Roy, 2023); decision fatigue is a decline in the decision-making ability and cognitive control through constantly repeated decision-making, while vicarious trauma describes long-lasting adverse psychological effects, developing as a consequence of working with traumatised individuals (McCann & Pearlman, 1990). These three factors may make an evaluator more prone to making errors and acting based on heuristics rather than objective rationalisations. Important in this aspect is the evaluators’ awareness of when they have been compromised (e.g. been emotionally impacted) and ensuring that the case is appropriately handled from then on, even if it means taking a step back and transferring the case to another evaluator (Kunkler & Roy, 2023). In terms of less intense interventions, evaluators should take care to develop healthy coping mechanisms, ensure that their working environment allows them to make important decisions without being disturbed (e.g. working in designated quiet spaces, introducing a closed-office policy for the workload review), and utilise all available resources that are beneficial to their mental health (e.g. discussions with colleagues, mental health providers; Kunkler & Roy, 2023). 

Personal factors

This is the first of four sources that stem from environment, culture and experience. It refers to the fact that each person has developed a set of their own loyalties to different groups, methodologies, theories, or ideologies through their upbringing, life trajectory, and professional experience (Dror, 2009; Dror, 2020). These factors are minimised in situations with more objective instrumentation and quantification but carry a bigger weight in areas of work that require subjective interpretations and conclusions (Dror, 2020), such as individual interviews. A way of reducing this impact is by implementing exhaustive requirements for the justifications for evaluators’ decisions during the analysis (Almazrouei et al., 2019; Kunkler & Roy, 2023). This has two benefits: it creates a transparent and chronological record of elements that the practitioners acknowledge as influential in their analytic process (Almazrouei et al., 2019), and forces the evaluators to reflect on their reasoning, which increases the likelihood of their decisions being rooted in facts and not personal opinions (Kunkler & Roy, 2023). A particularly prevalent area of interest in forensic psychology with respect to motivations is adversarial allegiance. This is the tendency of an expert witness in a legal proceeding to give an opinion that favours the side that hired them for the act (McAuliff & Arter, 2016). In addition to this, it appears that it comes to the selection of expert witnesses before they ever take the stand: Neal (2016) found that the experts who supported the death penalty were more likely to accept a referral from any party, while those who were against it were more likely to decline referrals from any party or accept them only from the defence. To mitigate this bias, Kunkler and Roy (2023) propose bringing awareness to the adversarial allegiance, acknowledging the impact of having to work within the adversarial system and committing to being equally available to both parties in the legal proceeding. Another bias, gaining on the importance of being researched, is the one present in cross-cultural assessment. Venner et al. (2020) reviewed relevant literature on reliability and rater bias of forensic risk assessment in a cross-cultural setting and found that there may be a cause for concern when considering the risk assessment process in the context of vulnerability to rater bias. Such bias might have an adverse effect on the less favourably rated cultural group, especially on the life trajectory of some of its members. The authors emphasised the importance of further research on the topic, specifically on the impact of adversarial allegiance and professional override on forensic risk assessment. Professional override refers to the fact that raters can override a risk score by reducing or increasing an offender’s risk level on certain evaluative instruments (Guay & Parent, 2018) as a way of ensuring all of the offender’s unique characteristics, which cannot be accurately captured by purely mathematical methods, are considered in the evaluation (Cohen et al., 2020). They also pointed out the lack of literature researching cross-cultural interrater reliability and rater cultural bias, both of which are fundamental in achieving a safe and fair execution of risk assessment across different cultures (Venner et al., 2020). 

Education and training

These two factors dictate the way an evaluator approaches the case (e.g. analysing various hypotheses or focusing on a single hypothesis; Dror, 2020). To maximise objectivity and standardisation, forensic evaluators should undertake basic training in human factors and bias, as well as regularly partake in training that includes revision of cognitive bias types and offers relevant and updated information on how to mitigate them (Kunkler & Roy, 2020). 

Organisational factors

These factors are the outcome of our social interactions, exchanges, and relationships with other people (Zapf & Dror, 2017). They encompass organisational and cultural factors that show how we perceive and interact with one another, both inside and outside the organisation. Particularly relevant here is language, through which an individual presents their knowledge. Often, it can lead to misunderstanding and misinterpretation of important information, especially when it is done without due thought or proper criteria (Zapf & Dror, 2017). It is important to consider the differences between different organisations, environments, and cultures that shape the expectations, time or other pressure, hierarchy, stress, and other factors present in an evaluator’s work (Dror, 2020). This source of bias therefore requires careful revision of protocols and common practices on a systemic level in order to achieve a neutralized process of evaluation (Kunkler & Roy, 2023). 

Base-rate expectation

The last level of experience-based factors refers to the way an individual produces knowledge as well as how they make inferences and draw conclusions (Zapf & Dror, 2017). In broad, these can stem from blind belief, anecdotal observations or narrow research (Dror, 2009). They are rooted in past experiences and create an expectation about each specific case (Dror, 2017; Dror, 2020). Specifically in forensic evaluation, the problem is how the evaluators’ production of knowledge impacts the accuracy and objectivity of their observations and conclusions (Zapf & Dror, 2017). By basing their inferences on anecdotes or unsupported beliefs they create expectations about the outcomes before an evaluation is even carried out. In addition, the use of methods and procedures that have not been properly validated or have been tested within the frame of narrow research with limited generalizability can lead to errors in judgement when drawing conclusions (Zapf & Dror, 2017). A way of minimizing this bias is by blinding, which means that the evaluator is not privy to the identity or opinions of the previous analysing expert before they perform their own evaluation (Kunkler & Roy, 2023). A version of this is considered pseudo-blinding, whereby the practitioner reorders their work notes in such a way that previously known information can be seen only after other individuals have already formed their own opinions. Another way of mitigating this bias is to use an approach, similar to a differential diagnosis, where an evaluator considers alternative possibilities at various stages of review while diligently noting their justification for each of their decisions.  

Contextual information

The first of the case-specific levels pertains to the irrelevant information that is gathered and analysed during a particular case but should have no real impact on the final evaluation (Zapf & Dror, 2017). For example, when tasked with ruling a case of unnatural death accidental or a homicide, forensic pathologists were more likely to rule a black child’s death a homicide in comparison to a white child’s, even though the experiment was deliberately designed in a way that the race of the child was irrelevant (Dror et al., 2021). This might be a consequence of the preexisting belief that black children are more likely to die because of homicide than an accident, which then perpetuates itself through the pathologists’ rulings. This showcases the connection between different levels of the taxonomy as it involves both irrelevant case information as well as base rate expectations. Furthermore, one of the most influential types of information is conclusions made by others, especially when an evaluator doesn’t have access to the thought process and logical jumps the others made to reach their conclusions. From the start it is difficult to discern relevant information from irrelevant and later on, it becomes even harder to mitigate the existing bias. This calls for forensic evaluators to take steps to ensure cognitive contamination is as minimal as possible (Dror, 2015). One way they can do that is by actively avoiding documents that may possess irrelevant information as well as communicating to other individuals involved in the case that they should not receive this information (Kunkler & Roy, 2023). It is also possible to implement various information management tools to moderate the dissemination of relevant information to the evaluator (e.g. Linear Sequential Unmasking [LSU]), which systematically reveals more and more information from relevant to irrelevant; Dror et al., 2015). In case of exposure to irrelevant information, diligent documentation thereof is required. 

Reference materials

These materials refer to previously known samples that are used for comparison; that is, they encompass everything that the evaluator is meant to be evaluating the data against and can therefore, due to the evaluators’ knowledge of comparison samples and their subsequent perception of target samples, include potentially biasing information (Kunkler & Roy, 2023; Zapf & Dror, 2017). In forensic evaluation, the construct differs from the one in forensic science, where the “correct” answer is implicated in the data, as the decision-making process of evaluation involves the extent to which an individual’s behaviours, capabilities and characteristics suit a particular legal categorisation, standard or test (Zapf & Dror, 2017). In the process, the evaluators can be influenced by the materials they review for a forensic evaluation (e.g. case law, interpretations of legal statutes). Over time, it can also come to the “rater drift” phenomenon, where evaluators unintentionally redefine relevant criteria as they do not consult important materials over time, therefore not mitigating the loss and simplification of memories that time causes (Zapf & Dror, 2017). This shows that they should not rely on memory alone when making forensic decisions and should review relevant materials regarding each specific case. The effect of reference materials can be reduced by reviewing relevant samples before the comparison ones, as well as noting at which time during the analysis the comparison samples were observed (Kunkler & Roy, 2023). In addition, relevant criteria and standards should be clearly outlined before any of the analysis is conducted. 

Data

This term describes the evidence, which might involve biasing information on its own (Zapf & Dror, 2017). Parsing out this information is difficult because case evidence is conceptualised as any data that must be part of the evaluation and excluding it would be considered inappropriate practice. Examples of this include handwritten notes in official reports, the questions asked in a videotaped interrogation, or other information that might be relevant to other individuals working on the case. However, they should not be considered by the evaluator while answering the referral question at hand (Zapf & Dror, 2017). The minimisation of this influence can happen through the other involved individuals’ care not to pass on possibly biasing information whenever possible (Kunkler & Roy, 2023). 

Cognitive bias as a whole

Although evaluators’ perception and interpretation of data can be influenced by any of the eight levels of bias sources, it does not necessarily mean that the final evaluation will be biased (Zapf & Dror, 2017). The situations, most likely to produce a biased outcome, are those with ambiguous circumstances. While cognitive bias in forensic evaluations is a prevalent problem, it can be corrected through acknowledgement and systematic work against it (Kunkler & Roy, 2023). The problem arises when the bias is acknowledged, but not treated as significant, especially as the evaluator can often play the role of the main instrument of analysis (Dror, 2015). Zapf et al. (2018) found that out of more than 1000 forensic evaluators questioned, most were worried about the presence of cognitive bias, but were convinced that it could be controlled by willpower. As only a little more than a half of participants of the same study believed themselves to be susceptible to cognitive bias, this yielded evidence of a bias blind spot, which is the ability to recognise the impact of bias in others’ judgement while failing to note the impact of bias on their own judgement (Prunin et al., 2002). When comparing individuals who had received training on cognitive bias and those who had not received it, they found that the trained ones were more likely to see cognitive bias as a potential issue in forensic sciences (Zapf et al., 2018). The significance of forensic evaluators’ experience appeared to be in that the more experienced evaluators viewed cognitive bias as less of a problem in both forensic evaluation and their own judgements. These findings call for cognitive bias correction to be first implemented on the practitioner level, which should then be properly researched and quantified; all of this should be done with the awareness of the limitations practitioner-level actions possess (Kunkler & Roy, 2023). In addition, formalised and widely implemented protocol on an organisational level is necessary to achieve consistent and accurate evaluations, comparable between individuals and organisations. This should include bias mitigation procedures as well as observation and feedback mechanisms (Kunkler & Roy, 2023). Kukucka and Dror (2023) suggested implementing proficiency testing and Linear Sequential Unmasking [LSU] in forensic science at large, but the notion might be adapted to be useful in forensic mental health evaluation as well.

It is important to improve forensic evaluation with the use of the scientific method: all measures taken should be constantly examined, reflected on, and repeatedly tested (Dror, 2009; Zapf & Dror, 2017). Zapf and Dror (2017) fleshed out three considerations: evaluator characteristics, evaluation methods, and training. The first calls for the conceptualisation of the abilities necessary for the specialisation in forensic evaluation, which will allow the development of profiles for evaluator selection or evaluation skills development.  The notion of evaluation methods draws out the importance of conducting systematic research on the procedures and methods used in forensic evaluation as well as their reliability and validity when producing outcomes. It is also important to consider the relations between evaluator characteristics and evaluation methods as that will provide additional insights into the significant factors of forensic evaluation. Training is important for developing professional training programs that work on considering and minimising cognitive bias as well as continuously researching various developed techniques to determine the most efficient ones. All these implementations will provide steps for the improvement of theory and practice of forensic evaluation. 

Conclusion

This article served to outline the eight sources of cognitive bias in forensic mental health evaluation as well as ways of mitigating and minimising their impact throughout the entire process and on the final decision. The taxonomy presented is extensive, comprehensive and well-reasoned, perfectly illustrating all the traps a forensic practitioner might fall into and, to an extent, the ways to avoid them. It has been well researched in the context of forensic science, but there is a lack of research present for the area of forensic psychology and evaluations carried out within its frame. Missing most is perhaps a structured and comprehensive approach to eliminating cognitive bias on a systemic level, which can be achieved by establishing a strong foundation of both theoretical and empirical knowledge of cognitive bias in forensic psychology. The relevance of this area of research is indisputable as forensic psychologists are taking on bigger roles in the forensic process, which is increasing their responsibility to do right by the people involved and impacted in the process – every decision made and action taken should have a valid justification and should be to the lowest possible degree influenced by insubstantial, irrelevant factors. While evaluators are as susceptible to human faults as anyone else is, they, as experts, have the duty to use their knowledge and experience with a critical eye, recognition of all the present factors, and consideration for all those involved. 

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