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- Herausgeber: John Wiley & Sons
- Kategorie: Geisteswissenschaft
- Sprache: Englisch
Praise for Forensic Psychology and Law
"In Forensic Psychology and Law, three internationally known experts provide exceptional coverage of a wide array of topics that address both the clinical applications of forensic psychology and the role of psychological science in understanding and evaluating legal assumptions and processes."
—Norman Poythress, PhD, Research Director and Professor, Louis de la Parte Florida Mental Health Institute, Dept. of Mental Health Law and Policy
"Forensic Psychology and Law is a major contribution to the teaching of law and psychology. Roesch, Zapf, and Hart offer a timely, comprehensive, and succinct overview of the field that will offer widespread appeal to those interested in this vibrant and growing area. Outstanding."
—Kirk Heilbrun, PhD, Professor and Head, Department of Psychology, Drexel University
"In this volume, three noted experts have managed to capture the basic elements of forensic psychology. It is clearly written, well organized, and provides real world examples to hold the interest of any reader. While clarifying complex issues, the authors also present a very balanced discussion of a number of the most hotly debated topics."
—Mary Alice Conroy, PhD, ABPP, Psychological Services Center, Sam Houston State University
A Comprehensive, Up-to-Date Discussion of the Interface Between Forensic Psychology and Law
Forensic Psychology and Law covers the latest theory, research, and practice in the field and provides thought-provoking discussion of topics with chapters on:
- Forensic assessment in criminal and civil domains
- Eyewitness identification
- Police investigations, interrogations, and confessions
- Correctional psychology
- Psychology, law, and public policy
- Ethics and professional issues
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Veröffentlichungsjahr: 2009
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Table of Contents
Cover
Title
Copyright
Preface
ABOUT THE TEXT
ANCILLARY MATERIALS
Acknowledgments
Chapter 1: INTRODUCTION TO PSYCHOLOGY AND LAW: Civil and Criminal Applications
DEFINING FORENSIC PSYCHOLOGY
HISTORY OF FORENSIC PSYCHOLOGY
THE ROLES OF FORENSIC PSYCHOLOGISTS
OVERVIEW OF LAW
COURT SYSTEMS
THE COURT PROCESS
DIFFERENCES BETWEEN PSYCHOLOGY AND LAW
SUMMARY
SUGGESTED READINGS AND WEBSITES
KEY TERMS
References
Chapter 2: FORENSIC ASSESSMENT IN CRIMINAL DOMAINS
CRIMINAL COMPETENCIES
CRIMINAL RESPONSIBILITY
RISK ASSESSMENT
PSYCHOPATHY AND MALINGERING
SUMMARY
SUGGESTED READINGS
KEY TERMS
References
Chapter 3: CIVIL FORENSIC ASSESSMENT
CIVIL FORENSIC ASSESSMENT: MAJOR DOMAINS OF PRACTICE
CIVIL COMMITMENT
PARENTING CAPACITY
CHILD MALTREATMENT
SUMMARY
SUGGESTED READINGS
KEY TERMS
References
Chapter 4: FORENSIC TREATMENT
MENTAL DISORDER AS A PRIMARY FOCUS OF INTERVENTION
MENTAL DISORDER AS A SECONDARY FOCUS OF INTERVENTION
RECIDIVISM AND REHABILITATION AS THE FOCUS OF INTERVENTION
COMMUNITY-BASED TREATMENT
SUMMARY
SUGGESTED READINGS
KEY TERMS
References
Chapter 5: EYEWITNESS IDENTIFICATION
FACTORS THAT MAY ACCOUNT FOR MISTAKEN EYEWITNESS IDENTIFICATION
CHILDREN AS EYEWITNESSES
SAFEGUARDS AND PROTECTIONS
SUMMARY
SUGGESTED READINGS
KEY TERMS
References
Chapter 6: POLICE INVESTIGATIONS, INTERROGATIONS, AND CONFESSIONS
POLICE INTERROGATIONS AND CONFESSIONS
INTERROGATION TECHNIQUES
DETECTING DECEPTION
FALSE CONFESSIONS
SUMMARY
SUGGESTED READINGS
KEY TERMS
References
Chapter 7: JURIES AND LEGAL DECISION MAKING
LEGAL DECISION MAKING: A SEARCH FOR JUSTICE
JURIES
MODELS OF JURY DECISION MAKING
EVALUATING JURIES
SUMMARY
SUGGESTED READINGS
KEY TERMS
References
Chapter 8: JUVENILES IN THE LEGAL SYSTEM
HISTORY OF JUVENILE JUSTICE
ASSESSMENT OF YOUTH IN THE JUVENILE JUSTICE SYSTEM
SUMMARY
SUGGESTED READINGS AND WEBSITES
KEY TERMS
References
Chapter 9: POLICE PSYCHOLOGY
POLICING IN THE UNITED STATES
THE PRACTICE OF POLICE PSYCHOLOGY: SOME EXAMPLES
SUMMARY
SUGGESTED READINGS
KEY TERMS
References
Chapter 10: CORRECTIONAL PSYCHOLOGY
CORRECTIONAL PSYCHOLOGY IN THE UNITED STATES
OFFENDER RISK ASSESSMENT AND MANAGEMENT
SUMMARY
SUGGESTED READINGS
KEY TERMS
References
Chapter 11: PSYCHOLOGY, LAW, AND PUBLIC POLICY
ROLES OF EXPERT WITNESSES
INFLUENCING THE LEGAL SYSTEM
SUMMARY
SUGGESTED READINGS AND WEBSITES
KEY TERMS
References
Chapter 12: ETHICS AND PROFESSIONAL ISSUES
ROLES AND RESPONSIBILITIES OF THE FORENSIC PSYCHOLOGIST
PROFESSIONAL ISSUES
ETHICAL AND LEGAL ISSUES
SUMMARY
SUGGESTED READINGS
KEY TERMS
References
Author Index
Subject Index
End User License Agreement
List of Tables
Chapter 1: INTRODUCTION TO PSYCHOLOGY AND LAW: Civil and Criminal Applications
Table 1.1 Definitions of Forensic Psychology
Table 1.2 Graduate Training in Forensic Psychology
Table 1.3 Heilbrun’s Conceptualization of Training in Forensic Psychology
Chapter 3: CIVIL FORENSIC ASSESSMENT
Table 3.1 Some Specific Areas Addressed in Parenting Capacity Evaluations
Table 3.2 American Psychological Association’s Guidelines for Child Custody Evaluations in Divorce Proceedings
Table 3.3 Examples of Specialized Psychological Tests Developed for Use in Parenting Capacity Evaluations
Table 3.4 American Psychological Association’s Guidelines for Psychological Evaluations in Child Protection Matters
Chapter 8: JUVENILES IN THE LEGAL SYSTEM
Table 8.1 Structured Assessment of Violence Risk in Youth (SAVRY)
Table 8.2 Cost/Benefit Analysis of the Economic Impact of Interventions
Chapter 9: POLICE PSYCHOLOGY
Table 9.1 Number of Law Enforcement Agencies and Full-Time Officers in the United States in 2004
Table 9.2 Core Domains and Specific Proficiencies of Police Psychology
Table 9.3 Importance, Frequency, and Difficulty Ratings for Core Job Activities Identified by General Duties Police Officers and Supervisors in Australia
Table 9.4 Psychological Characteristics Identified by Experts as Essential for Performing Core Activities of General Duties Police Officers
Chapter 10: CORRECTIONAL PSYCHOLOGY
TABLE 10.1 Overview of the Level of Service-Case Management Inventory (LS-CMI)
Table 10.2 Examples of Specialized Risk Assessment Instruments
Table 10.3 Risk Factors in the STATIC-99
Table 10.4 Risk Factors in the Risk for Sexual Violence Protocol (RSVP)
Chapter 12: ETHICS AND PROFESSIONAL ISSUES
Table 12.1 Core Ethical Principles for Psychologists
Table 12.2 Sample of Ethical Standards within each of Ten Content Areas
List of Illustrations
Chapter 1: INTRODUCTION TO PSYCHOLOGY AND LAW: Civil and Criminal Applications
Figure 1.1 Landmark Dates in Forensic Psychology
Figure 1.2 Supreme Court of the United States
Chapter 3: CIVIL FORENSIC ASSESSMENT
Figure 3.1 Britney Spears performing Circus, Boston, March 16, 2009.
Figure 3.2 Three Requirements for Civil Commitment
Chapter 6: POLICE INVESTIGATIONS, INTERROGATIONS, AND CONFESSIONS
Figure 6.1 Total self-reported likelihood of false confession score by age
Chapter 7: JURIES AND LEGAL DECISION MAKING
Figure 7.1 Justitia (Lady Justice)
Chapter 8: JUVENILES IN THE LEGAL SYSTEM
Figure 8.1 Arrest Rates for Violent Offenses by Age of the Offender, 1983–1994
Figure 8.2 Juvenile Arrests for Homicide in the United States, 1984–2006
Chapter 10: CORRECTIONAL PSYCHOLOGY
Figure 10.1 Reduction in Recidivism Rates as a Function of Adherence to Risk-Need-Responsivity (RNR) Principles in Residential and Community Correctional Treatment Programs
Guide
Cover
Table of Contents
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FORENSIC PSYCHOLOGY AND LAW
Ronald Roesch
Patricia A. Zapf
Stephen D. Hart
This book is printed on acid-free paper. Copyright © 2010 by John Wiley & Sons, Inc. All rights reserved.Published by John Wiley & Sons, Inc., Hoboken, New Jersey.Published simultaneously in Canada.
No part of this publication may be reproduced, stored in a retrieval system, or transmitted in any form or by any means, electronic, mechanical, photocopying, recording, scanning, or otherwise, except as permitted under Section 107 or 108 of the 1976 United States Copyright Act, without either the prior written permission of the publisher, or authorization through payment of the appropriate per-copy fee to the Copyright Clearance Center, Inc., 222 Rosewood Drive, Danvers, MA 01923, (978) 750-8400, fax (978) 646-8600, or on the Web at www.copyright.com. Requests to the publisher for permission should be addressed to the Permissions Department, John Wiley & Sons, Inc., 111 River Street, Hoboken, NJ 07030, (201) 748-6011, fax (201) 748-6008.
Limit of Liability/Disclaimer of Warranty: While the publisher and author have used their best efforts in preparing this book, they make no representations or warranties with respect to the accuracy or completeness of the contents of this book and specifically disclaim any implied warranties of merchantability or fitness for a particular purpose. No warranty may be created or extended by sales representatives or written sales materials. The advice and strategies contained herein may not be suitable for your situation. You should consult with a professional where appropriate. Neither the publisher nor author shall be liable for any loss of profit or any other commercial damages, including but not limited to special, incidental, consequential, or other damages.
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Library of Congress Cataloging-in-Publication Data
Roesch, Ronald, 1947–
Forensic psychology and law/by Ronald Roesch, Patricia A. Zapf, and Stephen D. Hart.
p. cm.
Includes bibliographical references and index.
ISBN 978-0-470-09623-9 (cloth)
1. Forensic psychology. 2. Criminal psychology. 3. Law—Psychological aspects. I. Zapf, Patricia A., 1971– II. Hart, Stephen D. (Stephen David), 1962– III. Title.
RA1148.R635 2010
614’.15—dc22
2009024945
Preface
ABOUT THE TEXT
Why write another undergraduate text on forensic psychology? There is no shortage of them. Some very good ones were written by people we are proud to call colleagues and, in many instances, pleased to call friends. We have used their texts in our own teaching and were very satisfied with them.
So, when Wiley first approached us with the idea of developing a new text, we wondered what would be the point of the exercise. We didn’t think we could write a text that was more comprehensive than the others—indeed, the field of forensic psychology is now so broad that even the notion of a single comprehensive text of less than a thousand pages is laughable. Neither did we think that we could write a text that was better than the others. The nature and depth of our expertise in the field is in no way superior to that of other textbook authors. But what Wiley thought we could achieve was to write a textbook that reflected a particular perspective on forensic psychology: an applied and community-oriented perspective. We define forensic psychology as the application of psychological theory and research to legal questions and problems. We have a deep respect for the idea of law, believe forensic psychologists must understand the law as it relates to their areas of expertise, and judge the usefulness of research and practice according to the extent they help answer legal questions or solve legal problems.
In our view, forensic psychology should be community-oriented. It serves and operates within the legal system, itself a rather complex web of subsystems that interact within and across various levels of society (e.g., local, regional, national, international). One of our fundamental assumptions is that forensic psychology must strive not only to understand the impact of the legal system on individuals within society, but also to improve or enhance the well-being of individuals and the society in which they live.
Our primary goal in writing this text, then, was to illustrate our perspective, developed at Simon Fraser University but influenced by colleagues all over the world, on forensic psychology. To this end, we selected topics strategically. For each topic, we discuss relevant law, focusing on but not limited to U.S. law, and point out its implications for research and practice. We make frequent reference to individual cases or research studies to illustrate key points. We hope we have achieved our goal, discussing the field in a way that is different from and complementary to that done in existing texts.
ANCILLARY MATERIALS
In addition to this text, we have developed several supplementary resources for use by students and instructors.
On the Student Website
Chapter summaries
Sample exam questions
Links to journal articles, news stories, and professional organizations
On the Instructor’s Website:
Lecture outlines, including suggested topics
Powerpoint presentations (which are editable)
Information for instructors in Canada
Recommended audiovisual materials
Test bank (multiple choice, fill-in-the-blank, short answer, and essay questions)
Acknowledgments
Writing this text was an unexpected pleasure. This statement bears some explanation. On the one hand, it was no surprise to us that working together was a positive experience; our collaborations over many years have been both fruitful and enjoyable. But we never expected to write an undergraduate text—none of us had considered doing so until approached by our editor at Wiley, Patricia Rossi. And we never expected that writing a textbook would be gratifying in so many respects. To be sure, it was difficult to venture outside our areas of primary expertise and to write in a style so different from that required for scientific journals and books. Yet it was invigorating to immerse ourselves in new topics or think about familiar topics in new ways.
For giving us the opportunity to write this text, and for making the experience as painless as possible, we thank the professionals at Wiley. Patricia Rossi was always warm and supportive, even when deadlines were missed and extended (mostly by Steve). We received excellent feedback from a terrific Wiley production staff, including Kathleen DeChants, Katherine Glynn, and Susan Moran.
On a personal note, each of us would like to thank our families for their love, support, and patience while we worked on this project. Also, Steve and Patty would like to thank Ron for his mentorship over the years. If there does exist a strong and unique Simon Fraser University (SFU) perspective, it is thanks to Ron. Ron is the person who established and developed SFU’s Program in Law and Forensic Psychology—he had the vision, recruited faculty and students, and worked tirelessly to nurture the Program. He also helped us to establish careers of our own, and for this he has our thanks, as well as our love and respect.
Chapter 1INTRODUCTION TO PSYCHOLOGY AND LAW: Civil and Criminal Applications
CHAPTER OBJECTIVES
In this chapter, you will become familiar with:
The definition of forensic psychology
The history of forensic psychology
The varied roles that forensic psychologists play
The professional associations and publications relevant to forensic psychologists
The structure of the legal system
The similarities and differences in the fields of psychology and law
The training opportunities for students who wish to pursue a career as a forensic psychologist
One of the questions that students in undergraduate psychology and law classes ask their professors is, “How can I become a profiler?” Clearly, television shows like CSI and Criminal Minds, as well as movies such as Silence of the Lambs, have piqued student interest to be involved in what is perceived as exciting and engaging work. The reality is that there is little market for profilers (see Box 1.1) and a career in forensic psychology is not the track to pursue if one has this interest. Indeed, one survey of forensic psychiatrists and psychologists found that only about 10% had ever engaged in criminal profiling and only a small percentage believe it is a scientifically reliable practice (Torres, Boccaccini, & Miller, 2006). Forensic psychology is a fascinating field that has far more to offer students who want to work at the intersection of psychology and law.
Box 1.1 On Criminal Profiling
Due to depictions in popular media (e.g., Silence of the Lambs, Profiler, CSI), many students express an interesting and ask questions about criminal profiling, which may be described as a criminal investigative technique based, in part, on psychological expertise and knowledge. In reality, few law enforcement agencies employ such techniques and there is little call for such professionals. Those interested in such work should consider a career in law enforcement instead of clinicalforensic psychology.
The Behavioral Sciences Unit of the FBI does employ a few FBI agents who engage in this activity. The FBI makes a distinction between mental health and law enforcement: FBI agents are law enforcement professionals, not mental health professionals. In order to work as a profiler, or with the FBI in any other role, it is necessary to become an FBI agent. Experience in criminal investigation is needed before an agent can even be considered for a profiling position, but only a small number of agents ever become profilers. Since this would be a difficult goal to achieve, the FBI encourages prospective applicants who are interested in being special agents to do so because they are interested in the range of opportunities available with the FBI, not because they want to be a profiler.
Source: Excerpt from American Psychology-Law Society website: http://www.ap-ls.org/students/careersIndex.html.
DEFINING FORENSIC PSYCHOLOGY
Forensic psychology can be conceptualized as encompassing both sides of the justice system (civil and criminal) as well as two broad aspects of psychology (clinical and experimental). It would seem that defining forensic psychology should be a straightforward task. Alas, this is not the case, and the difficulty stems from the fact that the professionals who work in forensic psychology come from a wide range of graduate and professional backgrounds. Some have degrees in clinical or counseling psychology; others have graduate training in other areas of psychology such as social, developmental, cognitive, or neuropsychology. Others have backgrounds in law, some with degrees in both psychology and law. The nature of their contributions to forensic psychology also varies. One central issue in defining forensic psychology is that forensic psychologists can work both within and outside the legal system. Some psychologists provide direct services to the court through assessments of issues such as competency to stand trial, criminal responsibility, or child custody. Others are researchers, typically based in universities, who conduct basic or applied research on such topics as eyewitness behavior or jury decision making. Still others combine both research and clinical practice. This potential for working both within and outside the legal system has led Haney (1980) to comment, “Psychologists have been slow to decide whether they want to stand outside the system to study, critique, and change it, or to embrace and be employed by it. And the law has been tentative in deciding how it will use and grant access to psychologists” (p. 152).
For these reasons, it has been difficult to arrive at a definition that encompasses all of these professional backgrounds and varied roles. Table 1.1 shows a sample of definitions that various individuals and organizations have proposed. Some, like the one used by Goldstein, use broad definitions that attempt to encompass all of the backgrounds and roles described here, and distinguish the research and practice contributions. Others, such as those used by the American Psychological Association or the Specialty Guidelines for Forensic Psychologists (Committee on Ethical Guidelines for Forensic Psychologists, 1991), focus more on the applied roles of psychologists as providers of expertise to the legal system.
The conflicts involved in arriving at a definition of forensic psychology was the subject of Professor Jack Brigham’s 1999 presidential address to the American Psychology-Law Society. He posed the question, “What is forensic psychology, any way?” His answer reflects the conflicts about clinical and nonclinical participants in forensic psychology:
To return to my original question about what is forensic psychology, I believe that there are two levels of classification that yield two sets of definitions. At the level of ethical guidelines and professional responsibility, the broad definition fits best. Any psychologist (clinical, social, cognitive, developmental, etc.) who works within the legal system is a forensic psychologist in this sense, and the same high ethical and professional standards should apply to all. When it comes to how the legal system and the public conceptualize forensic psychology, however, there is a definite clinical flavor. The clinical/nonclinical distinction is a meaningful one, I believe. For example, educational, training, and licensing issues that are pertinent to clinical forensic psychologists may be irrelevant or inapplicable to nonclinical forensic psychologists. Further, clinicians and nonclinicians differ in their orientation to the legal process and in the role that they are likely to play in the courtroom (e.g., individual assessments vs. research-based social fact evidence). So there you have it—two varieties of forensic psychologists, clinical and nonclinical. (Brigham, 1999, p. 295)
It is of note that some graduate programs use both narrow and broad definitions to define their program. John Jay College, which has MA and PhD programs in forensic psychology, states that “In developing this program, both the broader and narrower definitions of forensic psychology are recognized. The core curriculum in the doctoral program is clinically focused. The broader definition is encompassed in non-clinical elective courses in the program and in an Interdisciplinary Concentration in Psychology and Law available to CUNY Psychology doctoral students who are interested in forensic psychology but whose interests do not require clinical training” (retrieved from http://johnjay.jjay.cuny.edu/forensicPsych/#Anchor-Q:-28528, July 18, 2007). (As this book goes to press, a second track to John Jay’s doctoral program has been added. This track focuses on experimental psychology and law.)
Table 1.1 Definitions of Forensic Psychology
American Board of Forensic Psychology (2007)
Forensic psychology is the application of the science and profession of psychology to questions and issues relating to law and the legal system. The word
forensic
comes from the Latin word
forensis
, meaning “of the forum,” where the law courts of ancient Rome were held. Today,
forensic
refers to the application of scientific principles and practices to the adversary process in which specially knowledgeable scientists play a role (
http://www.abfp.com
).
American Psychological Association (2001)
Forensic psychology is the professional practice by psychologists who foreseeably and regularly provide professional psychological expertise to the judicial system. Such professional practice is generally within the areas of clinical psychology, counseling psychology, neuropsychology, and school psychology, or other applied areas within psychology involving the delivery of human services, by psychologists who have additional expertise in law and the application of applied psychology to legal proceedings (
http://www.apa.org/crsppp/archivforensic.html
).
Goldstein (2003)
Goldstein “considers forensic psychology to be a field that involves the application of psychological research, theory, practice, and traditional specialized methodology (e.g., interviewing, psychological testing, forensic assessment, and forensically relevant instruments) to a legal question” (p. 4). Goldstein further distinguishes practice and research applications. The practice side of forensic psychology generates products for the legal system, such as reports or testimony. The research side has as its goal “to design, conduct, and interpret empirical studies, the purpose of which is to investigate groups of individuals or areas of concern or relevance to the legal system” (p. 4).
Ogloff and Finkelman (1999)
Define psychology and law quite broadly as the “scientific study of the effect the law has on people, and the effect people have on the law” (p. 3).
Committee on Ethical Guidelines for Forensic Psychologists (1991)
Defines forensic psychology to include “all forms of professional conduct when acting, with definable foreknowledge, as a psychological expert on explicitly psychological issues in direct assistance to the courts, parties to legal proceedings, correctional and forensic mental health facilities, and administrative, judicial, and legislative agencies acting in a judicial capacity” (p. 657).
Note
: At the time of the writing of this book, the Guidelines were being updated. The latest draft defines forensic psychology as referring “to all professional practice by any psychologist working with any sub-discipline of psychology (e.g., clinical, developmental, social, cognitive) when the intended purpose of the service is to apply the scientific, technical, or specialized knowledge of psychology to the law and to use that knowledge to assist in solving legal, contractual, and administrative problems”(
http://www.ap-ls.org/links/professionalsgfp.html
).
Wrightsman and Fulero (2005)
Define forensic psychology as “any application of psychological research, methods, theory, and practice to a task faced by the legal system” (p. 2).
We have adopted a broad definition for this book. Forensic psychology is the practice of psychology (defined to include research as well as direct and indirect service delivery and consultation) within or in conjunction with either or both sides of the legal system—criminal and civil.
HISTORY OF FORENSIC PSYCHOLOGY
There is general agreement that although medical experts testified in some criminal cases in the 1800s (see Figure 1.1), the roots of modern-day psychology and law were not established until the early part of the twentieth century. If these roots can be traced to one individual, it would perhaps be Hugo Munsterberg, who was the director of Harvard’s Psychological Laboratory. Munsterberg was a strong advocate of the application of psychological research to legal issues. In his book On the Witness Stand, published in 1908, Munsterberg reviewed research on such topics as the reliability of eyewitness testimony, false confessions, and crime detection and prevention, and argued that the legal system should make greater use of this research. He wrote that “The courts will have to learn, sooner or later, that the individual differences of men can be tested today by the methods of experimental psychology far beyond anything which common sense and social experience suggest” (p. 63). Munsterberg was a controversial figure whose claims for the contributions of psychology to law were not supported by empirical research.
Figure 1.1 Landmark Dates in Forensic Psychology
Source:Adapted and expanded from Brigham (1999), Table 1.
Criticisms of Munsterberg were rampant. As Doyle (2005) commented, “What Munsterberg had failed to grasp was that his knowledge about the reliability of witnesses was not sufficient to answer the legal system’s concern for the reliability of the verdicts” (p. 30). Notable among the critiques by both the legal and psychological communities was one by the legal scholar, John Wigmore. In a satirical article published in a law review in 1909, Wigmore staged a mock lawsuit in which he accused Munsterberg of libeling the legal profession and exaggerating his claim of what psychology had to offer the law. He subjected Munsterberg’s claims to a rigorous cross-examination in which he argued that psychological testimony about such issues such as eyewitness credibility should not be admissible in the courts. Of course, Munsterberg was found guilty. It is of interest to note that, despite his scathing critique of Munsterberg, Wigmore (1940) was positive about the potential of psychology to offer assistance to the courts on a range of legal issues, noting that the courts will be ready for psychologists when psychologists are ready for the courts. It was not until the past few decades that psychology has begun to answer Wigmore’s call.
At the same time that Munsterberg published his book, Louis Brandeis, a lawyer who would later become a U.S. Supreme Court Justice, submitted, in the case of Muller v. Oregon (1908), a brief that summarized the social science research showing the impact that longer working hours had on the health and well-being of women. The Oregon court’s decision was consistent with the conclusions Brandeis reached in the brief. This marked the first time that social science research was presented in court in the form of a brief, and subsequent briefs of this nature became known as Brandeis briefs. As we will see in Chapter 11, however, these briefs were not commonly presented in the courts until decades later.
Another early historical event was the publication, in the prestigious journal Psychological Bulletin, of a series of articles by Guy Whipple that in part related memory and the accounts of witnesses. In an article published in 1909, Whipple set the stage for later laboratory research on witness behavior. He wrote,
If, then, the work of reporting is difficult even for the trained expert working under laboratory conditions and using a carefully refined terminology, how much more difficult must it be for the untrained individual to report with accuracy and completeness the experiences of his daily life, when to the inadequacy of his language there must be added the falsifying influences of misdirected attention, mal observation, and errors of memory, not to mention the falsifying influences that may spring from lack of caution, of zeal for accurate statement, or even from deliberate intent to mislead. (p. 153)
Perhaps the most cited social science brief was the one submitted in the famous desegregation case, Brown v. Board of Education (1954). Led by psychologists Kenneth Clark, Isidor Chein, and Stuart Cook, a brief was prepared that summarized research demonstrating that segregation has negative effects on the self-esteem and other personality characteristics of African American children. The brief was cited as a footnote in the Supreme Court’s decision that segregation violated the Equal Protection and Due Process clauses of the Fourteenth Amendment. While it has since been debated whether or how much this research influenced the Court’s decision (see Cook, 1985), there is no question that it marked the potential of using psychological research to inform courts about the negative consequences of social policies and practices.
The modern era of forensic psychology can perhaps be traced to the late 1960s when two psychologists, Jay Ziskin and Eric Dreikurs, began discussions that led to the creation of forensic psychology’s first professional association (Grisso, 1991). These early meetings, which initially took place at the American Psychological Association Conference in San Francisco in 1968, led to the development of the American Psychology-Law Society (AP-LS). Ziskin in particular was the driving influence, and he had lofty aspirations for the impact of psychology and law. He wrote in AP-LS’s first newsletter:
While only the future can reveal the significance of a present event, I feel that [the meeting] in San Francisco will prove to be an event of historic significance … It may not prove grandiose to compare the potential impact of the creation of this society in its area with that of the Royal Academy of Science in Britain and the Academie des Sciences in France … We can perceive that we have taken on a precious responsibility, for there are few interdisciplinary areas with so much potential [as psychology and law] for improving the human condition and for acquiring and utilizing greater understanding of man. (p. 1)
Whether AP-LS will realize Ziskin’s vision, it is noteworthy that AP-LS has thrived since its inception. AP-LS has now grown to over 2,000 members, has sponsored a major journal, Law and Human Behavior, a scholarly book series, and has developed guidelines for the professional practice of forensic psychology, among other accomplishments.
THE ROLES OF FORENSIC PSYCHOLOGISTS
There are many roles for forensic psychologists. At a broad level, one can divide these roles into research and practice, although this is an arbitrary and sometimes incorrect classification. Some forensic psychologists do focus entirely on research while others entirely focus on some form of practice. However, many of those who would identify themselves as researchers also engage in clinical forensic practice, while some clinicians are also active researchers. For example, the authors of this text are trained in clinical psychology, work in university settings but also conduct psychological evaluations for the courts. While some forensic psychologists work in universities as we do, or in other research settings, the majority of forensic psychologists are primarily practitioners who work in a wide range of settings.
The roles of forensic psychologists will be discussed in more detail in chapters throughout this book. The American Board of Forensic Psychology (ABFP) provides the following list of the types of activities of psychologists engaged in the practice of forensic psychology:
Psychological evaluation and expert testimony regarding criminal forensic issues such as trial competency, waiver of Miranda rights, criminal responsibility, death penalty mitigation, battered woman syndrome, domestic violence, drug dependence, and sexual disorders
Testimony and evaluation regarding civil issues such as personal injury, child custody, employment discrimination, mental disability, product liability, professional malpractice, civil commitment, and guardianship
Assessment, treatment, and consultation regarding individuals with a high risk for aggressive behavior in the community, in the workplace, in treatment settings, and in correctional facilities
Research, testimony, and consultation on psychological issues impacting on the legal process such as eyewitness testimony, jury selection, children’s testimony, repressed memories, and pretrial publicity
Specialized treatment service to individuals involved with the legal system
Consultation to lawmakers about public policy issues with psychological implications
Consultation and training to law enforcement, criminal justice, and correctional systems
Consultation and training to mental health systems and practitioners on forensic issues
Analysis of issues related to human performance, product liability, and safety
Court-appointed monitoring of compliance with settlements in class-action suits affecting mental health or criminal justice settings
Mediation and conflict resolution
Policy and program development in the psychology-law arena
Teaching, training, and supervision of graduate students, psychology, and psychiatry interns/residents, and law students(retrieved from
http://www.abfp.com/brochure.asp
, July 18, 2007)
Professional Associations and Publications
There are a number of professional groups that represent psychology and law. In North America, the primary group is the American Psychology-Law Society (AP-LS), which is an interdisciplinary organization devoted to scholarship, practice, and public service in psychology and law (see Grisso, 1991 for a history of AP-LS). AP-LS is both a free-standing organization as well as part of the American Psychological Association (Division 41). AP-LS has an active undergraduate and graduate student membership (see the AP-LS website for student information: http://www.ap-ls.org). The American Board of Forensic Psychology (ABFP) awards a Diploma in Forensic Psychology to those psychologists who satisfactorily complete the requirements for achieving Specialty Board Certification in forensic psychology. In Europe, the European Association of Psychology and Law (EAPL) is the representative association, and in Australia and New Zealand, it is the Australian & New Zealand Association for Psychiatry, Psychology & the Law (ANZAPPL). The three associations each have annual conferences and have held several joint conferences in order to promote international collaborations and presentation of the latest research findings.
AP-LS member statistics. An analysis of membership data from the 2006 AP-LS member database provides an instructive profile of forensic psychologists. Nearly two-thirds of the over 2,100 members and fellows of AP-LS are male, but there are indications that this imbalance will shift in the next decade as 78% of the over 600 student members of AP-LS are female. The vast majority of members work in applied settings, with less than 20% indicating they work in academic institutions. Minorities are underrepresented. Haney’s comment in 1993 that “put bluntly, psychology and law is an almost universally white and still largely male discipline” (pp. 388–389) remains true today. AP-LS member statistics show that less than 5% of members are from minority groups. This is in stark contrast to the representation of minorities in the criminal justice system, in which minorities account for the majority of defendants and prison inmates in many states.
Journals. There are also many journals that are entirely devoted to forensic psychology topics. Law and Human Behavior was the first journal, and it is the official publication of AP-LS. It began publication in 1977 as a quarterly journal, and expanded to six issues per year in 1990. In addition to Law and Human Behavior, the field has added many new journals, reflecting the substantial increases in research and practice that psychology and law has enjoyed over the past 40 years. The list is extensive but includes Criminal Behavior and Mental Health; Behavioral Sciences & the Law; Psychology, Public Policy, and the Law; and Legal and Criminological Psychology.
OVERVIEW OF LAW
This section provides an overview of the legal system, the origins of law, values, and law. This includes the organization of the courts (trial, appellate, federal, Supreme Court).
Sources of Law
Law can be thought of as the total of all the rules governing behavior that is enforceable in courts. There are four sources of law in the United States including the U.S. Constitution, state and federal statutes, administrative law, and court made law or common law.
U.S. Constitution
In order to understand the complexity of the American legal system, it is helpful to recall that the United States was founded as the union of 13 colonies, each one claiming independence from the British Crown. In 1787, the U.S. Constitution was put in place to govern the relationship among the 13 colonies and the national Congress. It defined the powers and authority of the federal and state governments and delineated the kinds of laws that the federal Congress and the state legislatures could pass.
The U.S. Constitution is often referred to as the “Law of the Land” because it supersedes all other laws or rules. The power of Congress and of the state legislatures to pass laws is always subject to the U.S. Constitution. Laws or rules that are inconsistent with the Constitution, either because they violate rights guaranteed by the Constitution or because the Constitution does not authorize that legislature to pass that kind of law, are unconstitutional. A court that finds a law to be unconstitutional will strike it down giving it no force or effect.
Statutes
As we have just seen, the Constitution gives Congress and state legislatures the power to pass legislation or laws in certain domains. Federal and state laws are known as statutes. The powers of Congress, or the federal legislature, to pass laws are set out in Article I of the Constitution. Examples of domains for which Congress has jurisdiction and can pass statutes include laws related to providing and maintaining a Navy, establishing post offices, and regulating commerce with foreign nations.
All powers not expressly granted to the federal legislature by the Constitution are reserved for the states. State legislatures have the power to pass laws concerning many domains of interest to forensic psychologists. For example, state legislatures have the power to enact legislation regarding criminal law, civil commitment, and family law. With respect to domains within their jurisdiction, each state will have its own statute or statutes. For example, California has enacted The Penal Code of California while Michigan has enacted The Michigan Penal Code—both statutes dealing with criminal law within their jurisdiction.
Administrative Rules and Regulations
In some cases, the federal or state government may delegate some of its powers to specialized administrative agencies through authorizing statutes. As a part of this delegation, many of these agencies will have the authority to make rules and regulations relevant to their responsibilities and within their area of expertise. These laws are referred to as rules or regulations rather than statutes, but they generally have the same force as statutes. The power of the administrative agency to enact rules and regulations is set out in the authorizing statute. One area of administrative law relevant to forensic psychologists is the laws surrounding the determination of disability and disability benefits.
Common Law
The U.S. legal system has its roots in the English common law system. Historically, English grand juries, kings, and magistrates catalogued their decisions according to the type and subject matter of the case. When subsequent cases came before them, they reviewed earlier decisions to determine whether a previous case was sufficiently similar to the current one. If so, they applied the principles set out in the earlier decision to the new decision. This body of principles came to be known as the common law. The common law is therefore often referred to as court- or judge-made law. Many of the principles established in English common law continue to be applied by U.S. courts today. In addition, the doctrine of stare decisis, Latin for “let the decision stand,” remains. That is, when a judge interprets a law, subsequent judges will often be bound by that interpretation through the process of precedence. Whether a judge is bound by a previous decision will largely depend on the jurisdiction of the court.
COURT SYSTEMS
The U.S. court system is one of the most complex in the world. It is composed of both federal and state court systems, each applying the laws of their jurisdiction. Taken together, there are thousands and thousands of individual courts in the United States! Courts are the final interpreters of law (they apply statutes, regulation and, common law) and are therefore central to the legal system.
Federal System
The Federal Court system is created like a three-level pyramid (see Figure 1.2). U.S. District Courts, the majority of courts in the federal system, make up the bottom of the pyramid. These trial courts are the entry point for most cases in the federal system. There are 94 U.S. federal judicial districts each with at least one court. Each state is composed of at least one district but many of the more populated states are made up of multiple districts. New York, for example, is composed of four federal judicial districts (i.e., Eastern, Northern, Southern, and Western). U.S. District Courts are courts of general jurisdiction. That is, they have the authority to hear a very wide range of cases including both criminal and civil cases. If a losing party feels that a District Court made an error in reaching a decision, in many circumstances, they can appeal the decision to courts at the midlevel of the pyramid, the U.S. Courts of Appeals. The U.S. Courts of Appeals, often referred to as the U.S. Circuit Courts, are spread over 12 circuits or geographical regions. The U.S. Courts of Appeals hear appeals from District Courts within their regions. Cases at this level are decided by the majority of a three-judge panel. Decisions made by a U.S. Circuit Court will be binding on all District Courts within their jurisdiction through the doctrine of stare decisis (a legal term referring to the principle that prior court decisions establish precedence for current cases). A party who is dissatisfied with a decision made by a U.S. Court of Appeals may seek review by the U.S. Supreme Court by filing a motion for a writ of certiorari (this is a request for a higher court to direct a lower court, tribunal, or public authority to send the record in a given case for review). If the motion is successful, a higher court will then order the lower court to turn over transcripts and documents related to a specific case for review.
Figure 1.2 Supreme Court of the United States
Source: Encarta, http://encarta.msn.com/media_461518049_1741500781_-1_1/united_states_court_system.html.
The U.S. Supreme Court is the single court at the top of the pyramid. It comprises nine judges, called justices, who decide cases based on a majority. The court’s jurisdiction is largely discretionary. That is, when a writ of certiorari is filed with the U.S. Supreme Court, requesting that a U.S. Court of Appeals decision be reviewed, the nine justices will decide whether they wish to hear the case. If at least four justices agree to hear the case, certiorari is granted and the case is heard. Otherwise, the case is not heard and the decision of the U.S. Court of Appeals stands. The U.S. Supreme Court grants certiorari in only a minority of cases. The decision not to hear a case does not reflect the U.S. Supreme Court’s agreement with the lower-level courts. Rather, the Court hears cases that are the most constitutionally or legally important. For example, if many Circuit Courts have interpreted identical statutes differently, the U.S. Supreme Court may agree to hear the case in order to clarify that area of law. Decisions made by the U.S. Supreme Court are binding on all other courts in the federal system. The U.S. Supreme Court is the highest arbiter of federal law and, as a result, it is sometimes called the court of last resort. If a losing party is unhappy with a decision made by the U.S. Supreme Court, there is no other option or remedy.
State System
The structure of state court systems vary greatly from state to state. While some states follow a pyramid structure that shares features with the federal system, many states operate complex systems involving courts with overlapping jurisdiction. Some state systems rely on four levels of courts with (1) courts of limited jurisdiction, (2) courts of general jurisdiction, (3) intermediate appellate courts, and (4) courts of last resort. In these systems, a trial will begin either at a court of limited jurisdiction or at a court of general jurisdiction depending on the subject matter and the seriousness of the case. Cases heard in a court of limited jurisdiction can often be appealed to a court of general jurisdiction. Cases first heard in a court of general jurisdiction can usually be appealed either to the intermediate appellate court or to the court of last resort depending on the nature and seriousness of the case. While this system may seem overly complex, many state systems are much more elaborate and convoluted. Students who are interested in learning about the state court system in their jurisdiction should consult their state government website for additional information.
THE COURT PROCESS
There are two distinct types of actions or lawsuits available in the United States: civil actions and criminal actions. The rules for each, the responsibilities of the court, and the rights of defendants differ considerably in both types. In addition, the outcomes can differ greatly. Some readers will remember or have heard of the O. J. Simpson trials, in which a famous ex-NFL football star was accused of killing his ex-wife and her companion. In his first trial, a criminal trial, O. J. Simpson was acquitted of the double murder. However, in his second trial, the civil trial, he was found liable for wrongful death and ordered to pay $33.5 million in damages.
Criminal Process
In a criminal action, the federal or state government prosecutes, in the name of the people, a defendant charged with violating a criminal law. In most criminal cases in the United States, there exists a presumption of innocence. That is, the defendant is presumed innocent unless proven guilty. The burden of proof lies with the prosecution and the level of proof, or the standard of proof, required is “beyond a reasonable doubt.” That is, the prosecutor must convince the court that the criminal charge in the given case is true “beyond a reasonable doubt.”
The standard of proof is high in part because of the gravity of the potential outcomes in a criminal action. The penalties available are usually set out in the relevant criminal statute and they typically include a range of fines or prison time a court can impose for a given offense. In general, more severe penalties are imposed for more serious offenses and in some jurisdictions on repeat offenders.
Defendants in criminal actions are afforded a number of rights some of which are set out and protected by the U.S. Constitution. Among these rights are: the right to be free from unreasonable searches and seizures (Fourth Amendment), the right against self-incrimination (Fifth Amendment), and the right to a speedy trial (Sixth Amendment). In addition to these rights, a criminal defendant is also afforded the right to counsel. If a criminal defendant in federal and state court cannot afford an attorney, the court will appoint one, most often the public defender. Finally, if a criminal defendant is acquitted, the prosecution’s right to appeal is virtually nonexistent.
Civil Process
Civil actions involve two or more private parties where at least one party alleges a violation of a statute or some provision of the common law. Cases involving breaches of contracts or injuries that are the result of negligence (i.e., tort law, which allows an injured individual to recover damages from someone who is responsible or liable for those injuries) are both examples of civil cases. The party initiating the lawsuit is the plaintiff while the party answering to the lawsuit is the defendant.
The standard of proof in civil trials is generally on the “balance of probabilities,” also known as the “preponderance of evidence.” This standard of proof is much lower than “beyond a reasonable doubt” and will usually be met if there is more than a 50% chance that the allegations are true or more simply, if it is more probable than not.
The many rights afforded to criminal defendants are not necessarily provided to the defendant in a civil trial. For example, in civil cases, the defendant does not have a right to counsel and is not protected against self-incrimination. For example, while O. J. Simpson was not required to testify in his criminal trial, he was required to testify at his civil trial. Many believe that his testimony coupled with the lower standard of proof accounts for the finding of liability in the wrongful death suit as opposed to the acquittal in his criminal trial.
Judges and Juries
In many civil and criminal cases, defendants are afforded the option of having their case heard before a judge alone or a judge and jury. If the defendant elects to have the case heard before a judge alone, the judge will be the arbiter of both the law and of the facts. That is, the judge decides both matters of law (e.g., which evidence to allow, how motions should be decided) and the facts of the case (e.g., decides which parties to believe, what actually transpired). The judge, therefore, decides whether the prosecution or the plaintiff has met the burden of proof and ultimately whether the defendant should be found guilty or liable. In judge and jury trials, the judge decides matters of law while the jury hears the evidence and reaches a decision about guilt or liability. Juries are made up of lay people, often referred to as a jury of one’s peers. The jury is selected at random through a predefined procedure. In order to be eligible for jury duty, you must be at least 18 years of age, be a U.S. citizen, and have no felony convictions. Based on the facts presented at trial including the testimony of witnesses and the presentation of documents and on expert witnesses and legal arguments, the jury decides on the liability or guilt of a defendant. In coming to their decision, the jury must apply legal principles as explained by the judge. For example, a jury in a criminal trial must in making their decision apply the “beyond a reasonable doubt” standard of proof. Jury decision making is described in more detail in Chapter 7.
DIFFERENCES BETWEEN PSYCHOLOGY AND LAW
One of the difficulties faced by those in forensic psychology centers on how the two disciplines fundamentally approach their respective fields. Psychology is grounded in theory and empirical research which is used to test those theories. New research can provide evidence to support or invalidate prior research. A substantial amount of psychological research focuses on the differences between groups of individuals. The legal system, on the other hand, is ultimately concerned with the individual case. Court decisions are based on precedence, that is, what prior courts have decided in similar fact cases. There are two basic models of justice in Western societies. One is an inquisitorial model, which is used in a number of European countries (e.g., France, Switzerland). In this model, a judge or magistrate takes an active role in determining the facts of a case. U.S. law is based on an adversarial model of justice. In this model, a judge is considered to be an impartial referee between parties. There are two opposing sides, the defense and the prosecution. Each side is given the opportunity to present its version of the case. Once both sides present the evidence, the judge or jury acts as an impartial and passive fact finder, reaching a decision based in theory on an objective and unbiased review of the evidence presented in court. As discussed in Chapter 7, the ideal of a dispassionate trier of fact may not always be realized, as values and other factors may influence the decisions of judges or juries.
The adversarial system presents unique difficulties for psychologists. Psychologists are often hired by one side or the other in a criminal case or civil dispute to conduct a psychological evaluation of an individual. These evaluations may focus on such issues as competency to stand trial, the psychological impact of an assault, or risk for future violence. The individual being evaluated may perceive a psychologist as an opponent rather than an objective evaluator, and this may influence how he or she responds to the evaluator (Bush, Connell, & Denney, 2006). The adversarial nature of the legal system may also place pressure on psychologists because attorneys are primarily focused on being an advocate for their client and may attempt to influence the evaluation report. As discussed in Chapter 12, the psychologist’s ethical guidelines mandate that psychologists do not take sides, but rather perform an independent evaluation.
Haney (1980) has discussed many of the conflicts that arise between law and forensic psychology:
Academic psychology emphasizes creative, novel, and innovativeapproaches to research questions. As Haney notes, researchers are encouraged to go beyond standard or accepted categories, and to extend them into new areas. The profession highly values the “‘creative aspect’ of its science … in hypothesis generating, methodological design, and the interpretation of data” (p. 159). The legal system, on the other hand, is more conservative in nature, and resists innovation. It operates on the principle of
stare decisis
in which prior court decisions establish precedence for current cases. Prior decisions should not be overturned unless there are strong legal reasons to do so. Haney comments that “a truly unique idea or argument is likely to lose in court” (p. 159) and adds that “the law is explicitly backward looking in its style and method” (p. 160).
Psychology is primarily an empirical enterprise “whose principles and propositions depend for their confirmation upon the collection of consistent and supporting data” (p. 160). The legal system in contrast is based on a hierarchical and authoritative system in which the lower courts are bound by decisions of higher courts.
Psychology attempts to arrive at “truth” through the application of an experimental model, in which empirical research is designed to test hypotheses. Research methodologies are designed to minimize error or bias. New research can provide evidence to support or disconfirm prior research. The law uses an adversarial system to arrive at “truth.” Each side presents its version of the case and the ultimate goal is to win a case. As Haney comments, “bias and self-interest are not only permitted, they are assumed at the outset and thought to be the very strength and motive force of the procedure” (p. 162).
Psychology is descriptive in nature, with a goal of describing behavior as it naturally occurs. The law is prescriptive, in that laws are designed to tell people how they should behave, and what punishment will be given if they do not.
Psychology is nomothetic (in which data are obtained through the investigation of groups) in nature, “concentrating upon general principles, relationships, and patterns that transcend the single instance. For the most part, it eschews case studies and principles generated from single cases” (Haney, 1980, p. 164). The law is ideographic (in which data are obtained through the investigation of one individual, usually the individual under consideration), in that it focuses on decisions in an individual case, with the facts of each case forming the basis for the decision. This difference often creates a conflict for experts who testify because the empirical basis for the testimony may lie in group data. For example, laboratory research on the reliability of eyewitnesses report high error rates in certain conditions, but there is considerable individual variation. Some individuals are accurate even if the majority may not be. This presents a problem for court testimony because the court wants to know whether a single individual is accurate. Psychology’s group data cannot be used to reach an opinion that a specific individual is not reliable.
Psychology research is based on methods relying on probabilistic models. Psychologists characterize the relationship between cause and effect using statistics and the tools of probability theory. Hypotheses are tested with the express acknowledgment that there is always a chance of reaching the wrong conclusions. For example, choosing a probability level of 95% for a particular analysis means that there is a 5% chance that the null hypothesis will be rejected when it was actually correct. Thus, psychological research is based on the principle of probability rather than certainty. The law, in contrast, operates on a principle of certainty, in large part because the legal system demands a final definitive outcome. Criminal defendants are either guilty or not guilty. Plaintiffs in civil cases are either negligent or not. Of course, these “certain” decisions can be wrong, as shown in the many cases of convicted defendants who were later exonerated by DNA evidence.
Psychology is a proactive discipline. Researchers decide what hypotheses to address, and then design studies to test those hypotheses. The law is reactive, in that it waits until issues (or people) are brought to it.
Psychology is an academic enterprise, at least in terms of its research. As Haney comments, “Its ‘issues’ are commonly determined by the intellectual curiosities of psychologists and the practical reality of having to publish in order to prosper. For this reason, its concerns can and often do get far out of contact with the ‘real world’” (p. 167). The law is operational and applied in nature, “its concerns are those of the real world and its problem solving is geared to application” (p. 168).
Haney’s Taxonomy
Haney (1980) conceptualized the complexity and diversity of roles for psychologists in the legal system. He has suggested a threefold taxonomy to understand the multiple relationships of psychology and law: psychology in the law, psychology and law, and psychology of law.
Psychology in the law
