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Forensic psychology is the branch of psychology concerned with the production and application of psychological knowledge and principles within the legal process. Although forensic psychology is a relatively young discipline, psychology and law have been intertwined since the dawn of recorded history. Today there is hardly an area of the law where psychological expert testimony is not being implemented and there can be no doubt that forensic psychology has made significant contributions to the execution of justice. Consequently, the forensic psychologist often serves as an expert witness in court. The activities of forensic psychologists include the assessment of competency to stand trial and criminal responsibility, determining the validity of defenses (such as intoxication, amnesia, dissociative identity disorder, and posttraumatic stress disorder), predicting violent behavior, assessing eyewitness testimony and personal injury, providing testimony on appropriate sentencing, profiling, and contributing to child custody evaluations. The most important forensic assessment procedures are the forensic interview and psychological testing, while forensic hypnosis is also sometimes used. Because reliability is questioned, the polygraph is seldom employed. The status of forensic psychology can be increased by quality research, presenting objective and critical evidence, and realizing that there are areas in which the contribution of forensic psychologists is questionable.
- Historical Background
- Roles of the Forensic Psychologist
- Competency to Stand Trial
- Criminal Responsibility
- Other Defenses
- Prediction of Violent Behavior
- Eyewitness Testimony
- Personal Injury
- Child Custody
- Forensic Assessment
- Psychological Testing
- Forensic Hypnosis
Forensic psychology is the branch of psychology concerned with the production and application of psychological knowledge and principles within the legal process. The term ‘forensic,’ meaning ‘legal’ or ‘judicial,’ is derived from the Latin word forensis, which literally means ‘relating to the forum or market.’ In ancient Rome, a forum was an open square, which served as a market, as well as a place where legal matters were disposed of.
Since both psychology and law are concerned with human behavior, they have been intertwined since the dawn of recorded history (Gudjonsson and Haward, 1998). Indications of interest shown in the law by philosophers, from whose ranks psychology would later develop, are found in the earliest Asian, Egyptian, Greek, and Latin writings. Later Greek philosophers continued to express themselves on practical questions of law and topics that today constitute the subject matter of psychology. For example, Plato (ca. 427–347 BC) in his Republic considered the question whether mentally disordered people were responsible for their behavior (Allan, 1995). However, it took more than 2000 years for psychological knowledge to mature to a level where it was officially allowed in the courtroom for the first time. This happened in 1896 when Albert Von Schrenk- Notzing, student of Wilhelm Wundt who founded the first psychology laboratory in Germany in 1879, testified in a murder trial concerning the effect of pretrial publicity on memory and suggestibility (Blau, 1998). Since then, forensic psychology has made great strides. As we enter the twenty-first century, there is hardly an area of the law where psychological expert testimony is not implemented. Ewing (1985) believes that the modern justice system could not function without significant participation by behavioral scientists such as psychologists.
Roles of the Forensic Psychologist
As both psychology and law essentially cover all aspects of human behavior, it is understandable that the forensic psychologist serves as an expert on a variety of matters including those considered in the following sections.
Competency to Stand Trial
Also known as fitness to plead, competency to stand trial refers to the defendant’s mental capacity to make a proper defense, i.e., to understand the legal proceedings and the charges against him or her.
Contrary to popular opinion, the mere existence of a mental disorder per se does not render an individual incompetent to stand trial. Many mental disorders are of such a nature and intensity that the defendant’s competency is not significantly influenced. The crucial question is whether the mental disorder affects the defendant’s current functional abilities within the context of relevant legal criteria for determining competency (Gudjonsson and Haward, 1998).
As laws and ‘legal cultures’ differ from country to country, it is understandable that statistics concerning competence to stand trial will vary considerably. For example, proportionally speaking, about 100 times more defendants in the USA are found incompetent than in England and Wales. Even within one country, the percentage of defendants found to be incompetent often varies between 1% and 80% across jurisdictions.
It does seem that individuals adjudicated incompetent to stand trial often have certain characteristics in common, such as a history of mental health treatment (especially for schizophrenia and depression), lower intellectual functioning, and a present charge of violent crime.
The evaluation of competency is usually very reliable and the agreement rate between psychologists often exceeds 80%. Next to the traditional assessment techniques, particularly the clinical interview, several competency assessment instruments are also used.
Criminal responsibility (liability/accountability) should not be confused with competency to stand trial. Competency to stand trial is specifically concerned with the defendant’s mental capacity during the legal proceedings. Criminal responsibility, also known as the insanity defense, refers to the time of the alleged offense and more specifically asks the question whether the defendant had the mental capacity to distinguish between right and wrong at the time of the alleged offense and could control his or her conduct accordingly. Should the defendant be found not criminally responsible, he or she rarely goes free. The person is usually referred to a mental health facility where he or she will remain as long as the commitment criteria are met.
The insanity defense is one of the most controversial issues in criminal law. One reason for this are the many misconceptions surrounding this plea. For example, although the public believes (probably as a result of the publicity given to such cases) that the insanity plea is very often entered, such cases are rare: often fewer than 1 in every 1,000 criminal cases. The success rate of the defense varies from country to country and from jurisdiction to jurisdiction, with 25–50% as a broad average.
Most defendants whose insanity pleas are successful are diagnosed with major psychotic disorders and have extensive mental health histories, often accompanied by prior civil commitments or findings of incompetence (Golding et al., 1999).
Insanity evaluations are usually regarded as more complex than competency evaluations. It is, after all, exceedingly difficult to determine what another person was thinking, feeling, and doing at the time of an offense that usually happened weeks, months, or even years earlier (Bartol and Bartol, 1994). However, it seems that specialized training and experience can lead to an agreement rate between mental health professionals of more than 80%. Several measuring instruments have been developed to assist mental health professionals in their assessment of the insanity plea.
Next to competency to stand trial and criminal responsibility, the expertise of psychologists is employed in several other defenses in both criminal and civil cases.
- Intoxication by alcohol or other drugs, because it is self-induced and temporary, is seldom given complete exculpatory effect (Melton et al., 1997). The major exception is when the substance abuse has been prolonged to a point where it has produced a serious mental disorder. However, in most countries voluntary intoxication can be used as a diminished capacity defense claim. In such cases mental health professionals have to produce evidence that the intoxication did indeed affect the defendant’s mental capacity significantly.
- Amnesia (the total or partial loss of memory) at the time of the offense is one of the most common defenses heard in the criminal court, especially concerning violent crimes. It is also one of the most difficult defenses to assess. It is not only difficult to determine the weight that should be given to the claimed amnesia, but also to distinguish between genuine and simulated amnesia. An even more complex task is to determine whether the defendant was really amnesic when committing the crime, or whether he or she only developed the amnesia afterwards. Although psychologists frequently give expert testimony on amnesia, their ability to assist the court with scientific evidence is questioned. Courts are therefore often skeptical about accepting their testimony as a viable defense element.
- Dissociative identity disorder, formerly called multiple personality disorder, is primarily characterized by the presence of two or more distinct personalities that in turn take control of the person’s behavior (American Psychiatric Association, 1994). However, the disorder is highly controversial and sometimes called the ‘UFO of mental health.’ Many mental health professionals believe that the disorder does not exist and amounts to no more than role playing. Although screening instruments and structural interviews have been developed and hypnosis is used to diagnose dissociative identity disorder, experts admit that it is very difficult to distinguish between real cases and malingering (Alloy et al., 1999). It is therefore understandable that legal professionals tend to be very cautious about making use of this defense. However, in rare cases in several countries, dissociative identity disorder has been accepted as a defense, ranging from an insanity plea to extenuating circumstances.
- Post-traumatic stress disorder (PTSD) is characterized by intensely distressing symptoms (e.g., irritability and sleeplessness) caused by exposure to a traumatic event such as rape, death, combat, accident, and even harassment and difficult work conditions. PTSD can therefore be a factor in both criminal and civil cases. However, establishing the existence of PTSD poses several difficulties for the forensic psychologist. For example, the validity of the diagnoses is often questioned. Although psychological measuring instruments and techniques to assess PTSD are available, they are usually based on self-report. The result is that malingering cannot be ruled out easily.
Prediction of Violent Behavior
As one of the primary duties of the court is to protect society, assessing the offender’s potential for future violence often forms an integral part of the judicial process. This is especially true if the offender is charged with a violent crime. Determining the propensity for future violence is therefore an important part of the forensic psychologist’s functions. However, the role of the mental health professional in violence prediction is controversial. The main reason for this is that past research showed that mental health professionals have a bad track record when it comes to predicting the probability of a person committing future violence, and even more so when it comes to predicting the type and severity of such potential violence. As such, professionals can pay a heavy social, professional, and legal price for failing to predict violent behavior, they tend to ‘play it safe’ and therefore often overpredict. The result is that research has shown that more than 50% of persons predicted likely to commit future violence, do not do so.
Ongoing research in this field is fortunately beginning to bear fruit. For example, several variables have been identified which can be regarded as risk factors for violence, e.g., a history of violence, substance abuse, symptoms of a psychosis or antisocial personality disorder (psychopathy), weapon availability, early onset of violent behavior, and absence of social support. Measuring instruments to assist psychologists have also been developed.
‘It is … inevitable that what a witness says in court will be a subjective and incomplete version of ‘the truth’ interspersed with small portions of fiction.’ Although most psychologists will agree with this statement by Ainsworth (1998, p. 3), the testimony of an eyewitness still remains a very important part of evidence presented in both criminal and civil cases. However, as a result of a rapidly growing data bank in this widely researched area, especially in the 1980s and 1990s, the courts are currently examining some of their assumptions about the reliability and thus the value of eyewitness testimony. It is therefore understandable that courts increasingly rely on psychologists to provide expert testimony in this regard.
The following are some of the more important research findings that have been used in court by psychologists: (a) eyewitnesses tend to be less accurate in stressful situations; (b) people experience difficulty making cross-racial identifications; (c) eyewitnesses focus on weapons rather than faces; (d) memory decay starts immediately after a perception; (e) memory gaps are often and easily replaced by unconscious fabrication or by external suggestions; (f) there is not necessarily a correlation between the degree of certainty evinced by the eyewitness and accuracy (Melton et al., 1997); and (g) although younger children are often more suggestible and remember less detail than older children and adults, they do not necessarily have poorer memories (Saywitz and Goodman, 1996).
The world is progressively becoming a litigious society in which monetary compensation is sought for almost any maloccurrence (Tsushima and Anderson, 1996). As many such claims involve ‘psychological pain and suffering,’ psychologists are increasingly becoming involved in so-called mental injury cases. Although determining the presence and cause of mental injury constitutes the bulk of psychologists’ work in this field, they are also involved in injury claims of a more physical nature, e.g., to assess brain damage or determine the psychological effect of losing a limb.
To assess whether the plaintiff does indeed suffer from a mental injury is not always easy. First, it has to be proved that there is a causal relationship between the specific incident and the plaintiffs symptoms, i.e., that the symptoms did not already exist before the incident or were not caused by other factors after the accident. Second, as possible financial remuneration is involved, plaintiffs often tend to exaggerate or even fake their symptoms. No foolproof method to determine such relationships and distinctions is available. However, by using the most objective, valid, and reliable tests appropriate to the complaints, conducting thorough interviews, and carefully recording case notes and test reports, psychologists can make a valuable contribution towards clarifying the extent to which psychological factors may be involved in personal injury cases (Butcher and Miller, 1999).
If a defendant is found guilty of the charge against him or her, the court has to impose an appropriate punishment. In most countries the aim of such punishment consists of a combination or all of the following: deterrence, retribution, prevention, and rehabilitation. Since these goals have a strong psychological element and psychologists are supposed to be well equipped to provide the court with a psychological profile of the defendant, they often testify in this regard. For example, the psychologist can provide the court with information concerning the defendant’s potential for future violence, the sincerity of the repentance shown, the possibility of rehabilitation, a variety of mitigating factors, and the effect of different sentences on the defendant as a unique individual.
Although there seems to be a high correlation between psychologists’ recommendations and the final sentencing decision of the courts, it remains an open question as to what extent the courts do indeed take the testimony of the psychologist into account or merely use it to ‘scientifically’ justify decisions they have already made (Melton et al., 1997).
Criminal profiling refers to the process in which the nature of a crime is used to make inferences about the personality and other characteristics of the likely offender.
The sensational and dramatic elements of profiling portrayed in various well-known movies, television series, and books (usually those depicting a serial killer) seem to be in sharp contrast with reality. Profiling is not widely accepted in the psychological and legal community, and some courts have even ruled profiling testimony inadmissible. There are two main reasons for this (Gudjonsson and Haward, 1998). First, a criminal profile only gives a broad indication of the type of person who may have committed the crime. It does not indicate a specific individual who happens to fit the profile. The profiler is therefore unable to say whether it is more probable than not that a specific offender did, in fact, commit the crime. Second, there is no scientific evidence to support the reliability and validity of criminal profiling in solving crimes. Indeed, it seems that when profiling does assist the police in solving a case or in opening up new lines of inquiry, it is the exception rather than the rule.
On the other hand, it cannot be denied that criminal profiling has proven helpful in some, albeit exceptional, cases. However, much more research needs to be done before criminal profiling will earn its place as a valuable forensic tool.
A variation of profiling that has evoked some interest in the news media is psychological autopsy, which comprises the compilation of a psychological profile of especially well-known deceased individuals. It is also used in suicide cases, for example, to determine whether the deceased could indeed have committed suicide. However, as in the case of criminal profiling, its reliability and validity are also questioned.
With the worldwide increase in divorce rates and the resulting child custody battles between divorcing parents, mental health professionals have come to play an increasingly important role in such disputes.
Two principles play a major role in courts’ decisions in child custody cases: the tender-years principle and the best-interest-of-the-child principle. The tender-years principle reflects the traditional belief that the mother is inherently better equipped to care for children of a ‘tender age’ (which particularly refers to children around or under the age of seven). However, several factors have led to the questioning and even abolishment of this principle in some courts. For example, research has shown that fathers and mothers are equally capable of fulfilling the psychological and other needs of children in their ‘tender years.’ The principle is also seen as a violation of equal gender rights. Most courts base their decisions in child custody cases on the best-interest-of-the-child principle, which involves criteria such as (a) the love, affection, and other emotional ties between parent and child, as well as between the child and his or her siblings or any other significant person; (b) the ability of the parent to provide for the child’s psychological, educational, cultural, and environmental development; (c) the ability of the parent to provide the basic physical needs of the child, e.g., food, clothing, and housing; (d) the mental and physical health and moral fitness of the parent; and (e) the child’s preference as to his or her custodian. However, this principle has also come under fire from critics who, for example, claim that many of the criteria are vague, difficult to assess, and open to subjective interpretation.
Assessment in child custody disputes usually includes interviewing the parents and children, as well as any other third-party source that may provide valuable information, observation of the interaction between especially parents and child, and the use of traditional psychological and specialized tests. However, the interview is usually recommended as the best method. The reasons are the following. The observation technique is regarded as artificial and thus unreliable (the individuals know that they are being observed). The traditional psychological tests are often irrelevant (e.g., there is no correlation between good parenthood and IQ). The specialized tests are also not very reliable and valid. It is generally accepted that a psychologist, acting according to professional guidelines, can make a valuable and often decisive contribution in child custody cases.
Forensic assessment refers to the procedures, methods, and techniques that psychologists use to gather information in order to assist the court in coming to a final decision. The nature of the assessment will depend on the theoretical orientation, training, experience, and preference of the psychologist, as well as the nature of the specific case. Usually a combination of procedures, methods, and techniques are used.
The forensic interview can be considered the central element of the assessment process. The interview can be structured (the questions being determined and systematized in advance), unstructured (the interview being allowed to develop spontaneously), or a combination of the two. The forensic interview is much more than just an ‘ordinary’ interview. It is a scientific method for gathering information and requires specialized training and experience. As mentioned, it is usually necessary to interview not only the specific individual, but also family members, friends, and other third-party sources. Such collateral information may be helpful not only in acquiring a broader picture, but also in determining the reliability of the information provided by the different sources.
In addition to this basic assessment method, several others are employed, and examples are given below.
Virtually all forensic psychologists incorporate psychological tests in their assessment armament. Psychological test results can be powerfully persuasive instruments because of society’s long-standing high regard and respect for these measuring instruments (Tsushima and Anderson, 1996). Many courts also seem to expect that such tests will be used.
However, it has also become clear that psychological tests have not always conformed to the high qualities attributed to them. Not only are the reliability and validity of many of the tests used by psychologists generally disputed, but also they have not been developed specifically for forensic issues. The result is that their usefulness in forensic settings is questioned. Attempts to develop specialized forensic assessment instruments have also not yet been very successful, mainly owing to psychometric flaws. Another problem especially encountered in underdeveloped and developing countries is that tests are used on groups for which they have not been developed. An example is the worldwide use of various American tests developed for the US population on groups for which they were not standardized. Cultural differences cast doubt on the reliability of such results.
On the other hand, can there be little doubt that, in the hands of a well-trained and experienced examiner who is well aware of the pitfalls, psychological tests can be very valuable tools and can provide valuable information.
There are few topics in psychology more shrouded in mystery and misconception than hypnosis. Mainly responsible for this is the sensational representation of this technique by the movie industry, news media, and stage hypnotists. Even in the scientific world controversy surrounds the hypnosis phenomenon, with some regarding it as a valuable tool in many areas, while others do not believe in the existence of such a state, and mainly contribute it to suggestion and role-playing.
The primary use of forensic hypnosis centers on enhancing the memory of a witness, victim, or even defendant, especially with a view to helping him or her remember forgotten or vague details of a crime. Most research shows that, compared with people who have not been hypnotized, people under hypnosis tend to recall more detail about an event. They also usually feel confident that their recollections are correct. However, their stories contain a great deal of inaccurate information, even more so than in the case of nonhypnotized subjects. It is generally accepted that forensic hypnosis is seldom more efficient in improving memory than any other standard psychoforensic procedure. Courts therefore hesitate to accept testimony acquired through hypnosis. In some countries such testimony is even inadmissible. Others do allow it, but usually only if certain safeguards and guidelines are applied. It is therefore important than forensic psychologists meet these preconditions if they wish to employ this controversial forensic tool.
The polygraph, also called ‘lie detector,’ is an apparatus that measures physiological variables such as heart rate, blood pressure, and respiration rate. Polygraphers believe that when people are asked threatening questions to which they respond by lying, physiological changes will occur which will show up on the polygraph record. This makes the polygraph a potentially valuable forensic tool.
Unfortunately, the validity of the polygraph leaves much to be desired. Polygraph results seem to be wrong in at least 30% of all cases. This concerns innocent people who are wrongly accused, as well as guilty persons who plead innocence. For this reason, most courts do not admit evidence based on polygraph results, or admit it only if it adheres to certain stipulations (e.g., that all parties agree to the test before it is administered).
Ironically, it seems that one of the polygraph’s biggest strengths lies in people’s belief that it is reliable. It seems that about 30% of suspects confess after they have failed a polygraph test (Memon et al., 1998). However, it does not necessarily mean that these suspects had been lying. It could also be that innocent suspects tend to confess because, having failed the test, they see little possibility of convincing the court of their innocence thereafter. By confessing they hope to get a lighter sentence.
Only a few decades ago the relationship between psychology and law was compared to an unhappy marriage. In the twenty-first century, it is rather regarded as a ‘normal’ marriage with its ups and downs, but definitely not heading for a divorce. There can be no doubt that both professions find the interaction and collaboration enriching.
However, in order to make full use of this interdependent relationship, much more needs to be done. The key lies in research, aimed not only at developing new procedures, methods, and techniques, but also at determining weaknesses in the general professional approach of forensic psychologists. Forensic psychologists should especially try to move away from the ‘hired guns’ stigma attached to them. This can only be achieved by telling ‘the truth and nothing but the truth.’ This principle can be best served by presenting objective and critical both-sides-of-the-story evidence without subjectively favoring one party. The saying, ‘It is not a question whether forensic psychology is good, but what it is good at,’ should also serve as a principle guideline for acknowledging that there are areas where little or no contribution can made and sticking to those areas where it is clear that psychologists are held in high esteem by courts. With such an approach and quality research, there can be no doubt that forensic psychology will flourish in the future.
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