FORENSIC PSYCHOLOGY:Qualification, Testifying, Cross Examination, Criminal Cases

<< METHODS OF NEUROLOGICAL ASSESSMENT:Level Of Performance, Pattern Analysis

PEDIATRIC AND CHILD PSYCHOLOGY: HISTORY AND PERSPECTIVE >>

Clinical Psychology (PSY401)

Lecture 43

FORENSIC PSYCHOLOGY

Because clinical psychologists are said to be "experts" in human behavior, it is not surprising that some of

them would begin to specialize in the application of psychological knowledge to the problems that face

judges, attorneys, police officials, and indeed anyone who must face or deal with issues related to civil,

criminal, or administrative justice-victims and violators alike.

This domain of clinical psychology, now called forensic psychology, underwent a highly visible growth

spurt in the 1970s, and it continues to thrive (Melton, Huss, & Tomkins, 1999). It has gained all the

trappings of a significant subspecialty: graduate training programs, professional organizations and boards,

an APA division (Division 41-The American Psychology-Law Society), and journals and textbooks. Many

of these entities are distinctly interdisciplinary and span the fields of both law and psychology. However,

the success and popularity of the field of forensic psychology has also invited some harsh criticism.

Let us begin our description of the field by defining it, briefly tracing its history, and then discussing a few

professional matters.

DEFINITION

Forensic psychology involves "the application of the methods, theories, and concepts of psychology to the

legal system" (Wrightsman, Nietzel, & Fortune, 1998, p. 499). A variety of settings and clients may be

involved, including children as well as adults. All manner of institutions, including corporations.

government agencies, universities, hospitals and clinics, and correctional facilities may be involved as

clients or objects of testimony.

HISTORY

In 1962, judge Bazelon, writing for the majority on the United States Court of Appeals for the District of

Columbia Circuit, held for the first time that psychologists who were appropriately qualified could testify in

court as experts on mental disorder (Jenkins v. United States, 1962). Finally, the forensic psychologist was

about to appear on the scene, even though psychiatrists had enjoyed the privilege of providing expert

testimony for many years. Today, psychologists regularly testify as experts in virtually every area of

criminal, civil, family, and administrative law. In addition, they serve as consultants to agencies and indi-

viduals throughout the legal system.

Of course, the foregoing thumbnail sketch of forensic history from Munsterberg to Bazelon leaves out many

details and controversies. Even before Munsterberg, William Stem reported in 1901 that he was studying

the "correctness" of recollection-an early precursor of today's research on eyewitness testimony. And even

Freud, in a 1906 speech to some Austrian judges, claimed that psychology has real applications to the law.

Later, John Watson also asserted that the law and psychology have common interests.

Now, as noted at the outset, forensic psychology has arrived at a point where there are specialists in psycho

legal research, interdisciplinary training programs are commonplace, and numerous specialty books are

being published. The many journals in this area include Law and Human Behavior, Criminal Justice

Journal, Law and Psychology Review, Criminal Justice and Behavior. Behavioral Sciences and the Law,

American Journal of Forensic Psychology, and Psychology, Public Policy, and Law.

MAJOR ACTIVITIES OF FORENSIC PSYCHOLOGISTS

The growth of forensic psychology has thrust the psychologist into many different roles. We will focus on

eight such roles, beginning with the forensic psychologist as expert witness.

1. The Expert Witness

Consider the following scenario:

Ms. Ferris, an employee of the Diego Pan Company, was working at her desk on April28, 1999. Her

supervisor, a Mr. Smith. stopped by her desk. He had a history of telling dirty jokes in her presence,

commenting on her physical attributes, and asking about her dating activities. This day. however, he

explicitly propositioned her and made it clear that if she wanted to advance in the company, and indeed

307

Clinical Psychology (PSY401)

even remain employed, she had better agree to have sexual relations with him. She refused. Two weeks

later, she was fired. Subsequently, she filed sexual harassment charges against Mr. Smith and also sought

damages for emotional suffering.

Dr. Miller, a clinical psychologist, was retained by Ms. Ferris's attorney. He conducted extensive interviews

with Ms. Ferris and several of her coworkers. He also administered several tests. Mr. Wright, a coworker,

had inadvertently overheard the April 28 conversation between Ms. Ferris and her supervisor and had also

previously observed some of the alleged sexual harassment.

During the trial, Mr. Wright served as a witness, testifying to the facts with reference to his own

observations. Dr. Miller testified as to his opinions and inferences about emotional damage that were within

the scope of his training and experience. This illustrates the basic difference between a lay witness and an

expert witness. The former may testify only to events witnessed. The latter may offer opinions and in-

ferences. This goes beyond merely stating a conclusion. The expert witness must help the court understand

and evaluate evidence or determine a fact about an issue.

Qualification:

An expert witness can be anyone who can provide information that, by its uniqueness in relation to some

science, profession, training, or experience, is unlikely to be known to the average juror (Blau, 1998;

Wrightsman et al., 1998). Initially, the court will decide whether the expert witness may, in fact, claim

expert status. Often, in the case of physicians, psychologists, or psychiatrists, a license is taken as evidence

of competence.

But if opposing counsel objects to the witness's claim to be an expert, further evidence will typically be pre-

sented regarding competence. Ultimately, it is up to the judge to decide (Blau, 1998). In general, the bases

of clinical psychological expertise inclued:

(1) education, formal training, and subsequent learning;

(2) relevant experience, including positions held;

(3) research and publications;

(4) knowledge and application of scientific principles and

(5) use of special tests and measurements is (Maloney, 1985).

What is accepted as evidence will vary from jurisdiction to jurisdiction.

Topics for expert testimony:

Experts are not allowed to state opinions that are the legal prerogative of the jury. Thus, an expert may tes-

tify about the manner in which early child abuse might predispose the victim to later be aggressive toward

others, but it is up to the jury to decide whether this is true in a particular case. Therefore, expert witnesses

are prevented from providing "ultimate opinion" testimony (Wrightsman et al., 1998).

Testifying:

Regardless of the topic, testifying in court can be a harrowing experience for the expert witness. Anxiety

and self-doubt are common as the expert is tugged at by attorneys on both sides of the issue. Just as the

neuropsychologist rarely gets the easy cases to diagnose, the behavioral expert in court rarely testifies about

simple matters. Publicity, sensationalism, and the adversarial legal process are companions not calculated to

make the life of the expert witness an easy one.

An important prelude to testifying is pretrial preparation. This can sometimes involve many hours of study,

interviewing, testing, and conferences, depending on the case. The expert may be asked to testify by the

court or by counsel for either a defendant or a plaintiff.

308

Clinical Psychology (PSY401)

Cross Examination:

Consider the following two examples that illustrate what cross-examination can be like:

"Good morning, doctor. I see you are here on behalf of an accused killer (or 'your fellow psychologists')

again. How are you today?"

"Doctor, were you paid to perform your examination? [Yes] How much? [$200 an hour.] How many hours

did you spend in all? [20 hours.], That's $4,000, isn't it, doctor? [Yes] And in your opinion the patient was

insane on the night of January 26, 1975? (Yes) That's all, doctor."

Other, equally provocative questions that have been asked of psychologists serving as expert witnesses

include the following:

"Isn't it true that most of your experiments are done with rats?"

"You are not a real doctor, are you?"

"You can't tell what's going on up here, can you?" (Opposing attorney points to his head.)

Several authors (for example, Blau, 1998; Brodsky, 1991; Schwitzgebel & Schwitzgebel,1980) provide

numerous hints about how the expert witness should behave in the courtroom, even to the point of

appropriate dress. Schwitzgebel and Schwitzgebel (1980) summarize their recommended strategies for

coping with cross examination as follows:

· Be prepared.

· Be honest.

· Admit weaknesses.

· Talk in personally meaningful terms.

· Listen carefully to the wording of questions. Take time to think.

2. Criminal Cases:

For generations, society has grappled with questions of how best to deal with people who have committed

criminal acts but who were so disturbed at the time that it is debatable whether they were personally

responsible. Also difficult are decisions as to whether an accused person is really competent to understand

the trial proceedings and thus to cooperate in his or her own defense:

The Insanity Plea:

If the accused is judged to have been sane at the time of the alleged crime. then conviction will bring with it

imprisonment, fines, or probation. But the individual adjudged insane at the time of the alleged crime will,

if convicted, be regarded as not responsible and thereby held for treatment rather than punishment.

However, despite popular conceptions to the contrary, the insanity plea is seldom successful (Wrightsman

et al.. 1998). The defendant is typically assumed to be responsible.

Thus, an insanity plea places the burden of its proof on the accused. In most states and in the District of

Columbia, the burden of proof is on the defense; the defendant must prove that she or he was insane at the

time of the criminal offense (Ogloff. 1991). It should be noted that insanity is a legal term, not a medical,

psychiatric, or psychological one. The legal system assumes that people make premeditated and rational

choices. Therefore, to behave irrationally is evidence of insanity. But most psychologists would not agree

that all normal behavior is rationally chosen. The deterministic view of science creates problems for such a

simple notion.

So, then, how is it decided that the accused was insane? Although standards vary from state to state, one of

three standards typically prevails. The oldest standard is the M'Naghten rule, promulgated in England in

1843. It states that a successful insanity defense must prove that the person committed the unlawful act

309

Clinical Psychology (PSY401)

while "labouring under such a defect of reason, from disease of the mind, as not to know the nature and

quality of the act he [sic] was doing; or, if he did know it, that he did not know he was doing what was

wrong."

The second standard is the idea of an "irresistible impulse." According to this test, although the person

might have known the moral or legal ramifications of the act, it was impossible for the individual to resist

the impulse-it was irresistible.

The third standard is that the defendant is not responsible for a criminal act if it was the result of mental

disease or defect such that substantial capacity to appreciate the criminality of the act or to conform to the

law was lacking. This is the so-called ALI standard of the American Law Institute. The ALI standard is

viewed as the most liberal or expansive in that criminal responsibility can be excused if mental illness

causes a lack of substantial capacity to understand what one is doing (a cognitive deficit) or an inability to

control one's behavior (a volitional deficit) (Ogloff, 1991).

The famous Hinckley case (attempted assassination of President Reagan) changed the judicial scene in the

United States. Its first impact was to encourage a return to the M'Naghten rule where cognitive factors

rather than volitional ones are paramount. Its second impact is seen in the Supreme Court's ruling that it is

constitutional to automatically and indefinitely confine someone who is acquitted of a crime as the result of

an insanity plea (Simon & Aaronson, 1988). Third, the verdict "guilty but mentally ill" was introduced into

the defense statutes of several states as well as the federal government. Finally, more states began to place

the burden of proving the defendant's insanity on the defense, rather than requiring the prosecution to prove

the defendant's sanity (Ogloff, 1991).

To conduct an evaluation for criminal insanity, the psychologist must address three questions:

(1) Does the person have a mental disorder or defect?

(2) What is the person's present mental status?

(3) What was the person's mental status at the time of the alleged crime? (Maloney, 1985).

In the process, the psychologist will assess many factors, including the defendant's history and that of the

defendant's family, intellectual status, neuropsychological factors, competency to stand trial, reading skills,

personality, and measures of taking or malingering.

Competency To Stand Trial:

For this question, the issue is the defendant's state of mind at the time of the trial, not when the offense was

allegedly committed. A defendant may have been insane when the crime was committed but later be

competent to stand trial. The reverse is also possible. In fact, issues of competency to stand trial are raised

much more often than the insanity defense. In answering questions of competency, three basic issues

commonly come to the fore (Maloney, 1985):

(1) Can the person appreciate the nature of the charges, and can that person report factually on his or her

behavior at the time of the alleged crime?

(2) Can the person cooperate in a reasonable way with counsel?

(3) Can the person appreciate the proceedings of the court? In most instances, the evaluation factors noted

in the previous paragraph will apply here as well.

3. Civil Cases:

A very large number of civil issues engage the attention of forensic psychologists, running the gamut from

trademark litigation to lass action suits. Two areas that are especially important for clinical psychologists

are

(1) commitment to and release from mental institutions and

(2) domestic issues such as child custody disputes. Let us focus on these areas as examples of activity in the

civil arena.

310

Clinical Psychology (PSY401)

Commitment To Mental Institutions:

Picture this scenario. Not too long ago, a disheveled man in his late 30s entered a restaurant and began ha-

ranguing customers as they approached the cashier to pay their checks. He was incoherent, but it was

possible to pick out the obscenities and references to God that peppered his remarks. He did this for about

five minutes, whereupon the manager appeared and unceremoniously escorted him to the door. Outside, he

continued his tirade while pacing back and forth before the door. He repeatedly accosted customers and

tried to make them listen to him. The manager finally called the police. After a brief interrogation, they

"helped" him into the patrol car and subsequently deposited him in the emergency ward of the local

psychiatric hospital.

This and related scenarios are repeated thousands of times, day after day, across the nation. After an

examination (sometimes a rather cursory one), the individual may be involuntarily detained for hours or

days, depending on particular state laws. But in a few states, even emergency detentions require judicial

consent. Hospitalization that occurs against the will of the individual is referred to as involuntary com-

mitment. Some authors, have argued strenuously that involuntary hospitalization is a dangerous and often

misused power that has been repeatedly exercised by psychiatrists and others to maintain control over those

who will not conform to certain social dictates. The permissible length of involuntary commitment typically

varies from one day to three weeks or so, depending on the jurisdiction. After that, a hearing must be held to

decide whether detention should continue. In a voluntary commitment, the individual agrees to admission

and may leave at any time. Some hospitals require patients to sign a form stating that their leaving is against

medical advice." Others demand that such patients indicate their intention to leave several days in advance.

This enables the hospital to initiate commitment proceedings if the patient is believed to be dangerous to

self or others or so disturbed as not to be responsible. It should be noted that "voluntary" admission is often

not as voluntary as it might appear at first glance. Most often there is strong pressure from relatives, friends,

police, court authorities, or mental health personnel.For the court to commit someone, a hearing must be

held to determine whether the person involved meets the criteria laid out by law and whether treatment will

be helpful. Most often these criteria refer to a person who (1) is dangerous to self or others, (2) is so

disturbed or disabled as to be incapable of making responsible decisions about self-care and hospitalization,

(3) requires treatment or care in a hospital. An additional criterion is that no less restrictive al-

ternative (other than hospitalization) is available or feasible. But above all, the person must be determined

to be mentally ill.

4. Domestic Issues:

Many domestic issues these days require intervention by the courts. Child custody, parental fitness,

visitation rights, child abuse, juvenile misbehavior, and adoption are but a few of these issues. As an

example, we will discuss the issue of child custody. Because divorce has become so prevalent in our society

in recent years, it is only natural that problems of child custody have proliferated as well. The fact that

marital roles and norms have likewise changed also complicates matters. Increasingly, fathers have

assumed child care responsibilities and mothers are now commonly employed outside the home. These and

other factors have made custodial questions much more complex than before. Today, the doctrine of the

"best interests of the child" always takes precedence in custody disputes.

5. Predicting Dangerousness

We know that therapists have a duty to protect potential victims from their patients' violent behavior.

Beyond that, many would agree that, by law or moral imperative, we all have the obligation to protect

others from those who are deemed dangerous. But how accurately can psychologists or anyone else actually

predict dangerous behavior? The reality is that to truly protect against those individuals who are dangerous,

we would have to fish with a very large net-a net that would snare large numbers of individuals who would

never actually commit a violent act. After all, the incidence of violence relative to the total population is

quite low so low that in order to protect against the truly dangerous, it would be necessary to confine many

who are not (Rappaport, 1977).

311

Clinical Psychology (PSY401)

6. Consultation

Another common activity of forensic psychologists is consultation. Of course, many of the activities

discussed previously also involve some manner of consultation. In this section, we focus on several

additional aspects of consultation.

Jury Selection:

A consulting psychologist may work with attorneys in the process of jury selection. The legal term voir dire

is used to refer to that part of a trial in which a jury is impaneled. During this phase, attorneys have the

opportunity to discover biases in potential jurors; to obtain information for peremptory challenges (a set

number of challenges allowed each side in a trial to remove jurors thought to be biased against a given

side); to ingratiate themselves with jurors or get them to identify with a given side; or to indoctrinate jurors

so they will be receptive to an attorney's presentation of the case. All this is designed to give an attorney an

edge. The consulting psychologist will work with attorneys to help them in a variety of ways to achieve

better jury selection or deselection.

Witness Preparation:

It would be unethical for the consultant to work with a witness in any way designed to encourage any

alteration in the facts of testimony. Although the line is a very, thin one, the idea of witness preparation is

to hell witnesses present their testimony better, without changing the facts to which their testimony is

directed. Because this is such a delicate matter some consultants will not work with witness in criminal

proceedings-only in civil cases. Nietzel and Dillehay (1986) have discussed many aspects of witness

preparation, including the manner in which facts are presented, associate emotions on the part of the

witness, preparation for the sheer experience of being a witness in a courtroom, cross-examination,

appearance, and threats by the opposing attorney to the credibility of the witness.

Convincing The Jury:

Finally, consultants can often help attorneys in the way they present their cases and evidence (within the

allowable constraints of the judicial system) to jurors. Consultants can assist attorneys in predicting how ju-

rors will respond to certain kinds of evidence or methods of presentation, especially in opening and closing

arguments. In effect, the beliefs, feelings, and behavior of jurors are the targets here. The consultants then

help attorneys find the very best way to present their cases.

312

Table of Contents: