CHAPTER 1: INTRODUCTION TO FORENSIC PSYCHOLOGY

Forensic psychology is a dynamic field that provides challenging opportunities for the application of psychological research and practice to legal issues. This textbook provides a broad overview of the roles of psychologists in their work with police, the courts, jails and prisons, forensic hospitals, and juvenile facilities. In this opening chapter, we will define the field of forensic psychology, and describe contributions psychologists make as trial consultants, expert witnesses, evaluators, treatment providers, and researchers. While we are strongly positive about these contributions, we also recognize that conflicts may arise when the two disciplines of law and psychology attempt to interact on legal issues that have a psychological component. These conflicts are highlighted in this chapter but also addressed throughout this book. We conclude this chapter with a discussion of the education and training needed for those desiring to pursue a career in forensic psychology.

1.1 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. 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 counselling 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. Forensic psychologists can work both within and outside the legal system. Some psychologists provide services directly to the court by assessing such issues 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 behaviour 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). Haney’s comment still rings true today, over three decades later.

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, offer broad descriptions that attempt to encompass all of the backgrounds and roles mentioned here, distinguishing the research and practice contributions. Others, such as those used by the American Psychological Association or the Specialty Guidelines for Forensic Psychologists, 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 were the subject of Professor Jack Brigham’s 1999 presidential address to the American Psychology-Law Society. He posed the question, “What is forensic psychology, anyway?” His answer reflects the distinctions between 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 at the City University of New York (CUNY), which has MA and PhD programs in forensic psychology, is one example. The core curriculum in the clinical doctoral program is clinically focused; the broader definition is apparent in nonclinical elective courses in the program and in an interdisciplinary concentration in psychology and law, as well as an experimental doctoral program, both available to CUNY psychology doctoral students who are interested in forensic psychology but whose interests do not require clinical training. We have adopted a broad definition for this book.

1.2 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 20th 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.

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 from 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 libelling 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 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 would be ready for psychologists when psychologists were 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 a brief, in the case of Muller v. Oregon (1908), 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. In the United States, they are also referred to as amicus curiae (friend of the court) briefs (Roesch, Golding, Hans, & Reppucci, 1991). Insight 1.1 provides an example of a brief introduced in a British Columbia Supreme Court case. Professional associations may also provide summaries of relevant research to legislative bodies. For example, the Canadian Psychological Association (CPA) submitted a report to the Senate Standing Committee on Legal and Constitutional Affairs, which was considering changes to the Canadian Criminal Code. The report of a special task force of forensic and correctional psychologists summarized research into the determinants of criminal behaviour and “what works” in the treatment of offenders (Canadian Psychological Association, 2011; see also Cook & Roesch, 2012).

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 research on memory to the accounts of observers of events. In an article published in 1909, Whipple set the stage for later laboratory research on witness behaviour. 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)

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. (Ziskin, 1968, p. 1)

1.3 Roles and Responsibilities of the Forensic Psychologist

Forensic psychologists may take on many roles. Examination of the student and early career section of the website for the American Psychology-Law Society (www.ap-ls.org) indicates that there is no one particular path to becoming a forensic psychologist, and that forensic psychologists may be employed in a wide variety of settings. In addition, the roles and responsibilities of the forensic psychologist are many and varied. In general, forensic psychologists take on one primary role but may engage in additional roles depending on their interests and training. The various roles include, but are not limited to, trial consultant, expert witness, evaluator, treatment provider, researcher, academic, and correctional psychologist. Of course, it is possible (in fact, common) for an individual to take on more than one of these roles or to take on additional roles not mentioned here.

The Trial Consultant

A trial consultant (or jury consultant) is someone who works with legal professionals, mainly attorneys, to assist in various aspects of case preparation, including development of case strategy and witness preparation. In the United States, they may also be involved in jury selection. As discussed in Chapter 11, the jury system in Canada is such that jury consultants have limited ability to provide useable information for the process of jury selection. Many trial consultants rely on their research training to develop and execute research that will assist attorneys in preparing a case. Research and data collection strategies might include community surveys, focus groups, jury simulations, shadow juries, and mock trials. Trial consultants may be involved in both civil and criminal cases and may assist at any (or all) stage(s) of the proceedings—in preparation for trial, during trial, or after trial. There is no one avenue to becoming a trial consultant; however, trial consultants usually have advanced degrees in one of the behavioural sciences, such as psychology or criminology. There are many trial consulting firms across North America that employ individuals in this role; however, it is also possible to maintain a private practice as a trial consultant without working for a trial consulting firm.

The Expert Witness

An expert witness is someone who testifies in court about opinions based on specialized knowledge that he or she possesses. Forensic psychologists are often called upon to testify regarding matters of mental health (in the case of a clinical forensic psychologist) or general theory and research in psychology and law. Generally, clinical forensic psychologists are involved as expert witnesses after they have evaluated a defendant and thus are called to testify about that defendant’s mental state and how it relates to the legal issue at hand (e.g., insanity, competency, dangerousness, civil commitment). It is possible, however, for forensic psychologists to serve as general expert witnesses, in which case, instead of giving testimony on specialized knowledge about a particular defendant/complainant, they may be called to testify regarding broader psychological principles in which they have specialized knowledge or expertise. This role is usually performed in conjunction with another role, such as that of researcher, academic, or evaluator, and thus is generally not the only (or even the primary) role in which a forensic psychologist engages. Forensic psychologists in the expert witness role may participate in both criminal and civil proceedings and are usually trained either in general psychology or in a particular psychological specialty, such as clinical psychology.

The Evaluator

Many forensic psychologists take the role of evaluators. In general, this refers to the evaluation of criminal defendants or parties to civil litigation with respect to mental health issues that relate to the legal issue at hand; however, this may also refer to the evaluation of service delivery or treatment programs. In the criminal realm, forensic psychologists may be called upon to evaluate defendants with respect to their fitness to stand trial, their mental state at the time of the offence (e.g., insanity), their risk for future dangerousness, or other such issues (but see the discussion later in this chapter, in the section on licensure, on the restricted role of psychologists in Canada with respect to evaluating fitness and criminal responsibility). In the United States, psychologists have been involved in death penalty litigation regarding evaluations of a death row inmate’s competency to participate in appeals or competency to be executed (Brodsky, Zapf, & Boccaccini, 2005). Psychologists do not deal with these issues in Canada, because the death penalty was abolished in 1976. In the civil realm, forensic psychologists may be called upon to evaluate the psychological state of an individual who has been injured in an accident, or they may evaluate families involved in custody and access disputes. The evaluator role usually goes hand in hand with the expert witness role, as many evaluators are called into court to testify about the opinions they formed during their evaluations. Forensic psychologists who take on the role of an evaluator are employed in a wide variety of settings, including forensic hospitals, state psychiatric hospitals, community mental health centres, and private practice. Forensic psychologists who evaluate defendants or parties to civil litigation have usually been trained as clinical psychologists, have some specialization in forensic psychology, and are usually required to be licensed as psychologists. However, licensure is not necessarily required for those psychologists who are involved in research and/or academia.

The Treatment Provider

A treatment providers offer psychological treatment to individuals requiring or desiring these services. Forensic psychologists who take on the role of the treatment provider work in a wide variety of settings, similar to those who take on the evaluator role, including forensic hospitals, psychiatric hospitals, community mental health centres, and private practices. In addition, like evaluators, treatment providers may work with individuals or groups involved in both criminal and civil proceedings. In the criminal realm, treatment providers may be called upon to offer psychological interventions to individuals who the courts have deemed incompetent to stand trial (and who thus require treatment for the restoration of competency), insane at the time of the crime (who require treatment for their mental illness), or at a high risk to commit a violent offence (who require treatment to minimize the likelihood of acting violently in the future), as well as a number of other criminal law-related issues. Within the civil realm, forensic psychologists may be called upon to provide treatment to families who are going through divorce proceedings or individuals who have sustained psychological injuries as a result of some trauma they endured, or for a host of other civil law-related issues. The roles of treatment provider and evaluator may both be performed by the same forensic psychologist, although ethical guidelines (discussed later in this chapter) attempt to limit the chances that both of these roles will be fulfilled with the same client or patient.

The Researcher

Forensic psychologists who take on the role of researcher design and implement research on various issues relevant to forensic psychology or psychology and the law, both criminal and civil. In addition, these professionals may conduct research on mental health law and policy or program evaluation. These professionals may be employed in a number of settings including universities and colleges, but also at research institutes, government or private agencies, and psychiatric hospitals or other mental health agencies.

The Academic

Forensic psychologists who take on the role of the academic are involved in teaching, research, and a host of other education-related activities, such as training and supervision of students. Psychologists who take on this role can be trained either generally in psychology or in one of the specialties such as clinical psychology. In addition, these professionals usually have an advanced degree in psychology, typically a PhD. Academics will often also take on one or more of the aforementioned roles in addition to the role of academic. In general, academics are employed by institutions of higher learning—colleges or universities.

The Correctional Psychologist

A correctional psychologist is a forensic psychologist who works in a correctional setting with inmates and offenders. These psychologists often engage in direct service delivery—both evaluation and treatment—of individuals who have been incarcerated or who are out on probation or parole. Thus, in addition to the roles of evaluator and treatment provider, correctional psychologists may also take on the role of researcher or expert witness.

1.4 Professional Issues

Licensure and Registration of Psychologists

Every province has developed statutory provisions for the practice of psychology, and in every province an individual must be licensed or registered as a psychologist in order to practice psychology independently (without supervision). A doctoral-level degree is required to become licensed as a psychologist in British Columbia, Manitoba, Ontario, and Quebec, while the remaining provinces and territories allow psychologists with either a doctoral or master’s degree to practise. However, the role of forensic psychologists may be limited by either statute or practice. For example, although psychologists in other countries, such as the United States, have for some time been admitted as experts in fitness evaluations, the evaluation of fitness to stand trial in Canada has traditionally been the province of physicians, usually psychiatrists (Viljoen, Roesch, Ogloff, & Zapf, 2003). Criminal Code changes in the past decade have resulted in the possibility that psychologists may conduct assessments of fitness as well as criminal responsibility. Section 672.1 of the Criminal Code now states that these assessments may be done “by a medical practitioner or any other person who has been designated by the Attorney General as being qualified to conduct an assessment of the mental condition of the accused” (emphasis added). So under this provision, psychologists may now be allowed to conduct fitness evaluations if they were so designated by the Provincial Attorney General.

An individual need not be licensed to participate in many of the roles described earlier. It is necessary to be licensed to engage in the role of evaluator, treatment provider, or expert witness (unless the testimony is to be general and not specifically in regard to an individual that the psychologist has evaluated or treated); however, it is possible to engage in the role of trial consultant, researcher, academic, correctional psychologist, and expert witness (for general testimony about psychological theory and research) without being licensed to practice as a psychologist. As a general statement, it is necessary to be licensed as a psychologist whenever one engages in the practice of psychology with an individual or a group of people. The one exception to this is when one engages in the practice of psychology within a correctional setting. In this case, it is possible to practice psychology without a license and it is the correctional institution that retains responsibility for its psychological personnel.

Psychology is a self-regulating profession, which means decisions regarding competence to practice psychology and the conduct expected of psychologists are made by members of the profession as well as members of the public who sit on a regulatory board. The primary purpose of the board is the protection of the public. Each province has a regulatory board that controls the profession of psychology. Practitioners apply to this regulatory board to become licensed, which usually requires that the individual has completed a series of specific courses in psychology, has completed a certain number of hours of supervised clinical contact, and has passed a provincial licensing exam. The board is also responsible for implementing and administering the relevant act or statutes pertaining to the practice of psychology. In each province, the regulatory board is usually responsible for protecting the public from incompetent or unethical psychologists, determining the requirements for becoming licensed as a psychologist, periodically reviewing licensed psychologists’ competence to practise psychology, developing and enforcing codes of ethical and professional conduct to be followed by licensed psychologists, educating and informing the public about the regulation of psychology, and developing and enforcing complaint and disciplinary procedures for complaints involving psychologists.

Ethical Issues in the Various Roles of the Forensic Psychologist

There are a number of ethical issues that psychologists and forensic psychologists deal with on a regular basis. Some of the most common issues include taking on multiple roles and confidentiality, privacy, and privilege.

Many of the ethical issues that psychologists deal with cut across the various roles that they take on. For example, when psychologists interact with students, they may take on the role of researcher, academic, or supervisor. When they interact with clients, they may be involved as a treatment provider or evaluator. Each role carries with it ethical issues, and we will discuss the most common role conflicts next.

A specific set of guidelines has been developed to cover the many unique ethical and professional issues that arise in the context of forensic psychology. The Specialty Guidelines for Forensic Psychology were first published in 1991 and were revised in 2011 (a copy can be accessed at www.ap-ls.org/aboutpsychlaw/ SpecialtyGuidelines.php). These guidelines were endorsed by the American Psychology-Law Society and the American Academy of Forensic Psychology. They provide guidance and information to be considered in attempting to determine the most ethical course of action in 12 different areas, including responsibilities; competence; diligence; relationships; fees; notification, assent, consent, and informed consent; conflicts in practice; privacy, confidentiality, and privilege; methods and procedures; assessment; documentation; and professional and other public communications.

Among other ethical issues, such as taking on multiple roles with a patient or client, psychologists acting in the roles of evaluators and treatment providers must often think about matters related to informed consent, confidentiality, and competence (that is, whether the psychologists are practising within the bounds of their competence). When the evaluator or treatment provider is working within the forensic context, he or she must also grapple with the question of who is the client. In many situations, the client or patient is the person being evaluated or receiving treatment services; however, in the forensic context, it is the attorney or the court who is the client, rather than the person being evaluated or treated. Recall also that, in the forensic context, there is often no confidentiality for the person being evaluated or treated. In addition, there is an assumption that the evaluator or treatment provider will be objective and neutral—not favouring one side over the other, and thus not concealing information that may be favourable to one party to the proceedings but not the other (for example, not concealing how the offender’s previous violent history may increase the risk for future violence, even when the psychologist is retained by the defence to present mitigating testimony at a sentencing hearing). Objectivity and neutrality are, similarly, of concern to psychologists taking on the role of the expert witness. In that role, psychologists are expected to maintain their objectivity and to provide information that will assist the court in making a legal decision; thus, it would be unethical for expert witnesses to agree to be paid on a contingency basis (in which the expert would get paid for services only if the desired outcome is reached in a case).

When psychologists take on the role of researcher, they need to adhere to ethical guidelines regarding the design and implementation of research. Issues of concern in this role include reporting data honestly, obtaining informed consent from research participants, being honest about the risk of harm that may occur as a result of research participation (for example, some research designs may require that the participants are initially deceived, which may cause them to feel duped and perhaps mistrustful), ensuring that research participation is voluntary and not coerced, and ensuring that participants are able to withdraw from participation without any undue consequences. In addition, when the research involves treatment for a psychological problem or condition, the psychologist-researcher must also consider the right of everyone to treatment when designing the research. The role of researcher is often inherent in the role of academic, but a few additional ethical issues arise in this role, including being aware of multiple roles with students, respecting the power differential between the academic and the student, and ensuring that proper credit is given to students and other individuals involved in academic work and publication.

In the role of trial consultant, psychologists must be sure to practice within the bounds of their competence, guard against guaranteeing the outcome of a case, ensure that research is performed on sample sizes large enough to demonstrate any desired effects, honestly report research results or data, and be careful not to taint witnesses during preparation.

Finally, psychologists working within the correctional system also deal with numerous ethical issues on a daily basis, such as confidentiality, informed consent, competence, and identity of the client (that is, in a correctional setting, the institution for which the psychologist works is the client, not the inmate). In addition, correctional psychologists are often put in the awkward position of performing multiple roles every day—consider the psychologist who works with inmates but is also expected to be able to discipline an inmate or even turn a firearm on an inmate in a time of institutional crisis (in the United States, psychologists working in the federal correctional system receive firearms training and are expected to bear arms during institutional upheaval).

These are just some of the ethical issues that arise for psychologists in each of the various roles they may assume. Of course, this list is neither comprehensive nor exhaustive. We now turn to a discussion of two of the most common ethical issues for psychologists in almost any role: multiple roles and confidentiality.

Multiple Roles

Although psychologists may take on many different professional roles, it is important that a psychologist use caution when taking on multiple professional roles with the same client/student/patient. For example, although a psychologist may be a researcher, a clinical supervisor, and a treatment provider, it would be important that the psychologist not engage in each of these roles with the same student. Thus, students may act as research assistants as well as clinical supervisees for a psychologist but should not also receive treatment for their own psychological issues from the same psychologist. The responsibility for ensuring that students not engage with the psychologist in too many roles rests on the psychologist, not on the students. Psychologists must maintain an awareness of the power differential that occurs in certain situations and use caution so as not to exert undue power over the actions of others with whom they interact.

Confidentiality and Privilege

One of the main issues that psychologists deal with every day is confidentiality. That is, psychologists are ethically bound to keep information about their clients confidential. But what happens when the client tells the psychologist something that may end up harming someone else? Or what happens when psychologists believe that their clients are going to hurt themselves or someone else? These are not easy issues to deal with. One way to guard against these situations is for psychologists to tell their clients up front what information might require them to break the client’s confidentiality. Psychologists are legally bound to report certain types of information—such as known or suspected child abuse. It is important that the client know ahead of time the limits on confidentiality.

What about the specific case of the forensic psychologist? Is a forensic psychologist who is retained by the courts to evaluate a defendant’s mental state required to keep this information confidential? The short answer is no. In this case, the purpose of the evaluation is to assist the courts in making a decision about a particular legal issue (e.g., competency to stand trial, or mental state at the time of the offence), so the psychologist is unable to maintain confidentiality of the information obtained from the defendant. It is, however, important that the defendant understand that there is no confidentiality in this situation. In addition, simply because confidentiality does not apply in the forensic context, this does not mean that the forensic psychologist is free to divulge the details of the case to other people not involved in the case. The forensic psychologist must still respect the defendant’s right to privacy and must still act ethically by divulging information about the defendant only to those relevant parties—usually the judge, the defence, and the prosecution.

With issues of confidentiality, as well as with any other ethical issue, there are rarely easy answers—the situation is seldom black and white. The ethical guidelines to which psychologists must adhere provide useful information to help psychologists think through these dilemmas; however, the decisions that psychologists make about these dilemmas are often the product of lengthy discussion with colleagues and painstaking weighing of options. In this respect, the ethical guidelines are invaluable, both to psychologists and to the people and groups with whom psychologists work.

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 and Division 41 of the American Psychological Association. It has an active undergraduate and graduate student membership (see the AP-LS website for student information: 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 and New Zealand Association of Psychiatry, Psychology and the Law (ANZAPPL). AL-LS, EAPL, and ANZAPPL each have an annual conference; they have also 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 2012 AP-LS member database provides an instructive profile of forensic psychologists. As recently as 2006, nearly two thirds of the over 2,100 members and fellows of AP-LS were male, but the 2012 figures show that females now represent about 61 percent of the membership.

The vast majority of members work in applied settings, with less than 20 percent indicating they work in academic institutions. Minorities are underrepresented, as about 10 percent of members are from minority groups. This is in stark contrast to the representation of minorities in the U.S. criminal justice system, where they account for the majority of defendants and prison inmates. Similarly, in Canada, Aboriginal people are overrepresented in the correctional systems of most provinces. While Aboriginal people comprise about 4 percent of Canada’s adult population, approximately 22 percent of offenders serving custodial sentences are of First Nations, Métis, or Inuit ancestry (Office of the Correctional Investigator, 2012). Yet there are only a small number of Aboriginal psychologists in Canada, and few of them work in the correctional system.

Journals

There are many journals that are entirely devoted to the subject of forensic psychology. Law and Human Behavior, the official publication of AP-LS, was the first. It began publication in 1977 as a quarterly journal and expanded to six issues per year in 1990. Several new journals reflect the substantial increases in research and practice that psychology and law has enjoyed over the past 40 years. The list is extensive but includes Behavioral Sciences and the Law; Criminal Behavior and Mental Health; Legal and Criminological Psychology; and Psychology, Public Policy, and Law.

1.5 Differences Between Psychology and Law

One of the difficulties faced by those in forensic psychology stems from the fundamentally different ways practitioners of the disciplines of psychology and law 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 often based on precedence—that is, what prior courts have decided in similar cases. As discussed in more detail in Chapter 2, there are two basic models of justice in Western societies. One is an inquisitorial model that is used in a number of European countries (e.g., France, Switzerland, the Netherlands). In this model, a judge or magistrate takes an active role in determining the facts of a case. Canadian and United States law is based on an adversarial model of justice. In this model, a judge is considered to be an impartial referee between two opposing sides, the defence 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 11, 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 fitness 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 that individual 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. Psychology’s ethical guidelines mandate that psychologists 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 innovative approaches 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 behaviour 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 (i.e., data are obtained through the investigation of groups), “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” (p. 164). The law is idiographic (i.e., data are obtained through the investigation of one individual, usually the individual under consideration), focusing 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 their 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.
• Research in psychology 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 percent for a particular analysis means that there is a 5 percent chance that the null hypothesis will be rejected when it is 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; 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, so “its concerns are those of the real world and its problem solving is geared to application” (p. 168).

We introduce Haney’s sources of tension because they are described in virtually every introductory text on psychology and law, so students should be familiar with them. However, we argue that many of the points of distinction are more rhetorical than real, and they may serve to exacerbate the divide between the disciplines. For the sake of brevity, we will discuss only a couple of points. We simply do not agree that psychology is creative while law is conservative and resists innovation. The very evolution of law rests, in no small part, on the creative arguments of legal professionals, who frame problems differently or apply new law to old problems. Second, we do not believe that the law is only concerned with idiographic data. Certainly, in particular cases, the law must concern itself with the individuals involved in the case; however, the law uses nomothetic data each time it applies a test of reasonableness (e.g., the “reasonable person” or a “reasonable delay” or a “reasonably prudent professional”). Finally, we do not agree that law is based on certainty; in fact, we argue that law is fundamentally probabilistic. The criminal burden of proof is “beyond a reasonable doubt,” and the civil burden is “on a balance of probabilities.” Just as in psychology, when the burden has been met (“beyond a reasonable doubt,” or when we observe a p-value that is less than 0.05), the language changes to expressions of certainty: the accused is guilty or the two groups are different.

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 refers to the “explicit and conventional use of psychology by lawyers in the legal process” (p. 153). This relationship accounts for the most common role of psychologists involved in legal issues, since it encompasses the activities of psychologists who conduct court-ordered evaluations or who consult with lawyers on legal issues. Examples include psychological testimony on legal issues such as the insanity defence or competency to stand trial. It might also address questions such as whether a particular offender is at risk for reoffending. For this type of involvement, psychologists must adapt their knowledge and expertise to the legal questions that the courts or law define. To be admissible in court, psychologists must demonstrate that their evidence is relevant to the legal question. Psychology in the law also refers to the roles that psychologists can play as expert consultants in various aspects of legal proceedings. Lawyers employ psychologists to consult about the selection of jurors or to suggest how jurors might react to certain defence strategies. Psychologists have also been employed to conduct studies of the effect that pretrial publicity may have on a particular case. Such research can be used by lawyers in motions arguing for a change of venue to another community. Haney notes that psychology in the law accounts for the most frequent roles of psychologists in the legal system, and he cautions psychologists to “realize that when they are used by the legal system in this way they have little control over the ends to which their expertise is ultimately applied” (p. 154).

Psychology and law involves the use of “psychological principles to analyze and examine the legal system” (p. 154). Unlike psychology in the law, the relationship of the two disciplines of law and psychology involves “coequal and conjoint use of psychological principles to analyze and examine the legal system” (p. 154). Research that follows from this relationship examines the assumptions that the law makes about behaviour. Examples include research on eyewitness accuracy, coerced and/or false confessions, and judicial decision making. This type of involvement can result in changes in the way in which the legal system operates. The extensive research on police lineups in the past two decades, which demonstrated biases in how suspects were identified by witnesses, formed the basis for recommendations by an AP-LS subcommittee for changes in lineup and photo spread procedures, many of which have been adopted by police throughout the United States (Wells et al., 1998). Other examples of psychology and the law include the study of whether adolescents have the capacity to waive their arrest rights, whether personality characteristics affect the decisions of judges or jurors, and whether the death penalty acts as a deterrent.

Psychology of law involves psychologists studying issues such as why people need the law and why people obey the law. Two major categories fall under this approach to examining psychology’s role: psychologists can study the origins and existence of law, in terms of the psychological functions that law serves, or psychologists can study how laws operate as a determinant of behaviour. Haney recognizes that this approach to law is difficult for psychologists to apply to research, in part because “the unit of analysis—law qua law—is too global and pervasive, and therefore not easily manipulated or systematically varied in ways familiar to psychologists” (p. 156).

Haney notes that the roles and expectations of psychologists are different for each of these three relationships. In the first relationship, psychologists have a more passive role, since the law defines the legal concepts that psychologists are asked to address. The second and third relationships provide more autonomous roles for psychologists in that they can define the legal issues they address. Haney comments that while the majority of psychologists are involved in the law, it is in the other two relationships that psychologists might have the most impact on legal change, through research that examines how the law actually works or studies leading to changes that might improve legal procedures.

Training in Forensic Psychology

When the field of psychology and law began to expand in the 1970s, the majority of psychologists who conducted research or engaged in practice were not specifically trained in psychology and law. This began to change with the creation of the first psychology and law graduate program in the United States at the University of Nebraska in 1973 (Krauss & Sales, 2006). Since then, programs have been established in many other universities in the United States, Canada, Europe, Australia, and elsewhere in the world.

As noted earlier in this chapter, in many provinces and American states, a PhD or PsyD (doctor of psychology) is required for forensic psychology practice. A doctoral degree in clinical psychology is typically based on a combination of training in research and practice, whereas in other areas of psychology (e.g., social, cognitive) a doctoral degree is primarily research based. A PsyD program places greater emphasis on the practice of psychology and less emphasis on independent research. Master’s degrees allow an individual to practice independently as a psychologist in some provinces, or as a psychological associate working under the supervision of a licensed psychologist.

While there are now many graduate programs in which specialized training in forensic psychology is available, a doctoral degree in forensic psychology is not necessary to engage in work in the field. Many, even a majority, of forensic psychologists have training in the traditional areas of psychology and no formal graduate training in forensic psychology. These psychologists have typically participated in workshops and other continuing education programs to keep up to date with the latest advances in psychology and law. The number of forensic psychologists with formal graduate training in forensic psychology has gradually increased in the past 20 years as more programs have been initiated.

Graduate programs offer a number of options for training in forensic psychology (see www.ap-ls.org/education/GraduatePrograms.php for a list of programs). Some adopt the scientist-practitioner model of clinical training, offering basic research and practical training in clinical psychology but with an emphasis on forensic applications. Others focus training on more traditional fields of psychology, such as social, developmental, or other experimental areas of psychology. A few offer joint degree programs, with students obtaining a PhD and a law degree (see Bersoff et al., 1997, for a discussion of models of graduate training in forensic psychology).

Heilbrun (2001) has summarized the approaches to training in forensic psychology (Table 1.2). He conceptualizes the training in a 2 × 3 model, in which research scholarship and applied activities can be taught within three major interest areas: clinical, experimental, and legal.

The model shows that each interest area includes training and experience in research and scholarship but also in the application of psychology to the legal system. Thus, students in clinical programs learn the basic research on assessment and intervention but also how to conduct forensic assessments and provide treatment in the legal context. Experimental students study basic research in memory, perception, and other areas of experimental psychology, but also learn how to apply that research to consultation activities in the legal system, such as jury selection and expert testimony. Students in law schools who also receive some training in behavioural science learn about mental health law and legal movements, but also learn how to apply that knowledge to develop new law or consult about policy and legislative change.

For example, the graduate program at Simon Fraser University (SFU) provides graduate training in all three of these options. The Law and Forensic Psychology program offers two distinct tracks. Graduate students in the Clinical Forensic track meet all the requirements of the clinical psychology doctoral program and take additional courses to specialize in forensic psychology. Graduate students in the Experimental Psychology and Law track meet all the requirements for the experimental doctoral program and take additional courses to develop research and applied policy skills in law and forensic psychology. Due to the overlap of the two areas, students in both tracks will take many of the same courses and will develop similar research skills; however, students in the Clinical Forensic track further develop their clinical training to include forensic training and practice experience. In cooperation with the University of British Columbia, the SFU program also offers students in Law and Forensic Psychology an opportunity to complete both a PhD and a law degree.

Undergraduate students who wish to pursue a career in forensic psychology should be aware that admission to graduate programs in forensic psychology (or psychology more generally) is highly competitive, with most programs admitting fewer than 10 percent of applicants. Students will usually need to major in psychology, have outstanding grades and scores on the Graduate Record Exam (GRE), and have excellent references. Students are advised to obtain as much research experience as possible, working in labs of professors as well as conducting their own research. Volunteer work in forensic psychology settings, such as juvenile detention centres or forensic hospitals, can also be helpful.

Many students inquire about whether a PhD in psychology and a law degree are necessary for engaging in either research or practice in forensic psychology. The short answer is no, but Professor Don Bersoff, one of the founders of joint degree programs, has written eloquently about the potential value of both degrees (see Insight 1.2).

Summary

The involvement of psychologists in the legal system dates back to the early part of the last century, but it has only been in the last 40 or 50 years that psychologists have made substantive and consistent contributions. The practice of forensic psychology has grown dramatically during this period, as witnessed by the creation of professional associations and the publication of journals in psychology and law. We defined forensic psychology as encompassing both sides of the justice system (civil and criminal) as well as two broad aspects of psychology (clinical and experimental). Psychologists have made a range of contributions in both research and practice. This chapter provided numerous examples of the ways in which forensic psychologists contribute to the legal system. We noted that the interaction of psychology and law is not without its difficulties, and we provided an overview of Haney’s model for understanding the differences between psychology and law as a way to explain the reasons for the conflicts that often arise between the two disciplines. Finally, we reviewed training models for students wishing to pursue a career in forensic psychology. It is essential that forensic psychologists understand the legal system, and Chapter 2 presents an overview of how the legal system operates in Canada.

One of the most intriguing things about becoming a psychologist is the ability to participate in many different roles and activities. In this chapter, while we have only touched on some of the various roles that psychologists play, one thing is clear: psychologists perform a wide variety of activities and participate in diverse professional roles, sometimes on a daily basis.

The fact that psychology is a self-regulating profession means that it is up to psychologists to ensure that their own behaviour, as well as the behaviour of their colleagues, is ethical and will not lead to harm for those people with whom they interact. Psychologists are guided by a number of core ethical principles, including doing no harm, respecting autonomy, benefiting others, being just, being faithful, according dignity, treating others with care and compassion, pursuing excellence, and accepting accountability.

Professional licensing boards in each province are responsible for regulating the practice of psychology and for protecting the public through the adjudication of any complaints against a practising psychologist. In addition, the Canadian and American Psychological Associations each have an ethics committee that is responsible for hearing complaints against any of its members. For the most part, psychologists are careful and conscientious about their interactions and often painstakingly engage in consultation and deliberation with colleagues regarding ethical issues that they may face.

Key Terms

confidentiality

expert witness

forensic psychology

trial consultant

References

Bartol, C. R., & Bartol, A. M. (2006). History of forensic psychology. In

B. Weiner & A. K. Hess (Eds.), Handbook of forensic psychology (3rd ed., pp. 332–363). New York: Wiley.

Bersoff, D. N. (1999). Preparing for two cultures: Education and training in law and psychology. In R. Roesch, S. D. Hart, & J. R. P. Ogloff (Eds.), Psychology and law: The state of the discipline (pp. 375–401). New York: Kluwer Academic/ Plenum.

Bersoff, D. N., Goodman-Delahunty, J., Grisso, J. T., Hans, V. P., Poythress,

N. G., & Roesch, R. (1997). Training in law and psychology: Models from the Villanova conference. American Psychologist, 52, 1301–1310.

Brigham, J. C. (1999). What is forensic psychology, anyway? Law and Human Behavior, 23, 273–298.

Brodsky, S. L., Zapf, P. A., & Boccaccini, M. T. (2005). Competency for execution assessments: Ethical continuities and professional tasks. Journal of Forensic Psychology Practice, 5, 65–74.

Brown v. Board of Education, 375 U.S. 483 (1954).

Bush, S. S., Connell, M. A., & Denney, R. L. (2006). Ethical practice in forensic psychology: A systematic model for decision making. Washington, DC: American Psychological Association.

Canadian Psychological Association. (2011). Submission to the Senate Standing Committee on Legal and Constitutional Affairs. Ottawa: Author.

Cook, A. N., & Roesch, R. (2012). “Tough on crime” reforms: What psychology has to say about the recent and proposed justice policy in Canada. Canadian Psychology, 53, 217–225.

Cook, S. W. (1985). Experimenting on social issues: The case of school desegregation. American Psychologist, 40, 452–460.

Criminal Code of Canada, Section 293 [2011] B. C. J. No, 2011 (S. C.).

Doyle, J. (2005). True witness: Cops, courts, science, and the battle against misidentification. New York: Palgrave Macmillan.

Goldstein, A. M. (2003). Overview of forensic psychology. In A. M. Goldstein (Ed.), Handbook of psychology (Vol. 11, pp. 3–20). New York: Wiley.

Grisso, T. (1991). A developmental history of the American Psychology-Law Society. Law and Human Behavior, 15, 213–231.

Haney, C. (1980). Psychology and legal change: On the limits of a factual jurisprudence. Law and Human Behavior, 4, 147–199.

Heilbrun, K. (2001). Principles of forensic mental health assessment. New York: Kluwer Academic/Plenum.

Krauss, D. A., & Sales, B. D. (2006). Training in forensic psychology: Training for what goal? In I. B. Weiner & A. K. Hess (Eds.), Handbook of forensic psychology (3rd ed., pp. 851–871). New York: Wiley.

Muller v. Oregon, 208 U.S. 412 (1908).

Munsterberg, H. (1908). On the witness stand. Garden City, NY: Doubleday.

Office of the Correctional Investigator. (2012). Spirit matters: Aboriginal people and the Corrections and Conditional Release Act. Ottawa: Author.

Pozzulo, J. A., Bennell, C., & Forth, A. (2011). Forensic psychology (3rd ed.).

Toronto: Pearson Canada.

Reference re: Section 293 of the Criminal Code of Canada, BCSC 1588 (2011).

Roesch, R., Golding, S. L., Hans, V. P., & Reppucci, N. D. (1991). Social science and the courts: The role of amicus curiae briefs. Law and Human Behavior, 15, 1–11.

Viljoen, J. L., Roesch, R., Ogloff, J. R. P., & Zapf, P. A. (2003). The role of Canadian psychologists in conducting fitness and criminal responsibility evaluations. Canadian Psychology, 44, 369–381.

Wells, G. L., Small, M., Penrod, S. D., Malpass, R. S., Fulero, S. M., & Brimacombe, C. A. E. (1998). Eyewitness identification procedures: Recommendations for lineups and photospreads. Law and Human Behavior, 22, 603–647.

Whipple, G. M. (1909). The observer as reporter: A survey of the psychology of testimony. Psychological Bulletin, 6, 153–170.

Wigmore, J. H. (1909). Professor Munsterberg and the psychology of evidence.

Illinois Law Review, 3, 399–445.

Wigmore, J. H. (1940). Evidence (3rd ed.). Boston: Little, Brown.

Wrightsman, L. S., & Fulero, S. M. (2005). Forensic psychology (2nd ed.). Belmont, CA: Thomson Wadsworth.

Ziskin, J. (1968). Editorial. American Psychology-Law Society Newsletter, 1, 1.

Suggested Readings and Websites

Heilbrun, K., & Brooks, S. (2010). Forensic psychology and forensic science: A proposed agenda for the next decade. Psychology, Public Policy, and Law, 16, 219–253.

American Board of Forensic Psychology: www.abfp.com. American Psychological Association: www.apa.org.

American Psychology-Law Society: www.ap-ls.org. Canadian Psychological Association: www.cpa.ca.

International Association of Forensic Mental Health Services: www.iafmhs.org.