Forensic Psychology and Legal Psychology: Merging Psychological Science with the Law
Forensic And Legal Psychology Overview
Forensic and legal psychology broadly refers to the study and application of psychological ideas and concepts within the legal system. Forensic psychologists tend to examine how psychological science applies to the understanding of legal rules, the behavior of individuals who interact with the legal system (as a victim or as the alleged perpetrator of criminal activity), and the capacity of psychological science to inform legal decision-making.
Within the legal domain, forensic psychology most often involves criminal behavior in the following contexts: 1) research and scholarship about criminal behavior; 2) expert testimony based on scientific research and scholarship about criminal behavior (as an expert fact witness); and 3) forensic evaluation of the criminal behavior of individual defendants (for example, in connection with an insanity defense).
The purpose of forensic psychology is to bridge and connect psychological science with our system of laws and legal decision-making. More generally speaking , forensic psychology is part of a broader field and discipline called ‘forensic sciences,’ which is the application of multiple different sciences in a forensic context or setting. Thus, within this context, forensic psychology can be defined as the science that explains how psychology has reached the courtroom (consistently and on a long-term basis) and how it continues to move into new areas of applications, such as jury selection.
An example of the use of psychological science at the intersection of the legal system relates to the concept of ‘informed consent’ before a sexual encounter between consenting adults. Such consent must be informed, freely-given, and voluntary (as opposed to a coerced consent). Only those adults who are competent to give consent can provide an informed consent for a sexual encounter to occur. A factor that can limit competency to consent, for example, is the presence of dignitary harms to individuals who were sexually harassed or sexually assaulted or who are, for other reasons, psychologically incapacitated to freely and voluntarily give consent.
How Psychologists Function in The Legal System
Psychologists function in several different roles within the legal system. For example, some perform criminal profiles based on information available from crime scenes and witnesses, in conjunction with law enforcement. The sessions that eyewitnesses are taken through at trial to distinguish between actual memory and implanted memory (as in "suggestion" by the police) may involve psychologists. Psychologists also work in civil trial contexts, such as the assessment of an employee’s job performance or a party’s parenting capacity or a child’s best interest in divorce cases. Consultants who help attorneys prepare for trial may also have backgrounds in psychology. Expert witnesses for the prosecution or the defense also may be psychologists, having been hired for their expertise in particular areas of the law (e.g. insanity defense, sentencing, etc.). These expert witnesses develop opinions of the factors underlying the case based on their background and experience as psychologists.
Finally, psychologists may be called to evaluate a person’s competency to stand trial, suggest a change of venue, assess the reliability of a victim’s testimony, or assess sentencing criteria on behalf of the defense or the prosecution.
Using Psychological Science In The Law
An impressive body of forensic and legal psychology research is available that addresses a wide variety of questions that arise in the legal system. Much of the research, such as studies using survey methods, archival data, and interviews, is highly applicable to legal policy and practice. For example, litigation consulting is based on what we know about how jurors and legal decision makers process information and the weights that different types of information carry with them. Forensic psychologists, neuropsychologists, and social scientists undertake more complex empirical studies to develop assessments to help the courts determine competency, risk, and beyond. Such research examines psychological concepts and phenomena, such as:
These varied research areas are often bridged by the common thread of supporting litigation counsel in developing their case strategy and trial presentation in criminal, civil, and family law matters. Jurors’ and judges’ abilities to attend to, remember, and interpret the evidence presented are often critical for a ruling on an issue of fact or law. For example, the weight afforded lay witness testimony may depend on how well the witness cues the juror’s or judge’s perceptions, resulting in synthetic visual displays that assist in communicating about an issue at trial. Research and testing on continuing competence are used to understand the adequacy of a professional’s competence or quality of care in a legal dispute. Counsel’s re-direct questioning may be grounded in research on source monitoring that identifies gaps in recollection that give rise to misattribution errors. Although certain techniques and presentations of mediatory and lobbying efforts do not require expert testimony, understanding of the jury node and how jurors process the factual information and legal argument can be quite helpful when deciding what approach to take.
The Ethics Of Forensic Psychology
As with any branch of science, the field of forensic psychology is not immune to ethical challenges. Forensic psychologists often serve in multiple roles with overlapping interests, or hold competing interests at different times. Moreover, their work and testimony can have a significant impact on the administration of justice, and on the adjudication of civil and criminal cases. For example, in juvenile cases, forensic psychologists may be asked to render opinions on competency, provide evaluations of children’s intellectual and moral capacity, or make recommendations on sentencing and rehabilitation. In criminal matters, forensic psychologists might be asked to testify regarding a party’s competency to appeal a conviction, or their likelihood to reoffend.
While forensic psychologists routinely navigate these dual roles, and reconcile competing interests, they face a number of ethical challenges, including confusion regarding confidentiality, dual relationships, expectations of benevolence and bias. Handling these ethical challenges require a deep understanding of the nuances involved, and the potential effects that the current political climate may have on forensic psychologists.
Of course, there are national and international bodies that account for variations in the ethical practice of forensic psychology. These organizations include the European Union of Medical Specialists (UEMS), the European Federation of Psychologists’ Association (EFPA) and the American Psychological Association (APA).
However, these standards are not binding on forensic psychologists, and in many parts of the world, including Canada, agencies that regulate the practice of psychology have been slow to adapt their codes of ethics to the unique aspects and variances of forensic psychology. While these bodies have adopted some provisions addressing the intersection between psychology and the legal system, including those describing the duty to warn, to prevent suicide and to report child abuse, Canadian authorities have fallen behind in their adoption of provisions to address these challenges. Consequently, there has been a call to set new standards for ethical practice in forensic settings, as has occurred elsewhere around the world.
Challenges Ahead
The challenges facing forensic and legal psychology are many, yet they also provide an exciting opportunity to help shape the future of the field. A major area of concern currently is the rapid advancement of technological tools and the increasing reliance on these resources as forensic tools. This includes online platforms for the administration of assessments of mental disorders, the use of artificial intelligence to assist in the assessment of risk for recidivism among offenders, and the implementation of big-data analysis to assist in the prediction of future crime. For instance, algorithms have been employed to calculate a "compas score" to determine the likelihood of re-offending by accused offenders, despite the fact that this algorithm has been shown to be flawed. The introduction of objective risk prediction must be carefully measured, especially given that an overreliance on these measures may hinder the role of evidence and expert testimony in the courtroom.
In addition to technological advances, cultural and population changes continue to challenge the field. The reality that we now live in increasingly multicultural societies—the United States, for example, has a long history of immigration, and current policies concerning asylum are generating increased Populations from Central America and South America—is forcing forensic and legal psychologists to consider perspectives that have previously been neglected . Mental disorder and behaviours may vary across cultural contexts; this means that test formulation, selection, and interpretation must take these contextual considerations into account. A growing body of research conducted by Indigenous scholars, for example, has demonstrated that traditional methods of psychological evaluation cannot be uniformly applied to situations involving Indigenous populations. In response to these concerns, other scholars have sought to demonstrate how traditional methods can be adapted for these populations. Cultural sensitivity, therefore, is of utmost importance in the incorporation of technological advancements into forensic and legal psychology.
From my perspective, I see exciting future developments in the field of forensic and legal psychology on the horizon. Psychological scientists are already working on advancing more reliable and valid assessment tools—in particular, social science research seeks to better refine the selection process of a jury, the assessment of damages in trials, and the administration of offender therapy. These ongoing advancements will serve the discipline well, and I hope that the lessons learned through the legacy of traditional methods will inform their formulation. The continued adaptation to new developments is the hallmark of psychological science—and I am confident that its ability to evolve amidst the changing landscape will attract the next generation of psychological scientists to the field of forensic and legal psychology.
Case Studies of Psychological Science in Litigation
Cases decided in the U.S. Supreme Court and elsewhere demonstrate that frequently the law utilizes the tools and findings of psychology. For example, in 1975, a divided Supreme Court in Jackson v. Indiana held that a defendant should be re-examined periodically for competency to stand trial, in this case for a deaf mute defendant that had been found incompetent to trial in 1968. The Court concluded that such re-examination protects the state and the individual’s constitutional right to a fair trial. Mental health evaluators are thus working to assess persons’ competency to stand trial by additional evaluation and to conclude if such persons are competent presently to stand trial.
In several cases dealing with the testimony or competence of witnesses, certain forensic psychological evaluation and methods have been used extensively. In Estelle v. Smith, 451 U.S. 454 (1981), the Supreme Court held that the record of a presentence psychiatric examination was inadmissible, after being sought by the trial court, where the accused was not provided counsel during his psychiatric examinations and he was questioned about the underlying facts of the offense without benefit of counsel. The defendant was also not made aware that his statements to the psychiatrist could be used against him at penalty hearing. The forensic mental health expert may, however, testify on behalf of the state to establish insanity, with psychological testing of the defendant being admissible to this issue. Other legal issues involving testimony, such as hearsay, public policy, or hearsay and public policy are also discussed in the literature.
In 1979, in Faretta v. California, the Supreme Court decided that it is constitutional that a defendant may represent himself in criminal proceedings if he knowingly and intelligently waives counsel. If there are factual issues concerning sanity or competency to stand trial, which are issues of fact for the jury to decide, the competency of the pro se defendant may be an issue for the trial judge. In such cases, the defendant may be the subject of psychiatric or psychological evaluation when there is a question of his/her ability to waive counsel knowingly and intelligently.
Conclusion: Psychology and The Law
The practice of forensic and legal psychology therefore involves not only the application of psychological science to law on a case-by-case basis, but also ongoing dialogue between the scientific and legal communities about what can help our legal system function better. Forensic and legal psychology draws knowledge from many areas of psychology, as well as sociology and anthropology, but the important difference is that the evidence base in the field of forensic and legal psychology is not static – it is constantly evolving.
Forensic and legal psychology brings order to issues that are otherwise too chaotic and too complex to understand. Forensic and legal psychology is a translation device for law , and knowledge in the field moves back and forth between legal and psychological realms. The common ground for both is to see that the law performs better when it is informed by the best possible psychological knowledge; so too does the future evolution of psychology: the more psychologists learn about law, the more nuanced and robust will be their conceptualization of how the human mind works and what motivates human behavior. Forensic and legal psychology is thus a ripe, ongoing area of research with exciting opportunities to capitalize on the collaborative energy that exists between the social sciences and the justice system and across the various different levels of the legal hierarchy.