Psychology, Law, and Public Policy

Forensic psychologists are aware that hearsay evidence places a special ethical burden on them and they should seek to minimize reliance on such evidence, or seek to obtain independent verification of the data. If using uncorroborated evidence, must make this clear to the court. (Specialty Guidelines)

Expert witnesses called to provide evidence criminal and civil cases

Need for expert testimony based on belief experts have specialized knowledge beyond the ordinary understanding of judge &/or jury

Experts can be asked to testify in court in several different ways◦ Provide testimony from evaluation of a criminal

defendant or plaintiff in a civil case◦ Educative role providing information about

psychological research

Saks (1990) Expert Roles (non-clinical):

1. Mere Conduit/Educator

2. Philosopher - Ruler/Advocate

3. Hired Gun

4. “No dilemmas” does not exist practically

Dilemma for experts is that working in an adversarial legal system places unique demands and expectations on experts

R. v. Mohan. Pediatrician charged with 4 counts of sexual assault. Defense counsel wanted to call a psychiatrist to testify that Mohan did not fit the profile of a sex offender. Did not allow this testimony. Appealed the case.

R. v. Mohan set the following criteria:1. Relevance – Relevant to issue at hand?

Biasing?2. Necessity – Outside expertise of judges and

juries? Or just common sense?3. Absence of any exclusionary rule4. Qualification of expert – Relevant knowledge,

skill, training, and education?

R. v. Mohan (1994) also stated that if the scientific theory or technique is novel, must meet a basic threshold of reliability

In Mohan case, court decided that scientific community had not developed a standard profile of sex offenders ◦ Therefore, testimony could not be admitted

In New Mexico, Republican State Senator Duncan Scott introduced the following amendment to that state’s competency to stand trial statute:

When a psychologist or psychiatrist testifies during a defendant’s competency hearing, the psychologist or psychiatrist shall wear a cone-shaped hat that is not less than two feet tall. The surface of the hat shall be imprinted with stars and lightening bolts. Additionally, the psychologist or psychiatrist shall be required to don a white beard that is not less than 18 inches in length and shall punctuate crucial elements of his testimony by stabbing the air with a wand. Whenever a psychologist or psychiatrist provides expert testimony regarding a defendant’s competency, the bailiff shall contemporaneously dim the courtroom lights and administer two strikes to a Chinese gong.

Pro Fact finder should be able

to consider all available information, including ultimate opinions of forensic evaluators, & weigh evidence accordingly

No requirement that the fact finder accept evaluator’s opinion on ultimate issue

Pro Fact finder should be able

to consider all available information, including ultimate opinions of forensic evaluators, & weigh evidence accordingly

No requirement that the fact finder accept evaluator’s opinion on ultimate issue

Con Evaluators can offer

scientific & clinical opinions but legal decisions (which encompass moral & social considerations) beyond expertise

Offering opinion on ultimate issue intrudes on the role of the legal fact finder

Con Evaluators can offer

scientific & clinical opinions but legal decisions (which encompass moral & social considerations) beyond expertise

Offering opinion on ultimate issue intrudes on the role of the legal fact finder

Issue of whether experts should give opinion about ultimate legal issue long debated among mental health professionals and legal scholars

Conclude that clinicians do not meet legal standards to qualify as experts. They present unreliable testimony based on measures and interviews of low validity and reliability.

Hagen: Forensic clinicians are afraid of Ziskin, of being “ziskinized” in court when they are challenged in court by an attorney armed with the knowledge tools Ziskin provides.

Book by Margaret Hagen, PhD in developmental psychology

Book inspired by personal outrage; brother sued for 3.4 million

“While I and my academic colleagues were sleeping, our entrepreneurial clinical colleagues had infiltrated the American justice system, like kudzu taking over every inch of lawn and garden. This book is an attempt to weed them out, root and branch.”

Don’t allow psychologists to testify Ordinary people must take back duties and

rights from the hired guns Judge and jury should decide on issues of

criminal responsibility, competence, civil injury

We must stop pretending that psychology can do what it clearly cannot

Despite guidelines prohibiting some forms of ultimate opinion testimony, courts often encourage such testimony

Forensic professionals do not agree about whether ultimate opinions should be provided ◦ Borum & Grisso (1996): 25% felt ultimate issue

opinions should be avoided / 75% neutral or pro

◦ Robbins et al. (2001): 90% of competency reports examined offered ultimate opinions

◦ Skeem et al. (1998): 75% of reports notes ultimate opinions

Canada: Mohan court allows ultimate issue testimony, but may be excluded on occasion, based on the criteria of relevance and necessity.

Since it is not within the professional competence to offer conclusions on matters of law, psychologists should resist pressure to offer such conclusions. Monahan, J. (Ed.). (1980). Who is the client?: The ethics of psychological intervention in the criminal justice system. Washington, D.C.: American Psychological Association.

Some skepticism about the ability of judges to apply criteria for admitting expert evidence.

Research shows judges may not recognize flawed research when they confront it and may admit invalid research into evidence.

Psychological research might influence court decisions or legal policy in a number of ways:

Indirect Influence

• Research is published in journal articles, books, or even popular periodicals, and judges may cite them as secondary sources for their opinions

Direct Influence

• Psychologists who have specialized knowledge communicate research results via expert testimony in court

Amicus curiae briefs

• Psychologists may participate in preparation of briefs summarizing research on a given issue before court

aka “friends of the court” briefs A brief is a written document that is presented

to a court, prepared by a group or organization that is not a party to the litigation

Typically summarize the body of research that might address a particular issue before the court

APA has submitted >160 briefs on diverse topics including:◦ juvenile death penalty, same-sex marriage

◦ competence to be executed; battered women’s syndrome

◦ school desegregation; gay, lesbian, and bisexual parenting

◦ abortion, child witnesses; affirmative action, etc.

Five Functions (Bersoff & Ogden, 1991)

1. Supply information not readily available to parties in case

2. Develop/enlarge arguments a party is forced to make in summary form

3. Present arguments a party would like to make but cannot because it lacks resources, data, or credibility

4. Present arguments a party prefers not to make5. Inform the court of broader policy interests

involved in a case, or of broader implications of its holding

Roesch et al., 1991

Briefs range from objective summaries of evidence to taking clear position on an issue; distinction is often blurred

Some argue against advocacy briefs◦ Degrading level of psychological discourse◦ Infringement of ethics of scientific/professional roles◦ Possible negative repercussions for psychology due to

embroilment in policy debates(Suedfeld & Tetlock, 1992)

science translation

science translation

advocacy

advocacy

Brief submitted by APA in adolescent death penalty case in which US Supreme Court considered permissibility of executing juvenile offenders

Brief reviewed developmental research that shows that adolescents have considerably less capacity than adults in terms of judgment and decision making, less future oriented, less developed cognitive capacities, etc.

Court held, in a 5–4 decision, that those under 18 cannot be executed

Adolescents think/behave differently from adults in ways that undermine court’s constitutional rationale for capital punishment

Adolescence is a period in which character is forming and often involves heightened risk taking and even criminal conduct, moderated or eliminated by in adulthood

Adolescent decision makers are less future oriented and less likely to consider properly the consequences of their actions

Neuropsychological research demonstrates adolescent brain has not reached adult maturity

Given that 16-17 year-olds less mature developmentally than adults, imposing capital punishment does not serve judicially recognized purposes of sanction

Unsettled nature of adolescent personality confounds attempts to make reliable determinations about character/future behavior to support execution

Lapse of time between crime and sentencing complicates assessment of adolescent capital defendant

Unconscious racism may falsely attribute greater culpability to African American adolescent offenders

Cannot generalize research to individual◦ Psychological research is primarily based on

group differences, but law deals with individual cases, so judges want to know only about the individual case before them

Organizations have not been consistent in their interpretation and application of research results◦ If results and implications of research change

over time, courts may view social science research as too unstable to apply