Research Methods in Forensic Psychology

Barry Rosenfeld, Steven D. Penrod

• Publisher: Wiley
• Year: 2011
• ISBN:
  9780470933404
• Edition: 1
• Topic: Psychology
• Subtopic: Forensic Psychology
• Index: Psychology

The only professional resource to focus exclusively on research methods in forensic psychology

With specific advice on topics of particular importance to forensic specialists, Research Methods in Forensic Psychology presents state-of-the-discipline summaries of the issues that relate to psychology and law research.

Edited by renowned experts in the field, this resource features contributions by leading scholars in forensic psychology and law, with discussion of relevant topics such as:

• Meta-analysis
• Jury decision making
• Internet-based data collection
• Legal research techniques for the social scientist
• Offender treatment
• Competence to stand trial
• Criminal profiling
• False confessions and interrogations
• Trial-related psycho-legal issues
• Accuracy of eyewitnesses and children
• Violence risk assessment

This comprehensive guide is designed for a wide range of scholars and legal professionals, presenting a succinct overview of the field of psychology and law as viewed by some of the world's foremost experts.

Part I

General Issues in Forensic Research

Chapter 1

Legal Research Techniques for Social Scientists

Jennifer K. Robbennolt and Stephanie Davidson

Introduction

The range of legal topics into which psychology can offer insight is enormous. Similarly, psychologists can occupy a variety of roles as they contribute to the analysis of these legal questions. However, whether a psychologist is conducting research, working as a practitioner, or serving as an expert, a detailed knowledge of the substantive law, the operation of the legal system and its processes, and the content of legal policy debates is critical. Indeed, knowledge of the law has been identified as one of the core competencies of psycholegal scholars, with basic competence including knowledge of “the basic tools of law (e.g., legal processes, evidence), sources of law (e.g., common law, statutory law, constitutional law, administrative law), and the core substance of law itself (e.g., civil, criminal)” (Bersoff et al., 1997, p. 1305).

Skill in performing legal research is central to gaining this requisite legal knowledge. As Grisso and his colleagues (1982) have argued, proficiency with legal research is of particular importance for those

who will be performing psychological research on legal issues, since the relevance of their research will often depend on the care with which their studies are grounded conceptually in matters of law and legal precedent. Similarly, it is unlikely that professionals will stay abreast of the law that controls their practice unless they know where to “find” the law, how to interpret it, and how to keep abreast of any amendments to it. (p. 272)

To help legal psychologists attain this necessary competence with the law and legal materials, this chapter provides an introduction to the sources of law and the processes of legal research. Before probing the particulars of the structure of the law and how to do legal research, we describe in more detail the importance of legal research for legal psychologists.

Knowledge of the Law

Across legal issues, areas of psychology, and professional roles, a working knowledge of the law that is relevant to one's area of research or practice is indispensable.

While it may not be essential for every legal psychologist to have extensive training in law, it is important that psychologists who work in the legal psychology area have an in-depth understanding of the law that pertains to their own areas of work.(Ogloff, 2001, p. 11)

Without such an understanding of the relevant law, legal psychologists cannot be effective. In order to acquire this meaningful understanding of the law, researchers, practitioners, and experts all need to be able to conduct legal research. Effective legal research enables psychologists to design research programs that will be relevant to law and legal decision making, to frame and disseminate the results of psycholegal research in ways that will have meaning for legal actors, to identify broader questions that are of interest to the law and into which psychology can offer important insights, and to comply with ethical guidelines that call for an understanding of the law related to the relevant research or practice area.

Designing Research With Relevance to Law

A primary reason why psychologists working on legal topics must be familiar with the sources of law and how to do legal research is that it is difficult to design research that will be of relevance to legal doctrine, legal process, or policy debates in law without a grounding in the relevant law and practice. In order to design sophisticated research that addresses important legal questions in ways that are attuned to nuances in the law, researchers need to be aware of the relevant law and how it operates.

Wiener and his colleagues (2002) reviewed the research submitted to and published in Law and Human Behavior and found that the most common independent variable was the manipulation of a legal rule—with many studies examining the effect of a particular legal rule on judgments and decisions—and that almost all the studies published included some legal measure as a dependent variable. To design such studies well, it is important to know the relevant legal rules, their nuances and exceptions, and how they are applied. Similarly, it is important to know the legal meanings of the pertinent legal constructs. For example, without a working knowledge of how line-ups are conducted and of the legal rules governing them, it is difficult to design a study of eyewitness identification that will have relevance to such procedures. Indeed, it has been by careful attention to such details that research on eyewitness identifications has had an impact on the legal system (Wells et al., 2000).

Unfortunately, legal psychologists have not always operated with a highly developed sense of the law—either its substance or the relevant procedure (Ogloff, 2001; Weiten & Diamond, 1979). To the extent that the measures that are created or the research procedures that are employed diverge from their legal counterparts, the research may be difficult to apply to the legal context. Research that employs measures and procedures that differ from the corresponding legal constructs and procedures should not be dismissed out of hand, nor, however, should such research be accepted uncritically. Instead, a more careful analysis is required. The key to this analysis is to examine whether the departure from the particular legal constructs or context at issue is a departure that has important implications for the interpretation and application of the research results.

Of particular concern would be instances in which the departure is likely to lead to different patterns of effects (see Robbennolt, 2002). For example, if an impoverished measure of a legal construct is likely to lead to a different set of results than a measure that is more legally informed—such as finding an effect when the impoverished measure is used, but not when the legally informed measure is used, or vice versa, or obtaining effects that point in opposite directions when using the two measures—application of the results obtained using the impoverished measure in the legal context cannot be done with a great deal of confidence. Similarly, naïve mistakes about the law—for example, conflating measures of guilt on the one hand and sentencing on the other (Weiten & Diamond, 1979) or misunderstandings of the factors that are relevant to a particular legal decision task—present problems for application of the research to the legal context.

On the other hand, there may be some departures that are less troubling. For example, imagine a set of studies that produce a pattern of results suggesting that people have trouble understanding jury instructions (see Ogloff & Rose, 2005, for a review). Imagine further that these studies used college students—who are collectively more highly educated than the typical jury pool—as study participants. One might have a relatively high level of confidence in concluding that jurors have difficulty understanding such instructions, because one would predict that actual jurors would demonstrate even lower levels of comprehension. Indeed, studies that have examined this issue have found that jury-eligible participants evidence even lower levels of jury instruction comprehension than do college student participants (Lynch & Haney, 2000).

As a practical matter, it is worth noting that deviations from the strictures of the substantive law or the practice setting—whether or not the particular deviation is likely to have significant implications for the interpretation and application of the results to the legal context—may have implications for how legal actors respond to the research findings. While decision makers ought to be most concerned with the external validity or generalizability of psycholegal research, they may instead focus on departures from the law as a proxy for external validity or as a convenient way in which to reject the research. Indeed, a representativeness heuristic may operate such that decision makers discount the usefulness of research that does not fully replicate the law or legal context (Kovera, McAuliff, & Herbert, 1999). Using the representativeness heuristic, decision makers make categorizations based on the degree to which the object of the evaluation is representative of the category to the neglect of other relevant considerations (Kahneman & Tversky, 1971). Accordingly, courts and other legal actors may dismiss research that, for example, does not use measures that are completely in accord with the legal constructs, that is not sensitive to exceptions to a rule, or that does not incorporate particular aspects of the relevant procedure.¹ While such an automatic rejection of otherwise useful research is problematic (Robbennolt, 2002), psychologists can address such tendencies by designing research that attends to the law and by critically justifying any deviations.

Of course, none of this analysis is possible if the ways in which the variables, measures, and context depart from the law and the legal context are not identified, and the relevant departures are unlikely to be recognized unless the researcher has become familiar with the relevant law.

Framing and Disseminating Results

A second and related reason that psychologists ought to become skilled at finding and understanding the law is that familiarity with the law and legal considerations will help psychologists to present research results in ways that speak to lawyers and other legal actors (Bersoff et al., 1997). At a basic level, this follows from the previous argument—the results of psychological research will find more credibility among those in the legal system when they address questions of relevance to law. As Ogloff (2002) has argued,

psychologists who attempt to have their findings make their way into the legal system must be willing to meet legal professionals on their own terms . . . this requires having psychologists frame their work in legal terms and to ensure that it is legally relevant and valid. (p. 27)

Beyond issues of research design, the choice of research questions, or the structure of particular measures, however, psychologists working on legal topics ought to be able to write or testify about their findings or the findings of others in ways that demonstrate some degree of sophistication with the relevant legal constructs. Researchers, practitioners, or expert witnesses who can explain how the psychological research fits into the substance of the law or has relevance for legal procedure, and who are sensitive to the relevant nuances in the law will likely be more successful in communicating with the relevant legal players. For example, to the extent that the substantive law varies across jurisdictions, a legally sophisticated psychologist will be aware of the variation, the policy judgments behind the different approaches, and the implications of such variation for the applicability of the research.

Identifying Questions of Interest to Law

A third reason for psychologists working on legal topics to become more familiar with how to research the law is that a more sophisticated knowledge of the law can lead to the identification of a broader range of legal topics to which psychology and psychological research can make interesting contributions (Ogloff, 2002).

Many commentators have noted that psychologists have not conducted research about the full range of topics afforded by the law (Melton, Monahan, & Saks, 1987; Ogloff, 2002; Rachlinski, 2000; Saks, 1986; Wiener et al., 2002). While a great deal of excellent research has examined issues related to jury decision making, eyewitness testimony, and psychological assessment (Wiener et al., 2002), far less attention has been paid to how psychology might contribute to analyses of tax policy, contracts, property law, torts, estates and trusts, corporate and commercial law, health policy, civil procedure, elder law, labor law, environmental law, and many other legal topics. Similarly, while the focus of psychologists has been primarily, though not exclusively, on the behavior of jurors, witnesses, and criminals, the decisions of many other legal actors (e.g., judges, attorneys, litigants, corporate actors, physicians, and consumers) also present a host of interesting questions about law and human behavior. Although some first-rate research has started to address this broader range of topics and actors, this research has only begun to scratch the surface.

Relatedly, skill in finding the law can lead both to ideas for new research projects and to unique sets of materials for use in such studies. Enterprising researchers did just this in response to the U.S. Supreme Court's recent decision in Scott v. Harris (2007), a case that involved the assessment of whether a police officer used excessive force when he rammed his vehicle into the car of a fleeing suspect with whom he was engaged in a high-speed chase. In conjunction with its opinion, the Court posted a copy of the video footage from one of the police cruisers involved in the chase. Researchers who were attendant to such legal developments were able to capitalize on the availability of such evidence for use in constructing stimulus materials (Kahan, Hoffman, & Braman, 2009).

As noted, however, legal psychologists have not always engaged fully with a broad range of legal issues, actors, and materials. As Michael Saks (1986) put it,

My warning is that our usefulness, both as scholars of the behavioral aspects of law and as applied researchers producing knowledge that can enlightened policy and practice, will be limited by the range of topics and issues we address. To be a field that studies law and human behavior is a grand and noble enterprise. To be the field that knows more than anyone would ever want to ask about a narrow assortment of issues is, to put it mildly, less grand. (p. 279)

In order to identify a broad range of promising areas for research, legal psychologists need to find and engage with an increasingly wide ranging set of legal resources. Without the ability to delve deeply into the law, contribution to an extensive range of legal topics will continue to be elusive.

Ethics

A final reason for psychologists to become familiar with the law related to their area of research or practice is that it is ethically appropriate to do so. As a general matter, the American Psychological Association's Ethical Principles of Psychologists and Code of Conduct provides that “psychologists provide services, teach, and conduct research only within the boundaries of their competence” (Standard 1.04 Boundaries of Competence).

With regard to psychologists working on legal issues more specifically, the 1991 Specialty Guidelines for Forensic Psychologists provide that “forensic psychologists have an obligation to maintain current knowledge of scientific, professional, and legal developments within their area of claimed competence” (Guideline VI.A; Committee on Ethical Guidelines for Forensic Psychologists, 1991). More recently, the Third Proposed Draft of the Revised Specialty Guidelines f...