Forensic Psychology

A Guide to Practice

G.H. Gudjonsson, L.R.C. Haward

• Publisher: Routledge
• Year: 2016
• eBook ISBN: 9781317725350
• Topic: Psychology
• Subtopic: History & Theory in Psychology
• Index: Psychology

Forensic Psychology explains the history and application of the discipline. It details the various kinds of psychologist involved in the field, the sort of evidence each might produce, and how it can be applied. The authors cover topics such as:
* offender profiling
* psychometric testing
* expert testimony
* psychological autopsy
* polygraph testing
* professional and ethical problems
* training needs
A handy reference tool and a practical guide, Forensic Psychology is essential reading for forensic psychologists, clinical psychologists, lawyers and professionals who need to understand the nature and application of psychological evidence in judicial proceedings.

1
INTRODUCTION

A definition of forensic psychology

That great French scientist René Descartes (1596–1650) maintained that the only proper way for any scientific discourse to proceed was to ‘define all terms and to prove all propositions’. Whilst we cannot hope to achieve such a depth of starting point as his Cogito ergo sum, we do deem it necessary to start with a definition of our subject.

The term ‘forensic psychology’ was first used in the UK by Haward (1953) in an address to the County Durham Psychology Group, later embodied into the Northern Branch of the British Psychological Society. In keeping with principles enunciated on that occasion, ‘forensic psychology’ is here defined as that branch of applied psychology which is concerned with the collection, examination and presentation of evidence for judicial purposes. Psychologists in the United Kingdom who assist the courts in specific cases are likely to agree that this statement adequately and appropriately defines their particular role on such occasions. It should be made clear that such psychologists are experts in their own right in some specified psychological speciality, and that it is only when applying their psychological skills for judicial purposes in a particular case, not necessarily appearing in court as an expert witness, that they can be said to be engaged in forensic psychology.

Not all psychologists agree with the above definition, however. In the USA especially, many psychologists appear to believe that activity at any one of the many interfaces between psychology and law merits the designation ‘forensic psychology’. Perhaps the most extreme point of view is exemplified in a book edited by Cooke (1980), entitled: The Role of the Forensic Psychologist. His forty-two contributors – a mixed bag of interested parties which included lawyers, psychologists, mental patients, and prisoners, not least a ‘lifer’ who wrote his chapter and committed suicide – touch on almost every aspect of psychology remotely connected with law.

It should also be emphasised that the definition we adopted for this book centres upon evidence; it excludes professional involvement in a particular case which is not directly concerned with evidence as such. Thus Nietzel and Dillahay (1986), in their eminently practical handbook Psychological Consultation in the Courtroom, describe ways in which psychological techniques are provided to the District Attorney or defence attorney to enable them to weigh down the scales of justice to favour their own side. In addition, activities recommended by Nietzel and Dillahay include training advocates in thespian skills together with special methods of ingratiating themselves with the jury; rehearsing the witnesses with videotapes and courtroom simulations, together with guidance on sartorial presentation; further courtroom simulations for the attorneys to try out their various ploys; social surveys to assess public reaction to the defence case; sampling views held by the public in population centres to find a venue for the trial possessing the strongest favourable bias; devising questionnaires for jurors designed to evoke significant attitudes of value during the jury challenge; and many more practical and potentially effective techniques.

Definitions produced by psychologists often prove contentious, and become established generally by agreement and usage. It is still too early for this to have happened with the term ‘forensic psychology’, and some justification for putting forward a specific definition seems desirable.

There is an etymological and semantic argument in its favour. The term forensic derives from the Latin forensis, meaning appertaining to the Forum, specifically the Imperial court of Rome, where matters in dispute were settled. Court and dispute are the two keywords: the first binds the term forensic to a legal setting, the second anchors it firmly to matters which are being disputed in court, namely, the facts in issue or res gestae in the case in support of which evidence is required or is disputed.

Our definition thus flows from this central theme of dispute in the context of individual legal proceedings, which is similarly apparent in the argument from tradition or long usage. Forensic pathology and forensic science are both concerned with the particular case. Forensic medicine developed in the same way, its relation to other aspects of law being more properly termed medical jurisprudence; in Scotland the term medicolegalism has been used. In forensic psychiatry, the primary function is clearly what we would regard as forensically diagnostic: however, since traditionally the purpose of diagnosis has been to determine treatment, the therapeutic role with offenders has developed naturally in the context of National Health Service provisions for forensic psychiatry units. This aspect of their expanded role is patently clinical rather than forensic, and it is noteworthy that the Prison Medical Service, which provides the physical counterpart to forensic psychiatry, has made no attempt to bolster its much-respected reputation by claiming a forensic appellation.

It is therefore apparent that in all professions adopting the adjective forensic in their title, with the exception of psychology, the expertise provided is directed solely or primarily towards the individual case.

Just why psychologists alone should want to adopt this nomenclature for their many diverse activities vis-à-vis the law is not easy to understand. Some years ago members of the nursing profession employed in forensic psychiatry units asked to be called forensic nurses, but as their direct experience of the work of forensic psychiatrists was purely clinical, the misapprehension on the nurses’ part is perhaps understandable.

In contrast, members of the Criminological and Legal Division of the British Psychological Society (DCLP), many of whose members have never assisted in an ongoing court case, have succeeded after many years in their claim to be called ‘Chartered Forensic Psychologists’. Their valuable contributions, both as a service within their own original speciality, as well in scientific research of high quality, has been applied to a wide variety of legal and law enforcement problems. These include the psychological factors involved in identification; jury processes; sentencing disparity and effectiveness; recidivism prediction, risk assessment, and offence typology. Such work has been timely, significant and practical, but these activities are traditionally those of the appropriate branches of applied psychology, and are not uniquely forensic. When the DCLP was founded twenty years ago, one of us (Haward) put forward vehemently the views expressed in this Introduction, and helped to persuade the founders not to call it the Division of Forensic Psychology: now that its members have achieved the appellation of chartered forensic psychologists, the next logical step will be to change the division’s name to conform to their new status. Such a change may well have undesirable consequences for the profession itself, as Blackburn (1996), in his Inaugural Lecture entitled ‘What is forensic psychology?’, explains. This masterly analysis and erudite exposition of the practical and theoretical problems associated with the adoption of the title ‘forensic’ considers in some depth the implications which the use of the term has for the profession as a whole. It deserves serious study by anyone interested in the relations between psychology and law. Clearly, the concept of forensic psychology and its semantic nature is of theoretical interest; of more concern to the practitioner is that the label forensic psychologist has important implications for the development of career structures, for the public’s perception of the psychologist’s role in society, and especially for future relations between practising psychologists and their legal and law enforcement colleagues. Such issues are of such fundamental importance to professional psychology that in our view the term should not be employed, as Cranmer would have said, ‘unadvisedly, lightly or wantonly’, and echoes of these problems will be found in discussions in later chapters of this book.

A practical guide

This book is intended to be a practical handbook for forensic practitioners, in order to assist them with their preparation of court reports and presentation of evidence in court. The book is aimed primarily at psychologists, but other professionals who engage in court work, such as psychiatrists and social workers, will find the book helpful. We have attempted to include relevant forensic developments in other countries, including those in the USA and Europe, although the book is primarily aimed at UK practitioners.

There is a rapidly growing demand for specialist psychological expertise in civil and criminal cases. This reflects the broadening and expanding role of psychologists within the courts, the greater independence from medical colleagues, and the broadening of the criteria for admissibility of psychological evidence. Unfortunately, there is an insufficient number of suitably qualified experts available to cope with the demand. This has resulted in many inexperienced, ill-prepared and unsupervised psychologists being commissioned to prepare reports and appear before the courts. It is hoped that this book fulfils the need for a readily accessible practical guide, although it does not compensate for lack of training and experience, inadequate supervision, and unprofessional behaviour.

In Chapter 2 we provide a brief account of the relevant legal history in Europe, the USA and the UK. We draw attention to the key developments which have shaped the modern psychologist’s application to legal problems and highlight some of the difficulties that were encountered by the early forensic psychologists. This is followed in Chapter 3 by a review of surveys which have been conducted into psychological evidence in court. This includes an early survey conducted in 1965 by Castell (1966) and further and more detailed surveys for the British Psychological Society (BPS) conducted in 1984 and 1995 by Gudjonsson (1985, 1996a). The three surveys provide a good insight into past and present practice of UK psychologists engaged in court work and show the important developments that have taken place during the past three decades.

Court work raises many ethical and professional issues. In view of their great importance to the administration of justice and the integrity of the profession as a whole, these are discussed in detail in Chapter 4. A description of current ethical codes is given, the types of ethical dilemmas sometimes encountered in practice are identified, and ways of dealing with ethical problems are discussed. In addition, the liability of forensic psychologists in civil proceedings is explained as well as the possible excuses which may be offered in defence.

In Chapter 5 the different roles of the forensic psychologist – clinical, experimental, actuarial and advisory – are discussed. In addition, the similarities and differences between psychological and psychiatric evidence are identified. The emphasis is upon collaboration and co-operation between the two disciplines, which possess complementary skills.

Chapters 6 and 7 focus upon the range of methods and techniques that are available to psychologists in their answers to legal issues and questions. Psychological testing, which is discussed in detail in Chapter 6, forms an important part of the forensic psychologist’s assessment tools. Psychologists are in a unique position to apply reliable and valid tests to a range of human behaviour. In Chapter 7 a range of techniques in the use of psycholinguistics is discussed.

In Chapters 8 and 9 the contributions of psychologists are discussed within the framework of the English legal system for civil and criminal cases, respectively. Chapter 8 shows that civil law differs from criminal law in many respects, which has important implications for the forensic psychologist. Chapter 9 illustrates how in criminal cases the psychologist can contribute at different stages of legal proceedings, which are comprised of pretrial, trial and sentencing issues. This chapter also highlights some important areas for the forensic psychologist, including the legal criteria for the admissibility of evidence in criminal cases, the assessment of disputed cases of confession evidence, offenders’ attitude towards their offending, offender profiling, claims of amnesia, and recovered memories.

Chapter 10 provides psychologists with a practical framework for the preparation of court reports and presentation of oral evidence in court. The chapter begins by describing the initial contact between the psychologist and the referral agent and ends with practical advice about how to prepare for court and give evidence. It provides step-by-step advice about how to proceed from the time the psychologist receives the initial contact from the referral agent.

In Chapter 11 we draw together the main issues relevant to forensic psychology, including the origin, nature, development, contribution and scope of forensic psychology. Contemporary problems and the future of forensic psychology are highlighted.

2
HISTORICAL BACKGROUND

Introduction

Before solving the lawyer’s problems psychologists have to translate them into their own language and scientific framework. To do this effectively, they first have to think like lawyers and see the problem in legal terms. Baker (1979) cites Professor Amos who, in 1831, addressed his law students by comparing them to the ancient god Janus with his two faces, one looking back into the past in order to understand contemporary law and legal procedure, and one looking forward to foresee the implications of contemporary legislation. Law itself has evolved over the past millenia, and the judiciary interpret the law in a way which leans heavily upon historical precedent.

This is especially the case in English common law, which remains in force and unchanged through the centuries until some particular offence or process is specifically updated into statute law or repealed. Modern law books still cite laws promulgated by Tudor kings alongside those of the present sovereign. An example of the staying power of ancient laws was Trial by Battle, which had been brought to England by the Normans in AD 1066. As late as the nineteenth century two litigants decided to settle their legal differences by this form of judicial combat, which at that time was unrepealed and therefore still a valid legal process (Ashford’s case, 1819). Such a bloodthirsty usurpation of judge and jury was then quickly abolished by a bill rushed through Parliament. Today, there is still a substantial amount of contemporary behaviour which is proscribed by ancient statutes, and which, in theory at least, is still enforceable, although a special law reform committee has been convened to work through ancient laws and recommend those which could reasonably be repealed.

It is thus not surprising that some degree of historical perspective provides depth and a new dimension to the way the psychologist approaches a forensic problem. Similarly, the law never stands still. Since the present authors started their forensic practice, courts functioning for 800 years have been abolished, new ones have been created, and all manner of formerly lawful conduct have become criminal offences, many of them, such as those relating to data protection and computer usage, being inconceivable a decade or so ago. Legal processes and police powers have changed, and today’s legislation becomes tomorrow’s legal problems. The purpose of the present chapter is merely to outline briefly the history of forensic activities vis-à-vis the courts, and to trace some of the ways in which forensic psychology has developed in the UK. The history of law is covered by Walker (1968), Milsom (1969) and Baker (1979), among others, and the current position is described concisely by Darbyshire (1992) and Barker and Padfield (1996).

Pre-Victorian developments

Psychology has been i...

Table of contents

• Cover
• Half Title
• Title Page
• Copyright Page
• Table of Contents
• List of illustrations
• Preface
• 1 Introduction
• 2 Historical background
• 3 Surveys into psychological evidence in court
• 4 Ethical and professional issues
• 5 The roles of the forensic psychologist
• 6 Psychological testing
• 7 Psycholinguistic techniques
• 8 Civil cases
• 9 Criminal cases
• 10 The assessment and the testimony: a psychological framework
• 11 Conclusions
• Cases cited
• References
• Index