Lecture 2 - The Intersection Between Psychology and Law PDF

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The Intersection Between Psychology and Law Defining Forensic Psychology  

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Forensic psychology is challenging to define o Relatively new field Forensic psychology broadly encompasses… o Both the civil and criminal sides of the justice system o Clinical and experimental psychology Forensic psychologists can work both within (e.g., correctional psychologist) and outside the justice system (e.g., professor) One definition is “the practice of psychology (defined to include research as well as indirect and direct service, delivery, and consultation) within or in conjunction with either or both sides of the legal system – criminal and civil” Another is “the use of psychological knowledge or research methods to advise, evaluate, or reform the legal system” Psychologists who just so happen to testify about their patients or research are generally not considered forensic psychologists Different areas of psychology interact with the law in different ways: o Developmental psychology – e.g., can a child who commits murder fully appreciate the nature/consequences of his/her crime?  Case where 15-year old murdered someone and was only caught when he was 45 – should he be sentenced as an adult or a youth?  Courts decided he should be tried as an adult o Social psychology – e.g., how do police interrogators make use of principles of coercion and persuasion to induce suspects to confess? o Clinical psychology – e.g., how can we decide if a person with mental illness is competent to stand trial?  Case where 85-year old man who murdered his wife was deemed unfit to stand trial because of his dementia o Cognitive psychology – e.g., under what conditions are eyewitnesses able to remember what they saw?  Case where man was wrongfully convicted for 25 years as a result of a false identification by an eyewitness o Cultural psychology – e.g., why are certain groups overrepresented in Canadian prisons?  New area of psychology

A Primer to the Canadian Criminal Justice System 

Foundations of the Canadian legal system: o Our legal system is based on British common law o All criminal and civil law matters are dealt with in the common law system, with the exception of civil matters in Quebec (civil code is used)

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The common law system is based on the legal doctrine of stare decisis o We have a hierarchical court and legislative system; by virtue of stare decisis, lower courts are bound by the decisions of the higher courts o Other common law jurisdictions may be consulted in making decisions if there is no precedent on which to base the decision within Canada o If the highest court in BC makes a decision, the highest court in Alberta isn’t bound by it but it would strongly consider it o The SCC binds all lower courts in the country All laws must conform to the Constitution; criminal offences are generally found in the Criminal Code of Canada (CCC) The YCJA consists of the rules/procedures in trying youth Ontario Court of Justice: o Divided into 7 geographic regions o Large number of judges and justices of the peace o Jurisdiction over family, criminal, and YCJA matters Superior Court of Justice: o Divided into 8 geographic regions o Large number of federally appointed judges o Jurisdiction over civil and serious criminal cases o Judge cases as well as judge + jury cases Ontario Court of Appeal: o Chief Justice, Associate Chief Justice, 20+ judges o Rules on the correctness of final trial judgements through the appellate process R v. Bradshaw (2017): o Mr. Bradshaw is charged with two counts of 1st-degree murder following his coaccused’s confession to an undercover officer (Mr. Big) o Hearsay – an out-of-court statement tendered for the truth of its contents o At the Supreme Court of BC, the Justice allows a video re-enactment of the confession (an exception to hearsay); the jury convicts Bradshaw on two counts of 1st-degree murder o Defence appealed to the Court of Appeal of BC, where they successfully argued that the Justice erred in relying on video hearsay evidence; the court set aside the convictions and ordered a new trial o The Crown appealed to the Supreme Court of Canada; the majority of the SCC agreed with the Court of Appeal and dismissed the Crown’s appeal

A Brief History of Psychology and Law 

In 1843, Daniel M’Naghten was found not guilty of murder by reason of insanity (beginning of the M’Naghten rule) o Murdered English civil servant o He was experiencing paranoid delusions at the time of the murder

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o One of the first times a psychiatrist was brought in to testify to the defendant’s state of mind at the time of the crime In 1885, Louis Riel was put on trial for high treason o Leader of Metis who led two resistance movements against the federal government o Several psychiatrists testified to his mental state o One of the first times medical evidence was introduced in a Canadian trial In 1906, Sigmund Freud talked to Austrian judges and told them that their decisions were influenced by unconscious processes and that psychology has important applications to the legal field In 1908, Hugo Munsterberg (student of Wendt) wrote a book called On the Witness Stand, which was about how psychological knowledge could give us a greater understanding of the criminal justice system and legal decisions o This book was criticized heavily o In 1909, Wigmore released a scathing criticism of this book One of the earliest decisions in which psychological evidence was heavily weighted was Muller v. Oregon in 1908 o About length of workday for women o Louis Brandeis filed what came to be known as the Brandeis brief (written legal document of psychological evidence) o Opened the door to social scientific evidence in court being so heavily weighted In 1954, Brown v. Board of Education (school segregation case) gave way to a brief filed by a number of prominent social scientists which influenced the decision heavily o Unanimous decision by SCOTUS that segregation of schools was a violation of Constitution In 1962, Jenkins v. United States gave way to a dispute (between psychiatrists and psychologists) over whether expert testimony given by psychologists should be considered in court In 1969, the American Psychology-Law Society (AP-LS) was founded In 1977, the first issue of Law and Human Behaviour was printed (by AP-LS) In 1991, AP-LS printed the first set of Specialty Guidelines for Forensic Psychologists In 2001, the APA designated forensic psychology as a specialty area In Canada, psychologists can only submit expert testimony under certain circumstances; in the US, they can testify in all circumstances

Tensions Between Psychology and Law Law Conservative, resists innovation Hierarchical and authoritative (e.g., lower courts are bound by higher courts) Adversarial system used to arrive at truth Prescriptive – laws tell people how they

Psychology Creative, novel, innovative approaches Empirical enterprise; ideas depend on consistent supporting data Objective experimental model – truth is ascertained through hypothesis testing Descriptive – goal of describing behaviour as

should behave Ideographic – focus is largely on individual cases Operates on principle of certainty and definitive outcome Approach is reactive Operational and applied in nature; concerns arise from the real world

it naturally occurs Nomothetic – eschews case studies Methods rely on probabilistic models Approach is proactive Academic in nature; can lose touch with the “real world”

Psychology in the Legal System  

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There are a number of ways psychologists can interact with the legal system Haney (1980) proposed a taxonomy that can be a helpful framework for thinking about these varied roles: o Psychology in the law o Psychology and the law o Psychology of the law Psychology in the law: o Psychology is used by the law in the ordinary conduct of legal business (e.g., when a defence lawyer asks for a clinical assessment of their client by a psychologist) o The legal system sets the rules and dictates the application of psychology in law o Examples:  Testimony by psychologists in cases involving decisions of criminal responsibility  Reports and/or testimony during sentencing about a young person’s risk of engaging in future violence and/or treatment and rehabilitation needs  The role of a correctional psychologist o Mostly about clinical practice Psychology and the law: o The use of psychological principles and research methods to analyze/examine the legal system o Psychologists engage in research on relevant legal issues and may affect change (this research may be summarized in briefs, which we’ve seen can be very influential) o Examples:  Studying how a court decides if a confession was coerced  Research evaluating police lineup procedures and biased identification by eyewitnesses  The study of what psychological factors affect the decisions to arrest, charge, prosecute, and take a defendant to trial o Mostly about research Psychology of the law:

o The law becomes an object of psychological study in itself o Psychology is used to study the nature and sources of legal power o Examples:  Attempting to understand the origins and existence of law  Studying why, how, and under what circumstances people obey the law o Mostly about philosophical, big-picture, systems-level questions Five Pathways for Influencing the Legal System 

There are five main avenues through which psychology influences the legal system: o Expert testimony o Cross-disciplinary training o Amicus briefs o Broad dissemination of research findings o Influencing legislatures and public policy

Expert Testimony 

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Judges, juries, and legislators cannot know everything – expert witnesses provide specialized knowledge acquired through education and experience o Expert witnesses are sometimes called to testify in court or before legislative bodies o Can provide opinion-based evidence, in contrast to most other witnesses who must solely provide facts o Judges are gatekeepers and must decide whether to allow expert testimony:  Will jurors already know this information?  Will the expert provide confusing evidence? o E.g., an MP crafts a bill making changes to the CCC, so the federal government holds a hearing during which experts testify Admissibility of expert testimony is complicated, and is based on Canadian and American precedents from the past In Daubert v. Merrel Dow Pharmaceuticals, Inc. (1993), SCOTUS held that judges must be gatekeepers for scientific testimony; they crafted a four-part test: o Falsifiability of the theory/technique must be testable  Has to be evidence behind the expertise  Must demonstrate that there are different empirical approaches that led to the evidence o Peer review of scientific findings  Sufficient body of evidence which scientists in the field have accepted as scientifically acceptable  Publication in peer-reviewed journal o Known error rate  How often does this test/technique produce incorrect results? o Conclusions are generally accepted by the relevant scientific community

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The Daubert case is packaged in a trilogy of similar US cases – the Daubert trilogy (including the two cases below) In General Electric Co. v. Joiner (1997), it was held that appellate courts should not second-guess a trial judge’s decision to exclude expert testimony In Kumho Tire Ltd. V. Carmichael (1999), the court’s gatekeeping responsibility to all expert opinion was expanded (rather than being restricted to scientific evidence) Similar approaches were adopted in Canada In R. v. Mohan (1994), the defence tried to put a psychiatrist on the stand to testify that the true offender had certain kinds of psychological traits that Mohan did not have o The psychiatrist testified that the culprit had more pedophilic characteristics – judge wasn’t sure whether to admit this evidence o This case outlined the test of admissibility of expert evidence in Canada:  Relevance – is evidence logically related to a fact in issues at trial?  Necessity – will the expert provide information likely to be outside ordinary experience and knowledge of the triers of fact?  Absence of exclusionary rule – will the potential probative value of the evidence outweigh its prejudicial impact?  Qualifications of the expert – the expert will testify to their training and experience, and the judge will determine if their expertise is sufficient In R. v. Abbey (2009), it was determined that you should (1) go through the Mohan steps of admissibility and (2) balance the risks and benefits of admitting the evidence in order to decide whether the potential benefits outweigh the risk o Abbey was acquitted of murder o Crown appealed because their expert witness (who was going to testify about the defendant’s teardrop tattoo) was not allowed to testify o The appellate court agreed with the Crown, upheld the appeal, and allowed the expert’s testimony o Abbey was ultimately convicted In 2015, White Burgess Langille Inman v. Abbott and Haliburton Co., the SCC held that the impartiality and independence of expert witnesses is a factor to be considered when determining admissibility o This falls under the ‘qualifications’ aspect of the Mohan test Saks (1990) gave three labels/categories of how experts might be swayed to testify in a particular way in a case: o Conduit-educator:  Ideal  Full and accurate picture of current state of psychological knowledge o Philosopher-advocate:  Mediocre  Allows personal values (e.g., culture, religion) to shape testimony o Hired gun:  The worst kind of expert witness

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 Intentionally shapes testimony based on which side hires them There are multiple ethical guidelines which contain rules/policies/advisements on how forensic psychologists should practice: o Specialty Guidelines for Forensic Psychologists (AP-LS) (2011) o APA Ethical Principles of Psychologists and Code of Conduct (2017) o CPA Code of Ethics for Psychologists (2017) o Provincial standards of conduct (e.g., College of Psychologists of Ontario Standards of Professional Conduct)

Cross-Disciplinary Training 

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There are many different training models for forensic psychologists: o Undergraduate training – survey and seminar courses o Graduate training – Masters, PhD, or PsyD in Psychology and Law or Forensic Psychology (50+ of these programs) o Dual doctoral programs – PhD and JD (the first joint program began in 1973 at the University of Nebraska) o Other – PhD + Masters in Legal Studies Proposed basic competencies for doctoral training: o Substantive psychology  research design/methodology and statistics  conducting research  legal knowledge  integrative law-psychology knowledge  ethics and professional issues  clinical forensic training

Amicus Briefs    

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An amicus curiae brief (“friends of the court”) – useful tool for educating judges about psychological research Can be controversial Amicus briefs exist on a continuum from scientific translation to advocacy “It is possible to be scientific without being neutral, to be objective yet form an opinion about the implications of the research. If the data warrant a particular conclusion, then it may be reasonable for brief writers to advocate for a legal decision that would reflect the knowledge gained from the research” Typically written by a team of researchers and reviewed by a professional organization Often a comprehensive review Examples – Hollingsworth v. Perry and United States v. Windsor o APA determined there is no valid scientific basis for denying same-sex couples the right to legal marriage

Dissemination of Research 

Knowledge translation activities – activities involved in moving research from the laboratory, journals, and the academic conferences into the hands of people/organizations who can put it into practical use o Continuing Education activities

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o Roundtables o Getting research in popular media o Direct policy consultations E.g., a study about homicide and mental illness was conducted, and the findings were picked up by the news which disseminated this information broadly o Findings – homicide and mental illness are not correlated (only 4% of homicides are committed by someone with mental illness)

Influencing Public Policy   

Psychologists can influence the thinking of legislators on an array of issues E.g., Wells et al. (1998) – psychologists and NIJ made series of recommendations for use by police, lawyers, and judges about eyewitness identification Contributing to presentations and briefs during legislative review...