Forensic psychology is a well-established, yet often misunderstood, practice area of psychology and law. The field actually predates the sociological jurisprudence movement of 1930-1950, and goes back at least to 1908 when Hugo Munsterberg (the founder of applied psychology) published On the Witness Stand, a book mostly about eyewitness testimony and juries. With the insanity defense, the field goes back even further, to the case of Daniel M'Naghten in 1843, who shot and killed the secretary of the prime minister of England. In criminology, one can trace the origins of a clinical or psychological criminology to the psychiatrist William Healy, who in 1909, created the Juvenile Psychopathic Institute to assist the newly created juvenile court in Illinois. Numerous other people figured prominently in the development of forensic psychology, and it would be a mistake to overlook the areas of prison psychology and police psychology.

The courts overwhelmingly recognize and accept psychologists of all stripes as expert witnesses in all U.S. courtrooms (Jenkins v. U.S. 307 F.2d 637 1962). When certification programs sprang up in the late 1980s, the field continued to be a growth industry. Almost all practitioners regard their area of practice as forensic psychology, even forensic psychiatrists, although there are certain educational differences associated with the related fields, as follows:

Certain restrictions apply depending upon educational qualifications, but are not uniform as the case law is voluminous. In general, a psychiatrist or clinical psychologist is needed to testify on insanity or types of mental disorders. Neurologists and neuropsychologists are necessary when X-rays, C-scans, and MRIs are involved or with cases of deficits in higher-order functioning. They are often restricted from testifying on predictions of dangerousness, this being the realm of criminologists. A licensed psychologist might be used for psychometric testing and find some involvement with issues of competency to stand trial (although many states mandate psychiatry or clinical psych. for this, especially in death penalty cases). A practicing psychologist would more commonly be involved with mental status exams, civil commitment, or treatment programs and rehabilitative potential (criminal justice degrees have found some use here). Forensic psychology encompasses all the above and more, including diminished capacity (criminal responsibility), sentencing aggravation or mitigation, and psychological issues in the workplace (risk, discrimination, etc.) and the courtroom (jury selection, jury view, pretrial publicity, eyewitness testimony, etc.). This list contains some of the more common functions:

Since Jenkins v. U.S. (1962), the general rule has been that every psychologist is a potential expert witness, and must be prepared to interact with the legal system unless they have ethical grounds not to do so. This rather broad sweep of the psychology discipline includes all of its subfields: cognitive, physiological, developmental, social, abnormal, clinical, counseling, industrial, and school. However, educational programs in psychology haven't yet geared up for training students in their forensic duties. Such training is noticeably absent at the undergraduate level, and only a dozen or so graduate programs in forensic psychology exist. Many academic psychologists resent being placed in the position of being, shall we say, "whores" (do anything for money) of the legal profession. Therefore, ethics rather than legal principles have played a larger role in guidelines for forensic psychologists. We'll talk about ethics again in a minute, but the main problem is that once a psychologist gets on the stand, they're fair game for almost every dirty lawyer trick in the book, and they're expected to respond to all things psychological, not just their specialty area.

Since Frye v. U.S. (1923), and it must be remembered that representatives from psychology were intimately involved in testimony when the Frye standard was developed, most states either follow a Frye-like rule or the FRE relevancy rule in admitting psychological evidence. An interest in meeting the Daubert standards characterizes many in the psychology profession, but there are plenty of practitioners who do not like Daubert for many reasons. Let's first look at the field in terms of Daubert, then the Frye-like standards, then the FRE relevancy test:

Each different set of admissibility standards has its advantages and disadvantages. The FRE standard (as amended to avoid disguising experts as lay witnesses) is probably the best since Daubert runs the risk of letting "junk science" in (see the Banning Junk Science from the Courtroom website) and Frye-like requirements are a bit restrictive. Several states also use a DUAL SYSTEM of standards: one for the scientific soundness of the results of any psychological tests or examinations; and another for qualifying the expert witness and their scientific opinion testimony. Psychological tests, like the MMPI for example, are subjected to Daubert requirements in terms of error rates, threats to validity, and so forth, while the expert is admitted under Frye, a Frye-like rule, or the FRE. The trend is toward assuring more rigor and discipline with the latter by raising the educational requirements (to a Ph.D. or J.D./Ph.D. as a kind of permit to practice).

Ethics: The Specialty Guidelines for Forensic Psychologists go beyond the APA Ethical Principles of Psychologists and represent an aspirational code of ethics for those who represent themselves as psychologists involved in providing professional psychological expertise to the judicial system. The following substantive areas are covered:

RESPONSIBILITY - services and/or products should be provided in a forthright, responsible manner, reflecting the highest standards of the profession
COMPETENCE - services should only be provided in those areas of psychology in which a person has specialized knowledge, skills, experience, or education
RELATIONSHIPS - fee structure and anticipated costs should be contracted beforehand, avoiding "contingency fees"; a certain amount of work should be done pro bono, and clients should be informed of their legal rights and give informed consent
CONFIDENTIALITY - every effort should be made to maintain confidentiality of any information that does not bear directly on the legal purpose of the services provided
METHODS - accepted clinical and scientific standards for scholarly/empirical investigation should be used, actively testing plausible rival hypotheses, minimizing reliance upon hearsay, and exercising extreme caution in preparing reports or other documentation, applying such detail and quality to the documentation that the standard is higher than for general clinical practice
COMMUNICATIONS - every reasonable effort should be made to correct any misunderstandings, misuse, or misrepresentation of products, evidence, and testimony, but avoiding any out-of-court statements

A few psychologists try to carve out a specialty area where it's understood that this is the one and only area they'll testify about. This work is typically unpaid work, as opposed to all-purpose psychologists who usually get paid. Eyewitness science is one such area. It's estimated that there are over 4,250 wrongful convictions each year due to sincere, yet inaccurate eyewitness identification. This has led many courts to consider inviting forensic psychologists to offer testimony about perception and memory. Forensic psychologists are not permitted to testify on the accuracy of a particular witness, only on the inherent unreliability of eyewitnesses in general. They are allowed to explain the mechanisms of perception, processing, memory, and recollection, and to describe the empirical research which has been conducted on these subjects. With victims, the rule is that a psychologist can testify about how victims of child abuse, domestic violence, or rape often have trouble remembering the incidents in their past, but they cannot state whether a particular victim was abused, battered, or raped (but juries usually get the idea).

Several states do not allow forensic psychologists to testify about eyewitness identification at all, the reasoning being that it invades the province of the jury. Some jurisdictions don't consider it Frye-compatible; others seriously limit its scope to general circumstances under the FRE, and it's a common subject matter in Daubert pretrial hearings.

The expert testimony involves a discussion of event factors (duration, complexity, and violence). Eyewitnesses normally overestimate duration. Personal factors are also involved (stress, weapon focus, and expectation). Psychologists have termed the relationship between stress and memory the Yerkes-Dodson Law. Expectation involves personal bias, cultural bias, and stereotypes. Over half of victims who didn't even see or hear their assailant think it was a black man. Memory is also affected by storage factors. One psychologist, Elizabeth Loftus, has pioneered research in this area, which demonstrates the gap-filling process of the mind (with certain words and inaccuracies). There's actually a negative correlation between witness confidence and accuracy. Finally, recall factors play a part, and psychologists are especially critical of police line-ups, being quick to spot suggestive procedures, or other social forces at work.

If a defendant's irrational behavior is known to either side or observed in court, this raises doubts as to competency (a legal concept) and ability to assist his/her attorney. In such cases, a special competency hearing must be held. Forensic psychologists often testify at these hearings. Incompetency is separate from insanity. If the defendant is found incompetent (IST), no trial is held. If the defendant is found competent, then a trial will commence at which time the issue of insanity will be raised. Competency is all about mental state at the time of trial; insanity is about mental state at the time the offense was committed.

Determination of competency normally takes place during an examination at a state mental hospital or a forensic psychiatric unit of a correctional facility. Other times, private facilities are involved. The inmate is interviewed for a period of days, sometimes weeks. Psychometric and neurological testing will also be done. Mental retardation, amnesia, and mild forms of mental disorder are not considered proof of incompetency by the courts. In general, the courts will often take persons to trial that psychiatrists think are incompetent. If the person is declared incompetent, the court will order them, under civil commitment, to undergo rehabilitation with drugs and/or therapy so that they can be restored to a point where they are able to stand trial. Psychologists often get paid for restoring someone to competency so they can stand trial, which in many ways is a direct conflict of interest if they testified previously about someone's need for treatment, and referred them to their own clinic or that of a colleague's.

Forensic treatment programs fall into three categories: traditional (medication, family therapy, substance recovery); contemporary (cognitive therapy, biofeedback, psychoeducation); and targeted (behavioral approaches to restoring competency, including role playing and mock trials). Somewhere around 50-75% of the time, the treatment is effective in raising them to a higher level of functioning so that they can stand trial.

Judges are often uncertain about how high to set bail or what sentence to impose; convicted inmates often come before various boards or committees asking for release; schoolchildren with tendencies toward violence often come to forensic attention from mandated reporters; and police often call the mental health center for assistance in dealing with a mentally disordered offender. These are some of the situations in which a forensic psychologist or mental health professional is legally obligated to assess the risk of further, or future violence.

A standardized risk assessment interview or instrument is given to the mentally disordered criminal at some point. Many states have mandated particular forms in their statutes. An individual's score is then compared to national norms that have been put together from longitudinal or cohort research. A review of that research is beyond the scope of this lecture, but suffice it to say that predictive validity and actuarial norms are quite well-known. A few jurisdictions use Hare's PCL-R (Psychopathy Checklist Revised) where a score of 30 out of 40 tends to predict violence. Other jurisdictions rely upon the MMPI, the Rorschach, or some combination of both.

The official position of the APA is that neither psychologists nor psychiatrists have any special abilities to predict future dangerousness. Despite this, both kinds of experts are frequently called upon by the legal system for just such services. The error rates in predicting dangerousness are quite high, on the order of 80-90%, regardless if actuarial or clinical methods are used. Past criminal behavior is actually the best predictor of future dangerousness. Also, many of the risk markers that are used in the legal system are sociological, not psychological. Things such as "bond with community" might be a legal criteria which a psychologist may or may not be able to ascertain.

Both "sanity" and "insanity" are legal terms, and forensic psychologists and psychiatrists must relate their scientific language to them. Various legal jurisdictions define insanity differently and require different tests. There are at least five (5) different tests:

This isn't the place to go into all the intricacies of insanity law as there's another course for that, but the main problem most people have is distinguishing the lineage of the various tests. The most commonly seen misperception is that M'Naghten's modern equivalent is the Durham Test, and this is correct to a point. The "know" requirement of M'Naghten was first replaced by the "appreciate" standard of Freeman, and "mental disease or defect" (two separate things) was replaced by components of the ALI rule, not the Durham Test which only existed in the District of Columbia from 1954 to 1972. Mental defect is usually thought of as permanent; mental disease need not be. Mental defect is what M'Naghten was all about. It required proof of an incurable condition. Modern psychology is all about mental disease, and psychologists rarely believe in incurability. Durham has more in common with Freeman, Wolff, and a number of other cases which produced standards like diminished capacity, compulsive impulse, and substantial appreciation. There's also something called revised M'Naghten, which gets at the recalcitrant treatment possibilities of those with antisocial personality disorders, sociopathy, or psychopathy.

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