At the turn of the 20th century, American psychologists remained comparatively uninterested in applying research on topics related to law. One reason was that they were just beginning to explore the broad psychological landscape and had little inclination to specialize in law-related matters. This reticence was probably also due to the influence of Wilhelm Wundt, who had trained many of the American pioneers in his Leipzig laboratory (Cattell being the first). Wundt, a philosopher and an experimentalist, was wary of applying psychology until sufficient research had been conducted. He believed that the premature use of partial information could be disastrous. His students often took this caveat quite seriously, although some, like Cattell, eventually began to link the laboratory to the world outside.
One of Wundt’s not-so-cautious students was the German psychologist Hugo Munsterberg, who arrived in the United States in 1892 at the invitation of William James to direct the psychology laboratory at Harvard University. Munsterberg spent 24 years trying to persuade the public that psychology had something to offer virtually every area of human endeavor. Now acknowledged by many as the father of applied psychology, he believed psychological knowledge could be applied to education, industry, advertising, music, art, and, of course, law. His claims were often exaggerated, however, and his proposals were rarely empirically based. He usually published in popular magazines rather than in scholarly journals (some of his colleagues called his a “Sunday-supplement psychology”). He also incessantly promoted himself and his native Germany, a practice that alienated him increasingly from his colleagues and the public as World War I approached. In fact, his ardent pro-German stance may have had as much to do with the public’s antipathy toward him as his abrasive personality.
Not surprisingly, the legal community vehemently resisted his intrusion into its territory (Hale, 1980), and there was much ado about this. Charles C. Moore (1907), a well-known attorney, referred to Munsterberg’s work as “yellow psychology” (a term that mirrored the sensational, often inaccurate yellow journalism of that era) and concluded that it provided nothing new or helpful to the court. Most noteworthy, the great legal commentator John Henry Wigmore (1909) found it necessary to assail Munsterberg in a satirical and devastating law review article. Wigmore’s attack was prompted by the publication of Munsterberg’s (1908) controversial best-seller On the Witness Stand, in which he proclaimed that the time was ripe to apply psychology to the practical needs of the legal system. The book—which was essentially a compilation of already published columns—dealt with a wide spectrum of topics, ranging from witness accuracy and jury persuasion to hypnosis and lie detection.
In 1914, Munsterberg published a study on group decision making, using Harvard and Radcliffe students as subjects, which he titled “The Mind of the Juryman.” In a conclusion not atypical of the times, he stated that “the psychologist has every reason to be satisfied with the jury system as long as the women are kept out of it” (p. 202). He based his conclusion on a finding that the female students in his study were less accurate in their final decisions than the male students. Interestingly, as will be noted shortly, one of his own students later arrived at a very different conclusion.
Munsterberg, always willing to give speeches, gave his inaugural lecture at Radcliffe College in 1894 and his last at the same location in 1916, when he suddenly died of a heart attack midsentence while lecturing his general psychology class (Landy, 1992). Landy wrote that “at the time of his death… Munsterberg was an object of public scorn and was well on the way to professional ostracism. By 1919, less than 3 years after his death, there was hardly any reference to any of his more than 10 books and dozens of articles in basic and applied psychology” (p. 787). Benjamin (2003) noted that Munsterberg “was one of the most despised individuals in America” (p. 734). Interestingly, in a recent article, Sporer (2008) correctly pointed out that much valuable information about early contributions of other individuals in legal psychology has been lost because of excessive focus on Munsterberg.
In similar fashion, Bornstein and Penrod (2008) sought to resurrect the long-ignored work of George Frederick Arnold, a civil servant in the British Empire who published Psychology Applied to Legal Evidence and Other Constructions of Law in 1906, 2 years before Munsterberg’s On the Witness Stand. Bornstein and Penrod admirably compared the value of these respective texts, noting that Arnold, even though he was not an academician, displayed an impressive familiarity with the psychological literature of the day. They noted also that his style was dry and “reads like the serious academic tome that it is” (p. 763), whereas Munsterberg’s style was directed at a general, less serious audience. Bornstein and Penrod are to be commended for bringing attention to this obscure work, but the fact remains that Arnold’s overall contributions were not as far reaching as those of Munsterberg.
Munsterberg has been accused of being more an opportunist than a trailblazer, however (Kuna, 1978). It is tempting to blame his brashness, his apparently despicable demeanor, and his pro-German views for the tenuous and occasionally hostile initial relationship between psychology and law. Nonetheless, he undeniably pushed his reluctant American colleagues into the practical legal arena and made a seminal contribution to applied psychology in general and forensic psychology in particular.
World War I placed in abeyance most of the exploration in applying psychology to law, although the war and early postwar years saw a few landmarks in American forensic psychology, including the gradual acceptance of psychologists as expert witnesses. The first psychologists, along with other social scientists, were also appointed to law school faculties during these years.
Psychologist Donald Slesinger, a protege of Robert M. Hutchins, made his mark during the years immediately following World War I. Although he had no formal legal training, Slesinger was appointed by Acting Dean Hutchins as a one-year Sterling Fellow to the Yale Law School in 1927. The following year, he became a research assistant. In 1929, he was appointed associate professor, teaching a course in the psychology of evidence, which appears to qualify him as the first psychologist granted faculty status in an American law school. In 1930, Slesinger followed Hutchins to the University of Chicago, where he served as professor of law and, briefly, as dean of the law school.
Several years earlier, psychologist William Marston had been the first to receive a faculty appointment as professor of legal psychology when he joined the faculty at American University in 1922. Marston was by far the most influential psychologist associated with the legal system during this era. He was a student of Munsterberg but did not have his mentor’s penchant for alienating the legal community and much of the American public. He received a law degree in 1918 and a PhD in Psychology in 1921, both from Harvard. Marston’s interests were multifaceted. (He was even the originator, cartoonist, and producer of the successful comic strip Wonder Woman, under the pen name Charles Moulton.) Although admitted to the Massachusetts bar, Marston soon gave up his law practice to concentrate on psychology.
As a laboratory assistant in psychology at Radcliffe College, Marston (1917) had discovered a significant positive correlation between systolic blood pressure and lying, which became the basis of the modern polygraph. In fact, Marston was the psychologist who testified in the landmark case Frye v. U.S. (1923), the case that set the original standard for the acceptance of expert testimony in federal courts.
Although his continuing work in lie detection (Marston, 1920, 1921, 1925) represents one of his major contributions to the forensic area, it was by no means the only one. He frequently consulted with attorneys, police, and other criminal justice personnel, and his evidence was determinative in the acquittals of several defendants accused of murder. It is likely, therefore, that Marston—along with Lewis Terman and psychologists associated with the New York City Psychopathic Clinic—qualifies as one of the first psychological consultants to the criminal justice system in the United States.
Marston also conducted the first serious research on the jury system (Winick, 1961). Using subjects in simulated jury conditions, he found in a series of studies (Marston, 1924) that written evidence was superior to oral evidence; free narration, though less complete, was more accurate than cross-examination or direct questioning; a witness’s caution in answering was a good indicator of accuracy; and female jurors considered evidence more carefully than male jurors (compare with Munsterberg’s conclusions about female jurors, mentioned earlier). Because of his legal background and his cautious style, Marston’s ideas and research were more acceptable to the legal community than Munsterberg’s had been, although there is little evidence that the legal system put his findings to extensive use. This is not surprising because some of his recommendations (e.g., free recall rather than directed questions and cross-examinations) were inapposite to the adversarial process in the United States, and others would have required fundamental changes in court procedures. Interestingly, the German psychologist Stern, discussed earlier, had cautioned his colleagues that experimental research in psychology might be of more relevance to the inquisitorial process used in European courts, where a neutral jurist asked questions of witnesses, than to the adversarial process in the United States (Stern, 1939).
Also during this time period, various reviewers took on the task of documenting the progress of legal psychology. Hutchins and Slesinger, for example, coauthored numerous summary articles on its status (1927,1928a, 1928b, 1928c, 1929). Slesinger wrote another article with Marion Pilpel in 1929, surveying 48 articles written by psychologists on issues relating to the law that had appeared in professional journals up to that time. Eleven were concerned with the psychology of testimony, 10 with deception, 7 with intelligence and crime, and 6 with criminal behavior. The remainder focused on general topics such as the scientific method or legal research. Fifteen of the 48 articles had been written by German psychologists.
Like applied psychology in general, legal psychology was somewhat dormant between the two world wars and did not regain its energy until the late 1940s and 1950s. In addition to Marston’s work, the period did see scattered research on how juries formed opinions and verdicts (Weld & Danzig, 1940; Weld & Roff, 1938), a master’s thesis on the relationship between narrative and interrogative methods of questioning (Cady, 1924), another study on questioning and testimony (Snee & Lush, 1941), and a survey of legal and psychological opinions about the validity of some of Wigmore’s rules of evidence (Britt, 1940).
According to Loh (1981), there was some interest in psychology and law during the late 1920s and the 1930s. However, this interest was almost exclusively on the part of lawyers, who produced such books as Legal Psychology (Brown, 1926), Psychology for the Lawyer (McCarty, 1929), and Law and the Social Sciences (Cairns, 1935). Wigmore (1940), the foremost authority on rules of evidence, paved the way for the use of test data in the courtroom. He observed that the psychometrist introducing test evidence would stand “on the same footing as the expert witness to insanity” (cited by McCary, 1956, p. 9), as long as such tests are recognized as valid and feasible by the general scientific community.
In 1931, psychologist Harold Burtt (who referred to Munsterberg as his mentor at Harvard) wrote Legal Psychology, possibly the first textbook in the area. Disputing this claim, Mulberger (2009) commented that the German psychologist Otto Lipmann had published a psychological textbook for jurists long before this (in 1908). The truth may depend on the meaning of the word textbook. Lipmann (1908) clearly deserves credit for his work, which was a compilation of the lectures he gave to students studying law. Lipmann’s book was specifically intended to educate current and future judges and lawyers, whereas Burtt’s book was intended for both lawyers and students of applied psychology. Nevertheless, although Burtt’s book made a valuable contribution to the academic psychological literature, it had little discernible influence on the legal profession or on applied psychology in general. In 1935, Edward S. Robinson published Law and the Lawyers, which predicted that jurisprudence would become one of the family of social sciences and argued that all of its fundamental concepts must be brought into line with psychological knowledge. The book was lambasted by lawyers and essentially ignored by psychologists. In hindsight, later scholars found Robinson’s ideas much more palatable (e.g., Horowitz & Willging, 1984; Loh, 1981).
Return to overview of the History of Forensic Psychology.