History of Courtroom Testimony

Pinpointing the origins of courtroom testimony by psychologists in Europe is not easy. Sources differ, often depending on the nature of the forum (e.g., civil versus criminal court, preliminary hearing versus trial) or its context (informal conversation with a judge versus formal testimony). Hale (1980) suggests that the earliest testimony by a psychologist in a criminal court occurred in 1896, when Albert von Schrenck-Notzing testified at the trial of a Munich man accused of murdering three women. The murders had received extensive and sensational press coverage in the months prior to the trial, and Schrenck-Notzing (1897) opined that this pretrial publicity, through a process of suggestion, probably led numerous witnesses to retroactive memory-falsification. Witnesses could not distinguish between what they had seen and what the press reported had happened. Schrenck-Notzing supported this opinion with social framework testimony (Monahan & Walker, 1988) in the form of accounts of laboratory research on memory and suggestibility. Although the accused was convicted on the basis of solid evidence, Schrenck-Notzing’s direct application of the psychology of suggestion to court processes helped stimulate the interest of both German jurists and psychologists (Hale, 1980).

History of Courtroom TestimonyHowever, Karl Marbe, a psychology professor at the University of Wurzburg, credited himself with the first court appearance, 15 years later. “The first German psychological legal expert opinion was my testimony in a case of sexual assault in Wurzburg in 1911, in which I had to discuss the question of the testimony of children” (Marbe, 1936, p. 184). In that case, several German adolescent girls had accused their teacher of sexually molesting them. Marbe persuaded the jury that the girls’ statements were unreliable, and the teacher was exonerated.

Also in 1911, several psychologists testified in a Belgian murder trial in which a man was accused of raping and killing a 9-year-old girl. Two of the child’s playmates had apparently seen the murderer but gave inconsistent and contradictory accounts. Among the psychologists retained by the defense was Julian Varendonck, who designed a series of experiments based on questions suggested by information obtained at the preliminary hearing. Varendonck’s subjects were children of approximately the same age as the two witnesses (8 to 10). He found that they were inaccurate in their recall of important events. Over the objection of the prosecution, he was allowed to present the results of these experiments as well as the general research on the psychology of testimony that was available at that time. Whipple (1912) wrote that Varendonck’s testimony “elicited violent outbursts from the court authorities, but it reached the jury and induced a verdict of ‘not guilty’” (p. 268), Whipple added that the psychology of testimony had “found its way formally into the court room and saved a man’s life.” The jury found the defendant not guilty.

Varendonck, it should be noted, was vehemently opposed to any use of child witnesses in the courtroom. In contrast, both Binet (1900) and Stern (1939) believed that errors in recollection, whether by children or adults, were more a reflection of leading, suggestive courtroom questioning than of any “natural” tendency to distort reality.

In 1912, Marbe became one of the earliest European psychologists to testify at a civil trial, offering expert opinion on the psychological issue of reaction times as applied to a train wreck near Mullheim. Marbe was asked to testify as to the probable effect of alcohol both on the mental status of the engineer and the reaction time of the fireman and guard applying the brakes. Based on reaction time experiments, Marbe testified that the train could not have been stopped in time to avert a disaster. As he did in the criminal case, Marbe appears to take credit for paving the way for other psychologists: “Since that time, through my agency and that of others, a mass of psychological expert testimony has been submitted, bearing continually upon new circumstances” (Marbe, 1936, p. 184).

Although Mulberger (2009) wrote that other psychologists were testifying in civil courts even before Marbe’s time, it is difficult to find written documentation of who they might have been. Marbe, along with Stern, has been credited with developing forensic psychology in Germany (Sprung & Sprung, 2001). In essence, it is not difficult to find illustrations of psychologists who had impact on the nascent field of legal psychology, but ranking their contributions chronologically must be done with caution.

European psychologists at the turn of the 20th century and until World War I also were delving into the area of guilt deception, the precursor of the lie detection of today. In 1904, psychologists in Germany, Austria, and Switzerland were busy developing a lie detection test for use in criminal investigations. The test was a word association/reaction time task in which key words were embedded in a list of innocuous words. Presumably, the slower the reaction time in recognizing the key words, the more likely the respondent was trying to deceive. Barland (1988), who has reviewed this history in impressive detail, notes that this approach did not catch on because it was inefficient, time consuming, and often yielded inconclusive results.

Return to overview of the History of Forensic Psychology.