Assisting the Legal System

Forensic psychology assists the legal system in a number of ways including providing expert testimony in legal, administrative, and legislative proceedings; conducting and testifying about research conducted in anticipation of litigation; testifying about research not conducted in connection with litigation but that is nonetheless relevant; and researching the legal system’s operation.

Informing Decision Makers in Legal, Administrative, and Legislative Proceedings – Expert Testimony

Every day in the United States and other countries, thousands of psychologists appear before and provide expert opinions to courts, administrative proceedings (e.g., parole boards), attorneys, and legislative hearings via reports and/or sworn testimony. Psychologists’ involvement in these matters is predicated on the assumption that their observations and opinions will educate the recipient (e.g., attorney, judge, jury) about some psychological phenomena that are relevant to the legal matters in dispute, and, as a result, a more accurate and presumably better decision will be made.

Assisting the Legal SystemPsychologists’ participation in this way is based on the premise that, in some cases, legal decision makers must consider complicated psychological matters that are beyond their understanding, and their judgments would benefit from the insights and opinions of someone with specialized knowledge about the matter, such as a psychologist. Indeed, Federal Rule of Evidence 702 makes clear under what circumstances psychologists (and any other proffered experts) are permitted to testify:

A witness who is qualified as an expert by knowledge, skill, experience, training, or education may testify in the form of an opinion or otherwise if: (a) the expert’s scientific, technical, or other specialized knowledge will help the trier of fact to understand the evidence or to determine a fact in issue; (b) the testimony is based on sufficient facts or data; (c) the testimony is the product of reliable principles and methods; and (d) the expert has reliably applied the principles and methods to the facts of the case.

Conducting and Testifying About Forensic Psychological Evaluations

Most frequently, psychologists provide assistance to the legal system by offering observations and opinions about the emotional, behavioral, and/or cognitive functioning of someone whose mental state is at issue in a legal proceeding. These activities are quite varied and range from involvement in criminal proceedings in which the competence of a defendant to stand trial is in dispute to civil proceedings in which the court is faced with making decisions about what type of living and legal arrangements would be in a child’s best interests in the case of divorcing parents who cannot reach an agreement about these matters. In these cases, psychologists are offering observations and opinions about a specific person (or persons) who has been evaluated, and these observations and opinions are considered helpful to the court.

Because a defendant’s, litigant’s, or other person’s emotional, behavioral, or cognitive functioning can be at issue in a variety of legal proceedings, psychologists find themselves evaluating and testifying about the functioning of persons in many different legal matters (Melton et al., 2007). In criminal proceedings, psychologists may evaluate defendants when there are questions about their competence to proceed (stand trial), criminal responsibility (sanity), and/or treatment needs for consideration at the time of sentencing. In civil proceedings, psychologists can evaluate litigants and others when there are questions about their capacity to parent, manage their personal and financial affairs, execute a will, work, or make health-care decisions, or when there are disputes about their emotional, behavioral, or cognitive functioning as it relates to their risk for harming themselves or others or an alleged wrong committed by a third party. In all of these cases, psychologists assess individuals in light of the parameters the law has established for the particular question being addressed (e.g., standards of the insanity defense) in order to gather data and offer opinions that will be presented to the decision makers to assist them in reaching a more informed decision in the matter (Grisso, 1986, 2003).

Conducting and Testifying About Litigation-Specific Research

In some cases, psychologists can be of assistance to attorneys and the court by conducting and presenting the results of research that addresses important points of contention in litigation. Although the kind of questions that are asked and the type of research that is conducted can vary dramatically, common to this work is that the research was conducted in the context of the litigation at hand and designed to answer some case-specific questions.

In their influential treatise, Walker and Monahan (1987) described the products of this research as “social fact” testimony. For example, often in dispute in patent and trademark litigation is the issue of consumer confusion about competing products. In these cases, such as recent legal disputes regarding the Apple and Samsung wireless phones, one company alleges that another is unfairly encroaching on a unique aspect of its product that (1) results in consumer confusion and/or (2) harms the company economically. In Zippo Manufacturing v. Rogers Imports (1963), the Zippo lighter company argued that a competitor—Rogers Imports—copied the design of its cigarette lighter in such a way that it violated its trademark, caused consumers to confuse the two brands, and resulted in decreased Zippo sales and income. In support of its claim, Zippo presented results of research conducted expressly for purposes of the litigation, in which participants who were presented with both lighters demonstrated confusion about the brands. The results and interpretation of these data were offered by Zippo Manufacturing in support of its ultimately successful claim that consumer confusion resulted from the trademarked design similarities.

Psychologists also conduct research to inform legal decision makers about the knowledge and attitudes members of a jury pool have about a case that is about to go to trial, so as to inform decisions about whether an unbiased jury can be empaneled or whether a change in venue is necessary (i.e., if the location of the trial must be moved to another community). Such jury venire research, which is conducted in both criminal and civil proceedings, involves developing and administering surveys (typically by way of telephone calls) that query potential members of the jury pool about their knowledge and attitudes concerning the case at hand (Posey & Dahl, 2002). Psychologists who conduct this research may be called to testify about their findings, thereby providing the court with information about the jury pool that it would not otherwise have, to allow it to make a more informed decision about potential jurors’ knowledge of case matters and the potential need for a change in venue.

Testifying About Psychological Research Not Conducted in Anticipation of Litigation

Psychologists can also assist legal decision makers and legislative bodies by providing observations and expert opinions about more general matters that are nonetheless of interest to the court or legislature. Walker and Monahan (1987) referred to this as “social authority” testimony.

In litigation contexts, psychologists typically testify about research that sheds light on some matter or an assumption that is relevant to the case at hand, but they typically do not offer opinions about specific case matters. For example, a psychologist knowledgeable about research regarding eyewitnesses might be called to testify and educate a jury in a criminal proceeding about the poor relationship between eyewitness confidence and eyewitness accuracy, or how crime witnesses tend to focus on weapons that are brandished and pay less attention to the perpetrator and his or her appearance (Wells & Loftus, 2012). Or, in a child abuse prosecution, a psychologist knowledgeable about sexual victimization of children might educate the jury about why child victims of sexual abuse do not always come forward immediately to report the abuse or identify the perpetrator (Bussey, Lee, & Grimbeck, 1993; Kuehnle & Connell, 2009; 2012).

Social authority testimony is also introduced in legislative hearings, to inform lawmakers about psychological phenomena that are relevant to pending legislation. Thus, a psychologist knowledgeable about limitations in how adolescents understand and exercise their constitutional rights while in custody might testify before a legislative body that is considering a law mandating that minors be appointed counsel in delinquency proceedings, whereas a psychologist knowledgeable about the relationship between watching violence on television and aggressive behavior of children might offer expert testimony to a body considering legislation limiting what is broadcast on television during daytime hours.

Researching the Legal System

Psychologists conduct research that examines the legal system and its operation, and their findings can provide direction that is of considerable value. This research is quite varied in nature and focuses on phenomena as disparate as the effectiveness of various legal interventions or programs (e.g., drug courts, mental health courts, juvenile courts, or boot camps; divorce education classes; offender rehabilitation programs; crisis intervention teams), the prevalence and characteristics of various phenomena (e.g., criminal offenses, the nature of criminal offenders or victims, vicarious trauma experienced by jurors), and the operation of the legal system more generally (e.g., court efficiency, behavior of legal decision makers). What unifies this type of research is its focus on understanding and improving the legal system and its potential to provide important information to those who fashion policy and make laws that shape the legal system and its operation.

As an example, in their program of research, Redlich and her colleagues (Redlich, Steadman, Monahan, Petrila, & Griffin, 2005; Redlich, Steadman, Monahan, Robbins, & Petrila, 2005) have examined the outcomes associated with special “mental health courts” designed to respond to criminal defendants whose involvement with the criminal justice system is related to their problems with severe and persistent mental illness. Peters and his colleagues, in a similar line of research, examined the efficacy of courts devoted to managing the special challenges of offenders with substance abuse problems (Hiller, Belenko, Welsh, Zajac, & Peters, 2011; Peters, 2011; Peters & Belenko, 2011; Peters, Haas, & Hunt, 2002; Peters & Murrin, 2000; Peters & Young, 2011). Finally, in a very different line of research, Kovera and her colleagues examined the impact of expert testimony on the legal decision making of judges and jurors (e.g., Kovera, Levy, Borgida, & Penrod, 1994; Kovera & McAuliff, 2000; Kovera, McAuliff, & Hebert, 1999; McAuliff & Kovera, 2007, 2008).

As the information just presented demonstrates, the roles of forensic psychologists in these contexts can be broad and varied. At a micro level, their work can involve conducting and reporting the results of psychological assessments or conducting case-specific research, both with the intent of providing case-relevant knowledge to the legal decision maker that it would not otherwise have, so that more informed and better decisions are made. At the other end of the spectrum—the macro level—psychologists can help policy makers, legislators, and decision makers better understand the need for or potential impact of proposed legislation or the legal system and its operation. Common to their involvement in all matters, however, is the fact that psychologists are relying on their expertise to provide helpful information that would otherwise not be available to legal decision makers. We turn next to a discussion of the role that forensic psychologists play in assisting specific legal actors.

Return to overview of What is Forensic Psychology.