Law and Human Behavior, Vol. 23, No. 3, 1999
What Is Forensic Psychology, Anyway? John C. Brigham1
The issue of how "forensic psychology" is defined has taken on a new urgency in the context of an application to have forensic psychology designated a "specialty" by the American Psychological Association. To provide a historical perspective, I briefly review early attempts to apply psychological concepts to legal issues, beginning with the McNaughten trial in England in 1843. I then review current conceptualizations of forensic psychology, which have either a broad focus on all psychology-law interactions or focus more narrowly on clinical applications to the legal system. Potential advantages and disadvantages of each conceptualization are briefly discussed. After touching upon the major differences in the "cultures" of psychology and of law, I discuss three law-related areas of contemporary controversy: use of clinically based evidence in the courtroom, "recovered" memories of child abuse, and the use of the criteria-based content analysis technique to evaluate children's claims of sexual abuse. Issues concerning the education and training of psychologylaw scholars and practitioners are briefly surveyed. I conclude that a broad conceptualization of forensic psychology is important in terms of relevant ethical standards, but that a more narrow distinction that differentiates between clinicians and researchers or legal scholars also is useful.
"What is forensic psychology, anyway?" I have heard this plaintive question many times over the past few years, asked by bewildered undergraduate students, graduate students, and fellow professionals. Indeed, I have asked myself the same question, and I have never been able to come up with an entirely satisfactory answer. This vexing question is not simply of arcane academic relevance. Recently the American Psychological Association (APA) opened the gates for the certification of new "specialties" in psychology, and "forensic psychology" is one specialty that will be considered. The specialty designation issue has engendered heated and lengthy debate among many members of the American Psychology-Law Society (AP-LS) about whether or not AP-LS should be an active participant in the specialty application process. Much of this debate has been centered around the basic question of what is, and is not, "forensic psychology." There seems to be general agreement 1
Department of Psychology, Florida State University, Tallahassee, Florida 32306-1270 (e-mail: brigham® psy.fsu.edu).
273 0147-7307/99/0600-0273$16.00/1 © 1999 American Psychology-Law Society/Division 41 of the American Psychology Association
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that forensic psychology involves the interaction of psychology and the legal process (indeed, that's what the dictionary says), but beyond this general conceptualization, things become murky. I will attempt to shed some light on this contentious issue, with particular attention to the perspective of AP-LS. I will begin by briefly discussing several important milestones in the intersection of psychology and law over the past 150 years. This will be followed by an analysis of the ways in which "forensic psychology" has been defined by contemporary professionals. I will then turn to a brief analysis of problematic issues in the interface of psychology and law, after which I will discuss three law-related areas in psychology in which controversy has been particularly salient. The first issue is a general one—the use (or rejection) of clinical/ practice-oriented and of research-based data in the courtroom. The remaining two areas pertain to allegations of child sexual abuse: the heated psycholegal debate on "recovered memories" of childhood sexual abuse (as represented by the report of the APA Working Group on Investigation of Memories of Childhood Abuse), and the validity of the criterion-based content analysis (CBCA) technique that is intended to assess whether or not a child's allegation of sexual abuse is truthful. Finally, I will touch upon some issues concerning the education and training of future psychology-law scholars and practitioners. PSYCHOLOGY AND LAW: HISTORICAL HIGHLIGHTS In 1843 Daniel McNaughten (or M'Naghten), a woodturner and shopkeeper from Glasgow, Scotland, attempted to assassinate British Prime Minister Robert Peel. Instead, he mistakenly shot and killed the Prime Minister's secretary, Edward Drummond. In his only public statement about his motives, McNaughten said, "The Tories in my native city have compelled me to do this. They follow, persecute me wherever I go and have entirely destroyed my peace of mind. They followed me to France, into Scotland, and all over England. In fact they follow me wherever I go. I cannot sleep nor get no rest from them. I shall never be the man I was. I used to have good health and strength, but I have not now" (quoted in Moran, 1981, p. 10). McNaughten's statement formed the basis for an insanity defense at his trial. The concept of an insanity defense was not new to the British legal or medical communities. One well-known previous case involved James Hadfield, who in 1800 had attempted to assassinate King George III. Hadfield, who had suffered a head wound while fighting the French 6 years earlier, was found not guilty by reason of insanity. Hadfield's defense attorney argued successfully that one did not have to be a raging "wild beast," totally out of contact with reality (as had been the standard up to then), to be considered insane. When arrested, McNaughten had in his pocket a deposit slip for 750 pounds, a huge sum for a man in his position. These funds were used to hire what might be called the first legal defense "Dream Team," 150 years before the O. J. Simpson murder trial. McNaughten was defended by four barristers; they called nine medical experts who testified that he was insane or "partially insane." The prosecution did not attempt to counter the defense's medical testimony and the prosecutor withdrew
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the Crown's case against McNaughten after the medical testimony had been given. Not surprisingly, the jury quickly came to a verdict (in less than 2 min!) of not guilty by reason of insanity (Finkel, 1988). Queen Victoria, who had herself been shot at by an assassin 3 years earlier, was not amused, and neither was the House of Lords, which discussed the issue further. The eventual result was the "McNaughten rule" as established by the House of Lords, which specified that, "To establish a defense on the ground of insanity it must be clearly proved that, at the time of committing the act, the party accused was laboring under such a defect of reason, from disease of the mind, as not to know the nature and quality of the act he was doing, or if he did know it, that he did not know he was doing what was wrong" (Finkel, 1988, p. 21). This "McNaughten rule" remains the standard for defining insanity in about half of the U.S. states. A fascinating sidelight to this case concerns the chaotic political situation of the day and the mysterious 750 pound note. Where did a lowly shopkeeper get such a huge sum of money? Apparently, neither the defense nor the prosecution was overly curious at the time. Much later, Moran (1981, p. 4) suggested that the verdict was mainly the result of political considerations, rather than McNaughten's mental state, contrary to the court's stated basis for the decision. McNaughten was not insane, Moran asserted. Given the great political turmoil of the times in McNaughten's home area (riots, general unrest and political intrigue, Tory spies and agents throughout England and Scotland), and McNaughten's known status as an orator and antigovernment sympathizer, McNaughten's statement may have had the ring of truth to it. Finkel (1988, p. 18) suggested, "Perhaps he was striking back, defending himself against a series of escalating harassments that might, if unstopped, lead to his own murder? Was it an act of self-defense? A much-provoked reaction? Or was the unexplained 750 pound note a payment for a political assassination that simply did in the wrong man?" How ironic if this landmark insanity verdict was based upon a false premise! The early years of the twentieth century saw several significant attempts to inject the young discipline of psychology into the legal system (Table 1). Two pioneering psychologists with very different perspectives, Sigmund Freud and Hugo Munsterberg (neither of whom was shy about asserting the value and applicability of his nascent field), argued that psychology, even in its then early state, had important applications for the law. In a 1906 speech to Austrian judges, Freud (1906/1959) asserted that psychology was very relevant to their jobs. Freud suggested that procedures adapted from psychoanalysis, especially the word association technique, could establish a "new method of investigation, the aim of which is to compel the accused person himself to establish his own guilt or innocence by objective signs" (p. 103). Freud suggested further that, "The task of the therapist... is the same as that of the examining magistrate. We have to uncover the hidden psychical material; and in order to do this we have invented a number of detective devices, some of which it seems that you gentlemen of the law are now about to copy from us" (p. 108). Freud's optimism about the eagerness with which the law would embrace psychological principles and methods was not borne out, however. In his controversial book, On the witness stand, which was actually a collection
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1843 1906 1908 1908 1909 1909-18 1954 1968-69 1971 1974 1976
1977 1980-81 1984 1991 1995
Daniel McNaughten (M'Naghten) is found not guilty by reason of insanity; nine medical experts testify on his behalf In a speech to Austrian Judges, Sigmund Freud suggests that psychology has important applications for their field In Mutter v. Oregon, attorney Louis Brandeis submits a brief that includes empirical research results relating to the issue at hand (working hours for women) Psychologist Hugo Munsterberg's On the witness stand is published Legal scholar John H. Wigmore satirizes Munsterberg's claims in a law review article Guy Whipple publishes a series of articles in Psychological Bulletin extending European research (e.g., Stern, Binet) on observation, memory, and witness testimony The "Social Science Brief, written by psychologists Kenneth Clark, Isidor Chein, and Stuart Cook and signed by 35 social scientists, is cited in a footnote of the momentous Brown vs. Board of Education decision outlawing school segregation. The American Psychology-Law Society is founded The Program in Law and Social Science is established at NSF First joint-degree psychology-law program is established (University of Nebraska) "Psychology and the law" is first reviewed (by J. L. Tapp) in the Annual Review of Psychology. Law and Human Behavior begins publication as the AP-LS journal APA's Division 41, Psychology and Law, is established AP-LS merges with Division 41 of APA Specialty Guidelines for Forensic Psychologists are approved Psychology, Public Policy, and Law begins publication as an APA journal
of previously published magazine articles, Munsterberg (1908) argued in strong terms that lawyers should pay close attention to psychology. Munsterberg's arguments that psychology had much to offer the legal system and the legal system's generally negative reaction to this assertion illustrate an often acrimonious debate between psychologists and the legal community that continued intermittently for the rest of the century. Munsterberg, a Harvard professor, had emigrated from Germany in 1892 at the invitation of William James and became the second president of the APA a decade later. Munsterberg had an arrogant manner and often adopted a pugnacious, somewhat sensationalized, self-promoting stand in his writings. As illustrated in Table 2, he asserted that "the lawyer alone is obdurate" in failing to recognize the importance of applied psychology. Munsterberg's arguments were so strong that they provoked a scathing response from legal scholar John Wigmore (1909), who created "transcripts" of a mythical libel trial in which Prof. Munsterberg was sued for libel by the legal field for his assertions, and was found guilty of claiming more than he could offer. The plaintiffs' lawyer, Mr. Tyro, criticized the lack of relevant research publications available (none had yet been published in English when Munsterberg's book was published), and noted that eminent European psychologists such as William Stern had cautioned against overzealous application of psychological findings. In 1906, Stern had written, "It is not yet time to speak of the practical use of this method; neither too great optimism nor too great skepticism is fitting. Thus far it has not yet passed beyond the laboratory stage. An extensive series of purely methodological work will be required before it can be thought of for application to the larger field of practice ... It is still premature to discuss its forensic use" (quoted in Wigmore, 1909, p.
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Table 2. How to Alienate the Legal Establishment: Some Quotations from Psychologist Hugo Munsterberg's 1908 book, On the witness stand My only purpose is to turn the attention of serious men to an absurdly neglected field which demands the full attention of the social community. (p. 12) The time for such applied psychology is surely near . . . the lawyer alone is obdurate, (pp. 9-10) The lawyer and the judge and the juryman are sure that they do not need the experimental psychologist. They do not wish to see that in this field preeminently applied experimental psychology has made strong strides . . . They go on thinking that their legal instinct and their common sense supplies them with all that is needed and somewhat more; and if the time is ever to come when the jurist is to show some concession to the spirit of modern psychology, public opinion will have to exert some pressure. (pp. 10-11) The courts will have to learn sooner or later, that the individual differences of men can be tested today by the methods of experimental psychology, far beyond anything which common sense and social experience suggest. (p. 63) It is surprising and seems unjustifiable that lawyers and laymen alike should not have given any attention, so far, to the ... many — methods of the psychological laboratory — methods in the study of memory and attention, feeling and will, perception and judgment, suggestion and emotion. In every one of these fields, the psychological experiment could be made helpful to the purposes of court and law. (p. 76)
414). Mr. Tyro accused Prof. Munsterberg of committing "the whimsical mistake of bearing testimony against our innocent profession ... for neglecting to use new and 'exact' methods which were and are so little 'exact' and so incapable of forensic use that even their well-wishers confess that thousands of experiments and years of research will be required before they will be practicable, if ever" (Wigmore, 1909, p. 415). It should be noted that Wigmore criticized his own field as well. In his article the trial judge, after receiving the jury's verdict in favor of the plaintiffs, pointed out that, "No country in the world was probably so far behind in the scientific study of the criminal law as affected by the contributory sciences of sociology, anthropology, psychology, and medicine. In no [other] country had the legal profession taken so little interest in finding out or using what those other sciences were doing" (p. 433). Mr. Tyro expressed the desire that "their whole profession would expect and hope to go forward hereafter with the other profession [psychology] in joint endeavor to fruitful ends. They would put aside mutual distrust and public fault-finding." He urged the "friendly and energetic alliance of psychology and law, in the noble cause of justice" (p. 432). Many years later, Bersoff (in press) suggested that Munsterberg's work was so vilified by legal scholars that it almost irreparably damaged early attempts to apply the behavioral sciences to the law. Elsewhere, Munsterberg's attempt was labeled "a miserable failure" (Bersoff, Goodman-Delahunty, Grisso, Hans, Poythress, & Roesch, 1997, p. 1301). Although it has been suggested (Kuna, 1978) that Munsterberg was more an opportunist than a trailblazer, Bartol and Bartol (1987, p. 7) pointed out that nevertheless "he undeniably pushed his reluctant American colleagues into the practical legal arena and made a seminal contribution to forensic psychology." At about the same time, the first legal brief that contained then-current social science (extralegal) knowledge about an issue was submitted to the Oregon Supreme
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Court by attorney (and later U.S. Supreme Court Justice) Louis Brandeis, in Mutter v. Oregon (1908). The brief argued that Oregon's statute limiting women to 10-hr workdays should be upheld because social science knowledge showed that longer workdays would be deleterious to women's health and well-being. The court's decision upheld the position taken in the brief. (Subsequently, such briefs have been called "Brandeis briefs.") However, this brief did not instantly start a trend, as presenting extralegal information to the courts did not become common until the late 1930s (Hafemeister & Melton, 1987). Probably the most famous Brandeis brief was the "Social Science Statement" submitted to the U.S. Supreme Court in the landmark 1954 case, Brown v. Board of Education, that outlawed school segregation. Written by social psychologists Isidor Chein, Kenneth Clark, and Stuart Cook, and signed by 35 eminent social scientists (Allport et al., 1953), the brief summarized research on the effects of segregation on the self-esteem of Black children. The brief stated that research demonstrated that school segregation produced low self-esteem and was harmful to Black children. The brief was cited in a footnote of the momentous decision, and social scientists continue to argue to this day about the accuracy with which the research results were portrayed, and also about whether the brief played a significant role in the Court's decision-making or was merely added as "window dressing" to the decision (e.g., Cook, 1984, 1985; Gerard, 1983; Stephan, 1978; Tomkins & Oursland, 1991). Recently, Jackson (1998) provided an interesting, detailed account of the geneses of the Statement and the political, legal, and scientific issues that surrounded it. The Mutter and Brown cases are probably the two most famous historical examples of using social science data as social authority (Monahan & Walker, 1988) in order to create or change a legal rule (Ogloff & Finkelman, 1988). Brown was the first application of social science to attack, rather than support, the actions of the state (Hafemeister & Melton, 1987). Widespread professional recognition that "psychology and law" was an important area of inquiry gained momentum in the 1960s and 1970s, as shown by the founding of the American Psychology-Law Society in 1968-69, the establishment of the Program in Law and Social Science at the National Science Foundation in 1971, and the initiation of the AP-LS-sponsored journal, Law and Human Behavior, in 1977 (Table 1). Where does the American Psychology-Law Society stand today? In 1998, the AP-LS had over 2,100 members and another 600 student members. About 8% of AP-LS members did not belong to the APA. Interestingly, while the regular APLS membership is predominantly male (68%), the large majority of the student members (71%) are women, suggesting that the gender ratio of members will change dramatically in subsequent years. Despite ongoing effects to increase the ethnic diversity of the organization, the vast majority of members (93%) and student members (89%) are White. Most AP-LS members who are also APA members described their major area of interest as clinical psychology (60.5%). Other areas represented included counseling psychology (7%), social psychology (4%), and law (2%). As one might expect from these figures, other APA divisions to which APLS/APA members belonged tended to be the clinically oriented ones: Division 42, Psychologists in Independent Practice (23%), Division 12, Clinical (22%), Division
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40, Clinical Neuropsychology (16%), and Division 29, Psychotherapy (14%). Other APA divisions that were somewhat popular with AP-LS/APA members are Division 9, SPSSI (8%), Division 8, Personality and Social Psychology (6.5%), and Division 37, Child, Youth, and Family Services (6%).
CURRENT CONCEPTUALIZATIONS OF "FORENSIC PSYCHOLOGY" If AP-LS members were directly asked, "Are you a forensic psychologist?," many would say "yes," some might say "no," and a substantial portion might respond, "I don't know" or "It depends on what you mean." If we look at how forensic psychology has been defined in the professional literature, there appear to be two general definitions: a broad definition that equates "forensic psychology" with "psychology and law," and a more narrow definition that limits forensic psychology to clinical/practice issues. The broad definition is contained in the Specialty Guidelines for Forensic Psychologists, created by an AP-LS committee and endorsed by the AP-LS in a membership vote (Committee on Ethical Guidelines for Forensic Psychologists, 1991). The Guidelines define the field as covering "all forms of professional conduct when acting, with definable foreknowledge, as a psychological expert on explicitly psychological issues in direct assistance to courts, parties to legal proceedings, correctional and forensic mental health facilities, and administrative, judicial, and legislative agencies acting in a judicial capacity" (Committee on Ethical Guidelines, 1991, p. 657). In a similar vein, the American Board of Forensic Psychology on its website in 1998 gave a broad definition: "The application of the science and profession of law to questions and issues relating to psychology and the legal system." In the Handbook of forensic psychology, Bartol and Bartol (1987, p. 3) stated, "We view forensic psychology broadly, as both (1) the research endeavor that examines aspects of human behavior directly related to the legal process ... and (2) the professional practice of psychology within, or in consultation with, a legal system that embraces both civil and criminal law." Others have stressed the clinical aspects. Roesch (in press) noted that, "Most psychologists define the area more narrowly to refer to clinical psychologists who are engaged in clinical practice within the legal system." And the AP-LS's own web site on graduate programs in 1998 endorsed a perspective seemingly at variance with the AP-LS Specialty Guidelines: "Forensic psychology is usually thought of as clinical psychology and law." Another way to assess what "forensic psychology" means is to see what forensic psychologists are trying to learn. Examination of the 26 workshops for professionals offered by the American Academy of Forensic Psychology from November 1998 to May 1999 indicates that the topics are mostly clinical ones. By my rough categorization, about 75% of the workshops appear clinical in nature (e.g., assessment; custody evaluations; mental disability; child sexual abuse evaluations), while the remaining 25% (e.g., expert testimony; ethical issues; jury selection) appear relevant to several subfields. The roster of workshops offered by the AAFP, then, appears to support a "mostly clinical" picture of forensic psychology. (Of course, it should
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be noted that the development of workshops may be driven in part by state licensure policies, as well as by conceptual issues.) Does it really matter how this area is defined? I think it does. First of all, many professionals are currently left in "definitional limbo." As a case in point, I am a social psychologist who carries out research on eyewitness memory and I occasionally deliver expert testimony in court on this issue. If asked in court, "Are you a forensic psychologist?," my most accurate current response would seem to be, "Well, it depends...." And, in my experience, judges hate responses of that sort, which they see as unnecessarily vague or evasive. But beyond problems of individuals' professional identity crises, the issue became more salient in the late 1990s when the APA Committee for the Recognition of Specialties and Proficiencies in Professional Psychology (CRSPPP) opened the door to the submission of petitions for areas to be certified as specialties or proficiencies. The American Academy of Forensic Psychology (AAFP) decided that it would create a petition to establish a Specialty in Forensic Psychology and asked the AP-LS (some of whose members also belong to AAFP) to join them in this effort. Central to this effort, of course, is how "forensic psychology" is to be defined. Although APA stressed that the specialty and proficiency designations were to be used for evaluation and development of training programs, and not for the credentialing of individuals, the concern persists that, somewhere down the road, such designations will become a crucial part of the credentialing process. If that becomes the case, then this definitional issue may play a critical future role for psychologists, clinicians and nonclinicians, who seek to play a role in the legal process. A broad definition of forensic psychology would include not only clinicians, but also other psychologists (social, developmental, cognitive, experimental, etc.) who may consult with attorneys or deliver expert testimony. What are the advantages of this broad conceptualization? First, a broad definition might promote coherence and growth within the general field of psychology and law. In addition, it might facilitate the development of strong, broad graduate training programs. Furthermore, it would be consistent with the Specialty Guidelines for Forensic Psychologists and with the definition put forth by the American Board of Forensic Psychology. But there are also potential drawbacks to a broad definition; placing clinical practitioners and nonclinical researchers into the same category can be problematic. The training of clinicians differs from that of nonclinicians (e.g., predoctoral internships), and there are state licensing requirements for clinicians that do not apply to nonclinicians. The clinician/nonclinician "schism" has bedeviled psychology for almost its whole history. A "forensic" training program that attempted to train both clinicians and nonclinicians would be difficult to implement. It is difficult to envision a training program that would instill expertise in all of the relevant areas: clinical practice, social psychology, cognitive psychology, and so forth. A narrow (clinical) definition of "forensic psychology" has its own set of advantages and disadvantages. On the plus side, it would allow for a more clearly specified training focus (clinical) and would possibly make the boundaries of the subarea more easily understood by the courts. Further, designation as a specialist
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is most relevant to those whose practice is regulated by state licensure (i.e., clinical forensic practitioners). The narrow definition would be consistent with licensure and many training issues. On the other hand, the narrow conceptualization could be divisive for our field. It might exacerbate tensions between clinicians and nonclinicians, tensions that are sometimes evident within the AP-LS and that played a critical role in the splitting off of the American Psychological Society (APS) from the APA a decade ago. Further, under this distinction, the courts might decide that only the testimony of "forensic" (clinical) psychologists should be admitted, thereby excluding potentially valuable contributions that could be made by nonclinical psychologists. One compromise might be to label a specialty as "clinical forensic," thereby recognizing that there are other varieties of forensic psychology available (i.e., other approaches that can provide valuable inputs into the legal system). This option does not appear viable, however, because in 1998 the APA Board of Directors voted not to permit the use of the word "clinical" in the title of any new specialty. Faced with this confusing array of potential costs and rewards, the AP-LS Executive Committee struggled for 2 years with the issue. The AP-LS membership was given the opportunity via the spring 1998 newsletter to vote on whether the AP-LS should get involved in the development of a forensic psychology specialty petition. Only a small number responded (N = 66), but the large majority of these indicated that AP-LS should not get involved in the development of a specialty petition, regardless of whether it suggested a narrow or a broad definition of the specialty area. The Executive Committee finally reached a majority decision in August 1998. Recognizing that the movement toward specialty designation for forensic psychology would go forward with or without the participation of the APLS, the AP-LS Executive Committee voted to encourage the AAFP to pursue the narrow definition of forensic psychology, with the designation of "clinical forensic," if possible. While the predominant approach has been to dichotomize psychology-law areas as clinical and nonclinical, another possible conceptualization has been suggested by Heilbrun (1998). He suggested that law and psychology interest areas be trichotomized into clinical (encompassing clinical, counseling, and school psychology), experimental (social, developmental, cognitive, human experimental psychology), and legal (training in law as well as in behavioral science or medicine). Professionals in legal psychology would most likely engage in scholarly analyses of mental health law and psychologically oriented legal movements such as psychological jurisprudence (e.g., Melton, 1992) and therapeutic jurisprudence (e.g., Wexler, 1995). Their applied work would center around policy analyses and legislative consultation (Table 3). A number of prominent members of the American Psychology-Law Society could probably fit into this third area, legal psychology. LAW AND PSYCHOLOGY: DIFFERENT CULTURES We have seen that in the early days of psychology, when an interest in applying psychological concepts and research methodology to legal issues arose (e.g., Mun-
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Brigham Table 3. Law and Psychology Interest Areas (with Associated Training) Clinical: Clinical, school, counseling psychology
Experimental: Social, cognitive, human experimental, developmental psychology
Research/ scholarship
1. Assessment tools 2. Intervention effectiveness 3. Epidemiology of relevant behaviors (e.g., violence, sexual offending) and disorders
1. 2. 3. 4.
Memory Perception Child development Group decision making
Applied
1. Forensic assessment 2. Treatment in legal context 3. Integration of science (idiographic, nomethetic, reasoning) into practice
1. Consultation re jury selection 2. Consultation re litigation strategy 3. Consultation re "state of science" 4. Expert testimony re "state of science"
Legal: Training in law and in behavioral science or medicine 1. Mental health law 2. Other law relevant to health and science 3. Legal movements (law and social science, therapeutic jurisprudence, psychological jurisprudence) 1. Policy and legislative consultation 2. Model law development
Source: K. Heilbrun, personal communication, 1998.
sterberg, 1908), this interface was viewed with skepticism or overt hostility by many in the legal profession (e.g., Wigmore, 1909). As one who has attempted to deliver expert testimony in cases involving disputed eyewitness evidence, I can report with great personal assurance that this skepticism and hostility toward psychologists is alive and well in the courts to this day. One difficulty is that many lawyers and judges seem unable or unwilling to understand or accept the distinction between nomothetic, ideographic, case-specific clinical testimony and research-based "state of the science" expert testimony. Years ago, Kalven (1958, p. 94) noted that the law seemed basically ambivalent about the relevance and value of social science. Kalven suggested that the 1954 Brown v. Board of Education decision was "undoubtedly...a high point in the periodic flirtation between law and social science." Three decades later, Bersoff (1986, p. 155) asserted that "if the relationship between psychologists and the courts were to be examined by a Freudian, the analyst would no doubt conclude that it is a highly neurotic, conflict-ridden neurotic affair. (I stress affair because it is certainly no marriage.)" It often appears that the courts will embrace social science research when its results happen to support the outcome that the justices already wish to reach (e.g., the 1954 Brown v. Board of Education decision that outlawed school segregation), but will ignore or disparage equally good research when the results do not support the desired decision. For example, in Rock v. Arkansas (1987) the U.S. Supreme Court upheld the admissibility of "hypnotically refreshed" testimony under some conditions, despite an amicus brief submitted by the American Psychological Association that described research findings concerning the potentially misleading or
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erroneous nature of such testimony. In Lockhart v. McCree (1987) the Court upheld the so-called "death qualification" process for selecting jurors in death-penalty cases, wherein potential jurors are automatically excluded from consideration if they have beliefs against the death penalty that might interfere with their willingness to vote guilty or to impose the death penalty. This ruling was reached despite an APA amicus brief that summarized some 15 empirical studies that found that this procedure would likely result injuries that were biased in a proprosecution direction (see Bersoff, 1987, and Thompson, 1989, for further discussion of this issue). In McCleskey v. Kemp (1986), the Court chose to discount a large-scale multiple regression study that had shown that the death penalty in Georgia was disproportionally imposed upon defendants who had killed Whites, especially Blacks who had killed Whites. But there have been a few instances in which an appeals court decision seemed to follow the reasoning of an amicus brief submitted by the APA. For example, in the cases of Hawthorne v. Florida (1985) and New Jersey v. Kelly (1984), appeals courts seemed to support the psychological concept of the "battered woman syndrome." Tremper (1987) discussed these and other cases in which the courts apparently listened to what psychology had to say. It is important to keep in mind, however, that even when the courts fail to follow the course of action recommended in an APA-sponsored amicus brief, this does not necessarily mean that it has disregarded all of the social fact information contained in the brief. Grisso and Saks (1991) suggested that even in some Supreme Court cases in which the majority reached a decision counter to that recommended in an APA brief, the justices did not appear to find real fault with the empirical data and seemed to accept APA's views on the empirical questions. But the decisions were made on other constitutional grounds. They proposed that, "In effect, psychology's input may compel judges to act like judges, stating clearly the fundamental values and normative premises on which their decisions are grounded, rather than hiding behind empirical errors or uncertainties" (Grisso & Saks, 1991, p. 208). Further, they asserted, the value of psychology in the legal system is best evaluated not in terms of which side wins the case, but of the extent to which the scientific evidence is given careful consideration by the court. This conflict and ambivalence may be a reflection of the fact that, as Saks (1989, pp. 1115-1116) observed, "lawyers and social scientists come from two different cultures ... law students are typically smart people who do not like math. The quantitative, empirical social sciences exist in another world.... The problem is to bridge these two cultures and I have little expectation that it will happen soon." Several "cultural" dimensions on which psychology and law differ have been enumerated by Haney (1980) and others. To summarize these differences briefly, psychology tends to be creative, empirical, experimental, descriptive, theory-driven, probabilistic, and academic. Law, in contrast, is more conservative, authoritative, adversarial, prescriptive, case-specific, and reactive. It emphasizes certainty and is less academic. Given these basic differences in approach, training, and philosophy, it is perhaps small wonder that psychologists and lawyers often have great difficulty respecting or even understanding each other. Is a successful rapprochement between psychology and law possible? A leading
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psycholegal scholar, Bersoff (1995, p. 55), expressed considerable uncertainty. On the plus side, Bersoff noted the healthy state of the AP-LS, with its large and active student section, and its excellent journal, Law and Human Behavior, and the continued growth in the popularity of the biennial AP-LS conference. The establishment in 1995 of the APA journal, Psychology, Public Policy, and Law (Table 1), is another indication that, as Melton (1987, p. 681) had suggested almost a decade earlier, "Psycholegal studies may fairly be termed as psychology's new growth industry." Undergraduate courses in psychology and law became increasingly popular during this period, and a number of psychologists were hired as faculty in law schools. But many thorny issues remain. At the undergraduate level, there appears to be little consensus as to what topics encompass forensic psychology or psychology and law. Chapter titles of four popular psychology and law textbooks are summarized in Table 4. There are four substantive topics that merit chapter status in three of the four texts: theories of criminal behavior, eyewitnesses, jury decision making, and victims. Other chapter titles vary widely. Some of this lack of consensus may be more apparent than real, as the same theoretical or empirical material may be covered under different labels in the different texts, but nevertheless it appears that overall consensus is not great. At a conceptual level, disagreement remains about core issues such as the extent of the relationship between violence and mental illness, and the validity of recovered memories (an issue I will address below). Also, as Bersoff et al. (1997, p. 1302) wryly noted, "New, often unvalidated 'psychological' syndromes seem to proliferate every day." Training of professionals is a complex issue. It has been Table 4. Psychology and Law: Central Topics. Commonalities in Chapter Titles Across Four Contemporary Psychology and Law Textbooks Number of books with this chapter Psychology and Law (Introduction/Overview) Criminal Behavior (Theories of/Psychology of) Eyewitnesses Jury Decision Making Victims
4
3 3 3 3 Competence/Insanity 2 Family Law 2 Police/Law Enforcement Issues 2 Events from Arrest to Trial 2 The Trial Process 2 Sentencing 2 Corrections 2 Other chapter topics include: Crime Patterns; Crime Intervention and Prevention; Legality, Morality, and Justice; Rights of Victims and the Accused; Civil Issues; Psychological Testing and Assessment; Civil Commitment; Psychology of Evidence; Rights of Special Groups; The Role of Procedure; Lawyers; Pretrial Issues; Child Witnesses and Expert Testimony; Presentation of Scientific Evidence; Psychology and the Courts; The Psychology of Law; Social Science and the Death Penalty
Sources: Bartol & Bartol (1994); Foley (1993); Horowitz, Willging, & Bordens (1998); Wrightsman, Nietzel, & Fortune (1998).
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asserted that competent psycholegal scholars must be "trilingual," conversant with scientific psychology, the law, and the psychology-law interface, a most difficult training goal. Within psychology, should the primary focus of forensic training in graduate school be to educate applied professionals to perform clinical functions, or to educate social scientists whose primary focus is research, with practical training perhaps postponed until the postdoctoral years (Bersoff, in press)? Further, at what point can these professionals gain sufficient exposure to the law, psycholegal concepts, and the legal "culture"? A recent survey of students in psychologylaw graduate programs (Baldwin & Watts, 1996) found that their most prevalent complaint was inadequate exposure to the law. These issues were the focus of a National Conference on Education and Training in Law and Psychology, popularly known as the Villanova Conference, in 1995. The conference participants identified five areas in which it was seen as crucial for the psycholegal scholar to be educated. The first was substantive psychology, a core knowledge of basic areas of psychology: developmental, social, cognitive, and abnormal psychology, and an understanding of important ethical and professional issues. The second area was knowledge of research design and statistics, both in the laboratory and in the field. Third was basic legal knowledge, the ability to "think like a lawyer," learning the basic tools of law, the sources of the law, and the core substance of the law itself (e.g., civil, criminal). The fourth area was labeled substantive legal psychology, which involves an understanding of how social science evidence is used in law. The final area was called scholarship and training, and includes the experience of conducting original dissertation research. The conference participants noted that it would be especially helpful if additional opportunities were provided for students to obtain appropriate real-life experience in legislative, administrative, and judicial settings. The problem of how to educate psycholegal scholars in all of these areas at the predoctoral or postdoctoral levels remains a focus of active discussion and controversy (e.g., see Bersoff et al., 1997). BATTLES WITHIN PSYCHOLOGY: THE VALUE AND USE OF RESEARCH AND CLINICALLY BASED DATA IN COURT Nonclinicians Versus Clinicians Almost since its inception, the field of psychology has been riven by tensions between practicing clinical psychologists, on one hand, and research psychologists, on the other. This mutual distrust and disrespect reached a head in the late 1980s, when the American Psychological Society (APS) was formed by research psychologists, many of whom were unhappy with what they saw as the increasingly clinical, practice-oriented orientation of the APA. Social/personality psychologist Robyn Dawes's (1994) book, House of cards: Psychology and psychotherapy built on myth, strongly criticized the foundations of many aspects of clinical practice. In 1997, developmental psychologist Margaret Hagen attacked the testimony of clinical expert witnesses in her book, Whores of the court, which was subtitled, The fraud
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of psychiatric testimony and the rape of American justice. Hagen attacked clinicians with a vengeance; a few illustrative quotes from early in the book are given in Table 5. Many psychologists, clinicians and nonclinicians alike, were outraged by the vehemence of her attacks. But as social psychologist Saul Kassin observed in a review, her basic point of view was not new: "Eighty years ago this book could have been authored by John Watson about Sigmund Freud" (Kassin, 1997, p. 322). Some reviewers (e.g., Fulero, 1997; Kassin, 1997) observed that there was some truth in what Hagen had to say: some expert witnesses are arrogant, indifferent to research findings, prone to making overblown claims, and apparently willing to modify their testimony to serve political/social or financial motives. Donald Bersoff (in press), former APA counsel, opined that, "In our courtroom, psychology is still seen as a mysterious inexact discipline...populated by hired guns who will switch sides and proffer opinions for the right fee and the greatest notoriety." Will attacks such as Hagen's improve this situation? A totally one-sided diatribe promotes disrespect for the entire field of psychology and is likely to keep all psychology, good and bad indiscriminately, out of court. Hagen overdramatized the impact of clinical psychologists in the courtroom and obscured some possibly valid points with "anecdotes, errors, flaming overgeneralizations, and inflammatory charges" (Fulero, 1997, p. 10). Hagen urged us to "throw the experts out," but did not provide suggestions on what to do next. Rather than taking the draconian step of excluding all psychological expert witnesses, Fulero (1997) suggested that the courts make better use of the time-tested legal techniques for evaluating expert evidence such as cross-examination and opposing expert witnesses. It's a shame, in my opinion, that Hagen's anger apparently drove her to such an extreme position, because the validity of some of her points is likely to be obscured by the vehemence of her attacks. (Hagen, 1997, p. xiii, noted that she became motivated to write the book after watching her brother spend over $90,000 to defend himself, successfully, in a $3.4 million lawsuit charging him with "psychoTable 5. Psychologist Versus Psychologist: Attacks from Within I began to take a closer look at the activities of my clinical colleagues in the world of law. I found that they were everywhere with their fingers in every half-baked legal pie cooked up by the wildest of imaginations. (Hagen, 1997, p. xiii) Psychology's takeover of our legal system represents not an advance into new but clearly charted areas of science but a terrifying retreat into mysticism and romanticism, a massive suspension of disbelief propelled by propaganda. Thanks to the willingness of judges and juries to believe psychobabble with scientific foundations equal to horoscope charts, babble puffed about by psychological professionals with impressive credentials, what we've got now are thousands of self-styled soul doctors run amok in our courts, drunk with power, bedazzled by spectacular fees for the noheavy-lifting job of shooting off their mouths about any psychological topic that sneaks a toe into a courtroom. (Hagen, 1997, p. 4) For all forensic psychologists who work one side of the courtroom or the other, the job is lucrative ... But we also must wake up to the fact that the present and growing dominance of psychology in the courtroom poses a graver danger to society than simple monetary corruption. Much of the present marriage of psychology and the law has been cemented by a virtually impregnable arrogance and institutionalized in both law and legal practice, and that is a scary thought indeed. Both the public and the practitioners themselves have been seduced into believing the pseudo-experts' bunkum, have managed to get that bunkum written into law, and have effected a wide acceptance of a crucial judicial role for the bunkum artists as well. (Hagen, 1997, p. 11)
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logical injury." The plaintiff used a great deal of clinical expert testimony against him.) Nevertheless, it seems to me that Hagen's diatribe may end up serving some good purpose if it stimulates increased scrutiny of questionable theory and expert testimony in areas where good theory or empirical support is lacking. Research and Testimony About "Recovered Memories" Probably no issue electrified psychology in the 1990s as did the appearance of long-forgotten memories of childhood sexual abuse that were apparently "recovered" in adulthood, often during psychotherapy. On one side of the debate, some clinically oriented writers argued that people do not invent memories of childhood sexual abuse and, hence, these "recovered" memories should be assumed to be accurate. The book Courage to heal, by Bass and Davis (1988), was often cited as the "bible" of the "recovered memory movement." On the other side, the False Memory Syndrome Foundation was established in 1992 by persons who said they had been falsely accused of a crime, usually sexual abuse of a child, where the accusations were based on the alleged victim's "recovered memories." As this controversy raged through the 1990s in the popular press, the research literature, and the courtroom, the APA established a Working Group on Investigation of Memories of Childhood Abuse. The Working Group consisted of three prominent clinicians (sometimes termed "scientist practitioners") and three prominent memory researchers. The group's task was to evaluate carefully current theory and research and develop a report on the "state of the field." Alas, despite 2 years of intense work and interaction, the Working Group was unable to agree on a single report, but instead produced two reports, prefaced by a general introductory statement. The consensual conclusions that the whole committee was able to agree on, and the remaining points of disagreement, as specified in the introductory statement, are summarized in Table 6 (APA Working Group, 1996). I have told students in my psychology and law classes that I found this outcome profoundly discouraging: six highly intelligent, well-informed scientists could not Table 6. APA Working Group on Investigation of Memories of Child Abuse Consensual Conclusions 1. Child sexual abuse is a complex and pervasive problem 2. Most people who were sexually abused as children remember all or part of what happened to them 3. It is possible to forget memories of abuse for a long time, then remember 4. It is also possible to construct convincing pseudomemories for events that never occurred 5. Gaps remain in our knowledge about processes that lead to accurate and inaccurate recollections of childhood abuse Remaining Points of Disagreement 1. The constructive nature of memory; accuracy of memory over time 2. The mechanisms underlying delayed remembering 3. The presumed "special" status of memories of traumatic events 4. The relevance of basic memory and developmental research literature 5. The "rules of evidence" for testing hypotheses 6. The frequency with which pseudomemories are created by suggestion 7. The ease with which real memories can be distinguished from pseudomemories
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come to any meaningful agreement, except on the most basic issues. It appeared that, over a 2-year period, nobody was able to convince anybody of anything! I decided to contact each of the six Working Group members directly to see if they could shed any light on this apparent impasse. I was gratified that all six were willing to talk with me about their experiences. One question I had: Are any of the "consensual conclusions" (Table 6) ones that you would not have agreed with before the Working Group was formed? Only one person said yes; this Working Group member would not have endorsed point 4, the possibility of constructing convincing pseudomemories for events that never occurred, before the Working Group began its task. Everyone else said that they had already agreed with all of those points before the Working Group began its work. Was the impasse inevitable? Was my discouragement justified? In discussions with me, the Working Group members thought not, for the most part. One issue concerned the composition of the group itself. In its eagerness to select knowledgeable members, the APA Board of Directors selected people who had publicly established positions (via books, research papers, conference presentations, etc.) on either side of the debate. At least some of these previously established positions were seen by others as extreme. In retrospect, it is easy to see that such people might not be good candidates for compromise and mutual attitude change. If we view this as an intergroup contact situation, research findings (e.g., Allport, 1954; Cook, 1978; Hewstone, 1996; Pettigrew, 1986, 1998) have shown that beneficial attitude change is most likely when the participants from one group do not embody the negative stereotypes that members of the other group may hold. One estimate on the participants' public position can be gleaned from a recent book in which Brown, Scheflin, and Hammond (1998) attempted to classify the positions taken in the academic writings of psychologists active in this area. They classified writings into several categories, ranging from an extreme "trauma accuracy" position (belief in the accuracy of recovered memories of traumatic events) to an extreme "false memory" position (belief that recovered memories are not likely to be accurate). The writings of four of the six Working Group members were among those classified, one each as follows: moderate trauma accuracy position; balanced but off-center toward the trauma accuracy position; balanced but off-center toward the false memory position; and extreme false-memory position. As far as the Working Group is concerned, it seems likely that the relatively extreme positions expressed by (or attributed to) the group members may have reinforced the negative stereotypes ("They are extreme; they are intransigent," etc.) that members of the other camp may have held. It is perhaps prophetic that in its initial interactions, the Working Group was unable to agree on a chairperson, and instead settled for two cochairs, one from each camp. Interestingly, and perhaps not coincidentally, the two psychologists who had not published enough in this area to be included in the Brown et al. (1998) classification were the two chosen as cochairs by the Working Group. Would the Working Group have had an easier, and perhaps more productive, time if at least some members with more neutral orientations had been selected? Perhaps so. It is interesting that a similar group in Great Britain, the British Psychological Society Working Group on Recovered Memories, was able to come to a more informative group consensus (Courtois, 1997).
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A second major issue was the strong impact of the different preexisting perspectives of the clinical and nonclinical members, what one member called "two different world views and epistemologies" (see Table 7). This group member went on, "And after a while, it became evident that we [clinicians and nonclinicians] differed substantially in our understanding of research methodology and of the 'rules of evidence' that are necessary to evaluate hypotheses in both laboratory and clinical contexts. There were times when it was difficult to believe that all six of us held Ph.D. degrees in the same parent discipline!" Another group member stressed that psychology should stop teaching students to think in a dichotomized (e.g., research vs. practice) manner. It appears that the Working Group became a microcosm for this enduring schism (e.g., note points 4 and 5 in the Remaining Points of Disagreement in Table 6). Did the Working Group make a positive contribution? Most of the participants seemed to think that it did. The dichotomized report accurately represented the "state of the art" in this area, one participant suggested. Another pointed out that the final report would have made a contribution if it stimulated informed discussion and research. I believe that the Working Group's report may have done just that. As a case in point, a couple of years later the International Society for Traumatic Table 7. Some Comments from Members of the APA Working Group on Investigation of Memories of Childhood Abuse Composition of the Working Group "I believe that the Working Group was miscreated by the APA Board of Directors in that it was polarized to begin with. . . . The battle lines were drawn. . . . This is not the way science is done." "I think that what happened on the Working Group was an anomaly created by the players involved. It was a setup from the first. ... So don't use the Working Group as a predictor." Differing Perspectives "The important point I would emphasize is that the substantive disagreements among the six of us were neither ineluctable (as I think I have made clear) nor were they necessarily counterproductive from the standpoint of science. In science disagreements can often fuel synthesis and convergence. In this case it did not, but I believe that had more to do with personalities than substance." "It was a bad day for professional psychology — not because we differed, but because we demonstrated so little respect for each other's reasoning and evidence and displayed a passion that effectively ruled out further collaboration." "My bottom line was that I was very disappointed because we were confronted with two different world views and epistemologies. ... It wasn't just that the clinicians differed from the researchers in what they read, but it seemed as if we were dealing with two different 'ways of knowing.'" "We should stop teaching our students to think in this dichotomized [research/practice] manner about psychology. All of us are doing variations of science and practice all the time with differing emphases. That kind of polarized thinking is inculcated very young in our students, and then we model it. We need to stop, now, and ask, rather, what can each learn from the other?" Overall Evaluations of the Experience "I joined the task force with feelings of optimism, albeit cautious optimism, but I certainly left it with feelings of distress". Ending up with two reports is not necessarily a negative thing; it really represents the 'state of the art.'" "I think we have achieved greater understanding in the field of memory than is reflected in those 'consensus' points . . . although of course we have a great deal more to learn. The activities of the group did, however, get me reading articles that I might not have otherwise found." "It was still a worthwhile experience." "Was it all worthwhile? 'No' and 'yes,' with an emphasis on the 'yes' ... the final report of the Working Group will represent a positive contribution to the recovered/false memory debate if it stimulates discussion — and hopefully research — in both the clinical and experimental communities."
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Stress Studies (1998) published an informative report on the current scientific knowledge base about memories of childhood trauma, a report that appears to take into account, and gives serious attention to, both sides of this issue. Christine Courtois (1997), a former member of the Working Group, later published guidelines for the treatment of adults abused or possibly abused as children (see also Enns, Campbell, Courtois, Gotlieb, Lese, Gilbert, & Forrest, 1998). Research Versus Practice Revisited: The Criteria-Based Content Analysis (CBCA) Technique As already noted, many writers, from Wigmore (1909) to Hagen (1997), have been critical of the ways that psychological concepts and measures have found their way into the courtroom, often via expert testimony by clinical practitioners. The recovered memory controversy, briefly described above, provides one contemporary example wherein some clinicians and researchers have disagreed vehemently about the validity and relevance of a set of concepts (e.g., repression, recovered memories) and the research that has purported to investigate these concepts. A second contemporary example of this debate, not as generally well known as the one above, involves the criteria-based content analysis (CBCA) technique. I choose to describe this issue here because it also centers around the validity of reports of sexual abuse of children, this time focusing on children's contemporaneous reports of abuse, rather than delayed memories of past abuse. The CBCA technique is alleged to discriminate between truthful and untruthful reports of sexual abuse made by children. Given the status of child sexual abuse as a major societal problem, any technique that could accurately assess the truthfulness of a child's report of abuse would be exceedingly valuable and welcomed by the legal system. It is not surprising that the technique received considerable attention from psychologists in North America when it became known to them. The CBCA technique was originally developed by clinical psychologist Udo Undeutsch in the 1950s in Germany. Undeutsch reasoned that children's reports of experienced events would differ systematically from reports of invented events. He identified 18 or 19 characteristics that, if present in a child's verbal report, were believed to be indicative of truthfulness (Undeutsch, 1982). These included general characteristics such as logical structure and recall of many details, and specific attributes such as contextual embedding, reports of specific actions, reproduction of speech, reports of unexpected complications, reports of unusual or superfluous details, recall of the child's subjective experience, accurate report of details (e.g., about sexual behavior) that are misunderstood by the child, and attributions made about the alleged perpetrator's mental state. Finally, motivation-related contents seen as indicative of truth included making spontaneous corrections or additions, admitting lack of memory or knowledge, raising doubts about one's own testimony, self-deprecation, and making excuses for, or failing to blame, the alleged perpetrator (Raskin & Esplin, 1991a). Undeutsch (1982) proposed that the more of these criteria that are present in a child's statement about alleged sexual abuse, the greater is the likelihood that the child is being truthful. In the past decade, some psychologists have pressed for the use of analyses
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based on the CBCA technique in American and Canadian courts as part of a more general approach labeled statement validity analysis (e.g., Raskin & Esplin, 1991a, 1991b; Zaparnik, Yuille, & Taylor, 1995). In a law review article, Honts (1994) argued that "scientific research says that [CBCA] is a reliable and valid technique" (p. 894); he further asserted that, "all of the accuracy estimates produced to date suggest that the CBCA ... has an accuracy rate higher than most other forensic evidence accepted by the courts" (p. 897). Expert testimony that evaluates a child's truthfulness based at least in part on the CBCA technique has been admitted in North American courts in recent years. But is the CBCA technique as valid as Honts (1994) and other supporters have argued? Does the CBCA evaluative technique have an accuracy rate higher than most other types of forensic evidence (e.g., crime scene analyses, fingerprint evidence, DNA analyses)? Or is this another area in which an evaluative technique is enthusiastically endorsed by some psychological practitioners who are eager to put it to use in the courtroom, even though the scientific foundation for its validity is weak or nonexistent? Hagen (1997) strongly alleged that such occurrences are commonplace, although she did not mention the CBCA technique. It appears to me that concerns are legitimate in this instance. Charles Ruby and I reviewed the research literature and concluded that Honts' (1994) glowing accolades were "premature and unwarranted" (Ruby & Brigham, 1997, p. 729). Empirical support for the validity of the technique was spotty at best. Only a handful of studies, several of them unpublished, have found evidence that the technique can distinguish truthful from untruthful statements. Further, we identified 16 issues that need to be resolved before it could be concluded that the technique is sufficiently reliable and valid to provide information that is of probative value in a sexual abuse case. These issues relate generally to (1) characteristics of the CBCA technique itself, (2) possible differences due to characteristics of the person whose statement is analyzed, and (3) possible cultural differences. Detailed analyses of these issues are beyond the scope of this paper, but I will provide a few examples of problems that are unresolved. Concerning the scoring of statements, evidence of sufficient reliability for ratings of criteria presence is not strong (e.g., Anson, Golding, & Gully, 1993), and there has been great variance across studies in the number of criteria that are actually scored, ranging from 2 to 18. The number of CBCA criteria that are present in a child's statement may depend on many factors. For example, the use of particular interviewing techniques may alter the content of a child's statement and change the number of CBCA criteria identified. Additionally, there is great variation between criteria, and across studies, as to which criteria appear most useful as indicators of accuracy (see Table 3 in Ruby & Brigham, 1997). Further, there is little consensus or guidance on "decision rules," such as how many criteria must be present for a statement to be classified as truthful (Yuille, 1990; Zaparnik et al., 1995). Studies show that prior use of the cognitive interview technique (Geiselman & Padilla, 1988) can affect subsequent CBCA scores (Koehnken, Schimossek, Ascherman, & Hofer, 1995; Steller & Wellershaus, 1995). There is also ambiguity about the group to whom the technique is applicable. Proponents of the technique have said that it should only be used with children,
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and only concerning allegations of sexual abuse. But as Berliner and Conte (1993) pointed out, if the technique is a valid way of assessing truthfulness, why should it be limited to children and to allegations of sexual abuse? A couple of studies have found that the technique might be diagnostic for adults' statements about nonabuse situations (Koehnken et al., 1995; Landry & Brigham, 1992), but other studies have not found it effective with adults (e.g., Ruby & Brigham, 1998)). The age of the child whose statement is being evaluated is another issue. Research indicates that younger children's descriptions of events tend to be shorter, less internally consistent, and less likely to mention internal states (e.g., Fivush & Shukat, 1995; Poole & Lindsay, 1995). Hence, younger children's statements are likely to contain fewer CBCA criteria. While this issue has been noted by some CBCA proponents, no guidelines exist as to revised decision rules or weighting of criteria that take the child's age into account. Further empirical work is also needed on the effect of motivation to lie, as well as the impact of being coached to lie (e.g., Poole & Lindsay, 1995). And what of cases wherein a child is not deliberately lying, but instead is reporting a distorted memory that the child believes is true? Studies have shown that when questioned repeatedly about a (nonexperienced) event, many children report having experienced the event. Can the CBCA technique identify these mistaken memories? The preliminary answer appears to be "no." Ceci, Huffman, Smith, and Loftus (1994) found that experts trained in the CBCA technique could not distinguish children's reports of mistaken memories from their accurate memory reports. A final issue concerns ethnicity. The CBCA technique was developed in Germany and virtually all studies of the technique have analyzed the statements of White North Americans or Europeans. There is abundant evidence that different ethnic groups have quite different expressive styles (e.g., Hall, 1959; Kim & Gudykunst, 1988). Hence, a text-analysis method developed from the analyses of verbal behavior in one culture (Eurocentric/White) might not be applicable to another culture (Afrocentric/Black, Hispanic, Asian, etc.). Some empirical evidence buttressing this point comes from a study by Ruby and Brigham (1998), who found that the pattern of criteria that proved somewhat diagnostic of truthfulness of statements made by White Americans was very different from the pattern that was related to the truthfulness of statements made by African-Americans. Further, the technique as a whole did not differentiate significantly between truthful and untruthful statements for speakers of either race. To further complicate things, "intergroup interaction anxiety" (Stephan & Stephan, 1985) may occur when members of two ethnic groups interact (e.g., when an African-American child is questioned by a White interviewer). This anxiety might significantly affect the content of a child's statement, influencing the CBCA criteria in unknown ways. Taken together, these factors suggest that psychological expert testimony on a child's truthfulness, when based upon the CBCA technique, is vulnerable to the criticisms levied by Hagen (1997) and many others. It seems to me that we do ourselves a disservice as a field, and provide a disservice to the legal system and society as a whole, when we encourage expert testimony that is based upon techniques of dubious or unproven value. Certainly, there is great temptation (and possible financial reward) to introduce testimony based upon an evaluative tech-
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nique that one believes in (even in the absence of strong empirical validation). But if we continue to champion techniques or positions of unproven validity, we lay ourselves open to destructive (though warranted) criticisms from research psychologists, legal scholars, lawyers, and judges. The examples above illustrate some of the potentially divisive issues that result from differences in training and perspective that exist between the broad fields of psychology and law, and between different subfields within psychology itself. Participants at the Villanova Conference proposed that more inclusive training of "legal psychologists," which would make them familiar with the content and perspectives of both psychology and law, could bridge the gap, producing scholars who can make seminal contributions to the psychology/law area. With this in mind, I will briefly revisit the issue of training below.
WHERE DO WE GO FROM HERE? Training Forensic Psychologists Differences in the way that forensic psychology is defined are also apparent in the way that graduate training programs are set up. These issues have been covered in detail elsewhere (e.g., Bersoff et al., 1997; Melton, 1987; Ogloff, Tomkins, & Bersoff, 1996; Roesch, Grisso, & Poythress, 1986; Wexler, 1990) and will only be touched on briefly here. As of 1998 there were at least five joint degree programs in the United States: Ph.D./J.D. programs at the University of Nebraska (the oldest program), the University of Arizona, Stanford University, and Allegheny University of the Health Sciences/Villanova Law School, as well as a Psy.D./J.D. program at Widener University (Bersoff et al., 1997). It was noted at the Villanova Conference that there had been little regular communication between the directors of the programs. Bersoff and his colleagues (1997) pointed out that, "although one can denominate the benefits and costs of joint-degree training, its worth is still unproven (p. 1308)." While such programs may represent the most direct route to achieving the integration of psychology and law (Tomkins & Ogloff, 1990), the programs require massive amounts of time, effort, and tuition costs (to two schools within the university). A number of doctoral programs now offer training in "forensic psychology," "psychology and law," or "social science and law." The latter concentrations (which I'll call "legal psychology") may be located within social psychology programs (e.g., Saint Louis University, University of Kansas, University of Nevada-Reno) or stand alone as a legal psychology program incorporating social, cognitive, and I/O psychology (Florida International University) or a psychology and law track (e.g., Simon Fraser University). Graduate concentrations labeled as "forensic," in contrast, typically are within clinical programs (e.g., University of Alabama; University of Virginia). A survey of AP-LS graduate student members (Baldwin & Watts, 1996) found that 48% of those who replied were in clinical programs, 18% were in social psychology programs, 10% were in joint-degree programs, and 8% were in applied graduate programs.
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As noted earlier, the Villanova Conference participants enumerated five areas that doctoral-level legal psychology programs should cover. They proposed that graduates of such programs should be able to apply social science and legal knowledge to legal problems. Such broad-based training seems to presuppose the presence of several faculty members with varied knowledge. But, as Bersoff et al. (1997, p. 1304) noted, it is a "cold fact that most departments have only one, if any, faculty member interested in social science applications to law." Nevertheless, there is a growing need for well-trained psycholegal scholars for policy development, training of law enforcement personnel, lawyers, and judges, work on legislative committee staffs, and involvement in various phases of the legal process (e.g., jury selection, expert testimony, trial consultation, dispute resolution). Forensic psychology concentrations housed in clinical graduate programs are presumably oriented toward applying the scientist/practitioner model to psycholegal issues. For clinical students, the predoctoral internship may offer an avenue to enhanced forensic training. The Villanova Conference working group surveyed clinical internship programs and found that slightly over half (54%) of those that replied offered major forensic rotations. The sites primarily offered inpatient experiences with adult criminal forensic populations. The working group was able to identify only a few (10 or 11) postdoctoral forensic training programs, but noted that these programs should be oriented toward producing the future leaders in (clinical) forensic psychology. So, What is Forensic Psychology?
It appears to me there are two forensic psychologies: the broad, legal-psychology forensic psychology, and the more focused, clinical-forensic psychology. At a conceptual level, the broad definition seems most logical, as represented in the Specialty Guidelines for Forensic Psychologists created by an AP-LS committee, and the definition put forth by the American Academy of Forensic Psychology. It is understandable that the authors of the Specialty Guidelines wanted the ethical guidelines to apply to the whole range of psychologists who might engage in lawrelated activities. But this comprehensive definition, while it matches the dictionary definition of "forensic," is problematic because it pools clinicians and nonclinicians, who have different training histories and are sometimes at loggerheads with each other on major psycholegal issues (Table 5). Further, the comprehensive definition is at variance with the way that attorneys and the courts seem to see forensic psychology (i.e., as clinical psychology). Hence, it appears necessary to maintain two, or perhaps three, categories. Referring back to Heilbrun's trichotomy of law and psychology interest areas presented in Table 3, we can describe three areas: clinical forensic (what Heilbrun calls clinical); experimental (researchers who consult with attorneys and/or give expert testimony in their research specialty), and legal (those with training in law and social science who work on broad psycholegal issues). Each of these three orientations is strongly represented within the membership of the American Psychology-Law Society. Differences in training and focus provide, I believe, a valuable "spark" to AP-LS programs at the APA and at the biennial AP-LS convention, and can lead to a broad range of theoretical and research
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perspectives. Some years ago, Michael Saks (1986, p. 279), then editor of the APLS journal, Law and Human Behavior, bemoaned the narrow range of content areas represented in articles submitted to the journal; he entitled his editorial, "The law does not live by eyewitness testimony alone." A glance at recent issues of the journal shows that this admonition has been taken to heart and a wide range of issues and foci (clinical, experimental, legal) have been represented in recent years. The American Psychology-Law Society is comprised of people who represent all sides of two major schisms that have long and tumultuous histories: the legal field versus psychology, and clinical versus nonclinical psychology. While we have not been immune to the pressures that fractured psychology a decade ago, I believe that the active AP-LS members have been particularly sensitive to the need to avoid destructive "turf wars," narrow-mindedness, and professional stereotyping. This constructive orientation has been especially visible, I think, in the hard work of the program chairs for the APA conventions and the AP-LS biennial conventions, who have struggled mightily (and successfully) to develop balanced, stimulating conference programs. To return to my original question about what is forensic psychology, I believe that there are two levels of classification that yield two sets of definitions. At the level of ethical guidelines and professional responsibility, the broad definition fits best. Any psychologist (clinical, social, cognitive, developmental, etc.) who works within the legal system is a forensic psychologist in this sense, and the same high ethical and professional standards should apply to all. When it comes to how the legal system and the public conceptualize forensic psychology, however, there is a definite clinical flavor. The clinical/nonclinical distinction is a meaningful one, I believe. For example, educational, training, and licensing issues that are pertinent to clinical forensic psychologists may be irrelevant or inapplicable to nonclinical forensic psychologists. Further, clinicians and nonclinicians differ in their orientation to the legal process and in the role that they are likely to play in the courtroom (e.g., individual assessments vs. research-based social fact evidence). So there you have it—two varieties of forensic psychologists, clinical and nonclinical (who Heilbrun would subdivide into experimental and legal psychologists). What is most important, it seems to me, is that we continue to work together, recognizing the differences in training (and often, philosophy) that exist between clinicians and nonclinicians, and building upon our shared respect for creating valid knowledge about human behavior and applying that knowledge within the legal system. Ours is a vibrant, exciting field, driven by scholars and practitioners who are dedicated to understanding the various interactions between psychology and the law, and to applying that knowledge for the betterment of humankind. ACKNOWLEDGMENTS This paper was delivered as the Presidential Address, American PsychologyLaw Society, at the 106th Annual Convention of the American Psychological Association, San Francisco, August 1998. I would like to express my appreciation to Donald Bersoff, Solomon Fulero, Jane Goodman-Delahunty, Kirk Heilbrun, Chris-
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tian Meissner, James Ogloff, Ronald Roesch, Adina Wasserman, and Lawrence Wrightsman, and to the six members of the APA Working Group on Investigation of Memories of Child Abuse: Judith Alpert, Laura Brown, Stephen Ceci, Christine Courtois, Elizabeth Loftus, and Peter Ornstein, all of whom generously shared their ideas with me.
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