The discipline of clinical psychology is evolving. Clinical psychologists are no longer limited to couches and working out of their own offices. They are now being put in the stand in courtrooms all over the world. Not because they are on trial themselves, however. Rather, they are there to share their expertise in areas that involve an individual in legal matters. The field of forensic psychology has grown in the 21st century because courtrooms recognize the value of psychologists’ testimonies to help juries reach a clearer verdict.
Not only that, but psychologists can help identify competence to stand trial, perform psychological autopsies and criminal profiling, and also aid in child custody cases. Like all fields in psychology, forensics has many perspectives. This walk-through of forensic psychology will discuss the history, methods, and prospects for the future of this field.
There is not a singular function that clinical psychologists perform in the legal system. Rather, there are many different roles and areas that they can undertake.
For example, they can focus on law enforcement psychology, the psychology of litigation, correctional psychology, and forensic psychology (Nietzel, Bernstein, & Milich, 1998). However, the latter is our main focus.
Forensic psychology involves many different areas in which clinical psychologists can be considered experts in: competency to stand trial and criminal responsibility, psychological damages in civil trials, civil competencies, psychological autopsies and criminal profiling, and child custody and parental fitness (Nietzel et al., 1998).
The reason why criminal competence is necessary to establish is because according to United States law, the criminal must understand the nature and purpose of the proceedings. This is required for several reasons. First, if the defendant is competent, the results of the trial are more likely to be accurate. Second, it would be considered immoral to sentence a convicted defendant of something that he or she doesn’t understand. Lastly, the whole theory behind our judicial system relies on the defendant being able to defend his or herself in court. If the defense believes the defendant was not competent at the time of the unlawful act, the defense can plead not guilty by reason of insanity. Then forensic psychologists can testify whether or not they believe the defendant is insane or not. If the defendant is found to be insane, then the judge sentences him or her to a mental institution until the judge is convinced that the defendant is ready to be released. If the defendant is not found to be insane, then the trial proceeds. Several rules have been made in determining insanity, which have changed over the years to accommodate changing standards. Such rules include the McNaughton, Durham, and ALI rule (Nietzel et al.,1998).
Forensic psychologists also examine psychological damages in civil trials. One of their duties is to decide whether these damages were due to the tort, which is the wrongful act that causes harm to an individual. The psychologist performs assessments similar to regular clinical assessments that include social history, clinical interview, psychological testing, and available records. After the assessment, the expert decides if the psychological damage was present before the tort, or if it occurred due to the tort. Another duty of forensic psychologists is to examine workers’ compensation cases. They must decide how long the worker needs to recover from mental damages that their work-place may have caused. Similar to the tort cases, the expert must discover whether the injury was due to the place of employment or if it was already present (Nietzel et al., 1998).
Civil competencies deal with whether or not a person is able to understand information that is used to make decisions and then act accordingly. Examples include whether a person is capable of managing financial situations, or if he or she is able to choose or refuse medical treatment. Scholars have agreed that four abilities are necessary to make decisions competently: understanding information pertaining to the decision to be made, applying that information with concern to the consequences of the decision, thinking rationally to evaluate strategies, and the communication of the decision. It is up to the clinical psychologist to determine if the person is making a rational decision by means of clinical evaluation, and then relaying this information to the proper person or agency (Nietzel et al., 1998).
Psychological autopsies and criminal profiling deal with understanding a person’s state of mind before a crime is committed and to predict behavior, respectively. Psychological autopsies were first used in the 1950’s when the county coroner’s office needed to know if the cause of certain deaths was suicide, murder, or an accident. This type of question is most likely raised by insurance companies when claims are made. Clinicians use life records of the person, and also interviews with friends and family in making their decisions. It in uncertain how accurate these psychological autopsies actually are, because the true state of mind that the person was in will never be known for sure. Judges are not certain how valid these autopsies are, and are reluctant to use them in criminal cases. Ultimately it is up to the jury to decide (Nietzel et al., 1998). Criminal profiling is used to generate suspects in crimes. Crace (1995) describes it as “the science of making logical deductions about possible suspects for any given crime based on shared patterns of behavior of those who commit certain crimes.” From this information, clinicians can make predictions as to who the criminal is. Criminal profiling has been used since the 1970’s and is now used by the FBI and the National Center for the Analysis of Violent Crime. Clinicians interview criminals to see how they committed the crimes, and they look at common personality traits that distinguish them from the general population. Based on this information, the forensic psychologist can help determine who committed the crime.
Child custody disputes involve clinicians looking at parental fitness and deciding whether a child should be removed from a home because of an unfit parent. Because it is difficult to take children away from biological parents, clinicians must show that the parent has done one or many of the following things: inflicted or allowed infliction on the child, been morally delinquent, abandoned the child, is mentally ill, or fails to provide the necessary care for the child other than poverty. All evidence shown must be convincing in order for the judge to rule against the parent. Clinicians use interviews, standardized tests, observations of interactions between parent and child, and documents in order to make qualified decisions about custody. This type of trial can be very difficult because of its emotional implications and the strong desire for the parent to retain the child. Clinicians must prepare themselves for their ethics, clinical methods, competence, and personal character to be attacked when a decision is made (Nietzel, et al., 1998).
While forensic psychology covers many issues in the legal system and appears to help judges and juries make informed decisions, it nevertheless receives much criticism because reliability, validity, propriety, and usefulness of the expert testimony are hard to judge (Nietzel et al., 1998). Faust and Ziskin (1988) are skeptics when it comes to forensic psychology and its relevance in law. They claim that “the instability of theory and method hinders the accumulation of scientific knowledge.” They offer several arguments against the use of expert testimonies in the courtroom. First, they state that it is difficult to achieve interclinician agreement on descriptions of current status. Studies they reviewed had shown that clinicians’ error rate exceeded their accuracy rate. Secondly, clinicians generally are not experienced in the forensic role because they are more familiar with the role of helping patients. Faust and Ziskin feel that the clinician’s tendency to empathize with people will cloud the jury’s decision. Thirdly, studies have shown that clinicians cannot distinguish between feigned and normal test results. Lastly, they believe that clinicians tend to overvalue supportive evidence and undervalue counterevidence, which leads to the presumption of abnormality when it might not be there. Overall, Faust and Ziskin believe that the expert’s testimony will reflect personal biases and can mislead juries.
While Faust and Ziskin have strong arguments against the use of expert testimonies, they neglect to discuss the positive aspects of them. I believe that any information offered during trials is beneficial to juries in their decision-making process. One cannot forget that during a trial, other testimonies and evidence are offered to the jury. Their decision is not solely based on the clinician’s beliefs, rather, the expert testimony merely offers another perspective. Nietzel clearly believes that forensic psychologists play an important role in the judicial system. As the field of psychology is becoming more scientific, advances are being made to increase reliability and validity of methods involved in forensics. For example, the definition of insanity has changed in order to compensate for changing times. Assessment tests continue to be developed to improve accuracy. Nietzel admits that even though reforms are being made, however, they may or may not solve all of the concerns dealing with forensic psychology. Along with every other aspect of psychology, only further studies and research will tell what the outcome will be.
Crace, J. (1995). Inside the criminal mind. New Statesman & Society, 8, 29-30.
Faust, D., & Ziskin, J. (1988). The expert witness in psychology and psychiatry. Science, 241, 31-35.
Nietzel, M., Bernstein, D., & Milich, R. (1998). Introduction to clinical psychology (5th ed.). Upper Saddle River, NJ: Prentice Hall.
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