Topics at Interface Psychology & Law J W Dixon PhD JD

Psychology and Law

Joe Wheeler Dixon PhD JD HSP-P
Clinical and Forensic Psychologist

Forensic Topics at the Interface of Psychology and Law

Eye Witnesses: Consider the following example: A person is charged with armed robbery and there is an eye witness. What are the odds the eye witness is wrong? The law puts great weight on eyewitness testimony, yet psychological research shows it to be rather poor, with only about 28% of eye witnesses being correct in all cases. An expert can testify at trial and educate the jury about the scientific studies on eyewitness testimony. Consider the many cases we are hearing about today in which DNA evidence is exonerating innocent individuals wrongly convicted with eye witness testimony! Here are some references.

Scientific Evidence: The Federal Rules of Evidence have now been firmly established for the federal courts with the U. S. Supreme Court decisions in Daubert, Joiner, and Kumho Tire. These three important cases are referred to as the Daubert Trilogy. The implications for psychologists are important in that testimony must henceforth be based upon empirically established research and not merely upon ipse dixit opinion. This shift in the Federal, and most State, courts gives great power to the question: "How do you know that, doctor?" For the properly prepared attorney, these USSC decisions and the FRE will help to keep junk science out of the courtroom. For a complete discussion, see the law review article by Dixon & Dixon on Gender-Specific Defenses under the law.

Jury Selection: Juries are formed every day in courts around the nation in preparation for trial. Scientific jury selection does indeed work and provides favorable outcomes to those who employ the techniques. There are do's and don'ts in jury selection, and the informed attorney knows them and applies them.
Insanity: Criminal defendants sometimes have a history of psychiatric illness or mental retardation. But, do all mental disorders meet the legal standard for insanity? No, actually only a handful of serious mental illnesses meet the legal threshold. Furthermore, the insanity defense is rarely raised and is even more rarely successful. We are mislead by the popular press and Hollywood's movies to believe the insanity defense is commonly used by criminals to avoid serving time for their crime. Consider that it is hard to fake a mental disorder with an experienced and trained forensic examiner! In the interests of justice, attorneys should always employ a trained and certified forensic examiner who will be fair and thorough in the evaluation and whose training and experience will enable them to correctly identify the psycho-legal issues and conduct an impartial evaluation.

Board Certification: Should a lawyer retain a board certified psychologist to serve as expert witness in her case? No, not really. There is no guarantee that board certification, or other high sounding credentials, will ensure better quality or have more of a desired impact on the jury. At the present time only about 15% of all psychologists are members of professional boards; this is in contrast to medicine where most physicians are boarded. It is likely that boarding will grow in the future as psychology matures as a profession. Jury research clearly indicates that what matters is the expert's perceived competency on the issues before the court, the expert's ability to relate to and connect with the jury, and the expert's credibility as perceived by the jury.

Psychological Tests: Psychologists use lots of tests in their evaluations, but only some of them are empirically validated for forensic purposes. Attorneys, be sure your expert chooses tests correctly, or the expert's failure to do so could backfire on you in open court. Always pick an expert with experience, training, and integrity who will not knowingly or unknowingly employ psychological tests incorrectly. For instance, it is almost never appropriate to use a Rorschach (ink blot test) on a parent in a child custody case, yet many psychologists do precisely that! Retain an expert who knows the scientific literature in the area of psychometrics and can skillfully and accurately defend his choice of psychological tests employed.

Battered Woman Syndrome & the Insanity Defense: Are women battered in this country to epidemic proportions? Yes. Is Battered Woman Syndrome (BWS) a true psychological disorder? No. BWS is not a true disorder because it cannot reliably be diagnosed in women who allege a history of battering (the same is true for the so-called Rape Trauma Syndrome). BWS, as a legal excuse or justification to a murder charge, is not likely to be successful. Will BWS be successful as grounds for an insanity defense to a murder charge? Not likely, because the extent of the syndrome in a particular individual cannot be reliably determined by clinicians and BWS does not entail a loss of ability to appreciate right from wrong. Further, the courts in American have overwhelmingly rejected BWS as a complete excuse to murder. These court rulings are in accord with the clinical literature, because battered women do not suffer a total loss of contact with reality, i.e., they are not psychotic and do not meet legal threshold for an insanity defense. In most successful insanity cases, the defendant was able to prove he or she did not know that the act was wrong because of a serious mental illness. Most jurisdictions have held that the underlying mental illness must have been actively present at the time and caused the defendant to not know right from wrong. Battered women arguably do not reach this clinical level of detachment from reality. True, battered women are frightened and fear for their lives and sometimes the lives of their children. This level of fear arguably may meet self-defense standards, or a justification excuse, for killing the batterer, but it most likely does not meet grounds for insanity. Testimony on BWS is generally admitted as evidence into trial, but only to help the jury understand the psychological and emotional state of mind a woman is experiencing while she is enduring a battering relationship. Chronic battering does produce extreme emotional and behavioral effects in victims; however, the signs and symptoms are largely non-specific, that is, not linked exclusively to any one clinical condition or event, e.g., battering. How then can the judge, jury, and forensic psychologist reliably determine if the victim significantly suffered from extreme battering sufficient to excuse or justify her criminal conduct? They cannot. And, therein is the problem -- BWS cannot be reliably diagnosed, indeed, the signs and symptoms can be faked or exaggerated. It is only in the context of a criminal trial where all the evidence can be fully examined that an accurate determination of the battering can be made. A doctor examining a woman who presents with complaints of a history of battering simply cannot reach an accurate conclusion on such a claim. Only the police investigation and a subsequent court examination of the facts can reliably reach such conclusions. Testimony on a history of battering in the defendant is arguably best presented as a mitigating circumstance for the jury to consider during the sentencing phase of trial.

A Brief Essay on Battered Woman Syndrome Law Review Article on Gender Defenses under the FRE
Prediction of Violence: The accurate prediction of risk for future violence has made tremendous gains in recent years. Specialty instruments and an enhanced understanding of the psychopath in society has resulted in predictive accuracy of 65-80% across a variety of settings. In order to achieve such a high accuracy rate, clinicians must have proper training and experience. Psychiatrists and psychologists without this special training will continue to have accuracy rates no better than chance, consistent with the chance level rates reported in studies in the 1980s. Many jurisdictions require risk assessments on sex offenders, pre-release mental patients, inmates prior to parole release, and defendants pleading insanity. Courts, mental hospitals, police departments, prisons, and even public schools and universities need violence risk assessments from time to time. We have the technology.
False Confessions: Psychological instruments have been developed that assist considerably in determining whether or not an individual made a false confession. There is a growing body of research literature that identifies characteristics of both the police and the suspect that helps us understand the dynamics of a police interrogation and the certain set of circumstances which are likely to produce a false confession. There is also a growing body of law recognizing this phenomenon.

Annotated research on false confessions