Forensic psychology has proven itself to be a quite intriguing field of study. From serial killers to child custody cases, the work of a forensic psychologist is involved. Forensic psychology is the intersection between the field of psychology and the legal system (Huss, 2001). Or, as defined by the American Board of Forensic Psychology (ABFP), “[forensic psychology] is the application of the science and profession of psychology to questions and issues relating to law and the legal system” (ABFP, 2010). This profession is not restricted to just one area of the legal system; in fact it contributes to the subspecialties of corrections, civil court, investigations, criminals, juveniles, and police. The purpose of this paper is to explain the roles and responsibilities a forensic psychologist has in each subspecialty, review court cases and research relative to the area, and discuss ethical dilemmas/ challenges and controversial issues forensic psychologists may encounter.
Note: Throughout the text the terms forensic psychologist and psychologist are used interchangeably to describe the profession
Criminal psychologists can be found in various settings with a wide array of roles and responsibilities. Aside from studying criminal behavior, criminal psychologists work with the police departments assisting with investigations, giving advice on how to conduct interviews with suspects and witnesses, they provide their services as an expert witness, aid in the process of rehabilitating an offender, and continuously research developments related to their field (Bull, Hatcher, Cooke et al, 2009). In the case of Jenkins v. U.S., 1962, it was ruled that a medical degree was no longer a requirement for an expert witness and that with the proper training and level of expertise a psychologist could now testify on issues relating to mental disorders. However in the role of an expert witness there are a couple challenges that appear which are attorney contracted psychological services and the admissibility of expert testimony in court proceedings.
During a court proceeding a criminal psychologist may be called upon to give their expert opinion about a matter related to the case. The purpose of an expert testimony is either to explain or give information to help in either the jury or judge’s decision making and is related to the psychologist’s area of expertise (Shuman & Greenburg, 2003). According to the Federal Rule of Evidence (Fed. R. Evid.) 702
“If scientific, technical, or other specialized knowledge will assist the trier of fact to understand the evidence or to determine a fact in issue, a witness qualified as an expert by knowledge, skill, experience, training, or education, may testify thereto in the form of an opinion or otherwise, if (1) the testimony is based upon sufficient facts or data, (2) the testimony is the product of reliable principles and methods, and (3) the witness has applied the principles and methods reliably to the facts of the case. “
In cases when a psychologist is asked to be an expert witness by an attorney who is requesting information to defend his or her client, problems may arise. An attorney seeks out a psychologist to provide expert testimony and evidence that will benefit the case of their client, not the opposing side. However, a psychologist is ethically responsible for providing an unbiased opinion or delivery of facts regardless of which attorney contracted their services. The pressure to be loyal to the attorney that has contracted the psychologist’s services causes a problem for those psychologists who uphold the integrity of the profession. When caught in a situation where the findings of the psychologist are not aligned with the goals of the attorney, the psychologist can either give a testimony that is altered to fit the requests of the attorney and risk civil liabilities and ethical complaints, or they can report the facts and risk not being called upon again. Although it is a true dilemma to decide which direction to take as a professional, upholding individual integrity and that of the profession is vitally important. Based on the responsibilities outlined in the Specialty Guidelines for Forensic Psychologists (1991), forensic psychologists should “make a reasonable effort” to provide their services in a manner that is “responsible and forthright”. When a the services of a psychologist are requested, they should be upfront about their position to be unbiased and only report the facts regardless of the outcome.
Another challenge that surfaces with expert testimony given by a psychologist is its admissibility in court. As mentioned earlier in the Fed. R. Evid. 702, an expert testimony may be utilized if it is based on “sufficient facts or data”. The facts and data are what determine the reliability of the expert’s testimony. This becomes a factor when it must be determined whether the information presented should be admitted as evidence in the court proceeding. Prior to the case of Daubert v. Merrell Dow Pharmaceuticals Inc.(1993) in order for an expert’s evidence to be admitted in court it must follow the rule of “general acceptance”, which meant the evidence must have been obtained using scientific techniques that were generally accepted in the scientific community (Bartol & Bartol, 2008). With the ruling in Daubert v. Merrell Dow Pharmaceuticals, Inc. it is now left to the discretion of the judge to determine whether expert’s evidence should be admitted. For a psychologists is becomes a challenge to convince the judge that the information they are presenting is both valid and reliable. As a safeguard, psychologists should disclose the sources of all of the information used to form their testimony (Committee on Ethical Guidelines for Forensic Psychologists, 1991).
Aside from the challenges criminal psychologists face as an expert witness, they also must address the controversial issue of whether offenders can be rehabilitated. The Bureau of Justice Statistics reported a study that looked at the level of recidivism of a group of prisoners released between 1983 and 1994. What they found was that a high percentage of these individuals were re-arrested (Beck & Shipley, 1997; Langan & Levin, 2002). With high numbers of released prisoners returning to the prison or criminal justice system, the effectiveness of rehabilitation programs is questionable. Research is still being done on what causes crime and what type of psychological effects do prisoners experience while incarcerated (Benson, 2003). Hopefully with a better look into what leads a person to commit a crime, better ways to rehabilitate them will be developed.
There are two themes that govern the juvenile justice system which are the welfare of the juvenile offender and public safety (MacArthur Foundation research Network on Adolescent Development and Juvenile Justice). The forensic psychologist in this specialty adheres to these themes in their roles and responsibilities to conduct assessments, evaluate competence, and provide therapy (Bartol & Bartol, 2008). Forensic psychologists may be called upon to assess a juvenile’s level of threat to society, whether they are competent to make certain decisions, and decide what type of treatment can be offered to them (Bartol & Bartol, 2008). Working with juveniles is not the same as working with an adult population. One ethical dilemma that comes about when working with juveniles is whether the psychologist has sufficient competence for working with juveniles if they have only assessed adults. Outlined in the Specialty Guidelines for Forensic Psychologists (1991) under competence, it states a forensic psychologist should only provide services in areas that they either have specialized knowledge, education, experience or skill. Psychologists must be very careful when assessing juveniles because they do not present the same behaviors as adults; some of these behaviors may be misinterpreted by the assessor if they have no knowledge of juvenile assessments (Bartol & Bartol, 2008). Assessment is a very important part of the juvenile’s dealings with criminal justice system, so a psychologist should make every effort to ensure they are competent in this area prior to providing services. When approached about providing services as a juvenile assessor, the forensic psychologist should be honest about their limitations in competence and either make an effort to become knowledgeable about the area, or decline the request (Committee on Ethical Guidelines for Forensic Psychologists, 1991).
Dual relationships also pose an ethical challenge for forensic psychologists in this area of specialty. Forensic psychologists should avoid the role of both evaluator and treatment provider (Bartol & Bartol, 2008). This is an issue because as an evaluator, the forensic psychologist is contracted with the court, who is the client. Which means the forensic psychologist must warn the individual of the limits to confidentiality. In the role of the therapist, the client is the individual patient and there is some protection of confidentiality under patient-therapist privilege. In the case of Jaffe v. Redmond (1996) the U.S. Supreme court supported confidentiality in federal courts. It is best practice to avoid dual roles. If the two roles must be combined, there should be an effort to avoid any negative effects to the individual client (Committee on Ethical Guidelines for Forensic Psychologists, 1991).
Levels of juvenile cognitive skills and adjudicative competence are issues that are still being debated in the juvenile justice system. The MacArthur Foundation Research Network on Adolescent Development and Juvenile Justice define competence as one’s ability to understand the processes associated with the trial, aid the attorney, and make important decisions. However, research has found that a number of juveniles 15 and under have mental competency scores similar to adults with serious mental disorders (MacArthur Foundation). Which means juveniles are not capable of making reasonable decisions related to waiving their constitutional rights, confessions, and plea bargains (Mac Arthur Foundation)The goal of the juvenile justice system has been to rehabilitate offenders so that they can eventually lead healthy lives as adults, without much focus on their competency to understand the justice system (Viljoen & Wingrove, 2007). The belief is that juveniles should be assessed based on their levels of development, not the standard of the justice system which is geared towards adults because some developmental issues may not be detected (Ryba, Cooper, & Zapf, 2003).
The decision whether a defendant should be transferred from juvenile court to criminal court is an issue that is still being worked out in the justice system. In the case of Kent v. United states (1966) where 16-year-old Morris Kent, after confessing to his crimes, was transferred to criminal court and found guilty of housebreaking and robbery, and not guilty by reason of insanity for rape. Kent’s attorney argued that Kent’s case should have remained in juvenile court because he would have had a better chance of rehabilitation than in criminal court where he was sentenced to 30 to 90 years in a mental institution (Kent v. United States, 1966). Even today research is still being done on whether juveniles have adjudicative competence and if they should be transferred to criminal courts.
The Civil Court is primarily designed to handle private disputes between individuals or organizations (Britannica Online Encyclopedia, 2010). The major roles of the forensic psychologist in the civil court setting are those of an assessor and evaluator. Forensic psychologists may be called upon to assess emotional factors related to traumatic or personal injury litigations; assessment of psychological factors in relation to harassment, discrimination, and worker’s compensation disability, as well as post-mortem assessments and competency evaluations (Franklin, 2006). Forensic psychologists are also called upon in family courts to complete child custody evaluations (Franklin, 2006). Child custody evaluations conducted by psychologists tend to bring up some ethical concerns. An unresolved controversial issue in this subspecialty is that there is currently no standard practice when conducting child custody evaluations (Bartol & Bartol, 2008). Many psychologists choose to use several forms of psychological testing as means to determining child custody in response to the American Psychological Association’s (APA) (1994), request that there should be several methods for collecting data (Bow & Quinnell, 2001). The issue with the psychological tests used is that there is no empirical evidence to support it (Bow & Quinnell, 2001). To ensure adherence to the APA guidelines, the psychologists should use several techniques to conduct evaluations such as interviews, self-report studies, and psychological testing (Bartol & Bartol, 2008).
If a forensic psychologist is called upon to conduct a mental evaluation of a victim in sexual harassment suit, it is important that the psychologist thoroughly explain the potential use of the information gained. Informed consent now becomes an issue in this case because the victim must reveal personal information regarding their past sexual history during the evaluation (Bartol & Bartol, 2008). The APA state in the Ethical Principles Psychologists and Code of Conduct section 3.10(c)” When psychological services are court ordered or otherwise mandated, psychologists inform the individual of the nature of the anticipated services, including whether the services are court ordered or mandated and any limits of confidentiality, before proceeding”. This can become a challenge for a forensic psychologist if the victim does not fully understand the limits of confidentiality in this situation. The forensic psychologist should take special care to explain to the client, in language they understand, that the information provided may be used in the courtroom. By doing this the psychologist is making an effort to reduce the potential for more harm to the client.
One of the most controversial issues in this area of forensic psychology is physician-assisted suicide. Physician-assisted suicide takes place when a competent individual requests that a physician prescribe a medication that will aid them in ending their life. The role of the psychologist is to determine whether or not the individual is competent to make such a decision. The state of Oregon, in 1997, enacted its Death with Dignity Act which allows for physician-assisted suicide (Oregon State). The debate on whether other states will join Oregon is ongoing, as well as the research on the responsibilities of the forensic psychologist in this role (Bartol & Bartol, 2008).
The case of Daubert v. Merrill Dow Pharmaceuticals, Inc (1993) is pivotal in this subspeciality because of the forensic psychologist’s role as an expert witness in civil cases. Research is still being done on how the Daubert standard affects the admissibility of expert testimony given by forensic psychologists (bartol & Bartol, 2008).
The work of the investigative forensic psychologist may be the most popular because of the media hype over the role of criminal profiling. In the case of U.S. v. Sokolow (1989) a form of profiling was used to make an arrest based on the behavioral characteristics of drug dealers. Criminal profiling methods have been around long before the gained popularity in the media. Actually, forensic psychologists have a few other roles and responsibilities dealing with investigations besides criminal profiling. Forensic psychologists use a variety of techniques to link a suspect to a crime. They study the crime scene to get a better understanding of the physical and verbal behaviors of the suspect (Woodham, Hollin, & Bull, 2007); they also use geographical profiling to determine the territory of a serial offender (Bartol & Bartol, 2008). This information is then used to narrow down the list of possible suspects put of a larger population. Psychological autopsies are unique responsibility of investigative forensic psychologists because they are done to determine the mental state of an individual prior to their demise. Also an investigative psychologist may conduct a forensic hypnosis to aid in a witness’s or victim’s recall of a traumatic event. Much scrutiny surrounds the use of forensic hypnosis as well as criminal profiling.
Despite the glamorous appeal profiling has shown on various TV shows and movies, it is not a widely accepted practice. There are several concerns that cause profiling to be a very controversial issue. From the lack of research supporting its reliability and validity (Mcgrath, 2000), to the belief that profilers are creating opinions based on “gut feelings” (Bartol & Bartol, 2008), and its inability to meet the basic expert witness standards sought under the section of the Federal Rule of Evidence 702 that states “the testimony [of an expert] is based upon sufficient facts or data, . . . is the product of reliable principles and methods, and the witness has applied the principles and methods reliably to the facts of the case” (Alison, Bennell, Ormerod, & Mokros, 2002). This brings about ethical challenges because forensic psychologists are obligated to provide services that are “consistent with the highest standards of the profession” (Committee on Ethical Guidelines for Forensic Psychologists, 1991, p. 657). As Alison, et al. (2002) assert, the methods used for profiling result from an understanding of personality and trait approach that is both “naÑ-ve and outdated. Many researchers suggest that psychologists should be cautious about using profiling in criminal investigations (Bartol & Bartol, 2008; Alison, et al., 2002), but if it must be done, appropriate steps should be taken to base their opinion on current empirical evidence that is available and not just on “gut feelings” (Torres, Boccaccini, & Miller, 2006). As of today, there is still a need for research to support the use of profiling.
Pretrial identification methods is another area of ethical concern for psychologists because of its vulnerability to bias and error. Many police agencies use lineups and photospreads to help witnesses identify a suspect. The issue of bias arises when either the investigator or administrator make suggestions or subtle innuendos about who the suspect is. In a study conducted by Greathouse & Kovera (2009) it was found that in situations where the administrator of the lineup and photospread knew who the suspect was, the witness was more likely to correctly identify them as oppose to situations where neither the administrator nor the witness knew the suspect. To resolve an ethical dilemma of this type, it is recommended that those administering the lineup and photospread should not have knowledge of who the suspect is (Bartol & Bartol, 2008).
In 2005 nearly half of the inmate population in prisons and jails reported having a mental health problem (James & Glaze, 2006). With such a rise in the number of mentally ill inmates, the prison system may now be the nation’s largest provider for this special population (Fellner, 2006). Rising numbers indicate there is an even greater need for forensic psychologists working in the prison systems today. The role of a forensic psychologist is that of assessor and treatment provider. Within these roles, forensic psychologists are responsible for coordinating and ensuring the mental health programs are running properly, supervising the employees assigned to these programs, and administering mental health services to the inmates that need it. The forensic psychologist also functions as a trainer for the staff and screens the staff that will be working with inmates in special mental health units and step up to help in crisis situations (Magaletta & Verdeyen, 2005; International Association for Correctional and Forensic Psychology, 2010).
Working in correctional facilities can be very challenging for the forensic psychologists. The work environment is no way comparable to the application of psychology in the community or private setting. There are various risks and safety issues when dealing with criminals in this type of setting such as dual roles. The Standards for psychology services in jails, prisons, correctional facilities, and agencies address this issue by stating
“Mental health services staff do not assume a dual role that overlaps with other functions and services (e.g., security) of the correctional agency or facility that could result in unethical dual-role relationships that risk harm to their offender or inmate clients” (International Association for Correctional and Forensic Psychology, 2010, p. 19).
At times, a correctional psychologist may act in the role of evaluator and therapist, or even as the therapist and a stand-in correctional officer. In some correctional facilities the expectation is that a psychologist is a correctional officer before any other role, thereby making it a responsibility of the psychologist to aid in doing a count of the inmates, conducting searches of an inmate’s cell and person, supervise inmates, and escort inmates to segregated areas (Bonner & Vandecreek, 2006). Dual roles of this type create mistrust between the inmate and the psychologist because the psychologist is now viewed as another correctional officer and not someone there for the interests of the inmate. In order to eliminate the potential of dual roles, the psychologist should request in writing that they should only be assigned to duties that align with their particular profession and ethical standards (Bonner & Vandecreek, 2006).
A second ethical challenge for psychologists is avoiding situations that would intentionally cause harm to their client. The conditions of prison are not necessarily adequate for those suffering from mental illness, and many times many of them go undertreated (Fellner, 2006). The prison walls are riddled with too many inmates, violence, and victimization by other inmates and the staff (Bartol & Barto, 2008).It is the responsibility of the psychologist to maintain their position as an advocate for their client and not as an additional perpetrator of their rights but this is challenging when jail and prison conditions prevent effective treatment. The IACFP (2010) contend that “Offenders are incarcerated as punishment, not for punishment” (p. 759). Participating in or allowing the inhumane treatment of inmates, mentally ill or not, goes against the standards for psychologists in this subspecialty. Unfortunately, psychologists may be harming unintentionally causing harm by not provided the adequate treatment needed. The climate of the prison environment will take several steps in order to see a change, but there are things a psychologist can do to resolve some of these issues. It is important that the psychologist does not fall into the same mentality of a correctional officer and participate in activities that are intended to do harm. The IACFP (2010) suggest that psychologists should avoid any delays when a request has been made for mental health services; avoid imposing any biases or beliefs on or towards inmates; meet the requirements of due process; practice within one’s personal scope of competency; and continuously advocate for better mental health services in jails and prison.
One controversial issue that surrounds the treatment of mentally ill inmates is their segregation from the general population. In the case if Perri v. Coughlin (1999) a severely disordered inmate was kept in an observational –where an inmate is stripped of their clothes and placed in a cell for their protection–for a total of 108 days without any treatment. Another issue is although inmates have the right to refuse treatment, they can be forced to do so if it is determined that they are severely disordered and cause a threat to themselves and others which was argued in the case of Washington v. Harper (1990). Forced consent to treatment stirs up controversy for psychologists because inmates may only consent to treatment for fear of privileges being taken away, such as in the case of McKune v. Lile (2002). Despite the controversies that come about it the correctional system, the research focus has been on reducing recidivism and increasing rehabilitation.
The final subspecialty of forensic psychology to be discussed is police psychology. Police psychology is the application of psychological principles to the profession of law enforcement and public safety (Bartol & Bartol, 2008). As a police psychologist the primary role is to provide psychological services to law enforcement either through counseling, employee screenings, fitness-for-duty evaluations, assessment of incidents requiring deadly force, crisis counseling, and special unit evaluations (Bartol & Bartol, 2008). Police psychologists assist with the special units of police agencies including, SWAT, hostage negotiations, and victim’s response. Just as with all the other areas forensic psychologists team up with, there are a few ethical issues that emerge.
Conflicts between agency requirements and the ethical standards of the psychologist can pose a serious ethical dilemma when working with police agencies. Two ethical challenges in particular are the interrogation methods of some police agencies that lead to false confessions. Leo & Ofshe (1998) assert that false confessions are a result overzealous police officers who are so eager to arrest a suspect that they tend to overlook evidence that may point towards the individual’s innocence. Some tactics police may use to gain these confessions are deprivation, humiliation, or manipulation (Bartol & Bartol, 2008). These actions cause problems for psychologists because they position is to advocate for human rights, when these actions can be viewed as violations of these rights. When psychologists are caught in situations that cause ethical conflicts they must abstain from taking part in those behaviors. It is at the discretion of the individual psychologist whether they wish to continue consulting with police agencies that practice abusive interrogation techniques (APA, 2007). If they decide to continue their work, psychologist should consult with police on interrogation strategies that will not impede on an individual’s human rights and decrease the likelihood of a false confession.
Interrogation tactics have begun to come into the lime light with America’s War on Terrorism. But before then there was focus on another controversial issue, excessive force. Excessive force has been a controversial issue for decades. Many Civil Rights protesters can probably recount various incidents when they were victims of police excessive force. However the most striking case of our time dealing with police excessive force is that of Rodney King in 1991. Surrounding the issue of excessive force is also deadly force, although its occurrence is not frequent. With both of these issues, psychologists may be asked to conduct fitness-for-duty evaluations to determine the officer’s ability to carry out their required duties (Bartol & Bartol, 2008).
A plethora of research is available for the subspecialty of police psychology. Topics range from cultural competency, dealing with the mentally ill, on the job stress, excessive force, employment screening, and community relations. As the research in this area progresses, enhancements can be made to the types of treatment psychologist’s offer.
The field of forensic psychology encompasses a wide range of roles and responsibilities; with various contributions to the fields of law and psychology. In its short existence there have been tremendous gains in research and practical applications. As the profession of forensic psychology grows in popularity among the public, there is sure to be greater strides in the collaboration of psychology and law.
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