Chapter 1

Introduction to Psychology and Law: Civil and Criminal Applications

What is Forensic Psychology?

Forensic Psychology(Intersection between law

and psychology)

Clinical(Trained as practitioners

and researchers)

Non-clinical/experimental(Trained as researchers)

Broad Definition

Defining Forensic Psychology

Forensic psychology is the practice of psychology (defined to include research as well as direct and indirect service delivery and consultation) within or in conjunction with either or both sides of the legal system—criminal and civil.

History of Forensic Psychology

History of Forensic Psychology

History of Forensic Psychology

What do forensic psychologists do?

Criminal forensic evaluations (e.g., fitness to stand trial, criminal responsibility, violence risk)

Civil forensic evaluations (e.g., child custody, personal injury)

Treatment of offenders

Research on legal issues such as eyewitness testimony, jury decision making, impact of pretrial publicity, fitness to stand trial, causes of violence.

Roles of Forensic Psychologists

Criminal and civil evaluation & expert testimony

Assessment, treatment, & consultation of risk

Specialized treatment in legal system

Policy consultation to lawmakers

Consultation & training to law enforcement, justice, & correctional systems

Consultation & training to mental health systems

Analysis of issues (human performance, product liability, safety)

Court-appointed monitoring

Mediation & conflict resolution

Psychology-law related policy & program development

Training & supervision of students

ABFP (2007) http://www.abfp.com/brochure.asp

Varied roles in research and practice

Murder Rate in VancouverIs violence, particularly murder, on the rise?

How many murders in Lower Mainland last year?

How many murders in Vancouver?

The Most Dangerous Cities in Canada: Murder rate2009 Maclean’s National Crime Rankings

PORT COQ. 59,732 364.70 1

EDMONTON 763,732 132.61 2

WINNIPEG 653,733 120.79 3

SASKATOON 206,365 115.21 4

VANCOUVER 609,785 100.29 5

CALGARY 1,038,481 87.10 6

SURREY, B.C. 425,428 82.69 7

Interesting websites www.crimelibrary.com

Information on notorious criminal cases. You can read about the background of the perpetrators, their victims and the court proceedings. For example, the cases of Karla Homolka and Paul Bernardo, Ted Bundy, and JonBenet Ramsey are described.

www.all-about-forensic-psychology.com This is a somewhat similar site that can be useful for someone who is interested in forensic psychology. What does the subject encompass? What is its history? How is an offender profile made? What factors increase the risk of a false confession?

crimepsychblog.com This site is like a clipboard where researchers and professionals in the field can post their announcements of new research articles, guidelines, legislation and landmark cases. It is a good source for students who want to get an idea of what forensic psychology is all about.

www.innocenceproject.org The first Innocence Project was started at Yeshiva University in New York. Wrongful convictions have shown that serious flaws have caused our criminal justice systems to convict scores of innocent people. The Innocence Project has identified seven policy areas where targeted reforms can help prevent future wrongful convictions. This interesting site gives examples of people who have been exonerated as a consequence of these types of innocence projects, and what actions are to be taken to prevent as much as possible future miscarriages of justice.

Associations & Publications

Many professional groups in North America and Worldwide:

American Psychology-Law Society (conference in Miami, March 2-5, 2011)

International Association of Forensic Mental Health (conference in Barcelona, June 29-July 1, 2011)

European Association of Psychology and Law Australian & New Zealand Association for

Psychiatry, Psychology and the Law

Associations & PublicationsMany Journals

Law and Human Behavior

Criminal Behaviour and Mental Health

Behavioral Sciences & the Law

Psychology, Public Policy, and the Law

Legal and Criminological Psychology

Training in Forensic Psychology Graduate ProgramsPrograms in U.S., Canada, Europe, Australia, and

elsewhere worldwide Many training options:

PhD: training in research and practice PsyD: emphasis on practice Joint Degrees (JD/PhD): training in research and

practice combined with legal degree

Grad programs with specialized training vary in approach and are very competitive

Saks on law’s view of social science

Michael Saks, trained in law and social psychology, said:

The law and its practitioners are careful, thoughtful, and rigorous about many things, but those things do not include the nature of social and behavioral phenomena, cause and effect relationships, or the effects of the interventions made by the law.

Bersoff on psychology/law relationship

It is relatively clear . . . that the relationship between . . . psychologists and the courts is less than perfect. In fact, if that relationship were to be examined by a Freudian, the analyst would no doubt conclude that it is a highly neurotic, conflict-ridden ambivalent affair (I stress affair because it is certainly no marriage). (Bersoff, 1986, p. 155)

Overview of the Law

Sources of Law

Court Systems

The Court Process

How do you define law? A body of rules for the guidance of human conduct which

are imposed upon and enforced among the members of a given state.

As stated, this seems straightforward--If individuals violate a rule, then they would get the prescribed punishment.

Complicating factors to consider: • judges' decisions in the same type of cases may vary

considerably• minorities may get different treatment than others• wealthy people may fare better than poor ones• eyewitnesses may not always be accurate• courts are overcrowded and dockets full; trials don't usually take

place.

Adversarial System

We have an adversarial system of justice. Opposing parties present contradictory information. Outcome determined by judge or jury.

What are the implications of adhering to an adversarial model?

What alternatives exist?

Inquisitorial Model Used in Western Europe and Latin America. The judge hears witnesses and suspects and

orders searches for other investigations. The goal is not the prosecution of a certain person,

but the finding of truth, and as such the duty is to look both for incriminating and exculpating evidence.

Judges charged with the task of finding the truth at all costs as compared to judges in the adversarial system who are largely constrained from obtaining the truth by ponderous rules and procedures which preclude their immediate involvement.

First Nations Sentencing Circles The sentencing circle is a method of dealing with members of the

community that have broken the law.

Takes place after the individual has been in the western justice system and found guilty or if the accused has accepted guilt and is willing to assume his or her responsibility.

Encourages the offender and the community to accept responsibility and acknowledges the harm they have done to society and to victims.

Shift the process of sentencing from punishment to rehabilitation and responsibility; provides alternative for courts to incarceration.

Start the healing process for both the offender and the victim. The offender is presented with the impact of their actions in front of respected community members, elders, peers, family, the victim and their family, stimulating an opportunity for real change.

Mental Health Courts

Essentially a diversion program for persons who: have a serious mental health problem/mental

illness; have been charged with committing a low risk

offense; accept mental health diversion are approved for diversion by the provincial

Crown Attorney.

Division of Powers

Section 91 Federal heads of

power Includes enacting

criminal law and criminal procedure

Section 92 Provincial heads of

power Includes enforcement

of criminal law and prosecution of criminal offences as well as most civil law

Sources of Law

Case law Statutes Parliament Royal prerogative Charter of Rights and Freedoms

Common Law

British Common law, also called traditional law, is law that has evolved from decisions of English courts going back to the Norman Conquest in 1066.

These earlier decisions set "precedents," which are used in future cases of a similar nature. Precedents can be overruled by new laws, or statutes, passed by the appropriate government.

Common law is the source of the principle stare decisis which means "let the decision stand" or "to stand by decided matters". It is based on the principle that like cases must be decided alike.

Canadian Charter of Rights and Freedoms Came into effect in 1982 (spearheaded by Pierre Trudeau). Established

increased role of judicial review in protecting rights.

freedom of expression the right to a democratic government the right to live and to seek employment anywhere in Canada legal rights of persons accused of crimes Aboriginal peoples' rights the right to equality, including the equality of men and women the right to use either of Canada's official languages the right of French and English linguistic minorities to an education

in their language the protection of Canada's multicultural heritage Arrest rights; cruel and unusual punishment

Was a Charter Right Infringed?

s trik e d o w n th e law re a d d o w n th e lawto b e c on s is te ntw ith th e C h a rter

re a d in e le m e n ts tom a k e la w c o ns is te nt

w ith th e C h a ter

T he law itse lfin fringes C harter

righ ts

a n y re m ed y th a t isju s t a n d ap p ro p ria tein th e c ircu m sta n c es

e v id en c e isin a d m iss ib le

T he w ay the laww as app lied in fringes

C harter righ ts.

The Charter of Rights and Freedoms guarentees the rights and freedoms set out in it are subject only to such reasonable limits prescribed by law as can be demonstrably justifiedin a free and democratic society.

s. 1

If, having regard to all the circumstances, the admission of it in the proceeding would Bring the administration of justice into disrepute s. 24(2)

Federal Court SystemSupreme Court of Canada

Canada's highest court. It is the final general court of appeal,

the last judicial resort for all litigants, whether individuals or governments.

Federal Court of Appeal

Appeals from the Federal Court are heard by the Federal Court of Appeal. The Federal Court and Federal Court of Appeal also review decisions, orders and other administrative actions of federal boards, commissions and tribunals.

Federal Court of Canada

The Federal Court is Canada's national trial court. It hears and decides legal disputes arising in the federal domain, including claims against the Government of Canada, civil suits in federally regulated areas and challenges to the decisions of federal tribunals.

Court Martial Appeal Court of Canada

This Court hears appeals from military courts which are known as courts martial. The courts martial have power to try military personnel, and civilians accompanying such personnel abroad, for crimes and offences against the Code of Service Discipline.

Tax Court of Canada

The Tax Court of Canada is a superior court to which individuals and companies may appeal to settle disagreements with the Government of Canada on matters arising under legislation over which the Court has exclusive original jurisdiction. Most of the appeals made to the Court relate to income tax, the goods and services tax or employment insurance.

Provincial Courts

Trial Courts that hearmost criminal cases, about half of the family related trials, virtually all youth cases, all small claims actions

Jury trials are not available Usually no preliminary inquiry Judges are appointed by the province Decisions are not binding

Provincial Superior Court

Trial courts that hear some criminal cases some civil cases grant divorces some appeals from Provincial Courts

May be heard before a judge or judge and jury

Binding on Provincial Courts in that province

Provincial Court of Appeal

Appeal court only Panels of 3 judges Appeal a verdict or a sentence Federally appointed judges Binding on Provincial courts and Provincial

superior courts

Elements of a crime

1. Actus Reus: the physical element of a crime. Example: assault is defined as "without the

consent of another person....he applies force intentionally to the person of the other, directly or indirectly." The actus reus consists of 1) applying force to another person and 2) without the other person's consent.

2. Mens Rea: the mental element of a crime. Intention, knowledge, recklessness NCRMD

Criminal Offences

P ro v in c ia l C o u rt(n o ju ry , n o p re lim )

S u m m a ry

P ro v in c ia l C o u rt

P ro v in c ia l C o u rt(ju d g e a lon e , ju d gem a y o rd e r a p re lim )

S u p e r io r C o u rt(ju d g e a lo new ith p re lim )

S u p e r io r C o u rt(ju d g e a n d ju ry,

p re lim )

E le c ta b le(d isc re tio n o f ac c u se d)

S u p e r io r C o u rt(ju d g e a n d ju ry,

p re lim )

In d ic ta b le H y b rid(p ro c e e d b y in d ictm e n t or

su m m a rily --c row n d isc re tio n)

Plea Bargain(1) Charge bargaining, which involves promises

concerning the nature of the charges to be laid(2) Sentence bargaining, which involves

promises relating to the ultimate sentence that may be meted out by the court

(3) Fact bargaining, which involves promises concerning the facts that the Crown may bring to the attention of the trial judge

Estimated that 90% of cased resolved through plea bargain rather than trial.

The Court Process: Criminal Issues

Defendant charged in name of people for violating criminal law

Presumption of innocence Prosecution bears burden of proof

(beyond a reasonable doubt) Penalties serious and proportional Defendants afforded rights

The Court Process: Civil Issues

Two or more parties (plaintiff & defendant)

One party alleges violation of a statute/provision of common law

Standard of proof is on a balance of probabilities

Fewer rights for parties

Conflicts Between Ψ and LawLaw Psychology

1Conservative; resists innovation

Creative, novel, innovative approaches

2Hierarchical & authoritative; lower courts bound by higher

Empirical enterprise; ideas depend on consistent supporting data

3Adversarial system used to arrive at “truth”

Objective experimental model; ascertain “truth” through hypothesis testing

4Prescriptive, laws tell people how they should behave

Descriptive, goal of describing behavior as it naturally occurs

Conflicts Between Ψ and Law (cont’d)

Law Psychology

5Ideographic, focus on individual case

Nomothetic, eschews case studies

6Operates on principle of certainty & definitive outcome

Methods rely on probabilistic models

7 Approach is reactive Approach is proactive

8Operational and applied in nature, concerns arise from real world.

Academic in nature, can lose touch with “real world”

Progression through Criminal Justice System

Haney’s Taxonomy (1980)

Psychology IN law

“explicit and conventional use of psychology by lawyers in the legal process” (p. 158)

Most common role of psychologists, though role is often passive

Examples: psychological testimony on legal issues (e.g., insanity defense or fitness to stand trial)

Haney’s Taxonomy (1980) (cont’d)

Psychology AND law Use of “psychological principles to analyze and

examine the legal system” Research often follows from relationship,

examines assumptions law makes about behavior

Role of psychologist autonomous

Examples: Research on eyewitness accuracy, false confessions

Haney’s Taxonomy (1980) (cont’d)

Psychology OF law

Psychologists study issues such as why people need and obey the law

Role of psychologist autonomous

Two categories of examination:

Origins/existence of law and the psychological function it serves

How laws operate as a determinant of behavior