Psychology and Law

Bridging the Gap

David Canter, Rita Žukauskiene

• Publisher: Routledge
• Year: 2017
• ISBN:
  9781351907873
• Edition: 1
• Topic: Psychology
• Subtopic: History & Theory in Psychology
• Index: Psychology

This important book captures contemporary attempts to build bridges between the two very different disciplines of law and psychology and to establish the true nature of the interaction between the two. Including international contributions from lawyers, psychologists, sociologists and criminologists, the book bridges the inherent gap between the practice of law and the profession of psychology at an international level. It throws light on how psychology connects with, inter alia, the courts, prisons, community care, clinics, long-stay hospitals, police investigations and legislative bodies. More recent contributions of social science to legal proceedings are also covered, such as the liability that arises from lack of crime prevention, or the systematic prediction of likely violence by an offender. The book will be essential reading not only for academics and professionals in psychology, the law and related disciplines wishing to understand the broadening base of psychology within the legal process, but also for students trying to form an understanding of the emerging science and the associated career opportunities for this exciting field.

Chapter 1
In the Kingdom of the Blind

David Canter

Professional Humility

The 15th century philosopher Erasmus claimed that ‘In the kingdom of the blind, the one-eyed man is king’. His argument was that if everyone around you were ignorant then even a little knowledge would make you significant in that community. But in a witty and perceptive short-story, the late-19th century novelist H.G. Wells shows how in a kingdom entirely peopled by the blind, that the one-eyed person is an aberration more likely to be regarded as mad than appropriate for high office.

This paradox is directly relevant to the interactions between psychology and law. It is productive to suggest that the Law is often a kingdom of people who are blind to many insights that psychologists have. Psychologists for their part often do not appreciate that they are only partially sighted and that there are other ways of exploring reality than theirs. Furthermore, if psychologists are not aware of these problems and do not take them into account when they interact with legal processes they will be regarded as less then capable. Their very insights will be what mark them off from lawyers, probation officers, detectives and all the other people who have daily commerce with crime and criminals.

Examples of the reciprocal distortions provided by this interplay of these two different perspectives are everywhere to be seen. The quest to predict how dangerous a person will be in the future; proposals of courses of treatment or methods of managing offenders; the preparation of ‘profiles’ for police investigations; systems for determining deception; explanations of criminality; questions about eyewitness testimony; or even the more recent exploration of whether the owner of a public venue may be liable for a crime that happens there – and many other areas of forensic psychology – all pose challenges for the effective dialogue between psychologists and those involved in legal processes.

The present volume is therefore a rare attempt to explore the mix of viewpoints that make up these overlapping areas of professional and scientific activity. Like H.G. Wells’ one-eyed man, there is an inherent conflict between people who have different ways of interacting with the world. It is tempting for each sub-group to believe that their perspective has a unique hold on truth and a special contact with reality, but for the gaps to be bridged it is essential that all those involved have ‘professional humility’. By this I mean that each profession recognises that it sees only part of the whole picture and that there are equally legitimate if rather different perspectives.

This humility is particularly difficult for many professions to embrace. The training of professionals, whether they be lawyers, psychologists, police officers, criminologists or any of the many other disciplines that crowd our universities, is such as to imbue students with a framework for understanding the world and the people within it. This framework implies, and often directly states, that the particular professional perspective being absorbed is the dominant road to the truth. Psychologists will dismiss anthropological studies as being ‘merely anthropological’. Lawyers will see psychologists’ experiments as being ‘only of academic interest’, and criminologists will regard judges as uninformed about the social processes that create criminality.

Many years ago, Bromley (1986) argued that psychologists had much to learn from the approach to evidence and decision making that was characteristic of the law. This was as subversive an argument then as it is today, and its implications have still not been thoroughly explored. But it does offer a counterbalance to a view, still strong within psychology, that knowledge can by furthered only through the conduct of highly controlled laboratory experiments. The challenge from the legal perspective on this is not just a question of whether research findings are reliable enough to draw on in court, but a much more profound questioning of what it means to be human, and the most appropriate way of modelling the mechanisms that give rise to human actions.

Therefore, to bridge the gap between psychology and law it is important to explore further the differences between the different perspectives and how they may complement, rather than challenge, each other. A step towards this exploration is to review the dominant traditions and world views that characterise psychology and law and how their differences may be productively combined.

Table 1.1 Summarising the differences between the nature of the law and of psychology

The Law	Psychology
Focus of Interest
The Individual	Mostly Group Trends
Forms of Contribution to Knowledge
Plausible Narratives	Processes
Preferred Methodologies
Due Process	Scientific Method
Intended Outcomes
Verdict	Contribution to Knowledge
Approach to Information
Evidence	Data
Explanations of Human Actions
Personal Agency	External Causation

Comparing the Law and Psychology

As summarised in Table 1.1, six broad issues can be identified that distinguish between, on the one hand, lawyers and those involved in the legal profession, and on the other psychologists and other social and behavioural scientists. These cover conceptual aspects of the ways in which each set of disciplines actually formulate the questions they consider it important to answer, as well as pragmatic issues that relate to the ways they go about answering these questions. At the heart of these differences are very diverse attitudes towards the nature of evidence, as well as differences in the central models of what the nature of human beings is.

Nomothetic versus Ideographic

Perhaps the most obvious difference between the two traditions being explored is that the law is focused on the case at hand and gives great emphasis to the particularities of the individuals involved in that case. The courts need definitive answers about the actual person they are dealing with. Yet despite more than a century of psychological therapies and other areas of professional practice in which services are set up to deal with unique people, psychology as a science and profession is still fundamentally nomothetic, focused on trends and patterns across sub-groups not on descriptions of actual persons. Those involved in the law see only the trees, like people with limited vision. Psychologists are aware of a wood, only able to recognise individual trees from knowledge of where they are in the wood. Indeed, part of Bromley’s (1986) argument for psychologists to consider the value of legal processes was as a defence for the case study as a viable scientific methodology.

But the dominant framework for psychologists is still one in which differences between group averages are the basis of their claims to find results. ANOVA, ‘t’ tests, and the measures of central tendency which populate published studies are all summaries of trends across groups. The significance of the standard deviation and other measures of variability is testimony to the fact that averages do not characterise more than a small proportion of individuals within any sample. Indeed, the much derided ‘mode’, may often be a practically more useful summary of the trends within a group than the arithmetic means on which significance tests are based.

This issue comes into high relief when considering the assessment of risk of future violence. Politicians and the public at large, through the mass media, are horrified by even one person who was deemed to pose little risk, who subsequently commits an act of violence. It is little consolation to the victim of that violence to point out the error terms in the statistical calculations on which the judgement that the person was low risk was based. In the present volume this issue is tackled directly by Davis and Ogloff in Chapter 11 and Monahan in Chapter 12. There the complexities of predicting violence, as of predicting any significant aspect of human behaviour, are carefully explored. The conclusions that these authorities come to have general significance because they show that a blind following of results of empirically established trends are not enough on which to base important decisions about individuals. However, as is made clear, these considerations should not lead to a simple advocacy of ‘personal experience’ and uninformed ‘clinical judgements’. Instead, the challenge of taking account of the individual puts a great demand on the practitioner. That person is required to understand the processes and principles involved in creating the activities being predicted as well as an informed understanding of the empirical trends that characterise those processes.

One crucial aspect of this understanding, which is remarkably often omitted from forensic discussions, is explored in Chapter 7 by the Andersheds. This is the heterogeneity of those who are involved in crime and antisocial behaviour. They show in detail the many pathways into anti-social behaviour and the various risk factors that distinguish between anti-social individuals. They also point out that their perspective challenges some strongly held views about the fundamental similarities between criminals. But although there may well be some common psychological, or even genetically based, processes that underlie a great deal of criminal activity, it is only of little help to the courts, probation services, or others whose task is to work with criminals to focus on what criminals share. To be effective and just, the legal process needs to recognise what is significant about the person with whom they are currently dealing.

Narratives versus Processes

The pressures under which psychologists are placed to deal with the individuality of the case in hand, even though they are drawing on the general trends that emerge from research findings, is possibly most clearly revealed in the general approach that the law takes to any form of ‘offender profiling’. Freckelton explores these issues thoroughly in Chapter 6, making the crucial point that most jurisdictions are very reluctant to accept the opinions of profilers as expert evidence. He further points out that in all the cases in the US in which profiling evidence was allowed, subsequent appeals disallowed that evidence and the case was overturned if the evidence had been deemed significant to the verdict.

The reasons why profiling evidence is unacceptable to most courts is instructive. It relates to a legal perspective on what the nature of expert evidence should be. The courts require of experts that their opinion is based on information or knowledge that is not available to the non-expert. Profilers are not seen as offering an opinion based on substantive knowledge or empirically derived facts. Or, if their expertise is recognised, it may be considered to offer the crucial judgement of innocence or guilt, which is the prerogative of the court, not of any given witness.

There is, of course, a great deal of sense in this legal approach to expert evidence from profilers. As a number of authors have made clear (e.g. Canter, 1994, Hicks and Sales, 2006) profilers are often offering a personal opinion that has little justification beyond their own arbitrary experience. Where their opinions draw on general trends derived from empirical research, the results of that research is rarely precise enough to be applicable with great confidence to the case with which the court is dealing.

However, there is a curious divide here between what the courts are seeking and what they derive from psychological expertise. The courts expect experts to derive their opinions from the study of general processes, revealing trends that can be applied to individuals. They look for those trends to be converted into a form that can be dealt with as a coherent package that makes a simple definitive statement. The strongest example of this is the readiness with which the courts will accept evidence of some sort of syndrome or disease as an explanation of human actions. Raitt and Zeedyk (2000) raise grave concerns about this from an overtly feminist perspective. They argue that the courts’ acceptance of Rape Trauma Syndrome, Premenstrual Syndrome and other medicalised explanations of women’s actions limit the possibilities for examining the appropriateness of women’s actions and understanding them within a broader social context.

The gap here comes from scientists being seen as revealing underlying processes that can be distilled into distinct sets of facts, whilst the courts are actually trying to derive a plausible narrative that will show the role of the defendant in an unfolding story. Judges and juries will accept that there can be other protagonists that influence the pattern of events beyond the key people involved. These agents may be drugs, or physiological responses or disorders of the mind or body. But for an expert to be allowed to indicate the impact of these agents there must be some scientific basis for proving that they have an effect in a predictable manner. If ever a profiler could say that a particular genetic abnormality was known to play a role in acts of violence, then evidence for that abnormality in the defendant just might get past challenges of prejudice and be allowed into court. Certainly, the assessment of an individual’s personality is an acceptable component in judgements about the sentencing of convicted people in many jurisdictions.

One consequence of the legal determination of the roles that experts can play is that much of what can be offered by behavioural scientists has to be subsumed within the arguments offered by lawyers in court rather than being directly presented by the experts themselves, and thus being open to the appropriate challenges. An interesting example of this, discussed by Freckelton in Chapter 6, is the conviction for murder of Eddie Gilfoyle, whose eight-and-a-half-month pregnant wife, Paula, was found hanging in their garage. The details of this case (Canter, 2005b) show just how much of the expertise that might have been produced by a psychologist was taken by the courts and appeal judges to be within their own area of expertise because it would be common knowledge to people at large.

The Gilfoyle case revolved around the fact that Paula had secretly left a series of explicit suicide notes but had not indicated to anyone with whom she had contact that she was at all concerned about her pregnancy or intended to take her own life. The jury, and later appeal court judges, accepted that the notes were not sufficient to outweigh the circumstantial evidence that could be interpreted to indicate that Eddie had persuaded Paula to put her head in the...

Table of contents

• Cover Page
• Title Page
• Copyright Page
• Table of Contents
• Series Preface
• Foreword
• List of Contributors
• 1 In the Kingdom of the Blind
• 2 Contemporary Challenges in Investigative Psychology: Revisiting the Canter Offender Profiling Equations
• 3 Lie Detectors and the Law: The Use of the Polygraph in Europe
• 4 Eyewitness Research: Theory and Practice
• 5 Identification in Court
• 6 Profiling Evidence in the Courts
• 7 Implications of Heterogeneity among Individuals with Antisocial Behaviour
• 8 From Crime to Tort: Criminal Acts, Civil Liability and the Behavioral Science
• 9 The Consequences of Prison Life: Notes on the New Psychology of Prison Effects
• 10 Psychopathy as an Important Forensic Construct: Past, Present and Future
• 11 Key Considerations and Problems in Assessing Risk for Violence
• 12 Computer-assisted Violence Risk Assessment among People with Mental Disorder
• 13 Does the Law Use Even a Small Proportion of What Legal Psychology has to Offer?
• 14 ‘They’re an Illusion to Me Now’: Forensic Ethics, Sanism and Pretextuality
• Index