PapersSpot

Choices and Roles

The Importance of Laws

Laws as Human Creations

Laws Help Resolve Conflict and

Protect the Public

The Changing of Laws

The Psychological Study of Law

Basic Choices in the Psychological

Study of the Law

The First Choice: Rights of

Individuals versus the Common

Good

BOX 1.1: THE CASE OF THE WESTBORO

BAPTIST CHURCH: DO INDIVIDUALS HAVE

THE RIGHT TO USE OFFENSIVE SPEECH?

The Second Choice: Equality

versus Discretion

BOX 1.2: THE CASE OF EVAN MILLER:

LIFE SENTENCES FOR JUVENILE OFFENDERS

ARE EXCESSIVE PUNISHMENT

BOX 1.3: THE CASE OF TROY DAVIS AND

A PAROLE BOARD’S DISCRETION The Third Choice: To Discover the

Truth or to Resolve Conflicts

The Fourth Choice: Science

versus the Law as a Source

of Decisions

Psychologists’ Roles in the Law

The Psychologist as a Basic

Scientist of the Law

BOX 1.4: THE CASE OF TATIANA

TARASOFF: THE DUTY TO PROTECT

The Psychologist as an Applied

Scientist in the Law

The Psychologist as a Policy

Evaluator in the Law

The Psychologist as a Forensic

Evaluator in Litigation

The Psychologist as a Consultant

in Litigation

Summary

Key Terms

IONS

1. Why do we have laws, and what is the psychological approach to studying law?

2. What choices are reflected in the psychological approach to the law?

3. How do laws reflect the contrast between due process and crime control in the

criminal justice system?

4. What are five roles that psychologists may play in the legal system, and what

does each entail?

Consider the following stories, all of which were

prominently featured in the news:

■ Wearing body armor, a gas mask, and a tactical

helmet, and dressed entirely in black, gunman

James Holmes opened fire in a movie theater

near Denver during the premiere of the Batman

movie, The Dark Knight Rises. In one of the

deadliest shooting rampages in American history,

Holmes killed 12 and wounded nearly 60 others.

What impelled a quiet, reclusive Ph.D. student,

who graduated with honors in neuroscience from

the University of California, to kill with such wild

abandon? One possibility is that Holmes was

distraught over events in his life, prompting his

withdrawal from graduate school. Another is that

Holmes harbored psychopathic traits that went

undetected by those around him.

■ A controversial Arizona law requires law

enforcement officers to determine the immigra-

tion status of any person they detain or arrest if

they believe that person is in the country illegally.

Psychological research suggests that the law may

render residents less likely to report crimes and

may subject Hispanic and Hispanic-looking

citizens to extra police attention, influencing their

perceptions of justice and fairness.

■ A drunken driver who killed a 10-year-old boy in

suburban Dallas was sentenced to spend 180 days

in jail over the next 10 years, including every

Christmas Day, New Year’s Day, and June 8,

the child’s birthday. The judge said he wanted

to remind the defendant of the family’s loss on

these important family holidays.

■ In late 2011, Representative Marsha Blackburn

introduced a bill in Congress dubbed the STRIP

act (Stop TSA’s Reach In Policy) which would

prohibit Transportation Security Administration

employees from using the title “officer” and wearing uniforms and badges that resemble

those worn by law enforcement personnel.

TSA officials claim that uniforms and badges

represent “the professionalism of our employees

and the seriousness of our work,” while

consumer advocacy groups claim that TSA

workers intimidate passengers by presenting

an image of themselves that is untrue. Both

assertions involve public perceptions and beliefs—

issues that can be examined via psychological

research.

These stories illustrate a few of the psycholegal

topics that we consider in this book: the motivations

of offenders, police–community relations and discrimi-

nation, discretion in judges’ sentencing decisions, and

public perceptions of security and law enforcement

officials. They show the real flesh and blood of some

of the psychological issues that arise in the law.

T H E I M P O R T A N C E O F L A W S

These examples also illustrate the pervasiveness of the

law in our society. But how does the law work? This

book will help you understand how the legal system

operates by applying psychological concepts, theories,

findings, and methods to its study.

Laws as Human Creations

Laws are everywhere. They affect everything from

birth to death. Laws regulate our private lives and

our public actions. Laws dictate how long we must

stay in school, how fast we can drive, when (and, to

some extent, whom) we can marry, and whether we

are allowed to play our car stereos at full blast or let

our boisterous dog romp through the neighbors’ yards

and gardens. Given that the body of laws has widespread impact

we might expect that the law is

a part of nature, that it was originally discovered by a

set of archaeologists or explorers. Perhaps we think of

Moses carrying the Ten Commandments down from

the mountain.

But our laws are not chiseled in stone. Rather,

laws are human creations that evolve out of the needs

for order and consistency. To be responsive to a con-

stantly changing society, our laws must also change.

As some become outdated, others take their place.

For example, before there were shootings on school

grounds, no laws forbade the presence of weapons in

schools. But after a series of deadly incidents, laws that

banned weapons from school property proliferated.

On occasion, the reach of these zero-tolerance policies

has been excessive, as Zachary Christie, a Delaware

first-grader, learned. Zachary was suspended and

ordered to enroll in an alternative program for troubled

youths because he took to school a Cub Scout utensil

that included a small folding knife. When this sort of

overreaching occurs, the public reacts, and the policies

are revised again.

Laws Help Resolve Conflict

and Protect the Public

Many standards of acceptable behavior—not purposely

touching strangers on elevators, for example—seem

universally supported. But in some situations, people

have differences of opinion about what is considered

appropriate and disagreements result. When this occurs,

society must have mechanisms to resolve the disagree-

ments. Thus, societies develop laws and regulations to

function as conflict resolution mechanisms. Customs

and rules of conduct evolve partly to deal with the

conflict between one person’s impulses and desires and

other people’s rights. Similarly, laws are developed to

manage and resolve those conflicts that cannot be

prevented.

Public safety is always an important consideration

in a civilized society. In earlier times, before laws were

established to deter and punish unacceptable behavior,

people “took the law into their own hands,” acting

as vigilantes to secure the peace and impose punish-

ment on offenders. Now, in the United States and

most other nations, all governmental entities—federal,

state, county, borough, and municipal, and even

some neighborhoods—have enacted laws to protect

the public. The Changing of Laws

The raw material for the construction and the revision

of laws is human experience. As our experiences

and opportunities change, laws must be developed,

interpreted, reinterpreted, and modified to keep

up with these rapid changes in our lives. As George

Will (1984) put it, “Fitting the law to a tech-

nologically dynamic society often is like fitting

trousers to a 10-year-old: Adjustments are constantly

needed” (p. 6).

The framers of the U.S. Constitution, and even

legislators of 30 years ago, could never have antici-

pated the ways that laws have changed and will

continue to change. They probably never contem-

plated the possibility that advances in neuroscience,

for example, would affect how police investigate

cases, attorneys represent their clients, and juries and

judges make decisions. But brain-imaging technology

is now used to detect brain injuries and assess pain in

accident sufferers, determine mental state and capacity

for rational thought in offenders, and detect lies and

deception in suspects under interrogation. Although

the correspondence between brain activity and

behavior is far from clear at this point, neuroimaging

will undoubtedly raise thorny questions for the legal

system. New rules, policies, and laws will have to be

created to address them.

Similarly, no one could have anticipated the ways

that DNA testing would change laws involving crim-

inal investigations. Legislatures have passed statutes

that mandate the collection of DNA samples from

millions of Americans, including those who have sim-

ply been arrested and are awaiting trial. Some of these

individuals have objected to having their DNA col-

lected and catalogued. But law enforcement officials

claim that widespread testing will help them solve

more crimes and exonerate people who were

wrongly convicted. (We describe the role of DNA

analysis in the exoneration of convicted criminals in

Chapter 5.)

Legislators must now consider what, if any,

restrictions should be placed on online activities.

(Cyberlaw, virtually unheard of 25 years ago, has

become an important subfield of the law.) For exam-

ple, individuals have been convicted of sexually abus-

ing minors after they “sexted” nude and seminude

pictures on their cellphones, and drivers have been

ticketed for sneaking a peek at their smartphones

when stopped at red lights, thereby violating the state’s

requirements. Should laws

regulate these activities? Many people believe that

these laws protect the dignity and safety of the public,

yet others claim that they interfere with constitution-

ally protected speech and privacy rights. But most

people would agree that vast changes in society have

necessitated far-reaching adjustments in the law.

The technological development of the auto-

mobile produced several new potential adversarial

relationships, including pedestrians versus drivers, and

hence new laws. Car accidents—even minor ones—

cause conflicts over basic rights. Consider a driver

whose car strikes and injures a pedestrian. Does this

driver have a legal responsibility to report the incident

to the police? Yes. But doesn’t this requirement violate

the Fifth Amendment to the U.S. Constitution, which

safeguards each of us against self-incrimination, against

being a witness in conflict with our own best interests?

Shortly after automobiles became popular in the

first two decades of the 20th century, a man named

Edward Rosenheimer was charged with violating the

newly necessary reporting laws. He did not contest

the charge that he had caused an accident that injured

another person, but he claimed that the law requiring

him to report it to the police was unconstitutional

because it forced him to incriminate himself. There-

fore, he argued, this particular law should be removed

from the books, and he should not be jailed on the

charge of leaving the scene of an accident. Surprisingly,

a New York judge agreed with him and released him

from custody.

But authorities in New York were unhappy with

a decision that permitted a person who had caused an

injury to avoid being apprehended, so they appealed

the decision to a higher court, the New York Court

of Appeals. This court, recognizing that the Constitu-

tion and the recent law clashed with each other, ruled

in favor of the state and overturned the previous

decision. This appeals court concluded that rights

to “constitutional privilege”—that is, to avoid self-

incrimination—must give way to the competing

principle of the right of injured persons to seek redress

for their sufferings (Post, 1963).

These examples illustrate that the law is an evolving

human creation, designed to arbitrate between values

in opposition to each other. Before the advent of auto-

mobiles, hit-and-run accidents seldom occurred. Before

the invention of smartphones, texting at stoplights

(or worse, while driving) never occurred. However,

once cars and smartphones became a part of society, new laws were enacted to regulate their use, and courts

have determined that most of these new laws are

constitutional.

T H E P S Y C H O L O G I C A L S T U D Y

O F L A W

Laws and legal systems are studied by several tradi-

tional disciplines other than psychology. For example,

anthropologists compare laws (and mechanisms for

instituting and altering laws) in different societies

and relate them to other characteristics of these socie-

ties. They may be interested in how frequently

women are raped in different types of societies and

in the relationship between rape and other factors,

such as the extent of separation of the sexes during

childhood or the degree to which males dominate

females.

Sociologists, in contrast, usually study a specific

society and examine its institutions (e.g., the family,

the church, or the subculture) to determine their role

in developing adherence to the law. The sociologist

might study the role that social class plays in criminal

behavior. This approach tries to predict and explain

social behavior by focusing on groups of people rather

than on individuals.

A psychological approach to the law emphasizes

its human determinants. The focus in the psychologi-

cal approach is on the individual as the unit of analysis.

Individuals are seen as responsible for their own con-

duct and as contributing to its causation. Psychology

examines the thoughts and actions of individuals—

drug abusers, petty thieves, police officers, victims,

jurors, expert witnesses, corporate lawyers, judges,

defendants, prison guards, and parole officers, for

example—involved in the legal system. Psychology

assumes that characteristics of these participants affect

how the system operates, and it also recognizes that

the law, in turn, can affect individuals’ characteristics

and behavior (Ogloff & Finkelman, 1999). By charac-

teristics, we mean these persons’ abilities, perspectives,

values, and experiences—all the factors that influence

their behavior. These characteristics determine

whether a defendant and his or her attorney will

accept a plea bargain or go to trial. They determine

whether a Hispanic juror will be more sympathetic

toward a Hispanic defendant than toward a non-

Hispanic defendant. They determine whether a

juvenile offender will fare better in a residential treat-

ment facility or a correctional institution.

But the behavior of participants in the legal

system is not just a result of their personal qualities.

The setting in which they operate matters as well.

Kurt Lewin, a founder of social psychology, proposed

the equation B = f(p, e): behavior is a function of the

person and the environment. Qualities of the external

environment and pressures from the situation affect an

individual’s behavior. A prosecuting attorney may

recommend a harsher sentence for a convicted felon

if the case has been highly publicized, the community

is outraged over the crime, and the prosecutor hap-

pens to be waging a reelection campaign. A juror

holding out for a guilty verdict may yield if all the

other jurors passionately proclaim the defendant’s

innocence. A juvenile offender may desist from crim-

inal behavior if his gang affiliations are severed. The

social environment affects legally relevant choices and

conduct.

This book concentrates on the behavior of

participants in the legal system. As the examples at

the beginning of this chapter indicate, we are all

active participants in the system, even if we do not

work in occupations directly tied to the administra-

tion of justice. We all face daily choices that are

affected by the law—whether to speed through a

school zone because we are late to class, whether to

report the person who removes someone else’s laptop

from a table at the library, whether to vote in favor

of or against a proposal to end capital punishment.

Hence, this book will also devote some attention to

the determinants of our conceptions of justice and the

moral dilemmas we all face.

But this book will pay particular attention to the

role of psychology in the criminal and civil justice

systems and to the central participants in those

settings: defendants and witnesses, civil and criminal

lawyers, judges and juries, convicts and parole boards.

It will also focus on the activities of forensic

psychologists, professionals who generate and

communicate information to answer specific legal

questions or to help resolve legal disputes (Heilbrun,

Grisso, & Goldstein, 2009; Melton, Petrila, Poythress, &

Slobogin, 2007). Most forensic psychologists are trained

as clinical psychologists, whose specialty involves the

psychological evaluation and treatment of others.

Forensic psychologists are often asked to evaluate a

person and then prepare a report for a court, and

sometimes provide expert testimony in a hearing or trial. For example, they may evaluate adult crimi-

nal defendants or children involved with the juvenile

justice system and offer the court information rele-

vant to determining whether the defendant has a

mental disorder that prevents him from going to

trial, what the defendant’s mental state was at the

time of the offense, or what treatment might be

appropriate for a particular defendant. But psychol-

ogists can play many other roles in the legal system,

as well. We describe these roles later in the chapter.

B A S I C C H O I C E S I N T H E

P S Y C H O L O G I C A L S T U D Y

O F T H E L A W

Just as each of us has to make decisions about personal

values, society must decide which values it wants its

laws to reflect. Choices lead to conflict, and often the

resulting dilemmas are difficult to resolve. Should the

laws uphold the rights of specific individuals or

protect society in general? Should each of us be able

to impose our preferences on others, or must we be

attentive to other people’s needs? You may have pon-

dered this question while stopped at a traffic light next

to a car with a deafening subwoofer. One of Madon-

na’s neighbors in a posh New York City apartment

building certainly pondered this question. She filed a

lawsuit against the pop icon, claiming that her music

was so loud that the neighbor had to leave several

times a day. Whose rights prevail? A commonly

asked question that taps that dilemma is whether it

is better for ten murderers to go free than for one

innocent person to be sentenced to death. The law

struggles with the fact that rights desirable for some

individuals may be problematic for others.

This tension between individual rights and the

common good is one example of the basic choices

that pervade the psychological study of the law. But

there are others. In this chapter, we highlight four

basic choices inherent in laws and that apply to each

of us in the United States, Canada, and many other

countries. Each choice creates a dilemma and has

psychological implications. No decision about these

choices will be completely satisfactory because no

decision can simultaneously attain two incompatible

goals—such as individual rights and societal rights—

both of which we value. These four choices (and the

tension inherent in their competing values) are so basic

that they surface repeatedly throughout this book.

Consider another choice, that between individual

freedom (or discretion) and equality for all. Our soci-

ety champions both freedom and equality, but it is

hard to achieve these aspirations at the same time.

Ponder the small-town civic organization that has

always had a “males-only” policy at its Friday night

dinners and is also a vehicle by which prominent

citizens transact their business. The men enjoy the

“freedom” to act like “good ole boys” in the company

of their own gender. But what if a woman starts a new

insurance agency in town? Doesn’t she have the right

to “equality”—to full and equal participation in the

civic organization that is influential in the success of

any business in this community? It is hard to see how

a resolution of this conflict could fully meet both of

these goals (freedom of existing members and equality

among all comers). The balance in such cases often

shifts from one value to another, emphasizing the

attainment of first one and then the other goal.

The First Choice: Rights of Individuals

versus the Common Good

Consider the following:

■ Smokers have long been restricted to smoky

airport lounges and back sections of restaurants,

and often huddle together outside of workplace

doors. But now smokers are banned from light-

ing up in some public parks and beaches, and

along shorelines and trails. When New York City

enacted a ban on smoking in its 1,700 public

parks in 2011, Lauren Johnston was ecstatic. She

blogged about smokers polluting the air along

her running loop. But Bill Saar saw it differently:

“It’s the most idiotic law they ever made. I’ve

been a smoker for over 20 years. I’m not going

to stop,” said Saar as he puffed on a cigar while

selling figurines in Union Square (Durkin, 2011).

Should cities be able to limit smoking in parks

shared by all? Whose rights prevail?

■ In 2012, six states—Massachusetts, Connecticut,

Vermont, New Hampshire, New York and

Iowa—as well as the District of Columbia

allowed same-sex marriage, and legislatures in

Washington State and Maryland passed laws,

subject to voter approval, granting same-sex

couples the right to marry. Yet laws and initiatives passed in several other states barred

same-sex couples from marrying. Americans are

clearly divided on this issue: According to a 2011

Gallup poll, 53% of Americans favor same-sex

marriage, with young people being considerably

more supportive than older people. This issue

raises complex questions about individual rights

to marry whom one wishes versus traditional

definitions of the family.

■ In a less serious sort of dispute, a growing number

of cities have made it a crime to wear “sagging

pants,” and some cases have actually gone to trial.

Three defendants were charged with violating

the “decency ordinance” in Riviera Beach,

Florida. Their public defenders argued that the

law violated principles of freedom of expression.

But the town’s mayor, Thomas Masters, said that

voters “just got tired of having to look at people’s

behinds or their undergarments … I think society

has the right to draw the line” (Newton, 2009

alues in Conflict. The preceding vignettes share

a common theme. On the one hand, individuals possess

rights, and one function of the law is to ensure that these

rights are protected. The United States is perhaps the

most individualistic society in the world. People can

deviate from the norm, or “do their own thing,” to

a greater degree in the United States than virtually

anywhere else. Freedom and personal autonomy are

two of our most deeply desired values; “the right to

liberty” is a key phrase in the U.S. Constitution.

On the other hand, our society also has expecta-

tions. People need to feel secure. They need to

believe that potential lawbreakers are discouraged

from breaking laws because they know they will be

punished. All of us have rights to a peaceful, safe

existence. Likewise, society claims a vested interest

in restricting those who take risks that may injure

themselves or others, because these actions can create

burdens on individuals and on society. The tension

between individual rights and the collective good is

illustrated in the case we describe in Box 1.1.

It is clear that two sets of rights and two goals for

the law are often in conflict. The tension between the

rights of the individual and the constraints that may

be placed on the individual for the collective good is

always present. It has factored prominently into vari-

ous U.S. Supreme Court decisions since the 1960s

with respect to the rights of criminal suspects and

defendants versus the rights of crime victims and the

power of the police.

In the 1960s, the Supreme Court established

a number of principles that provided or expanded explicit rights for those suspected of breaking the law. The Miranda rule, guaranteeing the right to

remain silent (detailed in Chapter 7), was established

in 1966. About the same time, the courts required

that criminal defendants, in all cases in which incar-

ceration was possible, have the right to an attorney,

even if they cannot afford to pay for one. These and

other rights were established in an effort to redress a

perceived imbalance between a lowly defendant and

a powerful government.

But many of these rights were trimmed in subse-

quent years, when courts frequently ruled in favor

of the police. For example, in 1996, the Supreme

Court ruled that the police can properly stop a motorist

whom they believe has violated traffic laws even if their

ulterior motive is to investigate the possibility of illegal

drug dealing (Whren v. United States, 1996). In 2012, the

Court ruled that jail officials can strip search petty offen-

ders even if there is no suspicion they are concealing

weapons or contraband (Florence v. Board of Chosen

Freeholders, 2012).

Two Models of the Criminal Justice System.

The conflict between the rights of individuals and

the rights of society is related to a distinction between

two models of the criminal justice system. This distinc-

tion is between the due process model and the crime

control model (Packer, 1964). The values underlying

each of these models are legitimate, and the goal of

our society is to achieve a balance between them.

But because different priorities are important to each

model, there is constant tension between them.

B o x 1.1 THE CASE OF THE WESTBORO BAPTIST CHURCH: DO INDIVIDUALS HAVE

THE RIGHT TO USE OFFENSIVE SPEECH?

In March 2006, Lance Corporal Matthew Snyder, age 20,

was killed in Iraq. His funeral was held at a Roman

Catholic church in Westminster, Maryland. Protesting out-

side of the church were seven members of the Westboro

Baptist Church, a fringe group based in Topeka, Kansas

that attends military funerals across the country to broad-

cast their belief that God is punishing troops because

America tolerates homosexuality. They carry signs that

read, “God hates fags” and “Thank God for dead

soldiers.” Snyder’s father sued Westboro, alleging that

picketers invaded his privacy and caused emotional distress

that compounded his loss. He claimed that he wanted to

protect other families from the pain inflicted on his family

by members of the Westboro Baptist Church. But the U.S.

Supreme Court ruled against Snyder (Snyder v. Phelps, 2011),

upholding Westboro’s right to

freely express itself. In his majority opinion, Chief Justice

John Roberts reasoned that the words on Westboro’s

signs were “matters of public import” and thus were pro-

tected by the First Amendment. He wrote that to ensure

that public debate is not stifled, even hurtful and offensive

speech must be protected. Snyder reacted with sadness, say-

ing there is something very wrong with allowing these pro-

testers to desecrate a Marine’s funeral. Westboro vowed

to quadruple its efforts at military funerals in the future.

Critical Thought Question

What two values were in conflict in this case?

The due process model, favored in the 1960s,

places primary value on the protection of citizens,

including criminal suspects, from possible abuses by

the police and the law enforcement system generally.

It assumes the innocence of suspects and requires that

they be treated fairly (receive “due process”) by the

criminal justice system. This model’s proponents

subscribe to the maxim that “it is better that 10 guilty

persons shall go free than that one innocent person

should suffer.” Thus the due process model emphasizes

the rights of individuals, especially those suspected

of crimes, over the temptation by society to assume

suspects are guilty even before a trial.

In contrast, the crime control model, favored

in the 1990s, seeks the apprehension and punishment

of lawbreakers. It emphasizes the efficient detection of

suspects and the effective prosecution of defendants,

to help ensure that criminal activity is being contained

or reduced. The crime control model is exemplified

by a statement by former U.S. Attorney General

William P. Barr with respect to career criminals.

He noted that the goal is “incapacitation through

incarceration” (Barr, 1992)—that is, removing such

criminals permanently from circulation.

When the crime control model is dominant in

society, laws are passed that in other times would be

seen as unacceptable violations of individual rights.

The Arizona immigration law described at the begin-

ning of the chapter and similar laws in other states are

examples. They raise complicated questions about the

rights of individuals to be free from police scrutiny

and the obligation of the government to provide

safety and security to its citizens.

Despite the drop in crime rates in recent years,

vestiges of the crime control model still linger in the

United States, more so than in Canada, Europe, or

Australia. As we point out in Chapter 14, the United

States incarcerates a higher percentage of its citizens

than any other country (currently 1 of every 32

Americans are imprisoned or on probation or parole).

According to the Center on Juvenile and Criminal

Justice, the United States has only 5% of the world’s

population but nearly 25% of its prisoners.

The global recession may slowly be changing soci-

etal options for dealing with crime, however. As federal

and state budgets tighten, legislators and law enforce-

ment officials have begun to reevaluate many “tough-

on-crime” policies. These strategies boosted spending

on prisons but did little to prevent repeat offending by

released inmates (Dvoskin, Skeem, Novaco, & Douglas,

2011). Because of reduced resources, officials have become attentive to the need to find cheaper and

more effective alternatives for controlling crime and

ensuring public safety. Somenew programs have already

been shown to reduce repeat offending. Crime rates in

Texas dropped after it began investing in treatment pro-

grams for parolees. The prison population in Mississippi

was reduced by 22% after it allowed inmates to earn

time off their sentences for participating in educational

and reentry programs. Other proven alternatives include

providing employment counseling and substance abuse

and mental health treatment for inmates, and diverting

offenders from the criminal justice system and into

community-based treatment programs. We describe

many of these alternatives in Chapter 9.

The Second Choice: Equality

versus Discretion

Kenneth Peacock was a long-distance trucker who was

caught in an ice storm and came home at the wrong

time. He walked in the door to find his wife Sandra in

bed with another man. Peacock chased the man away

and some four hours later, in the heat of an argument,

shot his wife in the head with a hunting rifle. Peacock

pled guilty to voluntary manslaughter and was sentenced

to 18 months in prison. At the sentencing, Baltimore

County Circuit Court Judge Robert E. Cahill said

he wished he did not have to send Peacock to prison

at all but knew that he must to “keep the system honest”

(Lewin, 1994). He continued, “I seriously wonder how

many men … would have the strength to walk away

without inflicting some corporal punishment.”

Move the clock ahead one day. A female defen-

dant pleads guilty to voluntary manslaughter in a

different Baltimore courtroom. She killed her husband

after 11 years of abuse and was given a 3-year sentence,

three times longer than that sought by prosecutors

(Lewin, 1994). Some people find no inconsistency in

the severity of these punishments, believing that each

case should be judged on its own merits. However,

psychology analyzes these decisions as examples of a

choice between the goals of equality and discretion.

What should be the underlying principle guiding

the response to persons accused of violating the law?

Again, we discover that two equally desirable values—

equality and discretion—are often incompatible and

hence create conflict. The principle of equality

means that all people who commit the same crime or

misdeed should receive the same consequences. But

blind pursuit of equality can lead to unfairness in situations.

which the particular characteristics of

offender, victim, or offense matter. For example,

most people would think differently about punishing

someone who killed randomly, ruthlessly, and without

remorse, and someone else who killed a loved one

suffering from a painful and terminal illness. In this

example, discretion is called for. Discretion in the

legal system involves considering the circumstances

of certain offenders and offenses to determine the

appropriate consequences for wrongdoing. Psychology

provides concepts through which this conflict can be

studied and better understood.

The Principle of Equality. Fundamental to our

legal system is the assumption advanced by the foun-

ders of the American republic that “all men are cre-

ated equal.” In fact, the Equal Protection Clause of the

Fourteenth Amendment states that no state shall “deny

to any person within its jurisdiction the equal protection

of the laws.” This statement is frequently interpreted to

mean that all people should be treated equally and that

no one should receive special treatment by the courts

simply because he or she is rich, influential, or otherwise

advantaged. We cherish the belief that in the United

States, politically powerful or affluent people are

brought before the courts and, if guilty, convicted and

punished just like anyone else who commits similar

offenses. Consider the example of disgraced financier

Bernard Madoff. A former chairman of the NASDAQ

Stock Exchange, Madoff pled guilty in 2009 to perpe-

trating the largest investor fraud in history, and

exchanged his three homes and a yacht on the French

Riviera for a cell in the federal prison system. But this value of equality before the law is

not always implemented. In the last three decades,

Americans have witnessed a series of incidents that—

at least on the surface—seem to indicate unequal

treatment of citizens by the legal system. A common

practice among police and state patrols in the United

States is profiling—viewing certain characteristics as

indicators of criminal behavior. African-American

and Latino motorists have filed numerous lawsuits

over the practice of profiling, alleging that the police,

in an effort to seize illegal drugs and weapons or find

undocumented immigrants, apply a race-based profile

to stop and search them more frequently than White

drivers. Said Michigan Congressman John Conyers, Jr.,

“There are virtually no African-American males—

including Congressmen, actors, athletes and office

workers—who have not been stopped at one time or

another for … driving while black” (Barovick, 1998).

The issue is not limited to driving. It affects peo-

ple when they shop, eat in restaurants, travel in trains

and airplanes, hail a cab, and walk through their neigh-

borhoods. New York City police officers stopped

approximately 3 million people between 2004 and

2009, questioning all and frisking and arresting some.

But police department statistics show that the stops

were not race neutral. Black people accounted for

52% of the stops, and Hispanics for 30%. According

to columnist Bob Herbert, “[T]he people getting

stopped and frisked are mostly young, and most of

them are black or brown and poor … If the police

officers were treating white middle-class or wealthy

individuals this way, the movers and shakers in this

town would be apoplectic” (Herbert, 2010).

Since police agencies have started gathering

statistics on the racial makeup of people targeted for

traffic stops, border inspections, and other routine

searches, and these disparities have come to light,

some courts have ruled that a person’s appearance

may not be the basis for such stops. Psychologists

also have a role to play on this issue, gathering data

on the psychological consequences to victims of

racial profiling, improving police training so that

cultural and racial awareness is enhanced, and exam-

ining how decision makers form implicit judgments

of others on the basis of race.

In keeping with the laudable goal of equality

under the law, the U.S. Supreme Court has occasion-

ally applied a principle of proportionality to its

analysis of cases involving criminal sentencing. This

principle means that the punishment should be consis-

tently related to the magnitude of the offense. More

serious wrongdoing should earn more severe penalties.

If a relatively minor crime leads to a harsh punishment,

then the fundamental values of proportionality and,

hence, equality have been violated.

The principle of proportionality has influenced

the way that juvenile offenders are sentenced. Recog-

nizing that impulsiveness and psychosocial immaturity

render juveniles both less culpable and more likely

to be rehabilitated than adult offenders, the U.S.

Supreme Court has overturned harsh sentences for

juvenile offenders in the quest for equality. Individuals

who commit murder before the age of 18 cannot be

subjected to the death penalty (Roper v. Simmons, 2005)

nor automatically sentenced to life without the possi-

bility of parole (Miller v. Alabama, 2012). The Court

has determined that because juveniles sentenced to

life in prison would spend more years and a larger

percentage of their lives behind bars, that sentence is

disproportionately harsh and not equal to a life sentence

received by adults. We describe the case that led to that

ruling in Box 1.2.

Although the Supreme Court’s decision in the

case of Miller v. Alabama seems consistent with a due

process perspective that emphasizes individual rights,

the Court has also upheld the constitutionality of

three-strikes laws that reflect the crime control model’s goal of keeping lawbreakers off the streets. These laws

require that criminals convicted of a third felony, no

matter how minor, be sentenced to 25 years to life

in prison. The court decided that this punishment is

not disproportionate to the severity of a third felony

offense (Ewing v. California, 2003). So, even the highest

court in the land struggles with the meaning of

equality and its application to diverse sets of facts.

The Value of Discretion. Although equality often

remains an overriding principle, society also believes

that in certain circumstances, discretion is appropriate.

Discretion refers to judgments about the circum-

stances of certain offenses that lead to appropriate

variations in how the system responds to these offenses.

It acknowledges that rigid application of the law can

lead to injustices.

Many professionals in the legal system have the

opportunity to exercise discretion, and most do so

regularly. Police officers show discretion when they

decide not to arrest someone who has technically

broken the law. They show discretion when they cal-

culate the level of fines for speeding. (Incidentally,

saying “I’m sorry” actually results in lower fines

[Day & Ross, 2011]!) Prosecutors exercise discretion

when they decide which of many arrestees to charge

B o x 1.2 THE CASE OF EVAN MILLER: LIFE SENTENCES FOR JUVENILE OFFENDERS

ARE EXCESSIVE PUNISHMENT

On July 15, 2003, 52-year-old Cole Cannon knocked on

the door of his neighbor’s trailer in the small town of

Speake, Alabama, asking for some food. That trailer

belonged to the family of 14-year-old Evan Miller, an

active drug user being raised in an extremely abusive

family and suffering from mental health problems. After

Cannon had eaten, Miller and a friend accompanied him

back to his trailer, intending to get him drunk and rob

him. The three played drinking games and smoked mari-

juana, and when Cannon passed out, Miller began hitting

him, first with his fists and then with a baseball bat. The

friends then set fire to Cannon’s trailer, where he died of

smoke inhalation.

Miller was charged with murder in the course of

arson and was tried as an adult, subject to all the penal-

ties of adult felons. After he was convicted, the judge

imposed a mandatory sentence of life without parole.

Miller’s appeal focused on his immature judgment and

lack of moral sense. His attorneys argued that such a

severe sentence was a form of cruel and unusual punish-

ment, banned by the Eighth Amendment. The case was eventually decided by the U.S. Supreme

Court. Among the documents that justices considered was

a report submitted by a group of psychological scientists,

summarizing research relevant to adolescent develop-

ment. It concluded that (1) adolescents are less mature

than adults in ways that make them less culpable, and (2)

it is not possible to predict with any reliability whether a

particular juvenile offender is likely to reoffend violently

(American Psychological Association, 2011). In her major-

ity decision, Justice Elena Kagan acknowledged that

youths are different from adults, given their “diminished

culpability and heightened capacity for change.” She con-

cluded that laws that mandate life sentences, when

applied to juvenile offenders, are unconstitutional. Mill-

er’s case was referred back to the courts in Alabama for

reconsideration of his life sentence.

Critical Thought Question

According to the Supreme Court, why does a sentence

of life without parole constitute cruel and unusual

and for what particular crime. Juries exercise discre-

tion in not convicting defendants who killed under

circumstances that may have justified their actions

(e.g., self-defense, heat of passion). A jury may opt

to exercise discretion when it deliberates the fate of

community watch volunteer George Zimmerman,

charged in the shooting death of an unarmed teen-

ager, Trayvon Martin, in 2012. Zimmerman claimed

that he acted in self-defense. Parole boards also have the opportunity to exer-

cise discretion when they decide whether to commute

a death sentence to life imprisonment (a process called

granting clemency) or to allow an execution to pro-

ceed as planned. The Georgia Board of Pardons and

Parole faced that stark choice in 2011 when it had to

decide whether death row inmate Troy Davis, who

had been convicted for murdering a police officer,

should be executed by lethal injection or allowed to

B o x 1.3 THE CASE OF TROY DAVIS AND A PAROLE BOARD’S DISCRETION

Former President Jimmy Carter, Pope Benedict XVI, the

Indigo Girls, Nobel Laureate Desmond Tutu, former FBI

director William Sessions, Amnesty International, and for-

mer Georgia Supreme Court justices may not agree on

much. But in 2011 they all called for a stop to the pend-

ing execution of Georgia death row inmate Troy Davis,

whom they claimed was an innocent man. Davis was con-

victed of murder in the 1989 shooting death of off-duty

Savannah police officer Mark MacPhail and sentenced to

death. Over the course of 20 years, Davis maintained his

innocence, and his claim was bolstered by the possible

confession of another person and by the recantation of

seven eyewitnesses who said they lied during Davis’ trial

because they were threatened by an alternate suspect.

Some jurors who convicted Davis signed affidavits declar-

ing that they doubted his guilt.

In Georgia, the authority to commute a death sen-

tence into a less severe sentence rests with the Georgia Board of Pardons and Paroles. (In some states, governors

have this discretion.) That board had declined to com-

mute Davis’ sentence once before. With an execution

date pending and all other options exhausted, Davis’

attorneys appealed one last time to the five-member

board, which conducted a hearing in which it heard

from Davis’s attorneys and supporters, and from prosecu-

tors and MacPhail’s relatives. Despite doubts about

Davis’s guilt, his surprising assortment of supporters, and

petitions, rallies, and vigils held around the world on his

behalf, the board denied Davis’s request. He was exe-

cuted in September, 2011.

Critical Thought Question

Explain why the Georgia Board of Pardons and Paroles

may not have been willing to offer clemency.

live. This case, described in Box 1.3, raises interesting

questions about both discretion and the possibility of

error in the criminal justice system.

Discretion may be most obvious in the sentences

administered by judges to convicted criminals. In many

cases, judges are able to consider the particular circum-

stances of the defendant and of the crime itself when

they determine the sentence. It would seem that this

use of discretion is good, yet as we describe in Chapter

14, it can also lead to sentencing disparity, the ten-

dency for judges to administer a variety of penalties

for the same crime. The contrasting sentences handed

out by judges in the Baltimore cases we described ear-

lier provide one example of sentencing disparity.

Sentencing disparity is also apparent in the penal-

ties given to African Americans and members of other

minority groups. African Americans are imprisoned at

rates five to seven times higher than those of White

Americans partly due to disparities in arrests for drug

crimes. Police concentrate their attention on drugs

that Blacks sell, and the penalties for possessing these

drugs are severe (Tonry, 2010). Sentencing disparities

can also be seen for Hispanics: one in six Hispanic

males and one in 45 Hispanic females can expect to

be imprisoned in his or her lifetime, more than dou-

ble the rates of those who are not Hispanic (Mauer &

King, 2007).

A simple explanation for this disparity is racial

bias, whereby police officers, prosecutors, jurors,

and judges use an individual’s race as a basis for judg-

ments of his or her behavior. But the situation may

actually be more complex. Some studies have shown

that once decision makers are made aware of the

potential for racial bias, they can largely avoid it,

and racial injustices in the criminal justice system

have declined in recent years (Spohn, 2000).

A subtler, more insidious form of race-based

judgment may be prevalent in the justice system,

however. Social psychological research has shown

that individuals of the same race may be stereotyped

and discriminated against to different degrees,

depending how “typical” of their group they appear.

African Americans who possess more Afrocentric

facial features may be subjected to more prejudicial

treatment. An analysis of criminal sentencing in

Florida showed that among Black defendants, those

with more distinctive Afrocentric features were

given longer sentences than those with less distinctive

Afrocentric features (Blair, Judd, & Chapleau, 2004).

Even more troubling, in death penalty cases involving White victims, the likelihood of a Black defendant

being sentenced to death is influenced by whether

he has a stereotypically Black appearance (Eberhardt,

Davies, Purdie-Vaughns, & Johnson, 2006).

To counteract sentencing disparity, many states

implemented what is known as determinate

sentencing: the offense determines the sentence, and

judges and parole commissions have little discretion.

But judges were frustrated by the severe limitations

imposed on their discretion by determinate sentencing.

One federal judge who resigned his appointment

in protest said, “It’s an unfair system that has been dehu-

manized. There are rarely two cases that are identical.

Judges should always have discretion. That’s why we’re

judges. But now we’re being made to be robots.”

The pendulum has now swung away from deter-

minate sentencing and toward allowing judges more

discretion. Permitting judges more leeway to consider

factors such as the defendant’s background, motiva-

tions for committing the crime, and any psychological

disorders may strike a balance between the uniformity

that determinate sentencing imposes and the judicial

discretion that many judges prefer.

The Third Choice: To Discover the Truth

or to Resolve Conflicts

What is the purpose of a court hearing or a trial? Your

first reaction may be “To find out the truth, of

course!” Determining the truth means learning the

facts of a dispute, including events, intentions, actions,

and outcomes. All this assumes that “what really

happened” between two parties can be determined.

Finding out the truth is a desirable goal, but it

may also be lofty and, sometimes, downright impos-

sible. The truth often lies somewhere between com-

peting versions of an event. Because it is difficult for

even well-meaning people to ascertain the facts in

certain cases, some observers have proposed that the

real purpose of a hearing or trial is to provide social

stability by resolving conflict. Supreme Court Justice

Louis Brandeis once wrote that “it is more important

that the applicable rule of law be settled than [that] it

be settled right” (Burnet v. Coronado Oil and Gas Co.,

1932). This is a shift away from viewing the legal

system’s purpose as doing justice toward viewing its

goal as “creating a sense that justice is being done”

(Miller & Boster, 1977, p. 34).

Because truth is elusive, the most important pri-

ority of a hearing or a trial may be to provide a setting

in which all interested parties have their “day in

court.” Justice replaces truth as the predominant

goal. In fact, attorneys representing the opposing

parties in a case do not necessarily seek “the truth.”

Nor do they represent themselves as “objective.”

They reflect a different value—the importance of giving

their side the best representation possible, within the

limits of the law. (The Code of Ethics of the American

Bar Association even instructs attorneys to defend their

clients “zealously.”) Because lawyers believe the pur-

pose of a hearing or trial is to win disputes, they present

arguments supporting their client’s perspective and back

up their arguments with the best available evidence.

One argument in favor of the adversary system,

in which a different attorney represents each party, is

that it encourages the attorneys to discover and intro-

duce all evidence that might induce the judge or jury

to react favorably to their client’s case. When both

sides believe that they have had the chance to voice

their case fully and their witnesses have revealed all the

relevant facts, participants are more likely to feel they

have been treated fairly by the system, and the system

is more likely to be considered an effective one. This

is an important part of a theory known as procedural

justice, a concept presented in Chapter 2.

“Conflict resolution” and “truth,” as goals, are

not always incompatible. When each participant

ensures that his or her concerns and supporting

documentation are presented in court, the goal of

learning the truth becomes more attainable. But

frequently a tension between these goals exists,

and in some instances, the satisfactory resolution of

a conflict may be socially and morally preferable to

the discovery of an objectively established truth. Yet

resolving conflict in a hurried or haphazard manner

can have a downside, as illustrated by the experience

of Richard Jewell.

Jewell was a security guard at the 1996 Summer

Olympics in Atlanta. Shortly after a bombing that

disrupted the Games, the Federal Bureau of Investi-

gation (FBI) began to question Jewell, who discov-

ered the bomb. Although at first the FBI denied

that he was a suspect, they treated him like one, and

his name and photograph were widely publicized.

The pressure to find the person responsible for this

terrifying act—and the desire to give people a sense

that no more bombings would occur because the per-

petrator had been caught—doubtless influenced the

premature focus on Richard Jewell. Despite relentless

FBI investigation, no charges were brought against Jewell, and in 2005, Eric Rudolph, a fugitive who

lived in the hills of North Carolina for years after

the bombing, pleaded guilty to the offense.

Truth versus Conflict Resolution in Plea Bargaining

and Settlement Negotiations. The legal system is

a massive bureaucracy, and in every bureaucracy

there is a temptation to value pragmatic efficiency

rather than correct or just outcomes. The heavy reli-

ance on plea bargaining is often criticized because it

appears to give priority to conflict resolution over

truth seeking. As we describe in Chapter 8, between

90% and 95% of defendants never go to trial; they

accept the offer of the prosecutor and plead guilty to

a lesser charge. Even some innocent persons plea bar-

gain after being convinced that the evidence against

them is overwhelming. Indeed, plea bargaining is an

integral part of the criminal justice system. The state

benefits by avoiding the expense and trouble of trial

and the possibility of an acquittal, and by obtaining

the testimony of the accused person against others

involved in the crime. The defendant benefits by

receiving some kind of reduction in the penalty

imposed. In addition to these pragmatic benefits,

justice is furthered by a system that rewards a show

of remorse (which usually accompanies a guilty plea)

and enables the prosecutor and defense counsel,

together with the judge, to negotiate a resolution

appropriate to the degree of wrongdoing (Kamisar,

LaFave, & Israel, 1999). Nonetheless, plea bargaining

reveals that the goal of maintaining stability and effi-

ciency in the system is achieved at some cost. That

cost is the public’s opportunity to determine the

complete truth.

The civil justice system uses a procedure similar

to plea bargaining to resolve about 90% of the con-

flicts between a plaintiff and a defendant. Settlement

negotiation involves a sometimes-lengthy pretrial

process of give-and-take, offer-and-demand that

ends when a plaintiff agrees to accept what a defen-

dant is willing to offer to end their legal disagreement.

It also favors the goal of conflict resolution at the

expense of determining what really happened.

New Thoughts on Conflict Resolution. Despite

the traditional prominence of adversarial procedures

to resolve disputes, many legal problems are actually

handled in a nonadversarial manner. Throughout the

book we present situations in which people work

together in a cooperative way to settle their differences

and reach a resolution that is acceptable to all.

Many divorcing couples opt to collaborate

rather than contend with each other as they end

their marriage. In situations where parents have

failed to nurture their children, family court judges

temporarily remove children from their homes and

provide extensive counseling, education, and other

social service interventions to parents, hoping eventu-

ally to restore the family unit. In some jurisdictions,

people arrested for drug-related crimes are given the

opportunity to have their cases resolved in drug courts

that focus on treating the underlying problem of

addiction, rather than simply punishing the offender.

In lawsuits in which plaintiffs are injured due to

defendants’ negligence and the parties attempt to

negotiate a settlement rather than go to trial, these

negotiations offer an opportunity for defendants to

apologize to plaintiffs. Research shows that apologies

may advance settlement negotiations (Robbennolt,

2003), reduce plaintiffs’ inclinations to sue (Greene,

2008), and dissipate tension and antagonism in the

settlement process (Shuman, 2000). What these situations have in common is that

they do not operate in a zero-sum fashion in which

one party wins and another loses. Rather, they

attempt to maximize positive outcomes for all con-

cerned, with the objective of keeping the dispute

from escalating further and involving more formal

adjudication proceedings.

The idea that the law is a social force with con-

sequences for people’s well-being, an approach

termed therapeutic jurisprudence, is discussed further

in Chapter 2. Reform-minded lawyers, jurists, and

legal scholars advocate for legal procedures and insti-

tutions that facilitate therapeutic ends. They ask how

the law can be applied or reformed to enhance indi-

viduals’ welfare. Therapeutic jurisprudence has been

applied in nearly all areas of the law, including crimi-

nal law, family law, employment law, probate, health

care, workers’ compensation, and labor arbitration.

The Fourth Choice: Science versus

the Law as a Source of Decisions

When one discipline (in our case, psychology) seeks

to understand another (the law), a dilemma is likely to

arise because each approaches knowledge in a differ-

ent way. When asked, “How do you know whether

that decision is the right one?” each discipline relies

on different methods, even though both share the

goal of understanding human experience.

As you read this book you will learn that in many

cases the U.S. Supreme Court and other courts have

considered data and conclusions presented by psychol-

ogists and other social scientists. In several of these, the

American Psychological Association (APA) prepared

a written document, called an amicus curiae (“friend

of the court”) brief, for consideration by an appellate

court. Such amicus curiae briefs provide the courts with

information from psychological science and practice

relevant to the issues in a particular case. In many of

its decisions (including Miller v. Alabama, presented ear-

lier in this chapter), the Supreme Court incorporated

input from the amicus curiae brief, although in other

cases it disregarded the social science data altogether.

This inconsistency reflects the fact that the justices

sometimes use different procedures and concepts from

those of social science in forming their judicial opinions

(Grisso & Saks, 1991).

In addition to employing different procedures,

each profession may use idiosyncratic or unique con-

cepts to describe the same phenomenon. An attod a social scientist will see the same event from

different perspectives. Neither is necessarily more

accurate than the other and their differences are the

result of exposure to and training in different points

of view. The following subsections illustrate such dif-

ferences in more detail (see also Ogloff & Finkelman,

1999; Robbennolt & Davidson, 2011).

Law Relies on Precedents; Psychology Relies on

Scientific Methods. In contrast to the law, psychol-

ogy is generally committed to the idea that there is an

objective world of experience that can be understood

by adherence to the rules of science—systematic test-

ing of hypotheses by observation and experimental

methodology. As a scientist, the psychologist should

be committed to a public, impersonal, objective pur-

suit of truth, using methods that can be repeated

by others and interpreting results by predetermined

standards. Although this traditional view of psychol-

ogy’s approach to truth is sometimes challenged as

naive and simplistic because it ignores the importance

of the personal, political, and historical biases that affect

scientists as much as nonscientists (Gergen, 1994), it

still represents the values and methods in which most

psychologists are trained. (It also represents the authors’

beliefs that the scientific method and the research skills

of psychologists are the most essential and reliable tools

available for examining the many important legal

questions we address throughout the book.) By contrast, when they establish new laws, legal

experts rely heavily on precedents—rulings in previ-

ous cases (as well as the Constitution and the statutes)

for guidance. Case law—the law made by judges

ruling in individual cases—is very influential; statutes

and constitutional safeguards do not apply to every

new situation, so past cases often serve as precedents

for deciding current ones. The principle of stare decisis

(“let the decision stand,” reflecting the importance of

abiding by previous decisions) is also important in this

process. Judges typically are reluctant to make decisions

that contradict earlier ones, as the history of the

Supreme Court’s school desegregation cases indicates.

When the U.S. Supreme Court voted unani-

mously in 1954, in Brown v. Board of Education, that

public school segregation was contrary to the law,

many reports claimed that it “supplanted” or even

“overturned” a ruling in the 1896 case of Plessy v. Fer-

guson. But intermediate decisions by the Court permit-

ted this seemingly abrupt change to evolve gradually.

A brief history of rulings that led up to the Brown v.

Board of Education decision illustrates this phenomenon

and the way that the law proceeds from case to case.

We begin with the state of Louisiana’s dispute

with Homer Plessy. During a train trip in Louisiana in

the 1890s, Plessy sat down in a railroad car labeled

“Whites Only.” Plessy’s ancestry was mostly Caucasian,

but he had one Negro great-grandparent. Therefore,

according to the laws of Louisiana at that time, Pleswas considered Black (or colored, the term used at that

time). Plessy refused to move to a car designated for

“colored” passengers, as a recently passed state law

required.He took his claim to court, buta New Orleans

judge ruled that, contrary to Plessy’s argument, the stat-

ute that segregated railroad cars by race did not violate

the Fourteenth Amendment to the Constitution. In

other words, it did not fail to give Plessy “equal protec-

tion under the law.” Plessy persisted in his appeal, and

eventually, in 1896, the U.S. Supreme Court upheld

the decision of the judge and the lower courts. Judge

Henry Billings Brown, speaking for the majority faction

of the Supreme Court, declared that laws that had estab-

lished separate facilities for the races did not necessarily

imply that one race was inferior to the other.

Although this opinion was a far cry from the

1954 Brown decision, which highlighted the detri-

mental effects of segregation on the personality devel-

opment of Black children, cases decided after Plessy

and before Brown would foreshadow the Court’s

eventual leanings. One case was brought by George

McLaurin, the first Black student admitted to the

University of Oklahoma’s Graduate School of

Education. Although McLaurin was allowed to enroll,

he was segregated from all his classmates. His desk was

separated from all the others by a rail, to which the

sign “Reserved for Colored” was attached. He was

given a separate desk at the library and was required

to eat by himself in the cafeteria. In the 1950 case of

McLaurin v. Oklahoma State Regents, the U.S. Supreme

Court ruled unanimously that these procedures denied

McLaurin the right to equal protection of the law. The

Court concluded that such restrictions would “impair

and inhibit his ability to study, to engage in discussion

and exchange of views with other students.” But the

Court did not strike down Plessy v. Ferguson in this

decision.

With a more liberal Court in the 1950s, there

was enough momentum to reverse Plessy v. Ferguson,

however. Chief Justice Earl Warren, who liked to ask,

“What is fair?” spearheaded the unanimous decision

that finally overturned the idea that separate facilities

can be “equal.” He wrote that separating Black chil-

dren “from others of similar age and qualifications

solely because of their race generates a feeling of infe-

riority as to their status in the community that may

affect their hearts and minds in a way unlikely to ever

be undone” (Brown v. Board of Education, 1954).

The school desegregation cases show that lawyers

reason from case to case. They locate cases that are similar to the one at hand and then base their argu-

ments on the rulings from these legal precedents.

Psychologists, on the other hand, value the scientific

method, rely on experimental and evaluation studies,

and prefer to gather data that describe large numbers

of people. Just as psychologists are cautious of findings

based on very small samples, lawyers are hesitant to

decide a person’s fate on the basis of aggregate data

drawn from other people (Ellsworth & Mauro, 1998).

Law Deals with Absolutes; Psychology Deals with

Probabilities. Legal questions often require an

“either–or” response: A person is either fit or unfit to

be a parent; a person was either insane or sane when he

or she committed a particular act (Ellsworth & Mauro,

1998). Psychologists are not comfortable reasoning in

absolutes. They prefer to think in terms of probabilities

(e.g., that a defendant’s delusional thinking could indi-

cate a psychiatric disorder, that a White eyewitness to a

crime is more likely to misidentify a Black perpetrator

than a White perpetrator). Although the law looks

to psychologists for “either–or” answers (e.g., “Is the

defendant competent to stand trial?” and “Was the

defendant insane at the time of the crime?”), psychol-

ogists usually prefer to answer in terms of likelihoods

or qualified “maybes.” Lawyers may have difficulty

with such inconclusive responses because they need a

final resolution to a dispute.

Law Supports Contrasting Views of Reality;

Psychology Seeks One Refined View of Reality.

As indicated earlier, judges and jurors must decide

which of two conceptions of the truth is more accept-

able in light of conflicting facts. Attorneys assemble all

the facts that support their side and argue forcefully

that their version of the facts is the correct one.

Although this procedure is similar to some scientific

activities (a psychologist may do a study that compares

predictions from two theories), the psychologist is

trained to be objective and open to all perspectives

and types of data. The psychologist’s ultimate goal

is to integrate or assimilate conflicting findings into

one refined view of the truth, rather than choosing

between alternative views.

Some observers have likened this difference

between psychology and law to the difference between

scaling a mountain and fighting in a boxing match. As

psychologists gain a clearer understanding of a topic

(e.g., the causes of elder abuse), they scale a figurative

mountain, at the top of which lies true and complete

understanding. Although they may never actually reachthis pinnacle of knowledge, psychologists highly value

the accumulation of data, the development of psycho-

logical theory, and the quest for “truth.” By contrast,

lawyers are less interested in ascertaining the objective

truth about a topic and are more concerned with

winning against their adversary, resolving a dispute,

or, more recently, enhancing the laws’ effect on

all parties.

Such distinctions only scratch the surface of

the differences between law and psychology. In

Chapter 2 we consider differing notions of justice in

the two fields, and in subsequent chapters we will

discuss the implications of these differences. As with

the previous choices, selecting one domain over the

other does not always yield a satisfactory resolution.

The use of both perspectives moves us closer to an

adequate understanding than does relying only on

one. Both psychologists and lawyers should remain

aware of the limits of their own perspective and realize

that other viewpoints are essential for a fuller under-

standing of complex behavioral issues in the law.

But the contrast in knowledge-generating pro-

cedures does raise difficult procedural questions. For

example, given the differences in approach, how

should a psychologist respond to the challenge of

studying the law? What roles should the psychologist

play in the legal system? What ethical concerns are

associated with psychologists’ involvement in the

legal system?

P S Y C H O L O G I S T S ’ R O L E S

I N T H E L A W

Most courses in psychology portray only two roles for

psychologists: the scientist, who conducts basic

research about the causes and development of behav-

ior, and the applied psychologist (usually a clinical

psychologist), who tries to understand and assist indi-

viduals or groups in addressing behavioral issues.

The possibilities are more elaborate, however, when

the psychologist is involved in the legal system. We

describe five distinct roles for psychologists in the

legal system: basic scientist, applied scientist, policy

evaluator, forensic evaluator, and consultant. The

work inherent in these roles ranges from isolated aca-

demic research in psychology that may be relevant to

law, on one end, to active collaboration with people

who work in the legal system, on the other end. As you will see, the five roles vary in several

respects. But whatever the role, it carries standards

about what is acceptable and unacceptable behavior.

Professionals often develop explicit statements of eth-

ical standards of behavior. For psychologists, those

principles—known as the Ethical Principles of

Psychologists and Code of Conduct—have been pub-

lished by the American Psychological Association

(2012a). They describe a series of broad principles

followed by a more specific set of standards. Adher-

ence to the standards is mandatory for psychologists.

Among the many topics they cover is when psychol-

ogists should terminate treatment and how to do so.

Making the right ethical choice is complicated.

Sometimes, the principles specified by these ethics

codes conflict with the psychologist’s legal responsi-

bilities. The most explicit illustration of this dilemma

is the ethical obligation to protect clients’ confidenti-

ality when they have threatened to harm others and

the legal responsibility to report those threats. This

conflict was apparent in the controversial Tarasoff

decision by the Supreme Court of California, described

in Box 1.4.

In the following sections, we describe the various

roles that psychologists assume in relation to the legal

system and the ethical issues that arise in each context.

A footnote on psychologists’ relationship to the law:

Students often wonder how they can become

involved in this field as basic scientists, applied scien-

tists, policy evaluators, forensic evaluators, or consul-

tants. What career paths should one pursue, and what

professional opportunities exist at the ends of those

trails? How might a developmental psychologist, a

cognitive neuropsychologist, or a clinician (for

example) interact with the legal system? The website

of the American Psychology-Law Society (a division

of the APA) has practical and career-related advice

for practitioners, educators, researchers, and students

(www.ap-ls.org). Those undertaking careers in psy-

chology and law should also familiarize themselves

with the ethical requirements pertaining to their

professions.

The Psychologist as a Basic Scientist

of the Law

A basic scientist pursues knowledge for its own

sake. Basic scientists study a phenomenon for the sat-

isfaction of understanding it and contributing to

B o x 1.4 THE CASE OF TATIANA TARASOFF: THE DUTY TO PROTECT

Few legal decisions have had as much impact on the prac-

tice of psychotherapy as the now-famous case of Tarasoff

v. Regents of the University of California. The decision

focuses on the duties required of psychotherapists

whose clients threaten violence.

Prosenjit Poddar was a graduate student at the Uni-

versity of California who became infatuated with Tatiana

Tarasoff. Poddar was inexperienced in romantic relation-

ships and was confused about Tatiana’s on-again–off-

again behavior; she was friendly toward him one day but

avoided him completely the next night. After Poddar

became a client of a psychologist at the university counsel-

ing center, he confided that he intended to kill a girl who

had rebuffed him. The psychologist told his supervisor of

this threat and then called the campus police, requesting

that they detain Poddar. They did so but soon released

him, believing his promise that he would stay away from

Tatiana, who was out of the country at the time. Poddar

didn’t keep his promise. Two months later, he went to

Tatiana’s home and stabbed her to death. He was eventu-

ally convicted of murder.

Tatiana Tarasoff’s parents sued the university, the

psychologists, and the campus police for failing to warn

them or their daughter about Poddar’s threats. The

California Supreme Court ruled in the parents’ favor by deciding that the university had been negligent. The

first Tarasoff decision (1974) recognized the duty of a

psychotherapist to warn identifiable potential victims of

therapy patients when the therapist “knows or should

have known” that the patient presented a threat to

that victim. The court established a standard that thera-

pists have a duty to use “reasonable care” to protect

identifiable potential victims from clients in psychother-

apy who threaten violence. A second Tarasoff decision

in 1976 broadened this duty to include the protection of

third parties from patient violence. Courts in several

other states have extended this duty to the protection

of property and the protection of all foreseeable victims,

not just identifiable ones.

The Tarasoff case still governs psychologists’ conduct

in multiple states. Many psychologists feel caught in a no-

win situation: They can be held responsible for their cli-

ents’ violence if they do not warn potential victims, but

they can also be held responsible for breaching their cli-

ents’ confidentiality if they do.

Critical Thought Question

Why is it necessary to specify explicitly what a psychologist

must do if he or she hears a client threaten to harm a per-scientific advances in the area. They do not necessarily

seek to apply their research findings; many have no

concern with whether the knowledge they generate

will be used to resolve real-world problems. Yet often

their results can address important practical issues,

including some that arise in the law. For example,

though not specifically conducted for use in the

courtroom, laboratory research on visual perception

can help us understand the accuracy of eyewitness

testimony about a crime or accident. Psychologists

who test different theories of memory promote a bet-

ter understanding of whether repression can cause

long-term forgetting of traumatic events. Basic

research on the relationship between social attitudes

and behavior can clarify why people obey or disobey

the law. Research in personality psychology can help

to show what kind of person will become a follower

in a terrorist group and what kind of person will be a

leader. Studies of adolescents’ brain development may

be relevant to their decisions about whether to com-

mit petty crimes. Finally, research can assess whether

forensic psychologists’ attitudes about the causes of

crime affect their professional evaluations of criminal

defendants. The Ethics of the Basic Scientist. Like all scien-

tists, psychologists who do basic research must adhere

to standards of conduct in how they undertake and

report their studies. In practical terms, this means that

they cannot fabricate or forge data, plagiarize, or

present a skewed selection of the data to hide observa-

tions that do not fit their conclusions. They must treat

human subjects in an ethical manner. (All institutions

that receive federal research funding have review boards

that evaluate the way scientists treat human and animal

subjects.) Basic researchers sometimes have a conflict of

interest when faced with competing concerns such as

honestly reporting their research findings versus making

a profit or “getting published.” In these situations, they

should learn to recognize and be honest about potential

conflicts of interest and communicate them to inter-

ested parties before undertaking the research.

The Psychologist as an Applied

Scientist in the Law

An applied scientist is dedicated to applying knowl-

edge to solve real-life problems. Most of the public’s

awareness of a psychologist’s work reflects this role,

whether this awareness comes from viewing TV’s Dr.

Phil or watching a psychologist testify as an expert

witness in a dramatized trial. Indeed, an important

role for psychologists who are interested in applying

the findings of their profession involves serving as

an expert witness in a legislative hearing or in a

courtroom.

Juries, judges, and legislators cannot be expected

to be well versed in every topic from abscesses to

zinfandel wine. An expert witness is someone who

possesses specialized knowledge about a subject,

knowledge that the average person does not have.

Psychologists may testify as expert witnesses during a

trial based on their knowledge, experience, and train-

ing regarding psychological issues. The expert’s task is

to assist jurors and judges by providing an opinion

based on this specialized knowledge.

Either side, as part of its presentation of the evi-

dence, may ask the judge to allow expert witnesses to

testify. The judge must be convinced that the testi-

mony the expert will present is of a kind that requires

specialized knowledge, skill, or experience and that

the testimony will help promote better legal decision

making. (When psychologists testify concerning a

particular individual based on the results of a forensic

evaluation, they take on a different role, one we

describe later in this chapter.)

The psychological topics that call for scientific

expertise are almost limitless. As expert witnesses, psy-

chologists have been called on to testify in many types

of cases. For example, expert testimony may be useful

in understanding

■ Employee discrimination through selection and

promotion procedures

■ The effects of posting warning signs or safety

instructions on potentially dangerous equipment

■ The factors that may cause a suspect to make a

false confession

■ The effects of suggestive questions on children’s

memory of alleged abuse

The Ethics of the Applied Scientist/Expert Witness.

The psychologist as expert witness represents a pro-

fession that stands for objectivity and accuracy in its

procedures. Even though expert witnesses are usually

hired and paid by one side, they are responsible for

reporting all their conclusions, regardless of whether

these favor the side paying them. Furthermore, it

violates the ethical standards of both psychologists and lawyers for expert witnesses to accept payment

that is contingent on the outcome of the case.

But achieving objectivity is not easy. When asked

to testify as an expert, a psychologist has an ethical

responsibility to be candid and explicit with the court

about his or her opinions. Yet like other experts,

psychologists may be tempted to sympathize with the

side that has employed them. Is it possible to increase

experts’ objectivity? One commentator has proposed

using “blinded” experts selected by an intermediary

and hired to review the case without knowing which

side has requested an opinion (Robertson, 2010).

When blinded experts were pitted against traditional

experts in a study examining mock jurors’ decisions,

the former were perceived as more credible and per-

suasive than the latter (Robertson & Yokum, 2011).

Another ethical dilemma arises whenever the

adversary system forces an expert to make absolute

“either–or” judgments. Has the pretrial publicity

caused potential jurors to be biased against the defen-

dant? In a custody case stemming from a divorce,

which parent would be better for the child to live

with? Does the evaluation of a defendant indicate

that she is mentally ill? In all of these situations, the

law requires the psychologist to reach a firm conclu-

sion on the witness stand, regardless of ambiguity in

the evidence (Sales & Shuman, 1993). This is an

example of the absolute versus probabilistic judgment

differences we described earlier in the chapter.

Admissibility of Expert Testimony. In order to

maximize the likelihood that expert testimony is

based on legitimate scientific knowledge and to exclude

“junk science,” lawmakers have developed criteria for

judges to use when determining whether to allow an

“expert” to testify. Each state and the federal govern-

ment has its own criteria for determining admissibility.

In federal and some state courts, these criteria are

informed by a two-prong test developed by the U.S.

Supreme Court in a highly influential case, Daubert v.

Merrell Dow Pharmaceuticals, Inc. (1993). First, the trial

judge must determine whether the testimony is rele-

vant and, if relevant, whether it is based on reliable

and valid science (Cutler & Kovera, 2011). In essence,

judges function as “gatekeepers” who must evaluate

potential expert testimony by the standards of science.

Judges have disallowed expert psychological

testimony as irrelevant. Consider the case of unlucky

Pedro Gil. On a night of wild abandon in the fall of

1993, Gil hoisted a bucket of plaster over the wall of

a Manhattan rooftop. It dropped seven stories to the

ground and hit and killed a police officer standing on

the street below. Gil claimed that he expected the

bucket to drop unceremoniously onto an unoccupied

street directly below him, rather than to continue for-

ward as it fell and land on the street where the police

officer was positioned. To support his naive belief that

objects drop straight down, Gil’s attorneys attempted

to introduce the testimony of a cognitive psychologist,

Michael McCloskey, an expert in intuitive physics.

He planned to testify that people commonly mis-

understand physical laws. The trial judge did not let

McCloskey testify, claiming that intuitive physics was

irrelevant to the issues under contention. The jury

convicted Gil of second-degree manslaughter.

Judges have also disallowed expert testimony as

unreliable. Richard Coons, a Texas psychiatrist, testi-

fied in death penalty trials that he developed his own

methodology to determine whether a defendant poses

a risk of future dangerousness. (Prior to sentencing a

defendant to death, juries in Texas must agree that

there is a probability that he or she poses a continuing

threat to society.) Coons considers an offender’s crimi-

nal history, attitudes toward violence, and conscience,

yet he could not show that these factors have been

validated by any research or that his predictions are

accurate. After an appellate court deemed Coons’

testimony unreliable, essentially overruling a trial

court judge who had admitted the expert testimony,

a defense attorney quipped, “It’s overdue.”

One clear implication of the Daubert decision is

that judges must become savvy consumers of science if

they are to decide which opinions qualify as

“scientific.” Since the Daubert case, the admissibility of

expert evidence has become an important pretrial issue

and judges are more likely to scrutinize the reasoning

and methodology underlying experts’ opinions (Cecil,

2005). This is probably a good thing, because jurors

assume that judges carefully evaluate the evidence

before admitting it at a trial, and put more weight on

expert scientific evidence presented in the context of a

trial than the same evidence presented outside of a

courtroom context (Schweitzer & Saks, 2009).

The Psychologist as a Policy

Evaluator in the Law

In addition to their knowledge of substantive problems,

psychologists have methodological skills that they use

in assessing or evaluating how well an intervention has worked. Psychologists and other social scientists have

been asked so frequently in the last several decades to

conduct evaluation studies that a separate subfield called

policy evaluation, or evaluation research, has emerged.

The policy evaluator provides data to answer ques-

tions such as, “I have instituted a policy; how do I

know whether it was effective?” Or, more laudably,

“I want to make a change in our organization’s pro-

cedures, but before I do, how do I design it so I will

be able to determine later whether it worked?”

Psychologists working as policy evaluators might

be asked whether changing the laws for teen drivers

by restricting the number of passengers they can carry

will reduce traffic accidents, whether the chemical

castration of released rapists will reduce the rate of sex-

ual violence, or whether changing from automobile

patrols to foot patrols will improve relations between

police and the community. The methodological skills

of a psychologist as policy evaluator are essential in

assessing existing programs and policies and designing

innovations so that their effects can be tested.

Psychologists have been involved in evaluating

policies regarding the use of long-term administrative

segregation in prisons. Inmates are typically placed in

administrative segregation (involving 23-hour lock-

down) for violating prison rules by dealing drugs,

fighting, or affiliating with gangs. Despite vocal criti-

cisms that such confinement exacerbates symptoms of

mental illness and creates mental illness where none

previously existed, there is a dearth of research on the

consequences of administrative segregation.

To fill this void, psychologists working as policy

evaluators for the Colorado Department of Correc-

tions conducted a study to determine whether (1)

inmates in administrative segregation would experi-

ence greater psychological deterioration than a com-

parison group housed within a general population of

inmates, and (2) mentally ill inmates would deterio-

rate at a more rapid rate than non–mentally ill inmates

(O’Keefe, Klebe, Stucker, Sturm, & Leggett, 2011).

Study participants, all male, were housed in either

administrative segregation or the general population

as a function of their behavior, although general pop-

ulation inmates were chosen because they were at risk

of administrative segregation placement. In this way,

the two groups were as comparable as possible.

Inmates were evaluated at three-month intervals over

a year using standardized self-report tests for constructs

such as anxiety, depression, hostilitThe results were surprising: the segregated groups,

as well as the mentally ill comparison group, showed

elevated levels on these psychological measures when

compared to community samples, but the segregated

groups did not deteriorate over time as expected. In

fact, the segregated offenders showed the same pattern

of change over time as the comparison group, suggest-

ing that change over time on these variables is not

related to confinement conditions. These findings may

affect future correctional policies regarding both admin-

istrative segregation and general inmate populations.

The Ethics of the Policy Evaluator. The psychol-

ogist who evaluates the impact of proposed or exist-

ing legislation and court or correctional procedures

faces ethical responsibilities similar to those of the

expert witness. The standard rules of scientific proce-

dure apply, but because of the source of employment

and payment, there are pressures to interpret results of

evaluation studies in a certain way.

Consider, for example, a large state correctional

system that wants to improve its parole process.

Correctional officials have identified a problem with

releasing those eligible for parole who are heavy drug

users. If released into society, they are likely to com-

mit further crimes to maintain their drug habit, and

are therefore likely to return to prison. Accordingly,

the system seeks to introduce and evaluate an innova-

tive halfway-house program for parolees with a history

of narcotics addiction. It hires a policy evaluator to

design a study and evaluate the effects of this innova-

tion. The correctional system provides funding to

carry out the study, and officials are sincerely commit-

ted to its goals. Assume the psychologist concludes that

the halfway house does not significantly reduce drug

use by parolees. The authorities are disappointed and

may even challenge the integrity of the policy evalua-

tor. Yet, as scientists, program evaluators must “call

‘em like they see ‘em,” regardless of the desirability

of the outcome.

Even if the program is successful, the policy

evaluator faces other ethical dilemmas. To assess

such an innovative program, the researcher might

have to deny some parolees access to the program

and place them in a “status quo” control group.

The ethical dilemma becomes more critical when

some potentially lifesaving innovation is being evalu-

ated. But often it is only through such research meth-

ods that a potentially helpful new program can be

convincingly demonstrated to be effective. The Psychologist as a Forensic

Evaluator in Litigation

In addition to evaluating policies and programs,

psychologists may be asked to evaluate individuals

involved in civil and criminal cases, to report their

findings to a judge, and on occasion, to testify about

the results in court. Forensic evaluators assess matters

such as

■ The competence of a defendant to proceed with

adjudication of charges (often called “competence

to stand trial,” although most criminal charges

are adjudicated through plea bargaining rather

than trial)

■ The mental state of a defendant at the time of

an alleged offense (often called “sanity at the time

of the offense”)

■ The degree of emotional or brain damage suffered

by a victim in an accident

■ The effects on a child of alternative custody

arrangements after divorce

■ The risk of future violent or otherwise criminal

behavior

■ The prospects for a convicted defendant’s reha-

bilitation in prison or on probation

There are two different ways that mental

health professionals become involved in litigation as

forensic evaluators: they are either court appointed

or hired by one of the parties involved in the liti-

gation (defense, prosecution, or plaintiff). Serving

in the court-appointed role involves receiving an

order from the judge authorizing the mental health

professional to evaluate a given individual for a spe-

cific purpose. The judge may also specify additional

considerations, such as how the results are to be com-

municated. There is typically an expectation that the

resulting forensic evaluation will be considered by the

judge without being introduced by either side.

Forensic evaluators for one of the parties involved

in the litigation have a different expectation: That

particular party may control when (and whether)

the forensic assessment findings are actually intro-

duced as evidence in the case. Some referrals for

forensic assessment come from attorneys who autho-

rize the evaluations without resorting to any kind of

court authority. (This kind of right is usually associ-

ated with the defense in a criminal prosecution; the

prosecutor cannot request a forensic mental health

essment unless it is approved by the court—and

therefore known to the defense.) These tasks will be

discussed in much more detail in Chapters 10 and 11

of this book. They are also described in detail else-

where (Heilbrun et al., 2009; Melton et al., 2007).

The Ethics of the Forensic Evaluator. The ethical

considerations associated with the role of forensic

evaluator are fairly formal and specifically described

in several documents. In addition to the ethical prin-

ciples disseminated by the APA (APA, 2012a), two

other sets of ethical guidelines affect the practice of

forensic evaluators. Neither is “enforceable” in the

sense that the APA principles are. Nonetheless, both

serve as important sources of authority, and may affect

the judgments of courts regarding the admissibility

and weight of forensic assessment evidence. These

two documents are the Specialty Guidelines for

Forensic Psychologists (APA, 2012b) and the Guide-

lines for Child Custody Evaluations in Family Law

Proceedings (APA, 2010).

Among the three documents, there is substantial

emphasis on providing evaluations that are (1) clear in

their purpose; (2) conducted by individuals who are

competent by virtue of their education, training, and

experience; (3) respectful of appropriate relationships

(and that avoid multiple relationships, such as both

forensic evaluator and therapist, in the same case);

(4) provide the appropriate level of confidentiality

consistent with circumstances and the applicable

legal privilege; (5) use methods and procedures that

are accurate, current, and consistent with science

and standards of practice; and (6) communicate

appropriately.

Like other expert witnesses, forensic evaluators

have an obligation to be objective in their assessments

and reporting, yet may be tempted to favor the side

that has retained them. This concern is illustrated by

a study of how pairs of independent forensic psycho-

logists, retained by opposing attorneys, evaluated a

common individual. Despite using a standardized

diagnostic test for psychopathy, the psychologists

tended to rate the individual in a manner favorable

to the side that retained them (Murrie, Boccaccini,

Johnson, & Janke, 2008). This sympathy may not

even be conscious; instead, the psychologist may sim-

ply reach conclusions that are motivated by subtle

partisan allegiance to the client. For this reason,

adherence to the principles contained in the ethical

guidelines is of paramount importance. The Psychologist as a Consultant

in Litigation

The final role for psychologists in the law is that of

consultant. The field of trial consulting provides

one example of this role for psychologists working

in the legal arena (see generally Wiener & Bornstein,

2011). Social scientists who began this work in the

1970s used so-called scientific jury selection proce-

dures (further described in Chapter 12) to assist defense

lawyers in highly politicized trials resulting from anti-

war activities in the United States. Since then, these

techniques have been refined and expanded. The

national media devoted extensive coverage to the use

of trial consultants in the celebrity-status trials of

Martha Stewart and O. J. Simpson, and research on

community attitudes was influential in the 2001 con-

viction of a former Ku Klux Klansman for the 1963

bombing of a Birmingham, Alabama church. (We

describe this case in more detail in Chapter 13.)

Today the field of trial consulting is a booming

business and involves far more than jury selection.

Trial consultants also conduct community attitude

surveys to document extensive pretrial publicity or

to introduce findings as evidence in trials involving

discrimination or trademark violation claims (Wiener,

2011; Wingrove, Korpas, & Belli, 2011). They test

the effectiveness of demonstrative evidence (Richter &

Humke, 2011), provide guidance to attorneys seek-

ing damage awards (Bornstein & Greene, 2011a),

and prepare witnesses to testify (Stinson & Cutler,

2011).

There is no expectation of impartiality in any of

these roles, as there would be for psychologists acting

as basic scientists, applied scientists, policy evaluators,

or forensic evaluators. Nor is there an expectation that

the consultant must present information in a balanced

way. However, the psychologist must still provide the

attorney with good information in order to promote

more effective performance in litigation. How the

attorney decides to use such information is within

that attorney’s discretion.

Critics have argued that these techniques essen-

tially rig the jury (Kressel & Kressel, 2002) and create

a perception that psychologists can manipulate the

trial process (Strier, 2011). But at least in the realm

of jury selection, it is difficult to determine whether

scientific jury selection is more effective than tradi-

tional jury selection. Cases that employ scientific

jury selection techniques differ in many ways fromcases that do not, and “success” is hard to define

(Lieberman, 2011). (Does a low damage award or

conviction on a less serious charge connote success?

Perhaps.) Consultants suggest that they are simply

borrowing techniques commonly used in politics

and advertising and bringing them into the court-

room. Politicians hire people to help them project a

better image, and advertisers try to enhance the ways

that retailers connect with consumers. Shouldn’t law-

yers be able to do the same? Consultants also argue

that in an adversarial system, attorneys should be able

to use every tool available to them.

The Ethics of the Consultant in Litigation. As

we noted earlier, when the psychologist becomes a

consultant for one side in the selection of jurors,

there may be ethical questions. Just how far should

the selection procedures go? Should jurors have to

answer consultants’ intrusive questions about their

private lives? Should consultants be able to sculpt

the jury to their clients’ advantage? Do these techni-

ques simply constitute the latest tools in the attorney’s

arsenal of trial tactics? Or do they bias the proceedings

and jeopardize the willingness of citizens to partici-

pate in the process? These questions deal with fairness,

and scientific jury selection may conflict with the way

some people interpret the intent of the law.

Returning to the advertising analogy, are psychol-

ogists who work for an advertising agency unethical when they use professional knowledge to encourage

consumers to buy one brand of dog food rather than

another? Many of us would say no; the free-enterprise

system permits any such procedures that do not falsify

claims. This example is analogous to jury selection

because rival attorneys—whether they employ trial

consultants or not—always try to select jurors who

will sympathize with their version of the facts. Since

the adversarial system permits attorneys from each

side to eliminate some prospective jurors, it does

not seem unethical for psychologists to assist these

attorneys, as long as their advocacy is consistent

with the law and the administration of justice. The

same can be said about consultants retained by attorneys

to provide information to enhance the presentation

of a case.

When psychologists become trial consultants,

they also subscribe to the ethical code of the attor-

neys, who, after all, are in charge of the trial prepara-

tion (Stolle & Studebaker, 2011). The Ethics Code of

the American Bar Association (2010) admonishes its

members to defend their clients to the best of their

abilities, short of lying or encouraging lying. Every

litigant—whether a defendant or a plaintiff—regard-

less of the heinousness of the crime or the nature of

the evidence presented, is entitled to the best legal

representation possible, including the use of psycho-

logical techniques to assess the relative favorability of

prospective jurors and to enhance case presentation.

S U M M A R Y

1. Why do we have laws, and what is the psychological

approach to studying law?

Laws are human creations whose major purposes

are the resolution of conflict and the protection

of society. As society has changed, new conflicts

have surfaced, leading to expansion and revision

of the legal system. A psychological approach

focuses on individuals as agents within a legal

system, asking how their internal qualities (per-

sonality, values, abilities, and experiences) and

their environments, including the law itself, affect

their behavior.

2. What choices are reflected in the psychological

approach to the law?

Several basic choices must be made between pairs

of options in the psychological study of the law. These options are often irreconcilable because

each is attractive, but both usually cannot

be attained at the same time. The choices

are (1) whether the goal of law is achieving

personal freedom or ensuring the common good,

(2) whether equality or discretion should be the

standard for our legal policies, (3) whether the

purpose of a legal inquiry is to discover the truth

or to provide a means of conflict resolution, and

(4) whether it is better to apply the methods of

law or those of science for making decisions.

3. How do laws reflect the contrast between the due

process model and the crime control model of the

criminal justice system?

The decade of the 1960s represented an era in

which due process concerns were paramount an

court decisions tended to favor rights of the

individuals, particularly those suspected of crimes,

over the power of the police and law enforce-

ment. Since then, the crime control model,

which seeks to contain or reduce criminal activ-

ity, has been favored by many. But some of the

harsh policies and penalties consistent with this

perspective, including “three-strikes” laws, have

resulted in large increases in prison populations

and little reduction in rates of reoffending. The

recession is causing legislators and judges to

consider community-based alternatives that may

control crime more effectively.

4. What are five roles that psychologists may play in

the legal system, and what does each entail?

Five possible roles are identified in this chapter:

the psychologist as (1) a basic scientist, interested in knowledge related to psychology and law forits own sake; (2) an applied scientist, who seeks

to apply basic research knowledge to a particular

problem in the legal system (a psychologist

serving as an expert witness is an applied scientist

in the law); (3) a policy evaluator, who capita-

lizes on methodological skills to design and

conduct research that assesses the effects of pol-

icies and program changes in the legal system;

(4) a forensic evaluator, who is either appointed

by the court or retained at the request of one

of the parties in the litigation to perform a

psychological evaluation of an individual related

to a legal question; and (5) a consultant, who

works on behalf of a party or position in liti-

gation. Each role entails its own set of ethical

dilemmas.