Chapter 1
Introduction to Psychology and Law:
Civil and Criminal Applications
What is Forensic Psychology?
Broad Definition
Forensic Psychology
(Intersection between law
and psychology)
Non-clinical/experimental
(Trained as researchers)
Clinical
(Trained as practitioners
and researchers)
Defining Forensic Psychology
Forensic psychology is the practice of
psychology (defined to include research as
well as direct and indirect service delivery
and consultation) within or in conjunction
with either or both sides of the legal
system—criminal and civil.
History of Forensic Psychology
1843. Daniel
M'Naghten is found
not guilty by reason
of insanity; nine
medical experts
testify on his behalf
1909-18. Guy
Whipple publishes
a series of articles
in Psychological
Bulletin extending
European research
(e.g., Stern, Binet)
on observation,
memory, and
witness testimony
1908. Psychologist
Hugo
Munsterberg's On
the witness stand is
published
1906. In a speech
to Austrian
Judges, Sigmund
Freud suggests
that psychology
has important
applications for
their field
1909. Legal scholar
John H. Wigmore
satirizes
Munsterberg's
claims in a law
review article
History of Forensic Psychology
1954. The "Social
Science Brief,” written
by psychologists
Kenneth Clark, Isidor
Chein, and Stuart
Cook and signed by
35 social scientists, is
cited in a footnote of
the momentous
Brown vs. Board of
Education decision
outlawing school
segregation.
1971. The Program in
Law and Social
Science is
established at the
National Science
Foundation
1968-69. The
American
Psychology-Law
Society (AP-LS) is
founded
1976. "Psychology
and the law" is first
reviewed (by J. L.
Tapp) in the Annual
Review of Psychology
1974. First jointdegree psychologylaw program is
established
(University of
Nebraska)
History of Forensic Psychology
1977. Law
and Human
Behavior
begins
publication as
the APLS
journal
1995.
Psychology,
Public Policy,
and Law
begins
publication as
an APA journal
1984. AP-LS
merges with
Division 41 of
APA
1980-81. American
Psychological
Association (APA)
Division 41 is
established with a
merger with APLS
1991.
Specialty
Guidelines for
Forensic
Psychologists
are approved
2001. APA
designates
forensic
psychology as
a specialty
area
What do forensic psychologists do?
Criminal forensic evaluations (e.g., fitness to
stand trial, criminal responsibility, violence risk)
Civil forensic evaluations (e.g., child custody,
personal injury)
Treatment of offenders
Research on legal issues such as eyewitness
testimony, jury decision making, impact of
pretrial publicity, fitness to stand trial, causes
of violence.
Roles of Forensic Psychologists

Varied roles in research and practice

Criminal and civil evaluation &
expert testimony
Consultation

Assessment, treatment, &
consultation of risk
Analysis

Specialized treatment in legal
system


Policy consultation to
lawmakers
Consultation & training to law
enforcement, justice, &
correctional systems
& training to mental
health systems
of issues (human
performance, product liability,
safety)
Court-appointed
Mediation
monitoring
& conflict resolution
Psychology-law
related policy &
program development
Training
& supervision of
students
ABFP (2007)
http://www.abfp.com/brochure.asp
Murder Rate in Vancouver
Is violence, particularly murder, on the rise?
How many murders in Lower Mainland last
year?
How many murders in Vancouver?
The Most Dangerous Cities in Canada:
Murder rate
2009 Maclean’s National Crime Rankings
PORT COQ.
59,732
364.70
1
EDMONTON
763,732
132.61
2
WINNIPEG
653,733
120.79
3
SASKATOON
206,365
115.21
4
VANCOUVER
609,785
100.29
5
1,038,481
87.10
6
425,428
82.69
7
CALGARY
SURREY, B.C.
Interesting websites

www.crimelibrary.com
Information on notorious criminal cases. You can read about the background of the
perpetrators, their victims and the court proceedings. For example, the cases of Karla
Homolka and Paul Bernardo, Ted Bundy, and JonBenet Ramsey are described.

www.all-about-forensic-psychology.com
This is a somewhat similar site that can be useful for someone who is interested in forensic
psychology. What does the subject encompass? What is its history? How is an offender
profile made? What factors increase the risk of a false confession?

crimepsychblog.com
This site is like a clipboard where researchers and professionals in the field can post their
announcements of new research articles, guidelines, legislation and landmark cases. It is a
good source for students who want to get an idea of what forensic psychology is all about.

www.innocenceproject.org
The first Innocence Project was started at Yeshiva University in New York. Wrongful
convictions have shown that serious flaws have caused our criminal justice systems to
convict scores of innocent people. The Innocence Project has identified seven policy areas
where targeted reforms can help prevent future wrongful convictions. This interesting site
gives examples of people who have been exonerated as a consequence of these types of
innocence projects, and what actions are to be taken to prevent as much as possible future
miscarriages of justice.
Associations & Publications
Many professional groups in North America and
Worldwide:

American Psychology-Law Society (conference in
Miami, March 2-5, 2011)

International Association of Forensic Mental Health
(conference in Barcelona, June 29-July 1, 2011)

European Association of Psychology and Law

Australian & New Zealand Association for
Psychiatry, Psychology and the Law
Associations & Publications
Many Journals
 Law
and Human Behavior
 Criminal
Behaviour and Mental Health
 Behavioral
Sciences & the Law
 Psychology,
 Legal
Public Policy, and the Law
and Criminological Psychology
Training in Forensic Psychology
Graduate Programs
Programs in U.S., Canada, Europe, Australia, and
elsewhere worldwide

Many training options:
PhD: training in research and practice
 PsyD: emphasis on practice
 Joint Degrees (JD/PhD): training in research and
practice combined with legal degree


Grad programs with specialized training vary in
approach and are very competitive
Saks on law’s view of social science
Michael Saks, trained in law and social
psychology, said:
The law and its practitioners are careful,
thoughtful, and rigorous about many
things, but those things do not include the
nature of social and behavioral
phenomena, cause and effect
relationships, or the effects of the
interventions made by the law.
Bersoff on psychology/law relationship
It is relatively clear . . . that the relationship
between . . . psychologists and the courts
is less than perfect. In fact, if that
relationship were to be examined by a
Freudian, the analyst would no doubt
conclude that it is a highly neurotic,
conflict-ridden ambivalent affair (I stress
affair because it is certainly no marriage).
(Bersoff, 1986, p. 155)
Overview of the Law

Sources of Law

Court Systems

The Court Process
How do you define law?



A body of rules for the guidance of human conduct which
are imposed upon and enforced among the members of
a given state.
As stated, this seems straightforward--If individuals
violate a rule, then they would get the prescribed
punishment.
Complicating factors to consider:
•
•
•
•
•
judges' decisions in the same type of cases may vary
considerably
minorities may get different treatment than others
wealthy people may fare better than poor ones
eyewitnesses may not always be accurate
courts are overcrowded and dockets full; trials don't usually take
place.
Adversarial System
We have an adversarial system of justice.
Opposing parties present contradictory
information. Outcome determined by judge
or jury.
 What are the implications of adhering to
an adversarial model?
 What alternatives exist?
Inquisitorial Model
Used in Western Europe and Latin America.
 The judge hears witnesses and suspects and
orders searches for other investigations.
 The
goal is not the prosecution of a certain person,
but the finding of truth, and as such the duty is to look
both for incriminating and exculpating evidence.

Judges charged with the task of finding the truth
at all costs as compared to judges in the
adversarial system who are largely constrained
from obtaining the truth by ponderous rules and
procedures which preclude their immediate
involvement.
First Nations Sentencing Circles

The sentencing circle is a method of dealing with members of the
community that have broken the law.

Takes place after the individual has been in the western justice
system and found guilty or if the accused has accepted guilt and is
willing to assume his or her responsibility.

Encourages the offender and the community to accept responsibility
and acknowledges the harm they have done to society and to
victims.

Shift the process of sentencing from punishment to rehabilitation
and responsibility; provides alternative for courts to incarceration.

Start the healing process for both the offender and the victim. The
offender is presented with the impact of their actions in front of
respected community members, elders, peers, family, the victim and
their family, stimulating an opportunity for real change.
Mental Health Courts
Essentially a diversion program for persons
who:
 have
a serious mental health problem/mental
illness;
 have been charged with committing a low risk
offense;
 accept mental health diversion
 are approved for diversion by the provincial
Crown Attorney.
Division of Powers
Section 91


Federal heads of
power
Includes enacting
criminal law and
criminal procedure
Section 92


Provincial heads of
power
Includes
enforcement of
criminal law and
prosecution of
criminal offences as
well as most civil
law
Sources of Law
Case law
 Statutes
 Parliament
 Royal prerogative
 Charter of Rights and Freedoms

Common Law



British Common law, also called traditional law,
is law that has evolved from decisions of English
courts going back to the Norman Conquest in
1066.
These earlier decisions set "precedents," which
are used in future cases of a similar nature.
Precedents can be overruled by new laws, or
statutes, passed by the appropriate government.
Common law is the source of the principle stare
decisis which means "let the decision stand" or
"to stand by decided matters". It is based on the
principle that like cases must be decided alike.
Canadian Charter of Rights and
Freedoms
Came into effect in 1982 (spearheaded by Pierre Trudeau). Established
increased role of judicial review in protecting rights.










freedom of expression
the right to a democratic government
the right to live and to seek employment anywhere in Canada
legal rights of persons accused of crimes
Aboriginal peoples' rights
the right to equality, including the equality of men and women
the right to use either of Canada's official languages
the right of French and English linguistic minorities to an education
in their language
the protection of Canada's multicultural heritage
Arrest rights; cruel and unusual punishment
Was a Charter Right Infringed?
The law itself
infringes Charter
rights
strike down the law
read down the law
to be consistent
with the Charter
read in elements to
make law consistent
with the Chater
The Charter of Rights and Freedoms
guarentees the rights and freedoms
set out in it are subject only to such
reasonable limits prescribed by law
as can be demonstrably justified
in a free and democratic society.
The way the law
was applied infringes
Charter rights.
any remedy that is
just and appropriate
in the circumstances
evidence is
inadmissible
If, having regard to all the
circumstances, the admission
of it in the proceeding would
Bring the administration of
justice into disrepute
s. 24(2)
s. 1
Federal Court System
Supreme Court of Canada
Canada's highest court. It is the final general court of appeal,
the last judicial resort for all litigants, whether individuals or governments.
Federal Court of Appeal
Appeals from the Federal Court are heard by the Federal Court of Appeal. The Federal Court and
Federal Court of Appeal also review decisions, orders and other administrative actions of federal
boards, commissions and tribunals.
Federal Court of Canada
The Federal Court is Canada's national trial court. It hears and decides legal disputes arising in the
federal domain, including claims against the Government of Canada, civil suits in federally
regulated areas and challenges to the decisions of federal tribunals.
Court Martial Appeal Court of Canada
This Court hears appeals from military courts which are known as courts martial. The courts martial
have power to try military personnel, and civilians accompanying such personnel abroad, for
crimes and offences against the Code of Service Discipline.
Tax Court of Canada
The Tax Court of Canada is a superior court to which individuals and companies may appeal to settle
disagreements with the Government of Canada on matters arising under legislation over which the
Court has exclusive original jurisdiction. Most of the appeals made to the Court relate to income
tax, the goods and services tax or employment insurance.
Provincial Courts
Trial Courts that hear
 most criminal cases,
 about half of the family related
 virtually all youth cases,
 all small claims actions
trials,
Jury trials are not available
 Usually no preliminary inquiry
 Judges are appointed by the province
 Decisions are not binding

Provincial Superior Court
Trial courts that hear
 some
criminal cases
 some civil cases
 grant divorces
 some appeals from Provincial Courts
May be heard before a judge or judge and jury
Binding on Provincial Courts in that province
Provincial Court of Appeal
Appeal court only
 Panels of 3 judges
 Appeal a verdict or a sentence
 Federally appointed judges
 Binding on Provincial courts and Provincial
superior courts

Elements of a crime
1. Actus Reus: the physical element of a crime.
Example: assault is defined as "without the
consent of another person....he applies force
intentionally to the person of the other, directly or
indirectly." The actus reus consists of 1)
applying force to another person and 2) without
the other person's consent.
2. Mens Rea: the mental element of a crime.


Intention, knowledge, recklessness
NCRMD
Criminal Offences
Summary
Indictable
Hybrid
(proceed by indictment or
summarily--crown discretion)
Provincial Court Provincial Court
(no jury, no prelim)
Electable
Superior Court
(discretion of accused)
(judge and jury,
prelim)
Provincial Court
Superior Court
Superior Court
(judge alone, judge
may order a prelim)
(judge alone
with prelim)
(judge and jury,
prelim)
Plea Bargain
Charge bargaining, which involves promises
concerning the nature of the charges to be laid
(2) Sentence bargaining, which involves
promises relating to the ultimate sentence that
may be meted out by the court
(3) Fact bargaining, which involves promises
concerning the facts that the Crown may bring
to the attention of the trial judge
Estimated that 90% of cased resolved through
plea bargain rather than trial.
(1)
The Court Process: Criminal
Issues
Defendant charged in name of people for
violating criminal law
 Presumption of innocence
 Prosecution bears burden of proof
(beyond a reasonable doubt)
 Penalties serious and proportional
 Defendants afforded rights

The Court Process: Civil Issues

Two or more parties (plaintiff & defendant)

One party alleges violation of a
statute/provision of common law

Standard of proof is on a balance of
probabilities

Fewer rights for parties
Conflicts Between Ψ and Law
Law
1
Conservative; resists
innovation
Hierarchical &
2 authoritative; lower courts
bound by higher
Psychology
Creative, novel, innovative
approaches
Empirical enterprise; ideas
depend on consistent supporting
data
Objective experimental model;
Adversarial system used to
3
ascertain “truth” through
arrive at “truth”
hypothesis testing
Prescriptive, laws tell
4 people how they should
behave
Descriptive, goal of describing
behavior as it naturally occurs
Conflicts Between Ψ and Law
Law
(cont’d)
Psychology
Ideographic, focus on
5
individual case
Nomothetic, eschews case
studies
Operates on principle of
6 certainty & definitive
outcome
Methods rely on probabilistic
models
7 Approach is reactive
Approach is proactive
Operational and applied in
Academic in nature, can lose
8 nature, concerns arise from
touch with “real world”
real world.
Progression through Criminal Justice
System
Haney’s Taxonomy (1980)
Psychology IN law
 “explicit
and conventional use of psychology by
lawyers in the legal process” (p. 158)
 Most
common role of psychologists, though role
is often passive
 Examples:
psychological testimony on legal
issues (e.g., insanity defense or fitness to stand
trial)
Haney’s Taxonomy (1980) (cont’d)
Psychology AND law
 Use
of “psychological principles to analyze and
examine the legal system”
 Research
often follows from relationship,
examines assumptions law makes about
behavior
 Role
of psychologist autonomous
 Examples:
Research on eyewitness accuracy,
false confessions
Haney’s Taxonomy (1980) (cont’d)
Psychology OF law

Psychologists study issues such as why people
need and obey the law

Role of psychologist autonomous

Two categories of examination:
 Origins/existence
of law and the psychological
function it serves
 How
laws operate as a determinant of behavior