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ALAN M. GOLDSTEIN
SELECTION OF TOPICS 3 DEFINITION OF FORENSIC PSYCHOLOGY 4 DIFFERENCES BETWEEN CLINICAL AND FORENSIC PSYCHOLOGY 4 Roles 4 Diagnoses 5 Conceptualization of Human Behavior 5 Product of the Professional Relationship 5 Trust of the Client's Responses 5 Temporal Focus of the Evaluation 5 Level of Proof 5 Professional Accountability 6 Who Is the Client? 6 Other Noteworthy Differences 6
A BRIEF HISTORY OF FORENSIC PSYCHOLOGY 6 ORGANIZATION OF THIS VOLUME 7 The Nature of the Field 7 Approaches to Forensic Assessment 9 Special Topics in Forensic Psychology 10 Civil Forensic Psychology 11 Criminal Forensic Psychology 13 Forensic Assessment of Special Populations 16 Emerging Directions 17
SUMMARY 18 REFERENCES 19
Forensic psychology has received considerable attention from the public and media during the past decade, thanks, in large part, to books and films such as Silence of the Lambs and assorted television series and made-for-TV movies. A commonly asked question of forensic psychologists is "How do I become a profiler?", replacing, for better or worse, "So, you dissect dead people?" In fact, forensic psychologists have no contact with corpses (leaving that to forensic pathologists, forensic scientists, and forensic anthropologists). And some definitions of the field do not consider criminal profiling to be part of forensic psychology.
Thisbook is intended to present the most up-to-date description of the field of forensic psychology. The chapters represent contemporary topics and areas of investigation in this exciting, rapidly expanding field. Forensic psychology's roots date back to 1908, predating the public's awareness of the field. As is explained in the chapter by Ira Packer and Randy Borum, although Münsterberg (1908) proposed various roles for psychologists as experts in court, it was not until the 1970s that efforts began to more formally define the field, to recommend qualifications for those practicing in this area, and to develop guidelines for both ethics and training.
SELECTION OF TOPICS
Topics were selected to reflect forensic psychology's applicability to both the civil and criminal justice systems. This volume is organized into sections, grouping topics with common themes. The reader will first develop an understanding of the nature of the field-what it is and why it is different from other areas of specialization-and, next, how forensic psychologists gather information: the methods they use to conduct assessments.
Not all psychologists testify in court about a specific individual (e.g., a plaintiff in a personal injury suit or a defendant in an insanity case). Some serve as consultants to law enforcement agencies evaluating police applicants, to attorneys as jury selection specialists, or testify as experts to educate juries about specific topics, such as accuracy of eyewitness memories. A section of this volume focuses on these "specialized" roles.
Two sections address topics involving a range of civil and criminal forensic assessments, including child custody, personal injury, trial competence, and criminal responsibility. Another section comprises chapters involving the forensic assessment of special groups or populations, such as sexual predators and battered women. The final section consists of chapters exploring future directions of the field, such as its application to public policy formation.
Although this volume may serve as a text on forensic psychology, chapters were written to stand on their own. Each reviews the professional literature relevant to the topic. Ethics and case law are explained, and, when appropriate to the topic, current assessment methodology is described. Chapters reflect the current state of the field. The volume should serve the novice as well as the experienced forensic psychologist as an indicator of the state of the field at the start of the twenty-first century.
DEFINITION OF FORENSIC PSYCHOLOGY
The word forensic, derived from the Latin, forensis, means "forum," the place where trials were conducted in Roman times. The current use of forensic denotes a relationship between one professional field, such as medicine, pathology, chemistry, anthropology, or psychology, with the adversarial legal system.
Many definitions of forensic psychology exist. The "Specialty Guidelines for Forensic Psychologists" (Committee on Ethical Guidelines for Forensic Psychologists, 1991), a set of ethical guideposts for those working in the field, defines forensic psychology as a field that covers "all forms of professional conduct when acting, with definable foreknowledge, as a psychological expert on explicitly psychological issues in direct assistance to the courts, parties to legal proceedings, correctional and forensic mental health facilities, and administrative, judicial, and legislative agencies acting in a judicial capacity" (p. 657).
Forensic psychology is a specialty recognized by the American Board of Professional Psychology (ABPP). ABPP defines the field in their written material as "The application of the science and profession of law to questions and issues relating to psychology and the legal system." In the "Petition for the Recognition of a Specialty in Professional Psychology" prepared by Kirk Heilbrun, Ph.D. (2000), on behalf of the America Board of Forensic Psychology (the forensic Specialty Board of ABPP) and the American Psychology-Law Society (Division 41 of the American Psychological Association), it is defined as "the professional practice by psychologists within the areas of clinical psychology, counseling psychology, neuropsychology, and school psychology, when they are engaged regularly as experts and represent themselves as such, in an activity primarily intended to provide professional psychological expertise to the judicial system" (p. 6).
The editor of this volume considers forensic psychology to be a field that involves the application of psychological research, theory, practice, and traditional and specialized methodology (e.g., interviewing, psychological testing, forensic assessment, and forensically relevant instruments) to provide information relevant to a legal question. The goal of forensic psychology as an area of practice is to generate products (information in the form of a report or testimony) to provide to consumers (e.g., judges, jurors, attorneys, hiring law enforcement agencies) information with which they may not otherwise be familiar to assist them in decision making related to a law or statute (administrative, civil, or criminal). As an area of research, its goal is to design, conduct, and interpret empirical studies, the purpose of which is to investigate groups of individuals or areas of concern or relevance to the legal system. Numerous other definitions exist (Bartol & Bartol, 1999; Hess & Weiner, 1999; and see the chapter by Packer and Borum, and the chapter by Ewing in this volume, and the chapter by Brigham and Grisso in Volume 1. For a discussion on how judges, prosecutors, and defense attorneys view mental health testimony see Redding, Floyd, and Hawk (2001)).
DIFFERENCES BETWEEN CLINICAL AND FORENSIC PSYCHOLOGY
The fields of psychology and law are concerned with and focus on understanding and evaluating human behavior. The law exists to regulate human conduct; for this reason, psychologists are invited to participate in the civil and criminal justice systems. Because psychology is involved in studying behavior, in certain legal cases, findings and insights may assist the judge or jury in deliberations and decision making. However, there are significant differences between psychologists working in traditional settings and those conducting forensic assessments for the courts. Goldstein (1996) has summarized some of these significant differences. Greenberg and Gould (2001) considers role boundaries and standards of expertise of treating and expert witnesses in child custody cases.
The major role of psychologists working in clinical settings, whether as psychotherapists or as psychological evaluators, is to help the client. What is learned about the patient is used to benefit the patient in terms of personal growth and support. However, in forensic psychology, the role of the expert is significantly different. Forensic psychologists are charged with using the results of their assessment to help or educate the court, without regard to the potential benefits to the examinee.
In clinical psychology, psychiatric diagnosis serves a major function in treatment strategy. In addition, a diagnosis, based on criteria described in the Diagnostic and Statistical Manual of Mental Disorders, fourth edition (DSM-IV)or IV-Text Revision (DSM-IV-TR; American Psychiatric Association, 2000), is required for patients to receive insurance reimbursement. In forensic psychology, the role of psychiatric diagnosis is generally less critical an issue. Diagnoses are not required in many legal issues (e.g., child custody, Miranda rights waivers, personal injury). Although insanity statutes require a diagnosis as a prerequisite for its consideration by a jury, the psychiatric diagnosis does not, per se, define insanity. Rather, in forensic psychology, "diagnoses" are based on statutes, which define the relevant behaviors of concern to the court and, therefore, become the focus of the evaluation. For example, the question of a defendant's ability to validly waive Miranda rights is defined as being able to do so knowingly, intelligently, and voluntarily-in legal, not psychological, terms. The job of the forensic psychologist is to operationalize or translate the legal terms into psychological concepts, which can be objectively evaluated (Grisso, 1986).
Conceptualization of Human Behavior
During Introduction to Psychology, college students are taught that behavior falls on a continuum. The normal distribution curve is the statistical and visual representation of the orientation of psychologists: Behavior is complex and cannot be readily categorized into discrete groups (e.g., intellectually gifted versus mentally retarded; normal versus psychotic). Unfortunately, the legal system most often considers behavior to be dichotomous. Typically, it requires the trier of fact to classify people and behavior into one of two categories (e.g., guilty versus not guilty; sane versus insane; liable versus not liable). With the exception of awarding monetary damages and instructing jurors to consider lesser charges in criminal proceedings, gradients rarely exist in the justice system. Ethical conflicts arise when those who view behavior as falling on a continuum are expected to sort individuals into discrete categories.
Product of the Professional Relationship
Clinical psychologists conducting traditional assessments seek to explain the client's behavior. The underlying focus of the written report is typically cognitive functioning and psychodynamics. In forensic psychology, explanations of behavior and level of intelligence are generally irrelevant. Such explanations may be accurate, but they do not respond to the specific legal issue or question. To be valuable, forensic reports should address psycholegal behaviors, rather than focusing on explanations, psychodynamics, IQ, or "excuses" for conduct.
Trust of the Client's Responses
Rarely do clinical psychologists question the truthfulness or motivation behind a patient's statements or test responses. Inaccuracies are typically attributable to a lack of insight rather than a conscious effort to deceive. However, in forensic assessments, the motivation to consciously distort, deceive, or respond defensively is readily apparent. Consequently, forensic psychologists cannot take the word of the client unquestioningly. All information must be corroborated by seeking consistency across multiple sources of information (e.g., interview of third parties, review of documents). In addition, tests that objectively evaluate test-taking attitude are available to address the validity of claims of cognitive impairment and mental illness.
Temporal Focus of the Evaluation
Most clinical assessments are present-oriented; that is, they focus on the client's state at the time of testing (e.g., his or her psychodynamics, level of intellectual function). Some forensic assessments have at least part of their focus on the present (e.g., which parent is best suited to address the current needs of the child), but most address either exclusively or partially past or future behavior. For example, insanity assessments focus on the defendant's state of mind at the time a crime occurred: days, weeks, months, or years before. In personal injury cases, the court is interested in not only the plaintiff's current impairments, but also in what he or she was like before the injury, whether there was a connection between the alleged wrong and the damage, and the prognosis for restoration to the preincident state. Even in child custody assessments, developmental changes attributable to age require the evaluator to assess the parents' ability to best serve that child's interests.
Level of Proof
Because psychology is a science, the level of proof is based on the normal distribution. Empirical studies must demonstrate statistical significance to be considered interpretable; this level is typically set at the .05 level of probability. That is, the investigator must be 95% certain that the results of the study are attributable to the variables under investigation rather than to chance. In court, various standards of proof exist (e.g., beyond a reasonable doubt, clear and convincing evidence, preponderance of the evidence), the level dependent on the legal issue in question and which side bears the burden of proof. However, as expert witnesses, forensic psychologists typically are asked whether they were able to reach an opinion "to a reasonable degree of psychological certainty." This level does not refer to the .05 level of statistical significance, nor does it relate to other legal levels of proof. Rather, it refers to the data on which the opinion is based: Can the expert describe the reasons for his or her opinion based on all the information considered, and, at the same time, can he or she explain why alternative opinions (such as malingering) can be ruled out?
The "Ethical Principles and Code of Conduct" govern the professional activities of psychologists (American Psychological Association [APA], 1992).
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Handbook of Psychology: Preface (Irving B. Weiner).
Volume Preface (Alan M. Goldstein).
PART ONE: NATURE OF THE FIELD.
1. Overview of Forensic Psychology (Alan M. Goldstein).
2. Forensic Training and Practice (Ira K. Packer and Randy Borum).
3. Ethical Principles and Professional Competencies (Herbert N. Weissman and Deborah M. DeBow).
4. Expert Testimony: Law and Practice (Charles P. Ewing).
PART TWO: APPROACHES TO FORENSIC ASSESSMENT.
5. Third Party Information in Forensic Assessment (Kirk Heilbrum, et al.).
6. Forensic and Clinical Issues in the Assessment of Psychopathy (James F. Hemphill and Stephen D. Hart).
7. Evaluation of Malingering and Deception (Richard Rogers and Scott D. Bender).
PART THREE: SPECIAL TOPICS IN FORENSIC PSYCHOLOGY.
8. Forensic Assessment for High-Risk Occupations (Randy Borum, et al.).
9. Eyewitness Memory for People and Events (Gary L. Wells and Elizabeth F. Loftus).
10. Voir Dire and Jury Selection (Margaret B. Kovera, et al.).
PART FOUR: CIVIL FORENSIC PSYCHOLOGY.
11. Child Custody Evaluation (Randy K. Otto, et al.).
12. Assessment of Childhood Trauma (Steven N. Sparta).
13. Personal Injury Examinations in Torts for Emotional Distress (Stuart A. Greenberg).
14. Assessing Employment Discrimination and Harassment (Melba J. T. Vasquez, et al.).
15. Forensic Evaluation in Americans with Disability Act Cases (William E. Foote).
16. Substituted Judgment: Roles for the Forensic Psychologist (Eric Y. Drogin and Curtis L. Barrett).
PART FIVE: CRIMINAL FORENSIC PSYCHOLOGY.
17. Forensic Evaluation in Delinquency Cases (Thomas Grisso).
18. Competence to Confess (Lois B. Oberlander, et al.).
19. Assessment of Competence to Stand Trial (Kathleen P. Stafford).
20. Evaluation of Criminal Responsibility (Alan M. Goldstein, et al.).
21 Sentencing Determinations in Death Penalty Cases (Mark D. Cunningham and Alan M. Goldstein).
22. Child Sexual Abuse Evaluations (Kathryn Kuehnle).
PART SIX: FORENSIC ASSESSMENT OF SPECIAL POPULATIONS.
23. Evaluation of Sexual Predators (Mary Alice Conroy).
24. Battered Woman Syndrome in the Courts (Diane R. Follingstad).
25. Pathologies of Attachment, Violence, and Criminality (J. R. Meloy).
26. Violence Risk Assessment (John Monahan).
PART SEVEN: EMERGING DIRECTIONS.
27. Forensic Psychology, Public Policy, and The Law (Daniel A. Krauss and Bruce D. Sales).
28. Therapeutic Jurisprudence (Susan Daicoff and David B. Wexler).