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Forensic psychology is the intersection between psychology and the justice system. It involves understanding fundamental legal principles, particularly with regard to expert witness testimony and the specific content area of concern (e.g., competence to stand trial, child custody and visitation, or workplace discrimination), as well as relevant jurisdictional considerations (e.g., in the United States, the definition of insanity in criminal trials differs from state to state) in order to be able to interact appropriately with judges, attorneys and other legal professionals. An important aspect of forensic psychology is the ability to testify in court as an expert witness, reformulating psychological findings into the legal language of the courtroom, providing information to legal personnel in a way that can be understood. Further, in order to be a credible witness the forensic psychologist must understand the philosophy, rules, and standards of the judicial system. Primary is an understanding of the adversarial system. There are also rules about hearsay evidence and most importantly, the exclusionary rule. Lack of a firm grasp of these procedures will result in the forensic psychologist losing credibility in the courtroom. A forensic psychologist can be trained in clinical, social, organizational or any other branch of psychology.
Generally, a forensic psychologist is designated as an expert in a particular area of expertise. The number of areas of expertise in which a forensic psychologist qualifies as an expert increases with experience and reputation. Forensic neuropsychologists are generally asked to appear as expert witnesses in court to discuss cases that involve issues with the brain or brain damage. They may also deal with issues of whether a person is legally competent to stand trial.
Questions asked by the court of a forensic psychologist are generally not questions regarding psychology but are legal questions and the response must be in language the court understands. For example, a forensic psychologist is frequently appointed by the court to assess a defendant's competence to stand trial. The court also frequently appoints a forensic psychologist to assess the state of mind of the defendant at the time of the offense. This is referred to as an evaluation of the defendant's sanity or insanity (which relates to criminal responsibility) at the time of the offense. These are not primarily psychological questions but rather legal ones. Thus, a forensic psychologist must be able to translate psychological information into a legal framework.
Forensic psychologists may be called on to provide sentencing recommendations, treatment recommendations or any other information the judge requests, such as information regarding mitigating factors, assessment of future risk and evaluation of witness credibility. Forensic psychology also involves training and evaluating police or other law enforcement personnel, providing law enforcement with criminal profiles and in other ways working with police departments. Forensic psychologists may work with any party and in criminal or family law. In the United States they may also help with jury selection.
According to R.J. Gregory in Psychological Testing: History, Principles, and Application, the main roles of a psychologist in the court system are eight-fold:
There are numerous professional positions and employment possibilities for forensic psychologists. They can be practiced at several different employment settings.
Academic forensic psychologists engage in teaching, research, training and supervision of students, and other education-related activities. These professionals usually have an advanced degree in Psychology (most likely a PhD). While their main focus is research, it is not unusual for them to take on any of the other positions of forensic psychologists. These professionals may be employed at various settings, which include colleges and universities, research institutes, government or private agencies, and mental health agencies. Forensic psychology research pertains to psychology and the law, whether it be criminal or civil. Researchers test hypotheses empirically and apply the research on issues related to psychology and the law. They may also conduct research on mental health law and policy evaluation. Some famous psychologists in the field include Saul Kassin, very widely known for studying false confessions, and Elizabeth Loftus, known for her research on eyewitness memory. She has provided expert witness testimony for many cases.
Forensic psychologists also assist with law enforcement. They work in collaboration with the police force or other law enforcement agencies. Law enforcement psychologists are responsible for assisting law enforcement personnel. They are frequently trained to help with crisis intervention, including post-trauma and suicide. Other duties of law enforcement psychologists include development of police training programs, stress management, personnel management, and referral of departmental personnel as well as their families for specialized treatment and counseling. Of course, ethical issues may arise, such as the question of who the client is (the police officer referred or the department, in regards to confidentiality).
Correctional psychologists work with inmates and offenders in correctional settings. They serve both the role of an evaluator and a treatment provider to those who have been imprisoned or on parole or probation. Correctional psychologists may also take on the role of researcher or expert witness.
These forensic psychologists take on the role of evaluating parties in criminal or civil cases on mental health issues related to their case. For criminal cases, they may be called on to evaluate issues including, but not limited to, defendants' competence to stand trial, their mental state at the time of the offense (insanity), and their risk for future violent acts. For civil cases, they may be called on to evaluate issues including, but not limited to, an individual’s psychological state after an accident or the families of custody cases. Any assessment made by an evaluator is not considered a counseling session, and therefore whatever is said or done is not confidential. It is the obligation of the evaluator to inform the parties that everything in the session will be open to scrutiny in a forensic report or expert testimony. Evaluators work closely with expert witnesses (discussed below) as many are called into court to testify with what they have come to conclude from their evaluations. They have a variety of employment settings, such as forensic and state psychiatric hospitals, mental health centers, and private practice. Evaluators usually have had training as clinical psychologists.
Unlike fact witnesses, who are limited to testifying about what they know or have observed, expert witnesses have the ability to express opinion because, as their name suggests, they are presumed to be “experts” in a certain topic. They possess specialized knowledge about the topic. Expert witnesses are called upon to testify on matters of mental health (clinical expertise) or other areas of expertise such as social, experimental, cognitive, or developmental. The role of being an expert witness is not primary and it is usually performed in conjunction with another role such as that of researcher, academic, evaluator, or clinical psychologist. Clinical forensic psychologists evaluate a defendant and are then called upon as expert witnesses to testify on the mental state of the defendant.
In the past, expert witnesses primarily served the court rather than the litigants. Nowadays, that very rarely happens and most expert witness recruitment is done by trial attorneys. But regardless of who calls in the expert, it is the judge who determines the acceptability of the expert witness.
All ethical expert witnesses must be able to resolve the issue of relating to the case and being an advocate. They must decide between loyalty to their field of expertise or to the outcome of the case.
Treatment providers are forensic psychologists who administer psychological intervention or treatment to individuals in both criminal and civil cases who require or request these services. In criminal proceedings, treatment providers may be asked to provide psychological interventions to individuals who require treatment for the restoration of competency, after having been determined by the courts as incompetent to stand trial. They may be asked to provide treatment for the mental illness of those deemed insane at the crime. They may also be called to administer treatment to minimize the likelihood of future acts of violence for individuals who are at a high risk of committing a violent offense. As for civil proceedings, treatment providers may have to treat families going through divorce and/or custody cases. They may also provide treatment to individuals who have suffered psychological injuries due to some kind of trauma. Treatment providers and evaluators work in the same types of settings: forensic and state psychiatric hospitals, mental health centers, and private practice. Not surprisingly, their work may greatly overlap. And although not ethically encouraged, the same forensic psychologist may take on both the role of treatment provider and evaluator for the same client.
Forensic psychologists often are involved in trial consulting and are part of legal psychology. A trial consultant, a jury consultant, or a litigation consultant, are social scientists who work with legal professionals such as trial attorneys to aid in case preparation, which includes selection of jury, development of case strategy, and witness preparation. They rely heavily on research. Trial consultants may also attend seminars directed at the improvement of jury selection and trial presentation skills. Becoming a trial consultant does not necessarily require a doctoral degree or even a bachelor’s degree. All that is really needed is some level of training.
Trial consultants are faced with many ethical issues. They are not only social scientists; they may be entrepreneurs as well, marketing their business and keeping fixed costs. This is a challenge to their ethical responsibilities as applied researchers who need to be following guidelines of ethical research. Trial consultants are hired by attorneys and conflicts may arise when each party has a different viewpoint on a certain issue, such as which prospective jurors should be excused, whether the jurors’ preferences are appropriate for the case or not, etc. they must always keep in mind that they are employees of the attorneys and are not able to make the ultimate decisions regarding the case.
A forensic psychologist's interactions with and ethical responsibilities to the client differ widely from those of a psychologist dealing with a client in a clinical setting.
The forensic psychologist views the client or defendant from a different point of view than does a traditional clinical psychologist. Seeing the situation from the client's point of view or "empathizing" is not the forensic psychologist's task. Traditional psychological tests and interview procedure are not sufficient when applied to the forensic situation. In forensic evaluations, it is important to assess the consistency of factual information across multiple sources. Forensic evaluators must be able to provide the source on which any information is based. Treating psychologists do not routinely assess response bias or performance validity, whereas forensic psychologist usually do.
Forensic psychologists perform a wide range of tasks within the criminal justice system.
An overriding issue in any type of forensic assessment is the issue of malingering and deception. An evaluee may intentionally exaggerate or feign mental disorder symptoms. The forensic psychologist must always keep this possibility in mind. If the forensic psychologist has the opportunity to observe the evaluee across time and/or in diverses settings, the probability that he or she will detect deception likely increases as usually have difficulty maintaining false symptoms consistently over time and across situations. In some criminal cases, the court views malingering or feigning illness as obstruction of justice and sentences the defendant accordingly. In United States v. Binion, malingering or feigning illness during a competency evaluation was held to be obstruction of justice and led to an enhanced sentence. As such, fabricating mental illness in a competency-to-stand-trial assessment now can be raised to enhance the sentencing level following a guilty plea.
If there is a question of the accused's competency to stand trial, a forensic psychologist is appointed by the court to examine and assess the individual. The individual may be in custody or may have been released on bail. Based on the forensic assessment, a recommendation is made to the court whether or not the defendant is competent to proceed to trial. If the defendant is considered incompetent to proceed, the report or testimony will include recommendations for the interim period during which an attempt at restoring the individual's competency to understand the court and legal proceedings, as well as participate appropriately in their defense will be made. Often, this is an issue of committed, on the advice of a forensic psychologist, to a psychiatric treatment facility until such time as the individual is deemed competent.
As a result of Ford v. Wainwright, a case by a Florida inmate on death row that was brought before the Supreme Court of the United States, forensic psychologists are appointed to assess the competency of an inmate to be executed in death penalty cases.
The forensic psychologist may also be appointed by the court to evaluate the defendant's state of mind at the time of the offense. These are defendants who the judge, prosecutor or public defender believe, through personal interaction with the defendant or through reading the police report, may have been significantly impaired at the time of the offense. In other situations, the defense attorney may decide to have the defendant plead not guilty by reason of insanity. In this case, usually the court appoints forensic evaluators and the defense may hire their own forensic expert. In actual practice, this is rarely a plea in a trial. A plea for insanity is actually used in only 1 in 1000 cases. Assessments that would be used can include the Mental State at time of Offense (MSO), an assessment that judges the individual's mental state when the offense was committed, helping to decide whether they should be held liable for the crime. The individual can also plea 'Not Guilty by Reason of Insanity' (NGRI) or 'Guilty but Mentally Ill' (GBMI), cases where the individual will start their sentence in a mental health facility and then complete it in a correctional facility. Usually any judgments about the defendant's state of mind at the time of the offense are made by the court before the trial process begins.
Even in situations where the defendant's mental disorder does not meet the criteria for a not guilty by reason of insanity defense, the defendant's state of mind at the time, as well as relevant past history of mental disorder and psychological abuse can be used to attempt a mitigation of sentence. The forensic psychologist's evaluation and report is an important element in presenting evidence for sentence mitigation. The Sixth Circuit Court of Appeals reversed the decision of a lower court because counsel did not thoroughly investigate the defendant's mental history in preparation for the sentencing phase of the trial. Specifically, the court stated that such investigation should include members of the defendant's immediate and extended family, medical history, and family and social history (including physical and mental abuse, domestic violence, exposure to traumatic events and criminal violence). This issue was further addressed in Wiggins v. Smith and Bigby v. Dretke.
Forensic psychologists are frequently asked to make an assessment of an individual's dangerousness or risk of re-offending. They may provide information and recommendations necessary for sentencing purposes, grants of probation, and the formulation of conditions of parole, which often involves an assessment of the offender's ability to be rehabilitated. They are also asked questions of witness credibility and malingering. Occasionally, they may also provide criminal profiles to law enforcement.
Due to the Supreme Court decision upholding involuntary commitment laws for predatory sex offenders in Kansas v. Hendricks, it is likely that forensic psychologists will become involved in making recommendations in individual cases of end-of-sentence civil commitment decisions.
A forensic psychologist generally practices within the confines of the courtroom, incarceration facilities, and other legal setting. It is important to remember that the forensic psychologist is equally likely to be testifying for the prosecution as for the defense attorney. A forensic psychologist does not take a side, as do the psychologists described below. The ethical standards for a forensic psychologist differ from those of a clinical psychologist or other practicing psychologist because the forensic psychologist is not an advocate for the client and nothing the client says is guaranteed to be kept confidential. This makes evaluation of the client difficult, as the forensic psychologist needs and wants to obtain all information while it is often not in the client's best interest to provide it. The client has no control over how that information is used. Despite the signing of a waiver of confidentiality, most clients do not realize the nature of the evaluative situation. Furthermore, the interview techniques differ from those typical of a clinical psychologist and require an understanding of the criminal mind and criminal and violent behavior. For example, even indicating to a defendant being interviewed that an effort will be made to get the defendant professional help may be grounds for excluding the expert's testimony.
In addition, the forensic psychologist deals with a range of clients unlike those of the average practicing psychologist. Because the client base is by and large criminal, the forensic psychologist is immersed in an abnormal world. As such, the population evaluated by the forensic psychologist is heavily weighted with specific personality disorders.
The typical grounds for malpractice suits also apply to the forensic psychologist, such as wrongful commitment, inadequate informed consent, duty and breach of duty, and standards of care issues. Some situations are more clear cut for the forensic psychologist. The duty to warn, which is mandated by many states, is generally not a problem because the client or defendant has already signed a release of information, unless the victim is not clearly identified and the issue of the identifiability of the victim arises. However, in general the forensic psychologist is less likely to encounter malpractice suits than a clinical psychologist. The forensic psychologist does have some additional professional liability issues. As mentioned above, confidentiality in a forensic setting is more complicated that in a clinical setting as the client or defendant is apt to misinterpret the limits of confidentiality despite being warned and signing a release.