Forensic Psychology

by Graham M Davies

  it is necessary in the interests of the welfare of the patient or for the protection at other persons that the patient should be so received.

  A supervision and treatment order: the supervision order requires the defendant to be under the supervision of a social worker or probation officer for the period not exceeding two years as specified in the order, and may include a requirement that the offender submits to psychiatric treatment with a view to improvement of the medical condition and a residence requirement. It is described in Section 1A to the Criminal Procedure (Insanity) Act 1964 (Archbold 4-176); Section 9(3), Criminal Justice Act (1991).

  An order for the defendant’s absolute discharge: where the offence was trivial and the person does not require treatment or community supervision.

  PHOTO 16.1 The expert has no role in determining issues of fact as this is a key responsibility of the court and, depending upon the circumstances, either a jury or a judge.

  Source: © bikeriderlondon/Shutterstock

  Notably, in the majority of cases, in the end, the expert is called to give oral testimony at court, although whenever instructed, it is understood that the expert may be obliged to attend court or a hearing, as with mental health tribunals, to address areas upon which they have provided written testimony. The expert is often called upon to undertake a clarifying or educative role in legal proceedings, for example by detailing aspects of the clinical profile of the individual who was assessed, explaining the behaviour and thought processes of clients or addressing other aspects of the case. This may include providing advice as to whether other experts should be instructed, and always attempting to follow Einstein’s guidance in reporting to the parties to the proceedings (“If you can’t explain something simply, you don’t understand it well enough”). Relatedly, significant value is placed upon the expert’s presentational skills and ability to prepare effectively for legal proceedings and professional meetings; the latter are often a precursor to court hearings. Importantly, the expert has no role in determining issues of fact as this is a key responsibility of the court and, depending upon the circumstances, either a jury or a judge. Rather, it is the expert’s knowledge and experiential base that is drawn from to assist the parties to the proceedings and ensure that responsible and well-informed decisions can be made. Expert witnesses would not usually comment on matters directly related to the likely truthfulness of witnesses or defendants (criminal proceedings) or applicants and respondents (civil proceedings) unless they have specifically explored this question and been instructed to do so. Expert witness forensic psychologists will often adopt a scientist-practitioner1 role when providing evidence, ensuring that any written or oral evidence is consistent with the extant literature and psychological theory and is grounded in evidence-based practice. Expert witnesses have a duty to disclose all of the evidence used to reach their opinion, which may include: contemporaneous notes, briefings, notes from telephone conversations, copies of test materials and sometimes test manuals or any references used (books, journals etc.).

  16.4 EVIDENCE ON CLINICAL FACTORS

  The forensic psychologist within legal proceedings will offer opinions, for example, about an examinee’s capacity for understanding the specific matters before the court, such as fitness to plead or mental capacity (see Craig, Stringer, & Hutchinson, 2017). Professional opinions offered in court may focus upon providing alternative explanations for the actions of an individual or the cognitive and emotional factors impacting on the individual at that time. They may also be aimed at advising the court of psychological processes more generally, in order to contextualise the opinions they provide in relation to specific client issues (Case Study 16.1).

  CASE STUDY 16.1 SHY BLADDER (PARURESIS) CASE

  In a case involving criminal proceedings, a psychological assessment was requested focusing upon the defendant’s assertion that he suffered from paruresis or “shy bladder” syndrome (Hammelstein & Soifer, 2006), and it was for this reason that he failed to provide a urine sample after being stopped by the police and charged with a drink driving offence. The defendant, a man in his 50s, asserted that he had been unable to provide a urine specimen for testing with a police officer standing near him to prevent him from contaminating the sample. Notably, he had a health condition that necessitated regular blood testing and, owing to his poor health, this became increasingly difficult over time as his veins tended to collapse. Nevertheless, the defendant indicated that he would not be able to provide a urine sample having gone to the toilet not long after arriving at the station, and then when later requested to provide a sample while being monitored by a police officer, he indicated that he was unable to do so. As timing is a factor of some importance in assessing alcohol levels in an individual being questioned, the passage of several hours made testing more and more problematic. As such, he was charged with perverting the course of justice. However, the defendant had agreed to give a blood sample, though two attempts by an attending nurse failed to yield a sample. In reviewing this man’s medical records and known history, together with the facts concerning his arrest, as well as clinical diagnostic features associated with “shy bladder” syndrome, the defendant did appear to have this condition, and, relatedly as he was willing to provide a blood sample, the failure to get a specimen for analysis did not suggest that he was being intentionally uncooperative.

  In criminal proceedings the issue being examined by the instructed forensic psychologist can be very narrow. As an example, “is the defendant fit to plead?”; or (as above) “is the defendant’s reported lack of cooperation with the authorities subject to any more benign interpretation?”. The forensic psychologist may also be instructed to determine whether an individual involved in criminal proceedings presents with a specific mental condition (American Psychological Association, 2013) such as psychopathy or provide some other clinical opinion on mental disorder within the meaning of the Mental Health Act (2007). In some cases the forensic psychologist may be asked to provide expert opinion, and subsequent oral evidence, in a voir dire.

  In deciding the question of admissibility the judge may hear legal argument without the need for evidence. However, evidence from the prosecution witness(es), and the defence may call on a voir dire, which takes place in the absence of the jury and is effectively a “trial within a trial” to determine the issues relevant to the admissibility of the evidence objected to (Case Study 16.2).

  CASE STUDY 16.2 VOIR DIRE HEARING

  The defendant was charged with causing death by reckless driving. During an initial police interview the defendant admitted being the driver, but later retracted his statement, saying he was a passenger and not the driver. Based on his original admission, and supporting witness statements, the defendant was charged. There was some suggestion the defendant suffered from a learning disability that would render his earlier admission inadmissible as the defendant was not interviewed as a vulnerable witness as required by the Police and Criminal Evidence Act (PACE) guidelines. A prosecution psychologist concluded that the defendant did not suffer from a learning disability whereas the defence psychologist concluded that the defendant did have a learning disability. As the two psychologists could not reach agreement on the level of learning disability, the evidence of the two experts was heard before a High Court judge during a voir dire hearing. After lengthy cross-examination and re-examination, the court decided that the test materials used by the prosecution psychologist were unreliable and as a consequence, the assessment could not be relied upon; and found that the defendant did suffer from a learning disability.

  As described in Case Study 16.2, it is crucial that expert witnesses use assessment measures that are up to date, have been empirically validated and have demonstrable psychometric properties. This standard of scientific admissibility was originally laid out in Frye (1923), known as the Frye Test, in Frye v United States (1923). This was superseded by the Daubert Standard (1993) in Daubert v. Merrell Dow Pharmaceuticals Inc (1993). The Daubert Standard was design
ed to set out the criteria of what is accepted as scientific evidence admissible in court:

  The theory or technique must be, and has been tested for “falsifiability”.

  The theory or technique must have been subject to peer review and published in professional journals.

  There must be a general acceptance of the theory and technique in the scientific community.

  The theory or technique must have a known error rate.

  There must exist standards to control the techniques operation.

  The extent to which the technique relies upon the subjective interpretation of the expert must be clear.

  The extent to which research on the technique extends beyond the courtroom should be clear.

  In the case of our forensic psychologist expert witness, put simply, a psychologist should not render an opinion that cannot be supported by scientific data to substantiate the findings. This is highlighted in the case of Sally Clark (R v Clark (1999)) and the evidence of Professor Sir Samuel Roy Meadow. Professor Meadow, a (now retired) British paediatrician, first came to public prominence following a 1977 academic paper describing a phenomenon dubbed Munchausen Syndrome by proxy – a behaviour pattern in which a caregiver fabricates, exaggerates or induces mental or physical health problems in those who are in their care. In 1999, Sally Clark, a British solicitor, was found guilty of the murder of her two sons. Mrs Clark’s first son died suddenly within a few weeks of his birth in September 1996, and in December 1998 her second child died in a similar manner. A month later, she was arrested and subsequently tried for the murder of both children. The prosecution case relied on the expert testimony of Professor Meadow who presented statistical evidence that the chance of two children from an affluent family suffering sudden infant death syndrome was 1 in 73 million. Mrs Clark was subsequently convicted by a jury of 10 to 2. The convictions were upheld at appeal in October 2000, but overturned in a second appeal in January 2003. Professor Meadow arrived at the statistical figure erroneously by squaring 1 in 8,500, as being the likelihood of a cot death in similar circumstances. In October 2001 The Royal Statistical Society issued a statement arguing that there was “no statistical basis” for Professor Meadow’s claim, and expressing its concern at the “misuse of statistics in the courts”. The Appeal Judges thought it very likely that Professor Meadow’s statistic “grossly overstates the chance of two sudden deaths within the same family from unexplained but natural causes” (R. v Clark (2003)). The Court of Appeal would have been prepared to allow Sally Clark’s appeal on that basis, but it had already decided to set aside her conviction because a Home Office pathologist had not disclosed crucial medical evidence to the defence that suggested the second of her sons had died of natural causes. Professor Meadow relied on a statistical technique that was not empirically tested, peer reviewed, generally accepted within the scientific community or with known error rates.

  In family proceedings the instructions are likely to be much broader, and they may involve the assessment of numerous individuals including parents, other carers, extended family members and the children concerned. This can arise in circumstances within which social services have no direct involvement, as with private law proceedings. In such situations, disputes typically exist between a caring parent and the non-resident parent about contact and cannot be settled outside of legal proceedings.

  Increasingly, in the UK, assessments prior to legal proceedings (Ministry of Justice, 2009) are initiated with experts instructed by the local authority in cooperation with social services to address child care and family related concerns that have not and may not progress to formal court involvement (e.g. through the making of care orders concerning the children involved). Further, at times, criminal proceedings may run alongside care proceedings and, in such circumstances, the expert forensic psychologist in one case may, having involvement in care proceedings concerning children, be viewed as best placed to provide a report for criminal proceedings. The example in Case Study 16.3 indicates how this can occur where a father has been involved in care proceedings that prevent him from having contact with his children and is simultaneously being tried in relation to allegations of child sexual abuse.

  CASE STUDY 16.3

  A man was charged with intra- and extra-familial child sex offences; he was involved in both childcare and criminal proceedings. He asserted that he was a tactile father and not in any way sexually motivated in his style of engagement with his children, describing his concern that others were misrepresenting his emotionally supportive behaviours. As examples, physical contact with his adolescent children, including hand holding and prolonged kissing on the mouth, had been reported, giving rise to complaints and discomfort experienced by members of the public. It was also suggested that this man made excuses not to sleep with his wife, preferring to share a bed with one of his teenage children. This individual had also become sexually involved with a male minor in the past. These matters, along with concerns about his possession of indecent images of children were addressed in the psychological report examining the risk that this man posed to children within his family and in the community. Criminal proceedings in relation to this individual followed the family proceedings at a pre-sentencing stage, as he had pleaded guilty to several of the offences. The instructions therefore related to providing the court with an expert opinion as to whether this man had made progress over the period of the proceedings with regard to accepting the inappropriateness of his past behaviours. The psychologist engaged with the defendant in several treatment sessions between the two sets of proceedings and an opinion was also sought by the court as to whether the defendant was likely to be amenable to engaging in and responding to additional treatment work to reduce his risk levels in the future. The defendant pleaded guilty in Crown Court to offences including sexual activity with a child and making indecent images of children. He was ordered to be registered as a sex offender for life and received a custodial sentence with a requirement to undergo treatment in relation to his offending behaviour.

  16.5 STANDARD OF PROOF

  Civil proceedings, including care and family matters, rely upon a different standard of proof than criminal proceedings. Court rulings in the former case are made on the basis of judging the balance of probability. In such proceedings, findings of fact are made based on a concluding formal judgment made by the judge concerning key issues about the case (e.g. is it possible to make a determination that one way of examining events and outcomes is broadly viewed as more probable than any other?). (See also Chapter 13.)

  PHOTO 16.2 Court rulings in the civil courts are made on the basis of judging the “balance of probability”.

  Source: © corgarashu/Shutterstock

  In criminal proceedings the requirement is more stringent, such that the standard is beyond reasonable doubt. This is the requirement that the court must adhere to in making a determination of guilt. As such, it will be evident that within criminal proceedings, the level of certainty required for a judge or jury to make a determination is much greater. This can lead many members of the public to experience some confusion in respect of the issue of “double indemnity”. This, in many countries, reflects that in the absence of new information an individual cannot be tried twice for the same crime. However, in some circumstances, for example where there is significant media involvement, as with the O. J. Simpson case, this appears to the average man on the street to be precisely what has happened. In the O. J. Simpson murder case, the same measures of proof were applied in the United States Court System as are employed in the UK (Criminal Justice Act, 2003). As such, Mr Simpson was found not guilty of murdering Nicole Brown Simpson and Ronald Goldman as judged by criminal court jury but a civil court jury held him legally responsible for their deaths, based on a balance of probability, and Mr Simpson was, therefore, ordered to make significant financial restitution to his victims’ families.

  The above issues can also be very challenging for individuals actually involved in proceedings. Many people
will not distinguish between these two legal settings and the implications, as is noted in Case Study 16.4.

  CASE STUDY 16.4 CRIMINAL VERSUS CIVIL PROCEEDINGS

  Within criminal proceedings, the defendant was found “not guilty” of committing sexual offences against his children. Subsequently, he sought permission through social services to take up a role as partner and father with a woman with whom he had had a child. In the circumstances, the family court judge revisited evidence in relation to the criminal proceedings and judged that, on the balance of probability, the individual was likely to have sexually assaulted his children within the previous marriage and a “finding of fact” judgement was made to this effect. Notably, in family proceedings the paramount concern of the court is the welfare of the children and not the parents or adults involved in the proceedings. Perhaps unsurprisingly, this individual was resentful, disgruntled and somewhat confused that having been acquitted in relation to his criminal proceedings concerning incestuous abuse, he was now considered by the family court to present a risk of sexual harm to children. Accordingly, within care proceedings, the experts’ opinions can be based upon a professional judgement as to whether the individual is more likely than not to have thought, felt or behaved in various ways, and these opinions are weighed up within the court’s decision-making process.