Psychology and Law. The State ofthe Discipline. Edited by. Ronald Roesch Stephen D. Hart. and. James R. P. Oglof f

Transcription

1 Psychology and Law The State ofthe Discipline Edited by Ronald Roesch Stephen D. Hart and James R. P. Oglof f Simon Fräser University Burnaby, British Columbia, Canada KLUWER ACADEMIC / PLENUM PUBLISHERS NEW YORK, BOSTON, DORDRECHT, LONDON, MOSCOW

2 Contents CHARTER 1. PSYCHOLOGY AND LAW: AN OVERVIEW James R. P. Ogloff and David Finkelman What Is Law? 2 What Is Psychology? 2 What Is Psychology and Law? 3 The Roots of Psychology and Law 3 The Historical Strands of Psychology and Law 5 Conceptualizing the Relationship between Psychology and Law 10 Haney's Taxonomy 10 Monahan and Walker's Proposal 11 Conflict between Psychology and Law 13 How Much Influence Has Psychology Exerted on Courts? 15 Psychology and Public Policy 16 Mental Health Policy 16 Other Examples 17 Conclusion 17 References 18 I. HUMAN BEHAVIOR IN THE TRIAL PROCESS CHAPTER 2. JURIES: THE CURRENT STATE OF THE EMPIRICAL LlTERATURE Michael T. Nietzel, Denis M. McCarthy, and Monica ]. Kerr The Scope of Jury Research 25 Major Jury Research Controversies 29

3 i CONTENTS Conclusion 43 References 45 Appendix A: Death Qualifikation References 47 Appendix B: Instructions References 48 Appendix C: Expert Testimony References 51 Appendix D: Joinder References 52 CHAPTER 3. WITNESSES TO CRIME: SOCIAL AND COGNITTVE FACTORS GOVERNING THE VALIDITY OF PEOPLE'S REPORTS Gary L. Wells, Edward F. Wright, and Amy L. Bradfield Organizing Themes 54 Memory as One Component of Testimony 56 Eyewitness Accounts 57 Variables Controlling Eyewitness Accuracy 58 The Recovery of Repressed Memories 75 The Overall Issue 75 The Development of Illusory Memories 77 Evidence for Repression 77 Memory Permanence 78 The Credibility of Recovered Memories 78 Conclusion 80 References 81 CHAPTER 4. PREVENTTNG MISTAKEN CONVICTIONS IN EYEWITNESS IDENTIFICATION TRIALS: THE CASE AGAINST TRADITIONAL SAFEGUARDS Steven D. Penrod and Brian Cutler The Extent of the Problem 90 Voir Dire as a Safeguard against Mistaken Identifications 93 Cross-Examinarion as a Safeguard against Mistaken Identifications 94 Attorney Opportunities to Develop Identification-Relevant Information for Cross-Examination 95 Attorney Knowledge of Factors Influencing Eyewitness Performance 97 Jury Decision Making as a Safeguard against Mistaken Identifications 100

4 CONTENTS xiii Survey Studies That Test Juror Knowledge about Eyewitness Reliability 101 Prediction Studies That Test Juror Knowledge about Eyewitness Reliability 102 Mock-Jury Studies of Juror Decision Making Differentiating Accurate from Inaecurate Eyewitnesses 103 To Which Aspects of an Eyewitness Identification Are Jurors Sensitive? 106 Conclusions about Traditional Safeguards 111 The Alternative: Expert Testimony on Juror Sensitivity 112 Conclusion 115 References 116 II. FORENSIC ASSESSMENT AND TREATMENT CHARTER 5. FORENSIC ASSESSMENT Robert A. Nicholson The History of Forensic Psychological Assessment 122 Emergence and Growth 122 Challenges: The Faust and Ziskin Assault and Its Aftermath 125 Conceptual and Empirical Developments: Making Progress but Losing Ground 131 Assessment of Legal Competencies 132 Adjudicative Competence 137 Criminal Responsibility 151 Child Custody/Termination of Parental Rights 156 Conclusion 165 References 166 CHAPTER 6. PREDICTING VIOLENCE IN MENTALLY AND PERSONALITY DLSORDERED INDTVIDUALS Kevin S. Douglas and Christopher D. Webster The Rise of Risk 176 Systemic Reorganization 177 Case Law 178

5 v CONTENTS Legislative Developments 180 Research 181 Early Studies 182 Recent Research Advances 183 Distinguishing between Predicting General Criminality and Violent Behavior 183 Advances in Methodological and Statistical Techniques 184 Advances in Substantive Knowledge 194 The Clinical versus Actuarial Distinction 195 Risk Markers 197 Risk Assessment Schemes: Putting It All Together 220 A View to the Future: Recent Theoretical and Conceptual Advances 223 References 228 CHARTER 7. FORENSIC TREATMENT A REVIEW OF PROGRAMS AND RESEARCH Kirk Heilbrun and Patricia Griffin Definition and Method 242 Forensic 242 Treatment 242 Jurisdiction 243 Setting 243 Outcomes 244 Empirical Investigations of Forensic Treatment 244 Hospital Settings 244 Community-Based Forensic Treatment 255 United States 255 Canada 263 British Columbia 263 Summary of CBFT Programs and Patients 264 Integration: Principles of Forensic Treatment 264 Established Principles 265 Emerging Principles 267 Implications for Policy, Pracrice, and Research 268 Policy 268 Practice 269 Research 270 References 271

6 CONTENTS xv III. ISSUES IN CIVIL LAW CHARTER 8. CTVIL LAW: EMPLOYMENT AND DISCRIMINATION Jane Goodman-Delahunty Sources of Antidiscrimination Law 279 Conduct Prohibited by Discrimination Laws 280 The Prevalence of Workplace Discrimination Charges 282 Legal Theories of Workplace Discrimination 284 Theories of Liability for Workplace Discrimination 284 Disparate Treatment 285 Adverse Impact 286 Statistical Proof of Discrimination 287 Hostile Workplace Environment Discrimination 290 Reasonable Accommodation 291 Reprisal and Retaliation ' Legal Relief and Remedies for Workplace Discrimination 292 Traditional Relief 292 Compensatory Damages 293 Punitive Damages 294 The Right to a Jury Trial 295 Affirmative Action 295 Perceprions of Fairness and Equity in the Workplace 296 Illusions of Distributive Justice 297 The Myth of Merit-Based Decision Making in the Workplace 298 Distributive and Procedural Fairness: Affirmative Action and Equal Opportunity 299 Fairness in Objective Testing 301 Modern Racism in the Workplace 304 Background to Current Issues and Research 304 Institutional Barriers to Racial Minorities 305 Forms of Contemporary Racism 306 Contextual Studies of Intergroup Biases 307 Sexual Harassment in the Workplace 309 Background to Current Issues and Research 309 Theories of Harassment: Quid Pro Quo and Hostile Workplace Environment Claims 310 Forms of Sexually Harassing Conduct 314 The Influence of Individual and Social Factors on Sexual Harassment 318

7 n CONTENTS Directions for Future Research 322 Systemic and Institutional Factors in Employment Discrimination 323 Reducing Discrimination in the Workplace 324 Damages Flowing from Employment Discrimination 326 Procedural Aspects that Influence Discrimination Charges Conclusion 329 References 329 CHARTER 9. BEST INTERESTS OF THE CHILD: NEW TWISTS ON AN OLD THEME Marsha B. Liss and Marcia J. McKinley-Pace Historical Standards 341 Current Standard 342 Application to Divorce Cases 344 Adoption Cases 345 Recent Headline Cases 347 Custody Relations after Divorce or Separation 347 Adoption Cases 348 Suits by Older Children 350 Psychological Literature 350 Research on Psychological Factors 351 Stability and Continuity 351 Resilience 353 Attachment 354 Sibling Relationships 355 Relationships with Extended Family 356 Definitions of the Family 357 Joint Custody 358 Special Concerns of Adolescents 360 Special Concerns in Adoption 361 Research on Decision-Making Process Factors 361 Application of Research to Recent Cases 363 Directions for Future Research 366 Conclusion 367 References 368

8 CONTENTS xvü IV. ETHICS AND PROFESSIONAL ISSUES CHARTER 10. PREPARING FOR TWO CULTURES: EDUCATION AND TRAINING IN LAW AND PSYCHOLOGY Donald N. Bersoff Periodic Flirtation or Stable Relationships? 375 Plaudits and Problems 379 Sources of Optimism 379 Sources of Concern 380 The National Invitational Conferences 384 Issues and Goals 384 The Continuing Controversy about Joint Programs 388 Definitions and Aims 388 Benefits and Costs 391 Preparing for the Next Century 394 Forensic Psychology 394 Conclusion 398 References 398 CHARTER 11. ETHICAL AND LEGAL CONTOURS OF FORENSIC PSYCHOLOGY James R. P. Ogloff An Introduction to Ethics and the Source of Ethical Dilemmas 405 General Ethical Principles and Their Applicability to the Forensic Context 406 Who Is the Client? 407 Limits on the Scope of Practice: Competence 408 Legal and Ethical Guidelines Governing Psychology-Patient Relationships 409 The Duty to Disclose Information to Protect Third Parties 412 General Information 412 When to Report/Protect? 413 Duty to Report Suspected Child Abuse 414 The Admissibility of Expert Psychological Testimony 414

9 xviii CONTENTS Is the Admission of the Expert Testimony Relevant to the Case? 416 Is the Probative Value of the Expert Psychological Testimony Outweighed by Its Prejudicial Impact? 417 Will the Proposed Expert Testimony Assist the Trier of Fact in Its Determination? 418 Does the Proposed Witness Qualify as an Expert for the Purposes of the Proposed Testimony? 419 Conclusion 420 References 420 APPENDIX: SPECIALTY GUIDELINES FOR FORENSIC PSYCHOLOGISTS INDEX 437