In Chapter 1, the author outlines the differences in the Cultures of Psychology and the Legal System by explaining the differences between rulings and data. One of these explanations is that precedents influence current rulings in cases. Discuss the possibility of cases for which there are no precedents and cases for which new laws are being enacted, such as gay marriage and child custody. Who has the rights to the child when both parents are mothers? Fathers? What about marriage between a naturally born male or female and a postoperative gender reassigned male or female? What happens in cases for which there are no precedents? How would students rule if they were judges?
Psychology and Law: A Cautious Alliance
Beginning in the late 1800s and early 1900s, psychologists such as Sigmund Freud and Hugo Münsterberg made statements about the relationship between psychology and law. Freud claimed there were unconscious influences on judges’ decisions, whereas Münsterberg claimed psychological science should be taken more seriously. The first two noted examples of social science influencing law occurred in 1908. In that year, Louis Brandeis filed the Brandeis Brief in the landmark case of Muller v. Oregon, in which he claimed that the social harm experienced by working mothers would be mitigated by limiting the number of hours they could work. In addition, Münsterberg examined eyewitness testimony and examined the fallibility of eyewitnesses in the courtroom. In 1909, he published On the Witness Stand: Essays on Psychology and Crime, in which he showed that eyewitnesses use faulty memory when describing events they had witnessed. But it was not until the 1920s and 1930s that the full implication of Münsterberg’s research and the Brandeis Brief began to be felt. It was during this time that legal realism, the notion that laws could not be applied without regard for the social context and their social effects, emerged. Legal realists began to maintain that social science should inform public policy. Responding to their arguments, Yale Law School hired its first faculty psychologist. Unfortunately, however, the conduct of social science research turned out to be more difficult than the realists imagined, and the results much more complex. Until 1964, when social science influenced the decision in Brown v. the Board of Education, the effect of psychology on the legal system was unremarkable. The Brown decision was followed by publication of The American Jury (Kalven & Zeisel, 1966), a scientific treatise on jury decision making, and The Crime of Punishment (Menninger, 1966), an exposition on rehabilitation of criminals. In addition, two prominent contemporary psychologists, George Miller and Donald Campbell, began calling for more attention to psychological research by the legal community. By the late 1960s, the American Psychology–Law Society was formed, followed by the publication of the first interdisciplinary journal devoted to psychology and law – Law and Human Behavior.
There are three primary differences (goals, methods, and styles) between the cultures of psychology and law that have likely hindered their cooperation. In terms of goals, psychology attempts to describe how people behave, whereas law attempts to proscribe how people should behave. Psychology aims to find the truth about behavior, law aims to punish illegal behavior. Whereas the legal system tries to avoid uncertainty by making unambiguous decisions, the very nature of the scientific method means that decisions are probabilistic and uncertain. Psychology typically deals with describing how groups behave in general (psychology is nomothetic), whereas the law is concerned with how individuals behave (law is idiographic). This concern with individual behavior perhaps explains why law seems closer to clinical psychology rather than to other psychology disciplines. In terms of methods, law gives great deference to authority (i.e., has a high-power distance, obeys people in authority), whereas psychology is far more accepting of data from all levels of researchers. An additional difference is that the law looks to past rulings and precedents that do not change over time to make its decisions, whereas psychological theories change dynamically with the collection of new data. In terms of style of inquiry, lawyers must be, according to the Code of Professional Responsibility, advocates for their clients: Lawyers have to take a side. In contrast, psychologists, though they may subscribe to certain theories, are assumed to be objective in their interpretation of data.
Psychologists play multiple roles informing law. They are advisors, evaluators, and reformers. As advisors, psychologists may give expert testimony, be trial consultants, or file briefs to inform the court about relevant findings. As evaluators, psychologists may evaluate the effectiveness of programs or public policies. When evaluation is done to help amend a program or a policy, it is called formative evaluation research. When it is conducted at the conclusion of a program to rate the program’s effectiveness, it is called summative evaluation research. In addition, clinical psychologists are often called on to evaluate the competency of defendants to stand trial, the clinical diagnoses of defendants who are on trial, and to assess the potential risks of prisoners who are being released from incarceration. As reformers, psychologists must ask whether they have adequate evidence to suggest changes in a system that is based on history and tradition and whether they feel comfortable making such suggestions.
Although psychologists can influence the legal system in many ways, they have five major methods of doing so. First, as expert witnesses, they can impart knowledge to the judge, lawyers, and jurors. However, judges are the gatekeepers that decide what expert testimony can be admitted. Based on the case of Daubert v. Merrell Dow Pharmaceuticals, the following four criteria have been designed for judges to use in deciding the admissibility of expert testimony: (1) The science to be presented must be falsifiable, (2) must have undergone peer review, (3) must have a known rate of error, and (4) should be generally accepted by the scientific community. These are vague criteria, and judges most often lack the scientific background to make educated judgments about the quality of the science to be presented. Additionally, lawyers may selectively choose an expert who will best support their case. Experts may serve as conduit-educators by attempting to give a fair and balanced account of the state of scientific knowledge on the topic. They may serve as philosopher-advocates, selectively reporting or exaggerating the facts to serve their own purpose, or they may act as “hired guns.” Hired guns are experts that actively choose what to say and how to say it to help the side of the attorney who hired them in a case. Psychologists may also choose to file amicus curiae briefs, a Latin phrase that literally means “friend of the court.” Amicus curiae briefs are prepared and filed by someone who is not a party to the case to help judges understand the research that has been conducted on certain relevant topics. Researchers attempt to publicize their results and to influence legislatures and policy through testimony and lobbying.
Kalven, H., & Zeisel, H. (1966). The American jury. Boston: Little Brown.
Menninger, K. (1966). The crime of punishment. New York: Viking.
Timeline of Psychology & Law: A Cautious Alliance
This timeline shows the emerging relationship between the fields of psychology and law, as well as the seeming end to this relationship and then its reemergence.
1897 Oliver Wendell Holmes questions the utility of our criminal laws.
1906 Sigmund Freud claims Austrian judges are making decisions influenced by unconscious processes.
1908 Hugo Münsterberg (student of the father of psychology, Wilhelm Wundt)
publishes On the Witness Stand: Essays on Psychology and Crime.
Louis Brandeis files Brandeis Brief on limiting the women’s workday in Muller v. Oregon; the brief is the first American brief to rely on extralegal data.
1909 Münsterberg is savagely criticized by a member of the legal community.
1920 Beginnings of legal realism movement, claiming laws are interpreted in a social context.
1927 Yale Law School dean appoints a psychologist to faculty.
1930 The American Bar Association declares lawmakers must recognize psychological work.
1931 Legal realist, Karl Llewellyn, promotes the use of social science research in his field.
1954 Social effects of segregation inform law in Brown v. Board of Education.
1966 The American Jury and The Crime of Punishment are published.
1969 George Miller, memory expert, says we should “give psychology away.” Donald Campbell calls for experimentally based social reform. American Psychology–Law Society (AP-LS) is established.
1977 First edition of AP-LS journal is published.
1993 Daubert v. Merrell Dow Pharmaceuticals, Inc. leads to the Supreme Court establishing judges as the gatekeepers of scientific testimony.