Forensic psychology is a recently developed specialty that received recognition by the American Psychological Association in 2001. A number of subspecialties have been born through the specialty’s development including consultation with criminal courts, consultation with juvenile courts, consultation with family courts, investigative psychology, correctional psychology, and police psychology. This paper reviews the development of forensic psychology as a specialty as well as roles, responsibilities, ethical dilemmas, and controversies surrounding the applied subspecialties previously listed.
The term forensic applies to the application of scientific disciplines to the law – including civil, criminal, administrative, and military – to the various disciplines of natural and applied sciences. There exist forensic disciplines within a large variety of scientific fields of study including accounting, archaeology, computer science, engineering, linguistics, medicine, pathology, psychiatry, psychology, and social work, to list a few identified by Curt and Anne Bartol (2008). While the interactions of psychology and the legal system in the United States can be traced back to the late 1800s, the specialization of forensic psychology would not truly begin develop until the 1970s and would not be recognized as a psychological specialty by the American Psychological Association until 2001 (Bartol & Bartol, 2008).
The development of the forensic psychology specialty should come as no surprise given the frequency that mental health concerns are encountered within the judiciary branch of our government, particularly within the criminal justice system. It has been estimated that 26.4% of Americans have a mental illness that occurs during any given year and 46.4% of Americans will have a mental illness occur during their lifetime (Demyttenaere, Bruffaerts, & Posada-Villa, 2004). As of December 2010 there were 748,728 people confined in county and city jails (Minton, 2011), 4,887,900 people under community supervision (Glaze & Bonczar, 2011), and 1,613,395 people confined in state and federal prisons (Guerino, Harrison, & Sabol, 2011). Those 7,250,023 people may not include individuals who have committed crimes and not been apprehended or individuals who are free on bail pending criminal trial, however, they represent 2.35% of the population as there were 308,745,635 people living in the United States according to the 2010 Census (U.S. Census Bureau, 2011). Approximately 24% of the state prison inmates and approximately 21% of the county and city jail population will have a recent history of or current mental illness (James & Glaze, 2006). Approximately 16% of probationers were reported in 2006 to have a mental illness (Ditton, 2006). Approximately 66% of boys and 74% of girls in the juvenile justice systems throughout the United States meet the diagnostic criteria for at least one major mental illness (Telpin, Abram, McClelland, Dulcan, & Mericle, 2002). Further, many of the offenses committed by criminal offenders will have human victims of whom 25% will experience Posttraumatic Stress Disorder in their lifetime compared to the lifetime PTSD prevalence of 9.4% for persons who are not victims of crime (Kilpatrick & Acierno, 2003). Based on these figures reported by empirical researchers in psychology, there can be little doubt as to the need for the forensic specialty within the field of psychology.
Over recent years, the field of forensic psychology has given birth to several subspecialty disciplines including consultation with criminal courts, consultation with juvenile courts, consultation with family courts, investigative psychology, correctional psychology, police psychology, and military psychology. This paper will review the major roles and responsibilities of psychologists working within various subspecialties, examine significant court cases related to each subspecialty, review ethical dilemmas encountered within each subspecialty, review controversial issues within the subspecialties, and review the potential for research within each.
Forensic psychologists consulting with criminal courts will find themselves involved in a myriad of psycholegal activities, the most common of which include the battery of forensic mental health assessments (FMHAs). The most common forensic mental health assessment involves the competency to stand trial, commonly referred to as adjudicative competency assessments. A study by Bonnie & Grisso (as cited by Bartol & Bartol, 2008) estimated that approximately 60,000 criminal defendants in the United States undergo adjudicative competency assessments each year. Defendants found not competent to stand trial may be required by the court to undergo psychiatric and/or psychological treatment to restore competency, potentially requiring the assistance of another forensic psychology specialist. The more publicly recognized, yet less frequently encountered, forensic mental health assessment involves the mental status at the time of offense (MSO) evaluation which may also be referred as the criminal responsibility evaluation or the sanity evaluation. Within each of the various forensic mental health assessments, the forensic psychologist may be asked to appraise the possibility that the criminal defendant is malingering, or faking, their symptoms of mental illness. Forensic psychologists consulting with criminal courts may also, on occasion, provide opinions during the sentencing phase of criminal trials regarding the likelihood of reoffending, or recidivism, of a particular criminal defendant (Bartol & Bartol, 2008).
Several court rulings significantly impact a forensic psychologist’s consultation with the criminal court system. Most states in the United States have adopted the two-pronged competency standard from the 1960 ruling by the United States Supreme Court in Dusky v. U.S. In the Dusky case, the Supreme Court ruled that adjudicative competency required that a defendant have “sufficient present ability to consult with [their] lawyer with reasonable degrees of rational understanding … and a rational as well as factual understanding of the proceedings” (Dusky v. U.S., 1960, p. 402). The Supreme Court has also abolished the option of the death penalty in cases where the defendant has a severe mental illness or intellectual/developmental disability (Ford v. Wainwright, 1984; Panetti v. Quarterman, 2007).
Forensic psychologists consulting with criminal courts must be significantly mindful of their ethical responsibilities. Psychologists engaging in forensic mental health assessments must ensure that they understand the legal definitions within the jurisdiction they are operating and that they are qualified to engage in the specific forensic mental health assessment under the laws of that jurisdiction. Failure to do so may violate Standard 2.01 of the Ethical Principles of Psychologists and Code of Conduct (American Psychological Association, 2010) and Section III of the Ethical Guidelines for Forensic Psychologists (American Psychology-Law Society, 1991). Psychologists consulting with criminal courts must also ensure that they avoid multiple relationships that could be harmful to their clients in accordance with Standard 3.05 of the Ethical Principles of Psychologists and Code of Conduct (American Psychological Association, 2010). A psychologist engaging in a forensic mental health assessment of a criminal defendant should not be involved with the criminal defendant in any other manner, professional or otherwise, to ensure ethical compliance.
One area within this subspecialty that needs continued research is in the requests of courts to forensic psychologists to assess the risk of dangerousness of a particular offender to society, commonly referred to as risk assessment. While several instruments designed to assess risk of violence – such as the Historical/Clinical/Risk Management Scale (HCR-20), Iterative Classification Tree (ICT), Spousal Assault Risk Assessment (SARA), Violence Risk Appraisal Guide (VRAG), Level of Service Inventory – Revised (LSI-R), and Psychopathy Checklist – Revised (PCL-R) exist in this realm, there exists little empirical research into the reduction of risk among offenders (Bartol & Bartol, 2008).
Forensic psychologists consulting with juvenile courts will find themselves involved in many similar activities, with some differences, to those consulting with criminal courts. According to research conducted by Sickmund, Stahl, Puzzanchera, Finnegan, Tierney, & Snyder (as reported by Bartol & Bartol, 2008), approximately 2.5 million juveniles are arrested and referred to juvenile courts every year, approximately 1.6 million of those cases involve juvenile delinquency with the remainder involving status offenses, approximately 328,000 juveniles were held in juvenile detention centers, and approximately 102,000 juveniles were held in residential treatment centers. These juvenile cases are typically handled with less structure and formality than the adult criminal courts and forensic psychologists are commonly called upon for a variety of tasks in juvenile cases. Forensic mental health assessments to measure adjudicative competency, overall intellectual functioning, and cognitive ability to have waived rights during interview with law enforcement are common tasks for forensic psychologists consulting with juvenile courts. Further, unlike adult criminal courts where the criminal justice system may focus more on incarceration and fines, juvenile courts give greater precedent to treatment options for juvenile offenders which may involve additional involvement of forensic psychologists both for assessment and recommendations as well as the facilitation of the psychotherapeutic treatment methods (Bartol & Bartol, 2008).
Several landmark appellate court rulings impact the juvenile justice system and the role of forensic psychologists within that system. The United States Supreme Court has ruled that juveniles accused of crimes retain the constitutional rights commonly afforded to adult criminal defendants, regardless of the type of court hearing the case (In re Gault, 1967). The high court ruled that judges must hold hearings before transferring juvenile offenders from juvenile or family courts to adult criminal courts (Kent v. U.S., 1966). Adjudicative competency and mental status at the time of the offense assessments may be of great importance in determining whether or not to transfer a juvenile to adult court for serious offenses. The Supreme Court has also ruled that juveniles cannot be given the death penalty regardless of the charges standing against them (Roper v. Simmons, 2005). The U.S. Supreme Court considered psychological research conducted by Laurence Steinberg and Elizabeth Scott (2003), in the Roper ruling, specifically that:
“We believed that the uniqueness of immaturity as a mitigating condition argues for the adoption of, or renewed commitment to, a categorical approach, under which most youths are dealt with in a separate justice system, in which rehabilitation is a central aim, and none are eligible for the ultimate punishment of death. Other mitigators – emotional disturbance and coercive external circumstances, for example – affect criminal choices with endless variety and have idiosyncratic effects on behavior; thus, individualized consideration of mitigation is appropriate where these phenomena are involved.” (p. 1016)
Forensic psychologists consulting with juvenile courts must be cognizant of their ethical requirements. Standard 2.01 of the Ethical Principals and Code of Conduct (American Psychological Association, 2010) requires psychologists to remain within the boundaries of their competence. Forensic psychologists working in the juvenile court setting must ensure that they are trained not only in the forensic mental health assessments and instruments they are using but also the application of those assessments and instruments to juvenile development, psychological, and legal issues. Standard 3.10 of the Ethical Principals and Code of Conduct (American Psychological Association, 2010) requires psychologists to obtain informed consent prior to providing services. Forensic psychologists must obtain informed consent from a juvenile and their parent/guardian or must be in receipt of a court order for services and even then should attempt to obtain informed consent before initiating services.
Several aspects of juvenile justice remain controversial and require additional psychological research. Intellectual capacity and age may have significant impacts on adjudicative competency. Ongoing research from the Macarthur Foundation Research Network is arguing that developmental immaturity can and should mitigate and reduce culpability, allowing for relative punishment levels (Macarthur Foundation Research Network, 2012a) and that stereotyping of racial minorities is having significant impact on juvenile justice cases (Macarthur Foundation Research Network, 2012b). Just as intellectual capacity may impact adjudicative competency, the capacity also has an impact on confessions made by juveniles. As reported by Bartol & Bartol (2008), significant research continues regarding false confessions by juveniles by psychologists including Goodman, Gudjonsson, Kassin, Kelley, Kiechel, Redlich, and Richardson. Redlich and Goodman (2003) found that 69% of study participants falsely confessed, 39% internalized the accused behavior, and 4% confabulated during the study with lower age having a significant impact on the percentage of false confessions.
Forensic psychologists consulting with civil courts will interact primarily with family, probate, and other non-criminal courts. Family courts make the final decisions in upwards of 20% of all divorce cases (Melton et al, 2007) with frequent guidance from psychologists and other mental health professionals (Mason & Quirk, 1997). Assessments and guidance from forensic psychologists may also be requested in determining the assessment of risk for visitation rights (Bartol & Bartol, 2008). Probate courts may ask forensic psychologists and other clinicians to evaluate a person’s decisional competency, testamentary capacity, or competency to consent to treatment (Bartol & Bartol, 2008). Mental health courts will almost exclusively utilize the expertise of psychiatrists and forensic psychologists involving the involuntary civil commitment of persons with mental illness to in-patient treatment facilities (Bartol & Bartol, 2008). Civil courts involved in lawsuits or torts may seek the consultation of forensic psychologists to assess emotional or psychological damage in personal injury, sexual harassment, and employment compensation claims (Bartol & Bartol, 2008).
Forensic psychologists consulting with civil courts have several areas in which ethical dilemmas may readily arise. Child custody evaluations are some of the most likely assessments to result in ethics complaints as one or more parties in the custody ruling will likely be unhappy with the results of the hearing and may choose to blame the psychologist for their perceived loss. Ethical complaints can also arise from participation in adversarial civil tort cases involving personal injury or sexual harassment (Bartol & Bartol, 2008). The psychologist can mitigate these ethical dilemmas by ensuring that they avoid multiple relationships and base their opinions on empirical research.
Significant research has been devoted recently to the psychological impact of sexual harassment and personal injury claims. Forensic psychologists engaging in this area of practice may assist employers in setting up training to reduce the occurrences of events that generate these types of claims or consult with either side of an adversarial civil tort regarding their expertise in these areas (Bartol & Bartol, 2008).
Investigative psychology is, perhaps, the most publicly recognized subspecialty of forensic psychology even though it is one the newest and lesser utilized subspecialties. Investigative psychologists may be involved in psychological sketching to identify persons more likely to commit a particular offense such as skyjacking, criminal profiling to identify traits and descriptors based on the characteristics of a crime, psychological autopsies in equivocal death cases, polygraph examinations to assess a person’s potential for malingering, forensic hypnosis to help a witness recall information, developing and deploying methods of pretrial identification of suspects by witnesses, and other functions where psychology benefits an investigative function (Bartol & Bartol, 2008).
Limited relevant case law exists given the relatively newness of the investigative psychology subspecialty. However, certain aspects of investigative psychology can anticipate future appellate court impact given their controversy. Given the strong history of case law regarding racial profiling, it can be anticipated that a collision of racial profiling with criminal profiling could easily occur were practitioners of criminal profiling to stray from ethical, empirical research. Given the inaccuracies associated with the prediction of human behavior, it can also be anticipated that appellate rulings may ultimately weigh in on the topic of the inherent flaws in the current methods of criminal profiling and potentially limit the admissibility of criminal profiling reports in courts. Forensic hypnosis is one aspect of investigative psychology that has seen appellate review. In Rock v. Arkansas (1987), the United States Supreme Court ruled that post-hypnotic recall testimony was admissible in criminal, and by correlation civil due to the lowered burden of proof, cases. Several state supreme courts had also agreed to allow post-hypnotic recall testimony including New Jersey, North Dakota, and Texas (New Jersey v. Hurd, 1981; North Dakota v. Brown, 1983; Texas v. Zani, 1988).
Forensic psychologists working in the investigative psychology subspecialty encounter ethical dilemmas that are unique among the subspecialties, particularly given the relative newness of the subspecialty and the intense interest in the area from the general public due to popular entertainment portrayals in The Silence of the Lambs, CSI: Crime Scene Investigation, Body of Proof, Criminal Minds, and others. Given the lack of volumes of scientific knowledge in this subspecialty as compared to others, practitioners should strive to base opinions and work on the body of established scientific knowledge that does exist in accordance with Standard 2.04 of the Ethical Principles and Code of Conduct (American Psychological Association, 2010). Practitioners should also be mindful of the potential for harmful multiple relationships that could occur were they to engage in both investigative psychology and another forensic subspecialty, such as providing forensic mental health assessments in cases where they were involved in the investigation, that could violate Standard 3.05 of the Ethical Principles and Code of Conduct (American Psychological Association, 2010).
Current and ongoing research exists within the realm of investigative psychology. Researchers are working to develop better modalities and typologies for criminal profiling, including the use of geographical profiling and geographical mapping, using nomothetic approaches. Some researchers are working on countermeasures against polygraphs while others are working to identify the accuracy and efficacy of the polygraph. Significant research is occurring in the realm of pretrial identification methods, specifically in the correlation between historical lineup and photo spread methods and wrongful convictions with research into more effective methods for conducting lineups and photo spreads (Bartol & Bartol, 2008).
Forensic psychology, through the correctional psychology subspecialty, provides a number of roles in which practitioners can participate. The American Association for Correction and Forensic Psychology (as reported by Bartol and Bartol, 2008) include administrative consultation, psychological screening of prison employees, offender assessment and classification, staff training, treatment of prisoners with mental illness, and crisis intervention in the roles and services provided by forensic psychologists in correctional settings. Bartol and Bartol (2008) further identify roles to include initial inmate screening and classification, release assessment, crisis intervention, assessment of correctional personnel, competency for execution, treatment, and rehabilitation.
Several court cases provide for, enhance, and limit the effectiveness of psychologists within correctional settings. In Estelle v. Gamble (1976), the U.S. Supreme Court ruled that the deprivation of medical care to an inmate was a violation of the Eighth Amendment prohibition against cruel and unusual punishment. Interpretations on the Estelle ruling have routinely included psychological care within the broader range of medical care that must be provided (Bartol & Bartol, 2008). In Farmer v. Brennan (1994), the U.S. Supreme Court revisited Estelle and ruled that a prison official must both known of and disregard an excessive risk to an inmate’s health to be liable under the Eighth Amendment. In Washington v. Harper (1990), the U.S. Supreme Court ruled that inmates refusing to take psychoactive medications could challenge the treatment before a three-person administrative panel that included a prison administrator, psychiatrist, and psychologist. The U.S. Supreme Court also opined on an inmate’s right to refuse other forms of treatment in McKune v. Lile (2002).
Forensic psychologists working in correctional settings have several common ethical dilemmas unique to their practice as compared to practice in non-correctional settings. Confidentiality within a prison system is limited given the numerous court rulings that limit an inmate’s right to privacy. Non-psychological prison staff may have access to confidential records on a “need to know” basis, however, the psychologist must ensure such releases are necessary and ensure that persons without the “need to know”, such as inmate trustees, do not gain access to information that is protected under Standard 4 of the Ethical Principles and Code of Conduct (Bartol & Bartol, 2008; American Psychological Association, 2010). A second ethical challenge is encountered in establishing whether or not an inmate on death row is competent to be executed. The U.S. Supreme Court has ruled in several cases regarding competency to be executed with regards to mental illness and mental retardation (Ford v. Wainwright, 1986; Panetti v. Quarterman, 2007; Atkins v. Virginia, 2002). Forensic psychologists asked to perform competency evaluations in these cases may find themselves in conflict with Standard 3.04 of the Ethical Principles and Code of Conduct as an evaluation that determines the patient is competent will support their execution (American Psychological Association, 2010). Unresolved controversy exists in this area as the forensic mental health assessment may be required by the court to proceed, yet both the American Psychological Association and the American Psychiatric Association recommend that a clinician performing such assessments not be the sole examiner or the decision maker in the matter (Bartol & Bartol, 2008).
Several areas of research are ongoing within the realm of correctional psychology. Research continues on effectiveness of various treatment modalities within the prison populations at large in support of the rehabilitation model of corrections. The Therapeutic Community (TC) modality is being experimented with and researched among inmates with offenses related to substance abuse disorders. Various modalities and submodalities are being researched with violent offenders. Significant research is being conducted with regards to the psychotherapeutic treatment of sex offenders. Further, research in the efficacy of community-based corrections versus incarceration-based corrections has seen promising work over the past two decades (Bartol & Bartol, 2008).
Forensic psychologists who work within the police psychology subspecialty work directly with and frequently within law enforcement agencies to include municipal police departments, sheriff’s departments, special jurisdiction and state police agencies, and federal law enforcement agencies. Bartol and Bartol (2008) describe five common roles of a police psychologist to include “[assisting] police departments in determining optimal shift schedules for their employees, [assisting] police in developing psychological profiles of serial offenders, [establishing] reliable and valid screening procedures for law enforcement officer positions at various police and sheriff departments, [training] police officers on how to deal with mentally ill citizens, and [providing] counseling services to officers after a shooting incident” (pp. 9-11).
The legal issues most notably impacting police psychology involve the role of screening for law enforcement officer positions. Practitioners must be aware of the impact that the Americans with Disabilities Act has on this functional role in police psychology. Forensic psychologists should refrain from psychological testing and evaluation of law enforcement applicants until a condition offer of employment is made by the police department as the Americans with Disabilities Act prohibits making inquiries about disabilities or sending applicants for medical (including psychological) prior to the conditional offer of employment (American Psychological Association, 1996; U.S. Department of Justice, 1997). Research on effective personality assessment of police applicants continues to determine the best screening methods to reduce the impact of job related stress and the frequency of police corruption. Bartol and Bartol (2008) found that six personality assessments are commonly used in this area – the Minnesota Multiphasic Personality Inventory – Revised (MMPI-2), the Inwald Personality Inventory (IPI), the California Psychological Inventory (CPI), the Personality Assessment Inventory (PAI), the NEO Personality Inventory – Revised (NEO PI-R), and the Sixteen Personality Factor – Fifth Edition (16-PF) – with no clear research consensus as to which is the most useful in the screening and selection of police professionals. Additional research is needed in this area to determine who best to deny employment to and who best to move forward in the hiring process to ensure fairness and efficacy. Denial of law enforcement employment can be made based on finding of certain mental illnesses pursuant to Chevron v. Echazabel (2002) where the U.S. Supreme Court ruled on the Americans with Disabilities Act that employment denial can be made if a disability would be exacerbated through performance of the job. While such denials can be made, forensic psychologists working within the police subspecialty ethically should make recommendations and not actually engage in the determination of employment to avoid multiple relationships that could violate Standard 3.05 of the Ethical Principles and Code of Conduct (American Psychological Association, 2010).
Another area of ethical challenge and need for further empirical research lies within suicidology among police officers. It has been estimated that between 15 and 18% of law enforcement officers nationwide exhibit symptoms of Posttraumatic Stress Disorder (Police Suicide Myths, 2012). The prevalence of suicide among law enforcement officers is difficult to establish as some researchers opine that the suicide rate is approximately twice the homicide rate while other researchers argue that the suicide rates are much lower (Bartol & Bartol, 2008). Regardless of the actual statistics, police psychologists working within law enforcement agencies are in key positions to identify problems and provide early intervention, however, a balance must be found to ensure the psychologist does not become invisible from a focus on individual therapy and correspondingly limited in usefulness to the larger goals of police psychology (Reiser, 1973).
The specialty of forensic psychology offers many exciting and cutting edge subspecializations to current and upcoming psychology professionals. Opportunities avail themselves for clinical psychologists to consult part-time within the realm of forensic psychology and for practitioners to work full-time as forensic psychologists. Full-time practitioners can work in several areas or focus entirely in one of the developing subspecialties. Each opportunity provides a number of roles and responsibilities, unique ethical challenges, unresolved controversies, and significant opportunities for empirical research.
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