Legal psychology: Future ethical challenges where the sciences meet the law

Janie Busby Grant — Thu, 22 Nov 2007 13:19:01 -0800

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Recent years have seen the incorporation of ever more aspects of psychological science into the legal process. The use of empirical psychological research in a courtroom setting has come to be known as legal psychology, and commonly involves research on topics such as eyewitness memory, decision-making, and group behavior. Forensic psychology, while overlapping with legal psychology, tends to involve a clinical focus and require a more detailed understanding of the legal process. The use of either type of psychology professional within the criminal justice system engenders a number of serious ethical issues, none of which constitute a serious flaw in the relationship between psychology and the law, but all of which need to be scrutinized carefully. The examples of risk evaluations and this issue of informed consent in assessments are discussed below.

A potentially tricky ethical issue is the practice of risk evaluations as performed by psychologists and reported to courts in order to determine an individual's risk for future violence. Critics argue that the use of such assessments in judicial forums is unethical, either because the methods used to gather the data do not meet the legal criteria for admissibility (e.g., scientific verifiability) or that the findings themselves are not appropriately accurate for use in this setting. Authors Tolman and Rotzien argue instead that, "sound ethical practice is about how one practices - the process of an evaluation". They suggest that the competing values of both public safety and potential negative outcomes for an individual need to be taken into account, or decisions could be made subjectively and incorporate emotional and cognitive bias. One major issue Tolman and Rotzien focus on is what they describe as a "tendency to see the role of the expert as a forecaster rather than as an adviser".

Knapp and VandeCreek (2001) discuss some of the ethical dilemmas confronting forensic psychologists, in particular the role of informed consent. Psychologists are ethically bound to inform both the hiring attorney and the client in understandable language of all necessary information.

"The Specialty Guidelines for Forensic Psychologists states that the psychologist should inform the party “of factors that might reasonably affect the decision to contract with the forensic psychologist” (CEGFP, 1991, p. 443). These factors include the fee structure, prior or current personal or professional activities that might produce a conflict of interest, areas of competence and limits to the areas of competence, and the known scientific bases and limitations of the methods and procedures that the psychologist will employ. It also means informing clients about the relevant limitations of confidentiality".

The difficulties involved in informed consent in the legal arena include mandatory evaluations, where by definition the client does not consent to the evaluation process by their own free will. In this context the psychologist still must provide all necessary information, but this issue raises serious questions about their role in mandatory vs traditional clinical psychological evaluations. For instance, do their actions differ in those two situations? Should it? The ability of the client to comprehend the information provided is also often in serious question, particularly when dealing with minors or with individuals with intellectual impairments. The dynamic nature of the legal process also puts additional requirements on the consulting psychologist to keep the client informed of any changes in their role or in the implications of their evaluation. The authors also note that these types of issues are all the more serious given that few psychologists acting as forensic psychologists have been specifically trained in that role.

There are clearly serious ethical issues that must be dealt with when science meet the legal system. If current trends continue psychologists are likely to play a more frequent role in the legal system in the future. In order to support this relationship, changes in education (both at and subsequent to university training) are required in order to appropriately prepare psychologists for work in the legal profession. Without informed debate and critique, scientists (particularly those working in the 'soft' sciences such as psychology) could potentially become a liability to the legal system, rather than an asset. The best-case scenario involves groups of traditional academics working hand-in-hand with those participating in the legal process, supporting them with data-driven findings, which would then be assessed for their applicability by experts in psychology and the law. In summary, it is clear that the field of psychology and other sciences can inform and improve the legal process (see Busey & Loftus, 2006 for a discussion), but it is imperative that any advances be met with considered critique in the context of the legal system.

Knapp, S. & VandeCreek, L. (2001). Ethical issues in personality assessment in forensic psychology. Journal of Personality Assessment, 77, 242-254. Abstract available online at http://www.leaonline.com/doi/abs/10.1207/S15327752JPA7702_07?cookieSet=1&journalCode=jpa.

Tolman, A. O. & Rotzien, A. L. (2007). Conducting risk evaluations for future violence: Ethical practice is possible. Professional Psychology: Research and Practice, 38, 71-71. Abstract available online at http://content.apa.org/journals/pro/38/1/71.

Busey, T. A. & Loftus, G. (2006). Cognitive science and the law. Trends in Cognitive Sciences, 11, 111-117.

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Legal psychology: Future ethical challenges where the sciences meet the law

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