Supreme Court Justice Stephen Breyer has called on psychologists to help the judiciary "separate the sheep from the goats" in identifying valid psychological testimony for use by the courts.
Breyer, who spoke as part of a panel of judges and other legal experts at a conference co-sponsored by APA and the American Bar Association's Criminal Justice Section (ABA) in October, said that science has become part of so many legal cases that the bar, the bench and expert groups must work together to determine which expertise is legitimate.
But, Breyer immediately acknowledged, "As soon as I say that, you are going to see all kinds of problems."
For one, who can be sure that someone with eccentric theories is not this generation's Galileo? Breyer asked the audience. He acknowledged that any list drawn up by an established field, including psychology, might exclude experts who are ahead of their time. Nevertheless, said Breyer, science and the law must try to set up structures to help judges make better decisions on the kinds of expertise to accept.
The ABA/APA conference, more than two years in the planning, brought psychology and criminal justice together in one of the few large-scale sessions to date between the two professions. More than six hundred psychologists, attorneys and judges attended the four days of sessions on criminal justice issues including violence, sex offenders, capital punishment and jury selection.
In addition to Justice Breyer's call for help, the conference's keynote address was another indication that the present may be a propitious time for psychology and the law. Prominent criminal justice researcher Thomas Grisso, PhD, a clinical psychologist and professor at the University of Massachusetts, contended that only now is psychology beginning to provide scientific value in evaluations of defendants.
Applying scientific criteria
Breyer wrote the most recent Supreme Court decision--Kumho Tire v. Patrick Carmichael, handed down last spring--on trial judges' function in admitting or excluding expert testimony. The decision found that judges have flexibility in deciding on testimony, but they must use reasonably reliable criteria.
The decision gave trial judges discretion in applying scientific criteria (testing, peer review, error rates and "acceptability" in the relevant scientific community) as referred to in Daubert v. Merrell Dow Pharmaceuticals, an earlier Supreme Court decision.
In his call for assistance, Breyer cited efforts by the Federal Judicial Center to educate judges about science. He also discussed a program begun last year by the ABA and the American Association for the Advancement of Science (AAAS), designed to help judges. The ABA/AAAS pilot project will provide judges with lists of qualified experts who the court could appoint in cases where the adversarial system of the court doesn't clarify scientific issues.
The work is called experimental, Breyer emphasized, simply because it is so difficult to determine who is a "good" expert. Nevertheless, he applauded the attempt to allow better decisions on expertise.
Asked in the question-and-answer session about courts' frequent lack of response to psychological research on the judicial system, Breyer granted that the system may seem unresponsive to psychological findings because the workings of justice change slowly. Modifications have to move through legislatures, committees on rules of evidence and appellate courts.
Nonetheless, he urged psychologists to continue to advocate for their findings in areas such as eyewitness reliability, judges' instructions to juries, jury size and requirement of verdict unanimity.
The Justice also said that often in Supreme Court cases he learns more from the amicus curiae briefs filed by professional associations such as APA than from briefs of the parties in the case.
Expanding psychology's role
Other judges on the panel with Breyer called for both more sophisticated and more extensive use of psychologists in the courts. Judge Rya Zobel, who directed the Federal Judicial Center in Washington, D.C., until recently, said psychologists should teach attorneys what they have to offer. Attorneys, she said, will then teach judges, by putting evidence before them.
The gatekeeping that judges do in allowing or excluding evidence, she said, is based on the information attorneys put in front of them, not on some ultimate truth.
Another panelist, Judge Sheila Murphy, until recently a judge in Chicago and now counsel to a law firm there, contended that to have real impact, psychologists must do more than act as expert witnesses.
"Why don't we have psychologists as resources in every court house in the country," she asked, "and why don't we do it at the first level of intervention? We are quick to bring in psychologists and psychiatrists at mitigation and aggravation hearings, in capital cases or in cases of felonies. However, if we went upstream and brought those same people in at an earlier intervention level...wouldn't the justice system look different in this country?"
The failure to do so, said Murphy, "is causing an implosion in our judicial and correctional systems."
Judges and attorneys, she said, need to be educated in "areas where we were never taught at all," such as psychological disorders, addictions, co-occurring disorders and dual diagnosis.
Assessment coming of age
Meanwhile, keynote speaker forensic psychology expert Thomas Grisso, PhD, told the conference that only in recent years has psychology prepared the scientific basis for evaluations of defendants. But, he said, he's still not certain whether the courts will accept it.
Grisso said that from the early 1970s when psychologists first began to commonly testify, they tried to "take the courts by storm," but had little research underpinning their assessments.
"Their performance on the whole was not flattering to psychology," Grisso opined.
Courts wanted the testimony, he explained, but often expressed unhappiness when they got it.
But a wave of serious research on evaluating defendants began in the mid-1980s, he said, and now "is about to usher in an era when psychology can realize its true potential in assisting the legal process."
Indeed, he said, "Progress is far greater than I would have expected."
For example, courts commonly ask psychologists to predict whether a defendant will act violently in the future.
"For years," said Grisso, "we responded with guesses, trying to look like we knew what we were doing, while actually pretty much flying by the seat of our clinical pants."
But now, he says, studies have determined which factors are more common in people who will go on to future violence. Those studies have generated standard formulas into which clinicians can enter information about a defendant. The formula can identify whether the defendant is in a group with a percentage probability of violent behavior.
As one example, the Violence Risk Assessment Guide (VRAG) is a 12-item actuarial formula from a sample of 618 inmates in a maximum-security psychiatric hospital. Its variables include psychopathy, separation from parents before age 16, victim injury, comparison to schizophrenia diagnostic criteria, being never married and possible elementary school maladjustment.
Similar instruments have been developed to determine competence to stand trial, criminal responsibility, malingering and other competencies.
But the real impact of these advances has yet to be felt in the courtroom, said Grisso: "For psychologists will do no better than the court demands."
The next step
In light of courts' conservative attitude toward new methods, said Grisso, attorneys and psychologists need to think collaboratively about how to introduce these instruments.
"For decades, the courts welcomed our opinions about people's dangerousness or competence when they were based on nothing more than our clinical guesswork. Now we are at risk of having our opinions excluded when they are based on scientific method."
The next task to gain acceptance, he said, is to educate lawyers and the courts on the kinds of evaluations they should be demanding from psychologists. He suggested recruiting psychologists as year-round co-teachers in law schools, and even as in-house experts in law firms to help find qualified psychologists to do evaluations.
Just as importantly, said Grisso, attorneys and psychologists need to collaborate to ensure that the new forensic tools are not misused. For example, a new instrument on competence to stand trial measures some of a person's abilities, not competence to stand trial per se. The scores alone should not be interpreted as an assessment of whether a person is competent to stand trial, he noted. The same is true of other instruments.
"We have to try to introduce those methods to the courts in ways that minimize the threat," Grisso urged, "and maximize their promise."