Matthew T Huss & Leah Skovran. 21st Century Psychology: A Reference Handbook. Editor: Stephen F Davis & William Buskist. Volume 2. Thousand Oaks, CA: Sage Publications, 2008.
One of the things that make being a forensic psychologist both a joy and a challenge is its sex appeal. That’s right, forensic psychology is a sexy topic. Forensic psychology is inherently appealing at some very basic level that gets students and the everyday person interested in the topic. However, with this sex appeal comes the challenge. People think they have a good sense of forensic psychology and the different things a forensic psychologist does. The problem is that this sense comes from many of the sensational aspects of forensic psychology that are frequently exaggerated or simply inaccurate. In this chapter, we will try to maintain this sex appeal while we define forensic psychology, examine its difficult relation with the law, describe topics that are characteristic of forensic psychology and the job of a forensic psychologist, and describe the training and education necessary to be a forensic psychologist.
What is Forensic Psychology?
Just as the sex appeal inherent to forensic psychology makes it both a challenge and a blessing, the description of forensic psychology is very straightforward but also complex. At a very basic level, forensic psychology is the application of psychology to the legal system. However, there has been a great deal of debate about the breadth of topics that such a definition includes. Some believe that forensic psychology refers only to the clinical aspects of psychology, such as the assessment and treatment of mental illness. Others believe that forensic psychology should be interpreted more broadly and include nonclinical topics, such as eyewitness identification and jury decision making. Our focus will be on only the clinical aspects of forensic psychology, so our definition of forensic psychology is the application of the clinical practice of psychology to the legal system. You already may be saying to yourself, “For such a sexy topic, this definition does not seem very sexy to me.” So, why is forensic psychology so inherently interesting?
Sensational Aspects of Forensic Psychology
An excerpt that appeared in the online encyclopedia Wikipedia (n.d.) states, “Forensic psychologists are perhaps most commonly recognized for their involvement in the processing of a crime scene.” This excerpt is an excellent example of the misguided beliefs that frequently appear regarding forensic psychology and the critical evaluation that should take place when using an online “encyclopedia” that anyone with Internet access can contribute to in the modern age. The real problem with the above statement is that it is true. The public’s notion of forensic psychology does come from television shows and movies in which a psychologist is somehow involved in the “processing of a crime scene.” Movies like Silence of the Lambs and Kiss the Girls frequently depict forensic psychologists as super sleuths who get into the minds of serial killers with their psychological techniques and foil their murderous plans. There was even a television show on for several years, Profiler, in which a Dr. Samantha Waters played a “forensic psychologist” who was a psychic detective. The only problem with such a show is there is no empirical support in psychology for the existence of psychic powers, nor have forensic psychologists ever solved crimes by reading tea leaves or interpreting psychic visions. Shows like the multiple Crime Scene Investigation (CSI) television shows, though they involve actual forensic science, only further suggest to the public that forensic psychologists are out there catching the bad guys.
The Reality of Forensic Psychology
The reality of forensic psychology is much less sensational than the popular images, but just as interesting. Forensic psychologists rarely participate in any aspect of criminal investigation. Law enforcement officers are the most suitable professionals for capturing criminals. Torres, Boccaccini, and Miller (2006) surveyed forensic psychologists and found that less than 10 percent had ever engaged in crime scene investigation or criminal profiling. Criminal profiling was initially conceptualized by the Federal Bureau of Investigation (FBI) in the 1970s. In order to aid in the investigation of serial murderers, the FBI formed the Behavioral Sciences Unit, interviewed serial killers, and eventually identified a list of characteristics, or a profile, of different types of serial killers. However, these efforts were investigative in nature and did not firmly rely on psychological expertise or psychological methods. Though the FBI now frequently consults with forensic psychologists and there have been some more recent efforts by psychologists to make crime scene investigation more scientific and based in psychology, criminal profiling remains a tool of law enforcement and of only limited psychological application (Hicks & Sales, 2006).
Instead of crime scene investigation, forensic psychologists usually become involved in the legal system once a crime has been committed or once legal action has begun. Remember, we previously described forensic psychology as the application of the clinical practice of psychology to the legal system. Clinical psychology focuses on the assessment of personality and the treatment of mental illness. A clinical psychologist may assess or evaluate whether a child is suffering from a learning disability or attention deficit disorder. A clinical psychologist may also treat or alleviate the emotional pain of someone who has been sexually assaulted or is suffering from depression. Clinical psychologists who specialize in forensic psychology act in similar ways involving issues that surround the legal system. A forensic psychologist may assess whether someone who has been in an automobile accident suffers from post-traumatic stress disorder. A forensic psychologist also may perform a custody evaluation and offer information to the court about the best custody arrangement between two parents.
The Difficult Application of Psychology to the Legal System
As we have noted, there are many opportunities for positive interaction between the fields of psychology and the law; however, this marriage of two disciplines does not come without some inherent conflict. Judges and attorneys are trained to look at human behavior in a way that is quite different from the perspective of psychologists. It is this difference that poses unique challenges for collaboration between the fields, though with an understanding of these differences, there is hope for a positive and appropriate partnership.
The Law Is Based in Reason, Psychology in Empiricism
One of the difficulties in applying psychology to the legal field is the difference in the methods of decision making used by the two disciplines. More specifically, psychologists and legal players both strive for the same goal: to determine the truth, but the definition of “truth” and the methods used to uncover the truth differ. Psychology relies on principles and propositions that depend on confirmation by adhering to the scientific method—that is, testing hypotheses by appropriate methodology and appropriate observation. Psychologists generally seek an objective truth, seek to show consistent results over time, and rely less on intuition, or “gut feelings,” and more on scientifically based fact and probabilities (Carson, 2003). The law, on the other hand, relies heavily on legal precedent, or rulings in previous, similar cases, using these decisions as a guide for the current case. Similarly, the legal system is based on an adversarial system, which rests on the notion that the truth emerges from the clash of opposing parties in a courtroom. In other words, although each field may seek to answer the same question, psychology and the law utilize separate methodologies in determining what is “true” and how to determine that truth.
Guilty? Yes, No, or Maybe!?
Another difference between the two fields is the nature of the final outcome each discipline seeks. The legal field strives for absolutes—a defendant is guilty or not, competent or not, or mentally ill or not. A psychologist, on the other hand, is comfortable with a more relative position—that is, “it depends.” A psychologist deals in likelihood and statistical probabilities. A question often arises: “Does a psychologist’s role in helping to clarify these differences aid the legal system, or further muddy the waters?” After all, a psychologist’s most unequivocal statement is that a relation is “statistically significant,” which directly refers to probabilities, not absolutes.
For example, a forensic psychologist may testify that, according to empirical tests, 40 percent of eyewitness evidence is inaccurate. Should a particular witness’s testimony be categorized as falling within the 40 percent that is inaccurate, or within the 60 percent that is accurate? Further, is this split true and accurate under all conditions? Do the conditions and circumstances surrounding the situation matter (Clifford, 2003)? The psychologist has presented the findings in the best and most appropriate way the research may be interpreted, but the answer is most certainly not absolute. Consequently, a natural conflict appears when legal players call upon psychologists to help determine an absolute (i.e., is this witness accurate in her testimony?), especially when the psychologist answers in regard to likelihoods, or “maybes.” Lawyers and other legal professionals have difficulty with such gray answers, because legal cases generally require a black-and-white decision.
A Direct Conflict of the Law and Psychology: The Expert Witness
One of the roles a forensic psychologist may be asked to play, which may directly conflict with the law, is that of an expert witness (Ogloff, 1999). In this situation, questions of the level of knowledge necessary to be qualified as an expert, as well as the extent to which this expert opinion may lead to bias, are discussed. However, before a psychologist may be permitted to testify as an expert, it must be decided if the expert’s testimony meets the legal criteria to be held admissible. In the case of Daubert v. Merrell Dow Pharmaceuticals, Inc. (1993), the Supreme Court designated that judges’ decisions about the admissibility of expert testimony must turn on the validity of the science in question. In many respects, the judge acts as a gatekeeper, the one who decides if expert testimony may be admitted, according to the standards of science.
According to Daubert, there are several factors that must be considered in assessing the validity and admissibility of an expert’s testimony. First, the evidence must be relevant and reliable, according to four standards: (a) Is the theory or technique testable, and has it been tested? (b) Has the theory or technique been subjected to peer review or publication? (c) What are the reliability and the error rate for the scientific technique? (d) Is the theory generally accepted in the scientific community? In short, the parameters of expert testimony make clear that only information that is relevant to the case, and necessary to the trier of fact, will be considered admissible by a judge. It is the job of the expert witness to be sure this scientific testimony is expressed in an accurate, honest, and clear manner to the court. Sometimes this must occur when it is not necessarily in the best interest of one of the opposing sides to do so.
Important Issues in Forensic Psychology
In general, forensic psychologists attempt to assist the courts in making legal decisions by offering their psychological expertise in situations despite some of the inherent conflicts or difficulties between forensic psychology and the law. This expertise can be used in a variety of situations. Forensic psychologists may be involved in criminal or civil legal issues. They may be involved with adults or children. They may perform psychological evaluations or conduct therapy. Because all of the potential issues cannot be addressed in this single chapter, we have chosen to focus on five of the more popular issues involved in forensic psychology. Our discussion is not comprehensive or even representative of a cross section of forensic psychology, hence we would encourage you to consult a number of outstanding books on the topic (Goldstein, 2003, 2007; Melton, Petrila, Poythress, & Slobogin, 1997; Wiener & Hess, 2006). We have chosen to focus on psychopathy, risk assessment, sexual offenders, insanity and competency, and child custody evaluations. We will define each issue, describe the role of a forensic psychologist, and explore the empirical basis for the practice of forensic psychology in each area.
Psychopathy is a term that has been around for a long time, but it is only in the last 30 years that it has become a topic of so much interest in forensic psychology. In fact, one could argue that psychopathy is the focus of more current research in psychology than is almost any other topic. Nonetheless, there is still a great deal of confusion about the meaning of psychopathy, even among psychologists. Psychopathy is a psychological construct that describes a constellation of emotional, interpersonal, and behavioral traits that are related to antisocial behavior (Hemphill & Hart, 2003). However, psychopathy is not synonymous with the more widely known, antisocial personality disorder (APD). Psychopathy and APD are similar but also different in several respects (Hare, 1996). APD is the formal diagnosis for someone who exhibits a history of antisocial behavior, according to the Diagnostic and Statistical Manual for Mental Disorders, Fourth Edition, Text Revision (DSM-IV-TR; American Psychiatric Association, 2000). Although psychopathy shares many of these same characteristics, it does not share all of them. APD is a behaviorally based disorder, meaning that the criteria used to diagnose APD are largely composed of specific behaviors (e.g., lying, cheating, and committing criminal acts). In order for persons to be diagnosed with psychopathy, they must exhibit these behavioral characteristics as well as the more difficult to measure emotional and interpersonal characteristics, such as a lack of empathy, superficial charm, manipulativeness, cunning, lack of remorse, irresponsibility, and so on. In fact, these emotional/interpersonal characteristics may be the central features of psychopathy and distinguish it from APD (Cooke & Michie, 2001). These different conceptualizations of psychopathy and APD lead to a difference in their prevalence. As many as 60 to 80 percent of incarcerated offenders can be diagnosed with APD and about 3 to 5 percent of the general population can be diagnosed. Only about 15 to 30 percent of offenders and 1 percent of the general population can be diagnosed with psychopathy (Hare, 1996). As Bodholdt, Richards, and Gacano (2000) state, “identifying APD in forensic settings is something like finding ice in your refrigerator” (p. 59). As a result, psychopathy may have a greater ability to differentiate the most dangerous criminal offenders from individuals who simply act out in an antisocial manner.
Probably the single most important reason that psychopathy is important to forensic psychology is its relation to criminal behavior, specifically violence. The research has consistently found an association between psychopathy and the likelihood of someone committing future criminal behavior. Psychopathy has even been referred to as the single most important factor in the prediction of future violence (Salekin, Rogers, & Sewell, 1996). Psychopaths typically commit more crimes, and more violent crimes, than do nonpsychopaths (Gendreau, Goggin, & Smith, 2003; Walters, 2003). The significant relation between psychopathy and violence is true not only for general offenders but also sexual offenders (Porter, Fairweather, Drugge, Hervé, & Birt, 2000), psychiatric patients (Nicholls, Ogloff, & Douglas, 2004), women (Verona & Vitale, 2006), and across different cultures (Sullivan & Kosson, 2006). The only type of violence where there is some question about the role of psychopathy is in the perpetration of domestic violence (Huss & Langhinrichsen-Rohling, 2006).
Not only is psychopathy related to future violence, but we also know there are some significant differences in the way psychopaths perpetrate their violence. Most criminals start to burn out or reduce their criminal behavior after 40 years of age, but psychopaths may be more likely to continue committing violent behavior (Huss & Langhinrichsen-Rohling, 2000). Psychopaths also appear to commit more instrumental or planned violence than do nonpsychopaths (Cornell et al., 1996). Psychopaths are more likely to commit violence where there is a clearly defined goal, such as with a mob hit or serial killings. Nonpsychopaths are more likely to commit reactive violence, such as crimes of passion or bar fights. As a result, psychopaths are actually less likely to perpetrate murders than are nonpsychopaths because most murders are emotionally based, and they are more likely to victimize strangers than are nonpsychopaths (Williamson, Hare, & Wong, 1987).
Besides the relation of psychopathy to criminal behavior and violence, there are several other interesting things we know about psychopaths in regard to their emotional expression and brain functioning. It may be clear that psychopaths have different emotional responses from those of nonpsychopaths, even from just our prior description. Psychopaths process emotion on a more superficial level and are more likely to exhibit emotion in order to control and manipulate people but less likely to do so in a genuine manner (Steuerwald & Kosson, 2000). In describing psychopathic emotion, it is often suggested that they understand the words to the music but they do not feel the beat. In other words, they can define words like anger, sadness, joy, and fear but they do not truly understand or experience them in the same way most people do. There also appear to be some biological differences between psychopaths and nonpsychopaths (Hare, 2001). Although it is questionable whether there are differences in the structure of psychopaths’ brains, it is clear that they function differently. In general, psychopaths appear to be less likely to process information with the outer cortex of the brain, and when they do process information, they are more likely to do so with the occipital lobe of the brain than with the frontal lobe, where the more complex processes tend to take place. Their brain activity has often been compared to sitting in a parked car while stepping on the accelerator. When psychopaths are processing information from their environment, especially emotional information, their brain is racing like the engine of the car. However, psychopaths are not processing the information in a complex manner because all regions of the brain are not accessing or utilizing the information. As a result, it is unlikely to be meaningful to them or get them somewhere, just like racing the engine of a car that is in park.
Risk Assessment and Violence Prediction
Another topic related to psychopathy and central to forensic psychology is risk assessment. Risk assessment was more commonly referred to as violence prediction because the primary focus for forensic psychologists was predicting whether a particular person would become violent. However, risk assessment is not simply about making a forced choice about whether a particular individual is going to become violent or not. It is about identifying the factors that are likely to increase the risk for violence, the factors that are likely to reduce the risk for violence, the immediacy of the violence, the severity of any likely violence, and the ways in which the violence can be managed. The comparison has been made that risk assessment is similar to weather forecasting. The local meteorologist often forecasts the probability of precipitation for the next day, 10 days from now, or even further into the future. That same meteorologist may not only assess the probability but also assign different categorical labels to tornadoes, like watch and warning. The meteorologist makes these assessments based on complicated statistical models and historical weather patterns. All of these routine practices that we are exposed to on a regular basis in watching local television also take place in very similar ways when forensic psychologists attempt to assess someone’s risk of violence.
When risk assessments are undertaken, they usually focus on specific forms of violence that rise to the level of some legal charge or conviction. Risk assessments normally assess the risk for “actual, attempted, or threatened physical harm that is deliberate and nonconsenting” (Hart, 2005, p. 4). This violence could consist of violence between a man and a wife, the sexual assault of a child, the stalking of a woman by a former coworker, or even murder. Risk assessment may be necessary for institutionalizing someone who is mentally ill, a defendant awaiting criminal sentencing, a juvenile who is facing transfer to an adult court, or when determining whether someone should be released from prison. Although there are significant differences in assessing violence across different situations, there also are clear similarities.
Risk assessment routinely involves the identification of risk factors. Risk factors are different variables that increase the risk for violence. Common risk factors for violence across different types of violence would include previous violence, substance abuse, psychopathy, employment instability, and early behavioral problems. These risk factors are normally referred to as either static or dynamic. Static factors are ones that do not change or are extremely unlikely to change. For example, previous violence will not change for someone who has a criminal conviction for a violent crime. However, we would expect other things, like the current severity of mental illness symptoms, to wax and wane. Risk factors that are likely to change over time are normally referred to as dynamic factors. It is increasingly important for forensic psychologists to be aware of both the static and dynamic risk factors in assessing risk
Risk assessments use these risk factors in either clinical approaches or actuarial approaches. Clinical approaches involve the judgments of forensic psychologists that have been formed through their psychological education and professional experience. The traditional approach to risk assessment has been based in clinical methods. A forensic psychologist may sit down with a patient who has recently been admitted to an emergency room and perform a clinical interview; review his criminal, mental health, and social history; and then determine whether he needs further treatment because he is likely to harm someone when released from the hospital. This format has been the norm over the years and is in keeping with the clinical approach for risk assessment (Litwack, 2001). Actuarial approaches differ from clinical approaches in that they are not based on professional judgment. Actuarial approaches rely on formal, objective, and, often, statistical information. As mentioned before, meteorologists rely on mathematical models to predict the weather for the next day. Forensic psychologists may rely on similar types of statistical approaches to assess risk. Actuarial risk assessments consist of determining the presence or absence of a list of predetermined risk factors from an actuarial measure that has been designed to assess risk among a certain group of people, like sex offenders. Based on the number and types of risk factors present, sex offenders receive a score that relates to their likelihood of committing violence in the future.
Clinical and actuarial approaches have been criticized for a variety of reasons. Clinical approaches are often seen as subjective and more open to idiosyncratic biases of the individual forensic psychologist. As a result, clinical approaches are frequently deemed less accurate and more prone to error than actuarial approaches (Quinsey, Harris, Rice, & Cormier, 2006). However, actuarial approaches are criticized as inflexible, time consuming, and unworkable in many clinical decisions. For example, it is difficult if not impossible to perform an actuarial risk assessment in a setting like an emergency room, where there may be very little information available about a patient and a decision is needed immediately (Elbogen, Huss, Tomkins, & Scalora, 2005). Although actuarial decisions may be more accurate in general, their accuracy for a given individual is questionable. Car insurance rates are based on actuarial formulas. An insurance company determines the amount they charge you for car insurance based in part on your past driving record, which seems very reasonable to most people. The more accidents you have had, the more car insurance costs you. However, car insurance rates are also determined based on things you have little if any control over, like sex; women pay significantly less for car insurance than do men. As a man, I may have a spotless driving record and be very responsible but pay more for insurance than someone else simply because of my sex. From the actuarial perspective, the statistics clearly suggest that women will cost less to insure than men, so it seems reasonable. But it seems unfair to an individual male driver who has a spotless record. This situation is similar to the use of individual actuarial risk assessments. They may be accurate in general as applied to a large group, but their accuracy is questionable when applied to a specific person (Hart, Michie, & Cooke, in press).
Although the debate about the superiority and application of actuarial and clinical approaches to risk assessment continues, it is clear that risk assessments have advanced over the past 30 years. Early research in the accuracy of risk assessment was marked by the common belief that forensic psychologists were no more accurate than the flip of a coin. Today, a number of risk factors have been empirically identified for generalized violence, sexual violence, and domestic violence that were unclear two decades ago. As a result, numerous formal or actuarial approaches have been developed that have improved the assessment of risk significantly over the coin-flip analogy commonly referred to years ago. Forensic psychologists not only predict the occurrence of violence but also devise ways to reduce or manage the violence so that it never occurs. There also is greater attention paid to communicating the risk of violence so that simple probabilities (e.g., 80 percent chance of violence) may not be used but instead categorical labels such as low, medium, orhigh risk are used in a way that is similar to the meteorological terms of watch and warning.
Sex offenders are increasingly the focus of risk assessment and a variety of other legislative and clinical attempts at reducing sexual violence. A sexual offender is an individual who has committed a sexual act that involves the use of force or a threat against a nonconsenting person. Sexual offenses can include a wide range of sexual acts against a wide range of victims. Increasingly, sexual offenders are the focus of a great deal of public attention and legislative reform. It is difficult to turn on the television news or search any national news source on the Web for an extended time without coming across a story about sex offenders. There are even regularly occurring television shows like To Catch a Predator that are devoted exclusively to catching a particular type of sexual offender, one who preys on children and adolescents over the Internet.
There are a number of different types of laws that have been aimed at reducing the significant problem of sexual violence.Registration laws require individuals convicted of prior sexual offenses to register their names, home addresses, and places of employment with law enforcement officials. These laws may be helpful in maintaining closer supervision, questioning, and solving sexual crimes. Notification laws inform the public of where a convicted sexual offender lives in order to reduce the risk to the general public or vulnerable groups. For example, some notification laws create a Web site the public may access to identify any individual in their community who is a convicted sexual offender. Some states have notification laws that result in local schools being notified of the presence of a sex offender in the area. Residency lawsare more recent laws that limit the distance that convicted sexual offenders can live from vulnerable groups such as children. These laws may state that a convicted sexual offender cannot live within 1,000 feet of a school, day-care facility, park, or another location that children are known to frequent. An especially punitive and controversial type of law are the Sexually Violent Predator (SVP) laws that allow for the continued institutionalization of convicted sexual offenders after they have served their criminal sentence, based on the likelihood of their committing a future sexual offense.
These laws are making it increasingly necessary for forensic psychologists to improve the assessment and treatment of sexual offenders. A forensic psychologist routinely performs risk assessments of sexual offenders awaiting hearings to determine whether they are SVPs or of individuals awaiting sentencing after a conviction for a sexual offense. There are specially designed actuarial instruments for the assessment of sexual violence risk. One misconception frequently held by the general public that is incorrect (or at least questionable) is that sexual offenders are more likely to reoffend than are general offenders. In fact, research suggests that sexual offenders are less likely to be convicted of future sexual crimes and that only 17 percent reoffend within three years of their release from prison (Hanson & Bussière, 1998). Forensic psychologists also assess individuals for the extent, severity, and nature of their sexual interests. One method used to assess sexual offenders is phallometric measurement (Marshall & Fernandez, 2000). A phallometric measure assesses a person’s physiological response (heart rate, perspiration, penile circumference) when he is exposed to a variety of stimuli that are typically sexually arousing or not sexually arousing. Some sexual offenders exhibit particular mental illnesses, called paraphilias, which forensic psychologists must assess for routinely. Paraphilias are generally characterized by sexual interest, fantasies, or behaviors related to atypical stimuli that are not normally sexual arousing. For example, an individual who becomes sexually aroused only while in the presence of children, or while receiving a common medical procedure such as an enema, may suffer from a paraphilia.
In addition to assessment, forensic psychologists are increasingly called on to treat sexual offenders. One of the primary purposes of SVP laws is to provide treatment for those sexual offenders who are most at risk to reoffend if released from prison after they have served their criminal sentence. One could argue that SVP laws are similar to the movie Minority Report, starring Tom Cruise. Cruise’s character arrests people before they murder someone, based on the psychic visions of three individuals who can supposedly see these murders before they happen. Sexual offenders institutionalized under SVP laws are theoretically being treated so that they can be rehabilitated and released in the future, after their risk has been substantially reduced. However, the evidence regarding the effectiveness of sexual offender treatment programs is mixed. Hanson and Bussière (1998) suggest that untreated sexual offenders reoffend at a higher rate than do treated sexual offenders. However, one of the most sophisticated studies examining the effectiveness of sex offender treatment programs suggests that these programs are not effective at reducing risk among sex offenders (Marques, Wiederanders, Day, Nelson, & van Ommeren, 2005). Researchers have made some advancement at identifying the factors that are most likely to relate to successful treatment programs, and this research holds promise for improving the overall effectiveness of programs designed to treat sexual offenders. The question remains, though, whether our current efforts to treat and assess the risk of sex offenders put us in an eerily similar position to that in Minority Report.
Insanity and Competency
As discussed previously, forensic psychology is the interaction between the clinical practice of psychology and the law. Insanity and competency are two legal issues that examine specific mental health aspects of clinical practice within the legal context. Courts utilize forensic psychologists as experts to assist in arriving at legal decisions for both, but the focus is on addressing the legal question before the court, not in answering a psychological question. Though insanity and competency both focus on mental health aspects of the law, the issues involved are very dissimilar and often confused. Insanity focuses on a person’s mental state at the time of a crime, and competence focuses on a person’s mental state at the present moment.
The defense of insanity was originally established to provide a legal compromise to a moral dilemma. The courts reasoned that it was not fair or just to punish a person who committed a crime only because the person was mentally ill. If someone is found insane, they do not possess the mental state necessary to be culpable or blameworthy of a crime. As a result, people who are found insane are not guilty or responsible for their behavior. Despite the public’s misguided beliefs, the insanity defense is rarely employed, and those who are found insane are rarely simply set free. The insanity defense is used in 1 percent of all felony cases, and a defendant is found insane in less than one third of those cases (Callahan, Steadman, McGreevy, & Robbins, 1991).
It is the job of the forensic psychologist to assess whether a defendant meets the criteria set in a given jurisdiction for insanity. Although standards for insanity vary, in order to be found insane, a defendant generally must demonstrate that he or she suffers from a mental illness that prevents him or her from knowing what he or she is doing, or knowing that what he or she did was wrong. In some states, the mental illness simply impairs the person’s ability to control his or her behavior.
For example, if you choke someone because he cut you off in traffic, you could be arrested for assault. However, if you choke your best friend believing she is a lemon and that you are going to make lemonade, you may be found insane. It is the difficult task of forensic psychologists to look back retrospectively and help the court determine whether, at the time of the crime, the defendant suffered from a mental illness, and whether that mental illness impaired the defendant to such an extent, in terms of thought process or behavior, that the defendant cannot legally be held responsible for his or her behavior.
Competency is a much different and, in many ways, easier standard to meet than insanity. Competency focuses on a person’s mental state and is designed to insure the fairness of the legal process. However, criminal competency normally focuses on a defendant’s present state of mind. The intent of a competency evaluation is typically on a defendant’s current mental functioning during some aspect of the legal process. A person’s competency is most often an issue at trial. However, a person must be competent to confess to a crime, enter a plea, waive the insanity defense, or even be executed. In order to be competent, a person must basically be able to understand the nature of the charges against him or her and any consequences faced, given the different legal outcomes at a particular time. A person standing trial should know the role of the judge, his or her attorney, how to communicate with that attorney, that the prosecuting attorney is trying to find him or her guilty, and that the jury will decidehis or her guilt or innocence. The person should also understand that if she is found guilty, she will be sentenced to a particular range of sentences. Our legal system requires people to be competent during the legal process to make sure they can participate in the process so that it is fair.
Although insanity is rarely used and rarely successful, competency is the most frequently addressed mental health question facing the courts, and most individuals are found competent. For example, pretrial competency evaluations occur in as many as 8 percent of all felony cases (Hoge, Bonnie, Poythress, & Monahan, 1992), and competency to stand trial is only one of the many instances in which competency can be an issue. Some estimates suggest that 60,000 competency evaluations take place each year (Bonnie & Grisso, 2000) and that this number is a significant increase from past years (Steadman, Monahan, Hartstone, Davis, & Robbins, 1982). The majority of defendants are found competent, and those that are found incompetent exhibit serious mental impairment. Nicholson and Kugler (1991) found that incompetent defendants generally suffered from a psychotic diagnosis, like schizophrenia, and have been hospitalized in the past. Moreover, individuals found incompetents typically have brief hospital stays (Nicholson & McNulty, 1992) and over 90 percent of them are later found competent (Nicholson, Barnard, Robbins, & Hankins, 1994).
Child Custody Evaluations
The role of a clinical forensic psychologist is not limited to criminal cases. They are often asked to serve in less sexy, civil matters. One such example is in the role of a mental health professional in a child custody evaluation. With the divorce rate in the United States hovering at about 50 percent, the demand for child custody and parental fitness evaluations are also on the rise. When separated or divorcing parents fight over custody of their child, the court system may be forced to resolve the dispute. In recent years, there has been a steady growth in the use of forensic psychologists to aid the courts in settling these disputes (M. J. Ackerman & M. Ackerman, 1997). Though not as newsworthy as other criminal matters, such as sexual offending and psychopathy, many forensic clinical psychologists agree that child custody cases are the most ethically and clinically difficult forensic evaluations they perform. For one, the cases are emotionally charged, both for parents and child, and tension is usually high. Likewise, parents will often pull out all the stops when it comes to custody of a child. For these reasons, the child is left in an emotionally unstable environment, not knowing which parent he will live with, where he may go to school, or why the dispute is taking place. Likewise, a custody evaluation can be very intrusive, often including home visits by social workers, in-depth case histories, and extensive interviews with each parent and child, as well as with any other individual who is close to the family.
The most important factor in considering the role of a clinical forensic psychologist in child custody evaluations is the degree to which interdisciplinary work is essential. In other words, a mental health professional who chooses to do work with the family courts must also possess a keen knowledge of child development, including attachment, social repercussions for each party, and the general effects of divorce and separation on children. Likewise, the evaluations are a time-consuming, expensive ordeal, often taking upwards of 30 hours per case, and averaging over $2,600 per assessment (M. J. Ackerman & M. Ackerman, 1997). In other words, custody evaluations are some of the most integrative work a mental health professional can take part in, but also some of the most time consuming and emotionally taxing.
A forensic clinical psychologist may be asked to participate in a custody evaluation by a judge, by one party, or may be “shared” jointly by the parties to conduct the evaluation. Clinicians then follow a set of guidelines to evaluate both parental fitness and the best interest of the child, though these guidelines vary from case to case. They generally include interviews to evaluate social history and mental status of parents and child, standardized testing of both parents and child, and behavioral observations often conducted in the home of both parents and child. Likewise, a clinician may use outside sources as well, such as interviews with a child’s teacher, a doctor, or others who have had interaction with the family. Similarly, documents such as medical records, criminal histories, and school records may be utilized as well. These evaluations are almost always nonconfidential, and the findings are reported to the court. Child custody evaluators also must be comfortable making specific recommendations to both the families and the court, according to the findings from the evaluation. Typically, recommendations fall into several categories, including but certainly not limited to custody/visitation recommendations (i.e., full, partial, supervised, etc.), a parenting plan that outlines time shared and responsibilities of the parents, how parents may deal with future conflicts, and therapy recommendations for parents and the child (Stahl, 2002). Further, these clinicians also may be asked to testify and to defend their decisions in court. Though child custody evaluations can be emotionally taxing, time consuming, and ethically challenging, the role of a forensic psychologist in this specialized area is important to the families, the courts, and the children in need of assistance.
Education and Training Necessary for Forensic Psychology
Many students ask how they can become a forensic psychologist or work in some of the areas already mentioned. The answer to that question is as varied as the different tasks that a forensic psychologist may undertake. The one thing that is clear is that becoming a forensic psychologist involves going to graduate school, and working in these areas typically means obtaining a PhD or PsyD in psychology (Huss, 2001). Although obtaining a terminal master’s degree may allow you to conduct therapy and even conduct psychological evaluations in some states, in order to practice independently in many forensic contexts you need to obtain a doctorate degree in forensic psychology. However, there are numerous ways to become a practicing forensic psychologist.
The most straightforward path to becoming a forensic psychologist, but certainly not the only way, would be to gain admission to a doctoral program that specializes in training forensic psychologists. There are a variety of different training models for doctoral programs in forensic psychology (Huss, in press). Melton, Huss, and Tomkins (1999) identified three specific training models that each have their own advantages and disadvantages. First, joint-degree programs offer the opportunity for students to obtain degrees in both psychology and the law. These programs normally result in a student obtaining both a JD in law and a PhD or PsyD in psychology. However, it is not necessary or even preferred to obtain a degree in both the law and psychology to become a forensic psychologist (Melton et al., 1999). Another path to becoming a forensic psychologist involves attending a specialty program in forensic psychology. These programs typically offer a degree in clinical or counseling psychology, and offer additional opportunities for training specifically in forensic psychology. Students in these specialty programs take classes in forensic-related topics, participate in clinical practicae or internships at prisons or forensic hospitals, conduct forensic research, and may even take some law classes. The third type of program is a program that offers a minor in forensic psychology. Students in these programs get their primary training in clinical or counseling psychology but then may take a specialized class in forensic psychology, conduct their dissertation on a forensic-related topic, or even get some training in a forensic setting. However, students do not have to attend a specialized program that offers any forensic training. Most forensic psychologists simply obtained a degree in clinical or counseling psychology, and then obtained additional training in their postdoctoral internship or sought out workshops or other educational opportunities that allowed them to become more knowledgeable about forensic psychology after they graduated with their doctoral degree. It should be clear that there is not just one path to becoming a forensic psychologist.
In this chapter, we attempted to clear up some misconceptions about the role of a forensic psychologist, as well as shed some light on the challenges, applications, and training necessary to pursue this career. The reality of forensic psychology, though much different than that portrayed in popular movies and television programs, is still sensational and has a great deal of sex appeal. The field of clinical forensic psychology is an ideal way for individuals to work both within the field of psychology and in the legal arena. However, with this interdisciplinary approach comes a particular set of challenges. Though certainly not limited to the issues discussed in this chapter, there are five topics relevant to forensic psychology: psychopathy, risk assessment, sexual offenders, insanity and competency, and civil matters, such as child custody evaluations. A clinical forensic psychologist may specialize in any combination of these topics. A student who wishes to pursue a career as a practicing forensic psychologist should plan to attend a graduate program, though the path one chooses to take may vary depending on individual interests and abilities.