Forensic Psychology For Dummies (155 page)

Experts can all too easily slip into offering an opinion that implies guilt or innocence. The expert’s statement can appear as an indirect, corroborative opinion, such as stating that a key witness couldn’t possibly have remembered what they claim to remember, or the statement can be more direct, such as whether the defendant has the intellect or skills to carry out the crime. If the jury accepts the expert’s opinion, that amounts to the expert making the crucial decision about guilt.

Therefore, experts in court have to be cautious about how their opinions are expressed. This situation is well understood in forensic science, when experts say, for example, that the blow to the head is ‘consistent with that produced by a blunt instrument’, even though everyone knows a piece of lead pipe is at the heart of the case. For forensic psychologists, however, avoiding the direct implication of their opinions may be more difficult. But if forensic psychologists sail close to the ‘ultimate question’ of innocence or guilt, such as saying ‘what is known about memory is incompatible with the claims of the witness’, the judge is likely to keep such opinions away from the jury in order that the trial is truly a trial by jury and not a trial by expert.

The judge reviews the evidence to be presented to the jury and other legal aspects of the case in what’s known as the
voir dire
(an investigation, in the course of the trial, into the truth or admissibility of evidence about to be given without the jury present). If the judge considers that the forensic psychologist’s opinion is something the jury may be able to form a view on without expert advice, or that the expert advice may be too close to the ultimate question, the forensic psychologist’s statement isn’t allowed. As I mention earlier (in the section ‘Providing evidence for the court not the client’), the judge will also be careful to ensure the expert is offering an objective opinion supported by professional expertise and is not just a ‘hired gun’.

Working Within Your Area of Competence

Despite what crime-drama psychologists get up to on TV – interrogating suspects in dark alleys and impatiently charging into dangerous locations in front of armed police – in real life, codes of practice emphasise the importance of the professionals having the necessary skills, training and qualifications to practise particular aspects of their profession. The professional needs to know what areas are outside of his competency, even though many people may assume he can operate in those areas.

Competency in carrying out the job may seem obvious – the thought of having a leg amputated by a heart surgeon is scary – but within forensic psychology the precise boundaries of someone’s competence for a particular case can be subtle. Even if forensic psychologists themselves are clear where their competence lies, the people who employ them may not be, introducing pressures that aren’t always easy to avoid. Lawyers in particular often have a limited understanding of the precise nature of forensic psychology, and the different skills that different aspects of forensic psychology require, how it differs from psychiatry and what the various specialisms are within the different professions.

Once, despite being clearly listed as a forensic psychologist, I was asked by an attorney to carry out an examination of a rape victim to determine if an assault had taken place. I have no medical qualifications and therefore have never been trained in how to carry out a medical examination.

This extreme example serves to illustrate how readily experts can be drawn into areas in which, well, they’re just not expert. In such situations, I take the opportunity to point out to the legal profession the difference between the disciplines and the different qualifications needed to be competent to carry out the job.

A subtle example is when a forensic psychologist is giving advice to a family court on the likelihood of abuse occurring if a child is returned to their parents. The advice may be based on talking to the child and careful examination of the parents, their background and any offence history. During the course of the proceedings, the forensic psychologist is asked whether the information from certain witnesses is likely to be accurate. However tempted the forensic psychologist is in wanting to assist the court, if he hasn’t studied the work on witness testimony or had the opportunity to examine carefully the claims of the witness, he has to acknowledge that offering an opinion on the matter is beyond his competence.

Submitting to Peer Review

How can busy professionals be sure that they’re conforming to their code of practice (check out the earlier section ‘Following Codes of Practice’) and staying within the bounds of appropriate competence? The answer is to do as the contestants do on the quiz show
Who Wants to be a Millionaire
and ‘phone a friend’ – consulting with colleagues is a practice called
peer review
.

Peer review involves a set of experts in the same field, but not directly involved in your work, considering what you’re proposing or writing and evaluating your work in the light of what they know and understand.

Peer review is standard practice for evaluating research grant applications and is at the heart of the work of ethical committees (discussed in the section ‘Getting Ethical Approval for Research’). The process is also used for assessing research work being submitted for publication in academic and professional journals.

Of course, peer review isn’t a foolproof system and is open to misuse. Most notably, peer review can be conservative and stifle innovation, for example, when established experts feel that the proposal threatens their own livelihood or are just uncomfortable with the proposal’s implications.

Nonetheless, peer review greatly reduces the possibility of professional abuse by making sure that individuals in the profession don’t drift into areas of activity in which they risk being incompetent, or worse. The process limits the impact of arrogance and egotism and can save experts from being inappropriately self-confident.

Also, peer review looks at the emotional and personal consequences of being involved with the horrors of forensic cases and can help forensic psychologists deal with the possible traumas of the cases that they’re considering in detail.

Of course the peer review process needs to take into account the confidentiality central to any reports prepared (see the later section on ‘respect for confidentiality’). Reports for the court are confidential until the judge agrees that they can be made public.

Having a Duty of Care

Forensic psychologists deal with people and how a person is thinking and behaving. Unlike the forensic scientist examining fibres or carrying out autopsies on dead bodies, forensic psychologists are talking to people and making use of what the person is saying. Thus codes of practice draw attention to the special duty of psychologists to take care in avoiding harming people with whom they’re interacting.

Determining the boundaries of the duty of care can be testing for forensic psychologists, because their paymaster or client may not be the person they’re dealing with directly or whose life they’re influencing (I describe the complex relationship between the professional and the hirer in the section ‘Providing Evidence for the Court, Not the Client’). For example, while talking to a defendant to determine his sexual fantasies, the forensic psychologist has to avoid doing so in a way that may be disturbing or upsetting.

An illustration of the duty of determining the boundaries of care, is the case in which a forensic psychologist was guiding an undercover police operation. A woman police officer was directed to try to get a confession from a suspect that she was deliberately befriending. The suspect turned out to be completely innocent but he was greatly disturbed by the whole experience, which included spending 11 months in prison. Also, the woman police officer suffered mental distress as a result of the event. The forensic psychologist appears to have failed in carrying out his duty of care in guiding the police operation. In this particular case, no inquiry ever established failure, but the suspect and the police officer were awarded substantial sums of money in recompense for the harm they were suffering, a tacit acknowledgement that something had gone badly wrong.

Respecting Confidentiality

In some informal professional discussions between colleagues, one may mention to the other the sorts of problems her clients had in very general terms, perhaps because these problems were particularly interesting. But professionals will always be careful never, ever to mention a client’s name. Nor will they mention any details that would allow their colleague to guess who the client was, where he or she worked or anything else that related to the client’s identity. You could meet her clients in many social or professional situations, but would not have the slightest idea that they had ever had psychological advice or had any private concerns. That is the essence of confidentiality. The identity of people with whom the psychologist has professional interaction is protected, as are the details of their condition.

Maintaining confidentiality is hugely important. Forensic psychologists have to protect the identity of persons with whom they interact professionally, together with the details of the person’s situation, condition or problem.

In the legal context, confidentiality is vital because of the adversarial nature of the procedure; the prosecutor and the defendant prepare their arguments in secret until they can present their cases in court. Thus the knowledge that one side is using a forensic psychologist, with some prospect of their opponents guessing why, can weaken the whole process. Even the fact that a forensic psychologist was employed but their report not used can provide ammunition.

The information that comes out during the course of forming an expert opinion also has to be kept confidential. Such information may be of use to criminals or others who have an axe to grind with a client. People can take advantage of the fact that a forensic psychologist is involved in the case.