Forensic Psychology For Dummies (23 page)

Many times I’ve written lengthy reports for court cases, but have not been allowed to present the information to the court as, for example, I would when lecturing to students. Instead I can only answer the questions the barristers ask. Sure, these questions are based on my report, but if the barrister doesn’t ask about aspects that I regard as crucial, the court may never hear that information in order to take it into account.

In the adversarial system, when the case is presented in front of a jury, it’s the jury that makes the final decision guided on the principles of law by the judge. Generally speaking, the judge determines the sentence when a person is found guilty, but various expert reports may guide the judge on what sentence to give.

In the UK, the police carry out the investigation into a crime and the initial preparation of the evidence. The Crown Prosecution Service (CPS) then brings (or decides not to bring) prosecutions in criminal cases.

The CPS has some similarities to the District Attorney’s office in the US, but the complications of the US legal system are so great I don’t try to summarise them here.

The main point is that under most adversarial systems, the police carry out the investigations and then pass the evidence over to lawyers to conduct the prosecution. The police are in contact with the lawyers as the investigation proceeds, but in the vast majority of cases people with formal legal qualifications don’t have an active role in the initial investigation. This system is very different to most inquisitorial systems, as I describe in the next section.

Keeping things brief in court: The inquisitorial system

When I mentioned to some Dutch colleagues how long I’ve had to sit around UK courts waiting to hear whether a judge would allow my evidence to be presented before the jury – the days and weeks that even the simplest court case can take – they laughed and said they knew from watching the televised O.J. Simpson murder trial.

They assured me that nothing like that could happen in courts in The Netherlands. Under their
inquisitorial system,
the whole process is conducted in front of one or more judges – generally known as
magistrates
– without any jury. The great majority of the legal process is carried out through written documents with the court case usually being a relatively brief discussion of what the documents contain. The prosecution leads the case with some representation from defence lawyers, but the to-ing and fro-ing battle that’s central to the UK and US adversarial legal process (as I describe in the preceding section) isn’t common under their system.

Furthermore, an attorney officially leads criminal investigations, and the police are answerable to this person in providing evidence for a prosecution. This attorney often acts as the prosecutor in any following court case, which means that a much closer link exists between the prosecution and the investigators than in the adversarial system.

The distinction between the adversarial and inquisitorial systems that I sketch in this and the preceding sections is hugely simplified. For example, some UK and US courts have no juries, such as appeal courts where cases are brought to challenge an earlier conviction or most coroners’ courts that consider the cause of death. Also, in many inquisitorial jurisdictions, versions of the jury system operate. In the French system, for instance, the judge can sit in the jury room with the jurors while they’re making their decisions, to ensure that they do so legally and sensibly.

Examining the US system: Constitution, federal and state laws

The US has a greatly elaborated legal system, with some laws that apply across all states (
federal laws
) and other laws that are state-specific, although they may be modelled on some general framework on which all states draw. In fact, some parallels exist in the UK, where Scotland has its own distinct legal system and some aspects of the legal process have been modified from time to time in Northern Ireland.

Unlike the UK, where the law is embedded in many centuries of case examples that have shaped what’s acceptable, the US has the formidable Constitution and Bill of Rights that specifies in admirable detail the basic principles on which the legal system is founded (although the legal precedents of cases are certainly still relevant). The Constitution provides a framework of 7 articles and 27 amendments that lay out how the country is to be run and provide benchmarks against which any laws can be measured.

With the variety of jurisdictions comes some important flexibility in the US legal system. For example, certain states have courts specifically set up to deal with offenders with mental illnesses. Variations in sentencing and what may be allowed as evidence, as well as issues relating to jury selection and other aspects of the legal process, can all have a significant impact on the roles that experts, especially forensic psychologists, can play. For example, virtually all the advice on jury selection that I describe in Chapter 12 is offered by psychologists in the US because much more room exists for choosing a jury than in the UK and other countries with a jury system. Although some of the issues discussed in Chapter 12 are relevant outside of the US, the legal system there does mean that they can usually only be applied in the US.

To take another example that I consider in more detail in Chapter 11, evaluation of whether a person understands the legal proceedings enough to be given the death penalty can be a challenge for forensic psychologists in countries where the death penalty still exists. This difficulty does not occur in the UK which no longer has the death penalty.

Against this background of variation, the detailed US Constitution provides a firm reference point that allows many challenges to legal outcomes, which can have implications for how forensic psychologists contribute.

Considering the implications for forensic expertise

The very brief outline of variations in legal systems in this section make clear that what forensic psychology expert witnesses can do in court is shaped by the nature of the particular legal system to which they’re contributing. Of particular importance is whether the evidence is presented in front of a jury, people who are assumed to be non-expert with no particular understanding of the issues at hand (as is usual under the adversarial system), or is presented to one or more magistrates (often the case in the inquisitorial system).

Judges and magistrates are assumed to be professionals who can make up their own mind and can accept or dismiss evidence in an objective way. (Whether they really can or not is, of course, a fascinating topic that some researchers have studied with rather less rosy results than the judiciary may like to hear, as I consider in Chapter 12.) This means that expert evidence that may be allowed when no jury is present may not be allowed if a case is being held in front of a jury. This precaution is to ensure that the jury makes the decision rather than the expert, an issue I discuss in more detail in the later section ‘Detailing the Dangers: Ensuring Trial by Jury and not Trial by Expert’.