Handbook of Psychology and Law

640 Pages·1992·94.585 MB·English

by  Daniel Linz, Steven Penrod (auth.), Dorothy K. Kagehiro, William S. Laufer (eds.)

Handbook of Psychology and Law
D.K. Kagehiro
W.S. Laufer
Editors
Handbookof
Psychology and Law
With a Foreword by Shari Seidman Diamond
,
Springer Science+Business Media, LLC
Dorothy K. Kagehiro
Philadelphia, PA 19130
USA
William S. Laufer
Department of Legal Studies
Wharton School
University of Pennsylvania
Philadelphia, PA 19104-6369
USA
With 9 Illustrations.
Library of Congress Cataloging Data.
Handhook of psyehology and law ID. Kagehiro, W. Laufer, editors.
p. em.
Includes bibliographieal referenees and index.
I. Law-Psyehology. 2. Psyehology, Forensie. 3. Law-United
States. I. Kagehiro, D. (Dorothy) II. Laufer, Williams S.
K487.P75H36 1991
340' .01 '9-de20 91-11801
Printed on aeid-frec paper.
© 1992 Springer Seience+Business Media New York
Originally published by Springer-Verlag New York Ine in 1992.
Softcover reprint of the hardcover I st edition 1992
Copyright is not c1aimed for Chapter 13. Copyright is held by the authors.
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ISBN 978-1-4757-4040-0 ISBN 978-1-4757-4038-7 (eBook)
DOI 10.1007/978-1-4757-4038-7
Foreword
Shari Seidman Diamond
Scholars interested in psychology and law are fond of c1aiming origins
for psycholegal research that date back four score and three years ago
to Hugo von Munsterberg's On the Witness Stand, published in 1908.
These early roots can mislead the casual observer about the history of
psychology and law. Vigorous and sustained research in the field is a
recent phenomenon. It is only 15 years since the first review of psy
chology and law appeared in the Annual Review of Psychology (Tapp,
1976). The following year saw the first issue of Law and Human
Behavior, the official publication of the American Psychology-Law
Society and now the journal of the American Psychological Associ
ation's Division of Psychology and Law. Few psychology departments
offered even a single course in psychology and law before 1973, while
by 1982 1/4 of psychology graduate programs had at least one course,
and a number had begun to offer forensic minors and/or joint J.D./
Ph.D. programs (Freeman & Roesch, see Chapter 28). Yet this short
period of less than 20 years has seen a dramatic level of activity. Its
strengths and weaknesses, excitements and disappointments, are aII
captured in the collection of chapters published in this first Handbook
of Psychology and Law. In describing what we have learned ab out
psychology and law, the works included here also reveal the questions
we have yet to answer and thus offer a blueprint for activities in the
next 20 years.
The handbook is organized according to traditional legal categories:
constitutionallaw, procedures, evidence, etc. The editors alternatively
could have used the branches of psychology to organize the presenta
tion of the work. Thus, research on c1inical, cognitive, organizational,
developmental, and social psychology as weil as test theory are repre
sented in the volume, and indeed each of these branches of psychology
has numerous psycholegal topics in its domain. Although social psy
chology and c1inical psychology have probably stimulated the most
activity in the past 20 years, with cognitive work primarily focusing
on eyewitness testimony, the continuing struggles with testing and
measurement questions on the legal side and the growth of research on
cognition within psychology are likely to stimulate expanded work on
these areas in the future.
v
vi Foreword
Much of the early work in psychology and law focused on three
topics: the jury in criminal cases, the defense of insanity, and eyewit
ness identification. Thus, the psychology of the criminal jury attracted
social psychologists interested in stereotyping, decision making, attri
bution of responsibility, conformity, and group process. Clinical psy
chologists tried to answer questions about the criminal responsibility
and treatment of mentally-disordered offenders. And cognitive
psychologists studied the accuracy and sources of inaccuracy in the
testimony of eyewitnesses. All three of these areas are active today,
and the chapters in this handbook that describe their contributions
provide a good overview of so me of the major developments in the
field.
These chapters also show how the maturation of the field has en
riched the questions now being asked about these topics and the
methods being used to investigate them. For example, many of the
early jury studies tested variations in defendant attractiveness and
involved crude judgment tasks which required college sophomores to
read brief trial descriptions and render individual judgments. The
expectations of jurors and the way they processed the evidence were
ignored. The nature of the trial stimulus and verdicts were distorted
(e.g., jurors often received no judicial instructions; verdicts measured
were ratings of responsibility or years to be served in prison rather
than decisions about guilt).
Current research on the jury includes protocol analyses which trace
how jurors process information, in depth interviews with jurors after
they have rendered verdicts in real cases (Hans, 1991), elaborate
simulations involving videotaped trials and juror respondents, and
even randomized field experiments (e.g., Heuer & Penrod, 1989).
Researchers no longer confine their questions to the criminal jury.
Complex tort trials which raise questions about the order of decision
tasks and trial structure have drawn interest from psychologists (e.g.,
Horowitz & Bordens, 1990). Lay reactions to expert testimony are
being studied in an effort to 1earn how laypersons evaluate complex
information. Jurors' judgments about corporate defendants are shed
ding light not only on how jurors decide cases but also on lay under
standing and expectations about the legal system as a way to resolve
conflict and a means of restoring equity.
The dominance of work on the criminal jury, eyewitness testimony,
and criminal responsibility in psycholegal research disappointed some
scholars familiar with the broader potential domain of the field.
Michael Saks' (1986) poignant "The Law Does Not Live by Eyewitness
Testimony Alone" chided researchers for a narrowness of vision and
urged them to explore underrepresented areas of the legallandscape.
This handbook shows evidence that many neglected opportunities in
psychology and law are indeed drawing the attention of imaginative
scholars. Tort law and tax compliance are but two examples rep
resented in this volume.
It is time for a handbook on psychology and law. On grandiose days,
I think that law should be characterized as a component of psychology,
for if psychology is the study of human behavior, it necessarily includes
Foreword vii
law as a primary instrument used by society to control human be
havior. Perhaps this explains why laws are such a fertile source of
research ideas for psychologists. Many of the research topics discussed
in this handbook derive implicitly or explicitly from the behavioral
assumptions scholars have found lurking in legal efforts to control or at
least channel behavior (e.g., the design of legal rules governing tax
compliance; the requirement of warning labels as a way to avoid
potential tort liability; the standards for children's testimony). But is
psychology and law simply an applied field, awaiting a policy question
to trigger a response? It need not be so limited, asking only research
questions driven solely by the concerns of legal institutions. Certainly
many research findings in psychology and law have policy implications.
The researchers who studied the effects on children of testifying in
abuse cases were anxious and no doubt delighted to see their con
clusions adopted by the United States Supreme Court in Maryland v.
Craig (1990). But the domain of psychology and law also includes
fundamental questions about law and the legal system that do not have
direct policy implications. It encompasses questions about how people
exercise social control and how responsibility, resources, and risk are
allocated. The capacity for basic research in psychology and law has
not been fully explored. Researchers who are ready to think more
broadly will find stimulation for their future work in the concluding
remarks of some of the chapters in this handbook. Wexler and Schopp
(see Chapter 18), for example, propose examining how commitment
laws can encourage people to act in dysfunctional ways, raising impor
tant questions about social control, responsibility, and mental health.
Recognizing scientific understanding as the primary goal in our con
ception of psychology and law has an incidental benefit. Running
through many of the chapters in this handbook is the history of court
response to the findings of psychology: on death qualification of jurors
(Lockhart v. McCree, 1986), discrimination in the imposition of the
death penalty (McCleskey v. Kemp, 1987), stereotyping in employment
and promotion decisions (Price Waterhouse v. Hopkins, 1989). In some
of these cases, the courts have ignored, distorted, or rejected psycho
logical findings. Naturally, researchers are frustrated when the insights
they have labored so hard to achieve are misunderstood or dismissed
by the courts as invalid or irrelevant. The insights remain, however,
whether or not today's courts choose to recognize them, and those
insights can help us, without court endorsement, to build theories
about the functioning of heterogeneous decisionmaking groups or the
nature of discrimination. The intellectual questions to be asked about
law require us to resist the tendency to equate legal recognition with
success, a natural tendency in view of the power of legal institutions in
our culture.
The themes covered in this handbook, running the gamut from
family violen ce to human factors, display the wide range covered by
psychology and law. But the very broad range they reflect raises a
question of boundaries. Is psychology and law a recognizable field or is
it simply a loose collection of topics? How does the set of research
issues gathered undcr the rubric of psychology and law differ from the
viii Foreword
set of issues addressed by the other fields of "lawand" (e.g., sociology
and law; anthropology and law; law and society)? The distinctiveness
of psychological approaches to law can be seen in the emphasis on the
individual, so that the shoplifter's decision to steal, the rape victim's
decision to call the police, the prosecutor's evaluation of what offense
to charge, the defendant's capacity to understand the charges against
her, the witness' ability to accurately report what he has seen, the
jury's decision to convict, and the consumer's decision to sue her
doctor all fall within the domain of psychological theory and explana
tion. But if psychology offers a unique perspective on law, so me
psychological research displays a narrowness in which disciplinary
bl inders limit the value of the work. The most informative scientific
studies of law look beyond narrowly conceived psychological
boundaries to include the environmental and cultural explanatory
factors that often are seen as the domain of sociology, political science,
and anthropology. Thus, a researcher constructing a fully specified
model of bail setting would consider the prosecutor's recommendation
as weil as the offender's attributes, jail capacity as weil as the decision
maker's goals. Of course, such environmental factors can easily be
integrated into a psychologist's conception of the world: Kurt Lewin
told us long ago that behavior is a function of the person and the
environment. Boundaries are thus best seen as pro vi ding contours and
emphases rather than erecting walls.
In 1966, Marshall wrote Law and Psychology in Conflict. The
conflict persists today, but some important changes have occurred.
Psychologists have become enormously more knowledgeable about law
and legal institutions, broadening their familiarity beyond crime and
the courtroom. Legal institutions on occasion invite psychological
input or at least acknowledge its relevance (Diamond, 1989). The
differences between law and psychology seem less pronounced than
early scholars often claimed (e.g., precedent and authority give
legitimacy within both the psychological research paradigm and in
legal theorizing and decision making, Laufer & Walt, see Chapter 3).
The interaction between psychology and law that began with the
inflated claims of von Munsterberg and the biting critique of Wigmore
has grown and is belatedly maturing. The chapters in this volume
describe the beginning of adulthood for the field of psychology and
law.
References
Diamond, Shari S. (1989). Using psychology to control law: From deceptive
advertising to criminal sentencing. Law and Human Behavior, 13, 239-252.
Heuer, L. & Penrod, S.D. (1989). Instructing jurors: A field experiment with
written and preliminary instructions. Law and Human Behavior, 13, 409-
430.
Horowitz, LA. & Bordens, K.S. (1990). An experimental investigation of pro
cedural issues in complex tort trials. Law and Human Behavior, 14, 269-
287.
Lockhart v. McCree, 476 U.S. ]62 (1986).
Foreword IX
MarshalI, J. (1969) Law and psychology in conflict. New York: Doubleday-
Anchor. (Original work published in 1966)
Maryland v. Craig, 110 S.Ct. 3157 (1990).
McCleskey v. Kemp, 481 V.S. 279 (1987).
von Munsterberg, H. (1908). On the Witness Stand. New York: Doubleday.
Price Waterhouse v. Hopkins, 109 S.Ct. 1775 (1989).
Saks, M. (1986). The law does not live by eyewitness testimony alone. Law
and Human Behavior, 19, 279-280.
Tapp, J.L. (1976). Psychology and the law: An overture. In M.L. Rosenzweig
and L.W. Porter (eds.), Annual review 01 psychology, Vol. 27. Palo Alto,
CA: Annual Reviews.
Preface
The Handbook 01 Psychology and Law is intended for professional
audiences in the fields of law, psychology, and psychology and law. Its
purpose is to acquaint legal scholars and practitioners with the range of
empirical research being conducted on legal issues and to acquaint
psychologists with the range of legal issues to wh ich psychological
theories and research methodologies are applicable. In short, we at
tempted to map the boundaries of the field of psychology and law,
indicating those areas where research has been conducted and where
unexplored territories await. And there is indeed a good deal of un
explored territory remaining.
The narrow focus of psycholegal research continues to be the
despair of writers in the field (e.g., Tremper, 1987). Most recently,
the current editor of Law and Human Behavior, the official journal of
the American Psychology-Law Society, repeated the previous editor's
lament over the limited range of topics represented in its articles (Saks,
1986, 1989). In the first 12 years of Law and Human Behavior, the
topics of the expert witness, jury decision making, and eyewitness
testimony accounted for almost one third of the articles published
(Roesch, 1990).
Our own informal content analysis of the most prominent psycho
legal journals confirms their criticisms. Table 1 presents the major
areas of law that might be offered in a law school curriculum and
the number of psycholegal research articles in that area published in
Law and Human Behavior (vols. 1-14, 1977-1990), Law and Society
Review (vols. 1-24, 1966-1990), Behavioral Science and the Law
(vols. 1-7, 1983-1990), Law and Psychology Review (vols. 1-13,
1975-1989), and Law and Social Inquiry (formerly American Bar
Foundation Research Journal, 1976-1990). Much of the empirical
research has been limited to the two legal areas of mental health and
of court and court-related processes.
The chapters in this text are organized by area of law, with a final
section presenting psycholegal professional issues. The topics of the
jury, the eyewitness, and the expert witness are covered here, of
course, but so are other topics from the criminal and the civillaw. We
offer chapters contributed by the established scholars in the field, as
xi